HONOLULU (CN) - Gov. Neil Abercrombie will not defend a state ban on gay marriage, but the state official who issues marriage licenses will defend the state in a lawsuit filed before Hawaii legalized same-sex civil unions this year.
Natasha Jackson and Janin Kleid, a same-sex couple living on east Oahu, sued the state in Federal Court in December, a month before Hawaii became the seventh state to allow civil unions.
The state law took effect on Jan. 1.
Jackson and Kleid sued Abercrombie and Department of Health Director Loretta Fuddy, for denying them a marriage license in November.
The women claimed Hawaii denied them due process and equal protection.
They claimed the state's "marriage amendment" conflicted with Attorney General Eric Holder's February 2011 letter to Congress, determining that Section 3 of the federal Defense of Marriage Act unconstitutionally limits marriage to unions between opposite-sex couples.
In January, Gary Bradley joined as plaintiff, claiming that although he and his partner were the first same sex-couple to be joined under Hawaii's new civil union law, he felt it "futile" to apply for a marriage license.
Hawaii's Attorney General David Louie filed the state's conflicting answers to the complaint this week.
Abercrombie said he would not defend the heart of the complaint. He acknowledged the plaintiffs' claims violation of due process and equal protection.
"Under current law, a heterosexual couple can choose to enter into a marriage or a civil union. A same-sex couple, however, may only elect a civil union. My obligation as governor is to support equality under law. This is inequality, and I will not defend it," Abercrombie said in a statement.
Abercrombie's statement acknowledged that the state law "violates the Due Process Clause and Equal Protection Clause of the United States Constitution because the right to marry is a fundamental right, and there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex. ... By denying all same-sex couples the ability to marry, state law discriminates on the basis of sexual orientation, and there are no compelling, substantial, or even rational bases for such discrimination."
Abercrombie said he would, however, defend the state from any civil rights liability or monetary damages under federal law.
Health Department Director Fuddy, however, said she would defend the ban on same-sex marriage, citing it as her official duty.
Fuddy said in a statement: "The Department of Health is charged with implementing the law as passed by the Legislature. Absent any ruling to the contrary by competent judicial authority regarding constitutionality, the law will be enforced. Because I am being sued for administering the law, I will also defend it."
Attorney General Louie said that both Abercrombie and Fuddy will be "vigorously, and separately, represented" by separate teams of attorneys.