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Federal judge in Hawaii rules against couples seeking marriage equality

Jackson Marriage Equality Trials

By Jacob Combs

Some disappointing news out of Hawaii, where late yesterday a federal judge ruled against two women seeking to bring marriage equality to the Aloha State by opposing the states civil unions law in the case Jackson v. Abercrombie. “Hawaii’s marriage laws are not unconstitutional,” district court Judge Alan C. Kay wrote in his ruling, which continued (via the Sacramento Bee):

“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.

In the ruling, Judge Kay also denied a request by the Hawaii Family Forum, the Christian group defending the law, seeking to remove Gov. Neil Abercrombie as the named defendant in the case. In an unusual twist, Abercrombie, who personally supports marriage equality, found himself on both sides of the case as a defendant who in fact supports the case of the plaintiffs. In a statement, Abercrombie said that he opposes the court’s ruling and will join with the plaintiffs in any appeal they file:

“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.”

Without a doubt, the Hawaii court’s ruling, particularly the language about marriage being ‘reconstructed,’ is a frustrating one. We’ll have more analysis of the ruling to come.


  • 1. jpmassar  |  August 9, 2012 at 8:07 am

    Link to the decision?

  • 2. wes228  |  August 9, 2012 at 8:10 am

    Hopefully we can get a favorable panel on the 9th Circuit.

    In order to win on this issue we will need a definitive ruling by the Supreme Court that gays are entitled to heightened scrutiny. I am still curious however, what rational basis the judge could give for a "separate-but-equal" civil unions system that Perry v. Brown states serves no purpose but to confer an inferior symbolic designation on same-sex couples.

    The judge bringing tradition into the picture is also inappropriate as the Supreme Court has ruled that tradition is not a rational basis for a law (see Lawrence v. Texas).

  • 3. wes228  |  August 9, 2012 at 8:11 am

    Also, the fact that an issue is divisive, as the 9th Circuit noted in Perry v. Brown, does not mean that courts can shy away from it and must punt the issue to the legislatures or voters.

  • 4. davep  |  August 9, 2012 at 9:10 am

    In fact, that's one of the main reasons it SHOULD be decided by the courts, and the courts should decide it on the basis of basic constitutional law as was done in the Prop 8 case. That's the whole reason we have the federal courts in the first place – to protect and restore the rights of individuals or groups from an unjust legislature or unjust majority rule decision. The courts are the vehicle for assuring the legislature and the majority do not abuse the legislative or voting process to harm citizens with unconstitutional civil laws (assuming the courts do their job and base their decisions on constitutional law – ahem, talking to YOU , Hawaii).

  • 5. SoCal_Dave  |  August 9, 2012 at 9:19 am

    I'm confused. The judge said this should be done through a constitutional amendment. But we already have one. #14.

  • 6. AnonyGrl  |  August 9, 2012 at 9:34 am

    This is disappointing. The judge seems to be abdicating his responsibility in this issue. It is certainly the responsibility of the courts to rule on this issue when brought before them, and tne way I read what he wrote is that while he did say it was not unconstitutional, he didn't back that up with any law, merely "legislatures and the people should decide" which doesn't address the complaint, as I see it,

    Hopefully the 9th Circuit will fix this,

  • 7. Larry  |  August 9, 2012 at 9:43 am

    He did apply the law, just not in the way we would have liked. He said that Hawaii's law satisfied rational basis review because of responsible procreation. And since there is a "debate" about the fitness of same sex parents, that satisfies a rational basis. That the "debate" is incredibly lopsided was irrelevant to him. That he chose rational basis of heightened scrutiny is a matter for higher courts to review. And I agree, this isn't going to work until we have heightened scrutiny. My main question is will SCOTUS use heightened scrutiny on the DOMA cases, or dodge the issue by ruling on rational basis?

  • 8. Str8Grandmother  |  August 9, 2012 at 9:51 am

    Here link to the decision

  • 9. rocketeer500  |  August 9, 2012 at 10:27 am

    The problem with this Judge's decision is that he's basing his opinion on old case history. He's referencing Baker v. Nelson and High Tech Gays v. Defense Indus. These two cases, have been shown that they don't apply any longer.

    He's using "traditional values" reasoning, and the Supreme Court has said on several occations that "tradition" is not how to apply the constitution. He even said:

    "Specifically, the legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently conceived outside of astable, long-term relationship."

    Hopefully, the Appeals Court will reverse his decision and, quite possible, "scold" him on his reasoning.

  • 10. davep  |  August 9, 2012 at 10:27 am

    So the judge used the same completely irrational and false 'logic' about 'responsible procreation' that has already been completely debunked in previous trials? It's pretty simple stuff:
    While the state may have a valid interest in encouraging 'responsible procreation' among opposite-sex couples who may accidentally or irresponsibly have children, denying same-sex couples access to civil marriage does nothing at all to support any such states interest. There simply is no logical connection and thus no rational basis for the law. It does not achieve the stated goal.

  • 11. David  |  August 9, 2012 at 10:28 am

    I think the judge showed his political affiliations in his choice of language, especially the inclusion of the phrase "constitutional amendment". They absolutely should appeal this. The next judge may not be so obviously on the side of "traditionalists".

