Hawaii Judge Throws Out Gay Marriage Ban Challenge


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.

Reports the Washington Post:

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.


Related Reading:
Lesbian Couple Suing Hawaii B&B Over Discrimination
Hawaii’s Trans Workplace Nondiscrimination Bill Goes To Governor’s Desk
Senators Back Repealing the Defense of Marriage Act

Image used under the Creative Commons Attribution License with thanks to netsu.


Terry V.
Terry V5 years ago

There are no vaccines against STUPIDITY.......


Carole R.
Carole R5 years ago

Thanks for the post.

Kandice B.
Kandice B5 years ago

In light of this article I again ask the question, "Since when is it okay to vote, appeal, or deny a person to get married?" I don't recall having any straight people asking me IF they COULD have my permission to get married LEGALLY...when will people be treated as equals with nothing race or gender seen as inferiority?!

Ajla C.
Past Member 5 years ago

Razumijem zasto se bore,ali proci ce godina i godina da ljudi prihvate istospolne brakove.
Ljudi se najvise boje onoga sto ne razumiju,i to u njima izaziva paniku i zato i zauzimaju odbrambeni stav po pitanju seksualne orijentacije,

Joan S.
Joan S5 years ago

This guy reminds me of the judge I had during my "divorce" which of course was not a real certified marriage. Everything pointed to my receiving half of everything and after a months deliberation he denied me everything. And I am on the morgage. These guys are terrified of the Religious zealots that they fear will come after them and are not brave enough to declare that fair is fair and equal is equal and there happens to be this thing of separation of Church and State. I could scream.

Mari Garcia
Mari Garcia5 years ago

It's a civil right, and should be treated as such.

Sally Lloyd
Sally Lloyd5 years ago

Dear Mark K.

You are wrong rights are recorded. The Bill Of Human rights for instance.

And the reason that marriages are recorded is so thare is a record of them having taken place at the venue where the people get married. Also the fees are to pay for processing the marriage licence which shows that the people concerned can get married.

Plus the act of getting married is not the right. The right is for people to be able to get married irrespective of wether they are Gay or not.

I think that saying that the federal government should deal with this is an easy out and stops a judge from having to make the choice and thus showing his/her hand in this matter.

Robert O.
Robert O5 years ago

Mark K., there may be records and fees involved but that in no way diminishes its validity or the fact that it is a human right that should be available to all people regardless of sexual orientation, gender, race, etc. Equal rights are human rights.

Rebecca Hadley
Rebecca Hadley5 years ago

Mark K... Marriage may not be "a right" but it comes with RIGHTS. And you quote you, "Just when will you people get this through your heads???"

Gary Stewart
Gary Stewart5 years ago

"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." Has this judge bothered to check infidelity rates or the number of heterosexuals having sex outside of marriage?