August 9, 2012 | by Chris Johnson
Hawaii court upholds same-sex marriage ban

A district judge in Hawaii upheld the state’s same-sex marriage ban

A federal district court in Hawaii has upheld the state’s constitutional ban on same-sex marriage in a ruling that stands in stark contrast to recent multiple decisions that have struck down the Defense of Marriage Act and Proposition 8.

In the 120-page ruling, U.S. District Judge Alan Kay determined the Aloha State’s ban on same-sex marriage is constitutional because Hawaii has a legitimate interest in restricting marriage to straight couples.

“The legislature could rationally speculate that by reserving the name ‘marriage’ to opposite-sex couples, Hawaii’s marriage laws provide special promotion and encouragement to enter into those relationships advancing societal interests while the civil unions laws protect the individual interests of same-sex couples,” Kay writes. “In the absence of a suspect or quasi-suspect classification or a restriction on a fundamental right, the Fourteenth Amendment does not require Hawaii to endorse all intimate relationships on identical terms.”

The lawsuit, known as Jackson v. Abercrombie, was filed in December by D’Amato and Maloney, LLP, a Honolulu-based firm, on behalf of three plaintiffs: Natasha Jackson and Janin Kleid, two women in a same-sex relationship, and Gary Bradley, who’s in a civil union with his male partner.

Kay lays out numerous reasons for upholding the ban, including the idea that limiting marriage to opposite-sex couples ensures procreation and promotes the ideal family situation of having a mother and father. Additionally, Kay rules that to “constitutionalize” the issue in the courts would interfere with the process taking place in the legislature.

“Nationwide, citizens are engaged in a robust debate over this divisive social issue,” Kay writes. “If the traditional institution of marriage is to be restructured, as sought by Plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”

An appointee of former President Reagan, Kay draws on the case of Baker v. Nelson, the 1972 marriage case that the Supreme Court declined to hear for want of federal questions, as a reason to uphold the ban, but declines to incorporate rulings against California’s Proposition 8 in the case of Perry v. Brown in his determination.

The decision upholding a state’s marriage ban is relatively unique amid a string of victories against California’s Proposition 8 and DOMA. Within the course of three years, a district court and an appeals court have ruled against California’s marriage ban, while five district courts, one appeals court and one bankruptcy court have ruled against DOMA.

Douglas NeJaime, who’s gay and a professor at Loyola Law School, said the constitutionality of DOMA and the federal constitutionality of Hawaii’s prohibition on same-sex marriage present materially different questions, but acknowledged the court notably departs from recent rulings by finding that Baker v. Nelson governs and by accepting arguments rooted in procreation.

“The other notable thing is that the court takes the Ninth Circuit at its word when it said that Perry applies only to the specific and unique situation of California, such that — as opposed to what many have been suggesting, including social-conservative activists – the Perry decision did not necessarily decide the issue for states like Hawaii, Washington, Oregon and Nevada,” NeJaime said.

The ruling comes in a state that arguably is the birthplace of the modern movement for same-sex marriage. In early 1993, the Hawaii Supreme Court ruled that refusing to grant same-sex couples marriage licenses is discriminatory. Backlash followed, including the passage of a voter referendum in 1998 allowing the state legislature to constitutionally ban same-sex marriage. The events in Hawaii also were an impetus for passage of the Defense of Marriage Act of 1996.

Still, Hawaii has seen recent movement granting legal recognition to same-sex couples. Gov. Neil Abercrombie (D) signed civil unions legislation into law last year. Further, he announced in February he wouldn’t defend the same-sex marriage ban in court, while Health Director Loretta Fuddy said she’d continue defending the amendment.

An anti-gay group was happy with the decision. Dale Schowengerdt, legal counsel for Alliance Defending Freedom, which took up defense of the marriage ban after Abercrombie declined to defend it, praised the ruling.

“This ruling affirms that protecting and strengthening marriage as the union of one man and one woman is legitimate, reasonable, and good for society,” Schowengerdt said. “The people of Hawaii adopted a constitutional amendment to uphold marriage, and the court rightly concluded that the democratic process shouldn’t be short-circuited by judicial decree.”

But proponents of the lawsuit said they were eagerly awaiting an appeal in the case.

John D’Amato, partner and co-founder D’Amato and Maloney, said he’s “disappointed” in the ruling and plans to appeal. The court that would have jurisdiction for appeal would be the U.S. Ninth Circuit Court of Appeals, which has already ruled against California’s same-sex marriage ban.

“The judge basically found in every conceivable point for defendants in the case, including on arguments that we find personally objectionable, which is that it’s OK to treat same-sex couples as second-class citizens because they make second-rate parents,” D’Amato said. “He didn’t need to reach that issue, and the fact that he did, we find, frankly, appalling.”

Following the ruling, Abercrombie issued a statement saying he’d back an appeal.

“I respectfully disagree and will join the Plaintiffs if they appeal this decision,” Abercrombie said. “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.”

Donald Bentz, executive director of Equality Hawaii, said the court ruling against marriage equality was expected given “this particular judge’s temperament,” but added he’s eagerly awaiting an appeal in the case.

“Judge Kay cited a 40-year-old case and antiquated beliefs such as straights make better parents and marriage is for breeding children,” Bentz said. “The flawed and out-of-date logic begs for an appeal, which we are eagerly awaiting. This is not a set-back, but an anticipated speed bump. The question is still ‘when will marriage equality will come to Hawaii?,’ not ‘if.’”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • Judge Kay has openly stated that marriage is for breeding. So this opens the door for arguing against the marriage of impotent partners. They too fail to meet the requirements of a pro-creating couple. “The ideal” parents aren’t always opposite sex couples. I know many that are a nightmare to live with. So a bigoted judge gets away with blatant discrimination so who can keep him in check? Over turned within a year.

  • I don’t want to sound sexist, but I notice that this judge is 80 years old and on “senior” status, i.e., semi-retired. I wonder if he has kept up with recent rulings or simply stuck in the past. I hope this outrageous decision is appealed.

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