A district court judge on Wednesday threw out a challenge made to Hawaii’s ban on same-sex marriage, saying that the issue should be decided by the Legislature and not the courts.
U.S. District Court Judge Alan C. Kay’s ruling sides with Hawaii Health Director Loretta Fuddy and Hawaii Family Forum, a Christian group that was allowed to intervene in the case.
“Accordingly, Hawaii’s marriage laws are not unconstitutional,” the ruling states. “Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment,” and not through the courts.
The case is Jackson v. Abercrombie, where Natasha Jackson and Janin Kleid are challenging the state’s ban on same-sex marriage as an unlawful breach of their 14th Amendment rights to due process and equal protection. Co-plaintiff Gary Bradley joins the case as someone with a foreign born same-sex partner. While the Obama administration has given great deference to same-sex partnerships when it comes to deportation proceedings against a foreign born partner, the federal ban on same-sex marriage recognition means that such cases often go down to the wire, and it is likely that not being able to secure a state level marriage could throw up yet another barrier.
Judge Kay based his decision in this case on a number of provisions, some of them quite interesting.
In his lengthy opinion the judge pointed out that current precedent set by the Supreme Court of the United States does not recognize sexual orientation as deserving a suspect classification, legalese that basically means discrimination on grounds of sexual orientation need only fulfill a limited government interest in order to stand. Kay said that it was reasonable, then, for the Legislature to conclude that children may benefit from opposite-sex parents given what is traditionally understood as good parenting practice. He also said encouraging marriage defined as a heterosexual union may also reduce birth numbers, the inference seeming to be that a Judeo-Christian view of marriage as it is understood today would preclude sex outside of marriage and therefore reduce birth rates. On these points he concluded that the Legislature was within its power to define marriage as only between opposite-sex couples if it saw a likelihood of such benefits.
This however does skirt around the fact that the 9th Circuit Court of Appeals, which Kay explicitly cites, recently ruled that sexual orientation perhaps should be given a stronger form of scrutiny than has been applied in the past, a quasi-heightened scrutiny if you will, noting that disenfranchisement from marriage is of itself an example of discrimination. Judge Kay also cites arguments that make dubious appeals to tradition, inferring that marriage has and is always used to facilitate procreation, which isn’t factually accurate, and has historically only been between a man and a woman, which is only true up to a point–these details will likely factor in a subsequent appeal.
Perhaps Kay’s strongest point, however, is that the constitutional amendment passed in 1998 that has served to enable the Legislature to prohibit same-sex marriage doesn’t technically ban gay people from marrying but instead “reserves” the power for the Legislature to define gay couples out of marriage. On this basis, Kay gives deference to that legislative power and the will of the then-voting majority. This however skirts the issue of whether the Legislature or the voting public should have in the first place ever had the right to define same-sex couples out of marriage, something that has been touched on in cases like the Proposition 8 trial and current Defense of Marriage Act cases, with several judges at the district and appeals level finding against such a notion.
Governor Abercrombie, who finds himself in the perhaps strange position of being named as a defendant but also backing Plaintiffs in their challenge, released a statement following the ruling saying he believed Judge Kay was in error:
“I respectfully disagree and will join the Plaintiffs if they appeal this decision. To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law. For me this is about fairness and equality.”
Judge Kay on Wednesday also ruled on another matter in this case: whether Governor Abercrombie’s administration should be named at all given that his office does not directly deal with marriage licenses. Judge Kay threw out this challenge, meaning Abercrombie can continue to intervene.
Plaintiff’s lawyers have said they will appeal this ruling.