  • 12. wes228  |  August 9, 2012 at 10:30 am

    I do not appreciate the judge's use of loaded terms like "traditional marriage" or hinting that courts should punt "divisive" issues regarding minority rights to the vote of the people, but I can respect his rationale for this decision.

    Rational basis review does not require any scientific evidence to support the basis claimed by the government. The fact that there is a debate about the fitness of same-sex parenting and that many people perceive it as inferior is sufficient justification under this incredibly lax standard of review to want to pass laws that want to promote opposite-sex parenting over same-sex parenting, any scientific evidence to the contrary notwithstanding. I believe that a law banning same-sex marriage is perfectly constitutional under rational basis review, however I also believe that strict scrutiny is the only appropriate level of review for laws that distinguish based on sexual orientation.

    District Courts in the 9th Circuit will be hesitant to apply anything greater than rational basis to gay issues because of a 9th Circuit decision requiring rational basis review. However, this decision was pre-Lawrence and was based on the fact that since same-sex conduct could be criminalized (due to the now-defunct Supreme Court decision in Bowers v. Hardwick), rational basis must be used. This precedent has been so severely undercut that I do not see it as good law, and I think that if the judge here did use rational basis review, he should have taken more time to examine the possibility of applying a heightened standard.

    There is also the question of Baker v. Nelson, which like it or not is still binding Supreme Court precedent. Plaintiffs in this case seek a right to marry someone of the same sex, a right that had previously never had access to and are now seeking to establish. This aligns too precisely with Baker v. Nelson. Instead of injecting his decision with political rhetoric, the judge should have simply dismissed the case on this basis alone.

  • 13. Steve  |  August 9, 2012 at 10:57 am

    Any judge still relying on High Tech Gays needs to have their head examined. This is an unfortunate precedent in the 9th Circuit, but by now it is well known to no longer be good law. It's based on Bowsers, which has been overturned in Lawrence. It's no surprise that a judge who so completely buys the religious right's silly "arguments" doesn't have the courage to say so, but someone else has to.

  • 14. Anthony  |  August 9, 2012 at 11:01 am

    I really hope they decide to appeal this to the 9th Circuit and request an En Banc hearing. It's obvious the level of scrutiny needs to be clarified and I believe that the LGBT community deserves heightened scrutiny (WE MEET ALL OF THE QUALIFICATIONS!). An En Banc hearing can give us the level of scrutiny that we have been needing in order to get our rights.

    I hope the judges on the 9th Circuit agree that these cases aren't going away anytime soon, and will vote to hear the trial En Banc.

  • 15. Mike  |  August 9, 2012 at 11:03 am

    Not a great ruling but federal case law is generally not on our side after decades of judges punting on heightened scrutiny and protected class.

    But this was always a shaky case and even a positive ruling would have been appealed for 2 years. I expect Hawaii to pass a marriage law before this case hits SCOTUS.

  • 16. davep  |  August 9, 2012 at 11:11 am

    …OK, I've read through much of the ruling to try to see how the judge could possibly be applying the 'responsible procreation' argument in any way that is not obviously irrational and irrelevant. In a nutshell, it appears the decision is saying 'granting civil marriage rights to opposite sex couples is done because the state has an interest in these couples engaging in responsible procreation…. and it's true that denying same sex couples access to civil marriage does NOT support this states interest… but hey, it doesn't NOT support it either, in fact it has no effect on the marriages of opposite sex couples (well, duh!) so it's OK to single out same sex couples for denial of equal treatment'. Huh??

    It seems the judge has answered a question that was not asked.

    The question was 'does denying same sex couples access to civil marriage support any valid states interest?'

    The question was NOT 'does granting same sex couples access to civil marriage support a states interest or help other couples?'

  • 17. New  |  August 9, 2012 at 11:16 am

    Reconstructed LOL
    verb – re•con•struct
     1. to construct again; rebuild; make over.
    That sounds as if allowing same sex marriages, the institution will have to be remodeled & redecorated or something. I didn't know teh gay bridezillas, were that demanding.
    Another LOL: " the traditional institution of marriage" wich no judge have ever had a say on it, never, ever.

  • 18. wes228  |  August 9, 2012 at 11:28 am

    I think if the Supreme Court overturns DOMA as they are expected to next summer we can finally put Baker v. Nelson to rest. Baker v. Nelson decided that the issue of marriage equality did not pose a substantial federal question. If DOMA is invalidated by the Supreme Court, married gay couples will have access to federal benefits that those gay couples trying to get married in states that forbid it will not be able to obtain. The Supreme Court, in opening federal marriage benefits to same-sex couples, will tacitly be acknowledging that equal marriage does pose a federal issue.

    Perhaps the DOMA decision itself will not just say that Baker doesn't apply but go the full step and outright declare that it is no longer valid precedent. The DOMA decision may also address the question of scrutiny — although if the Supreme Court finds that rational basis "with bite" can get rid of the law (which is most likely) they may not even address the issue (neither saying that heightened scrutiny nor rational basis must apply, but rather continue to ignore the question altogether as they have always been doing.)

    The DOMA cases will be the turning point on this issue. A lot hinges on those lawsuits.

  • 19. davep  |  August 9, 2012 at 11:47 am

    ..The more I read this, the more it looks like this decision is trying to simply avoid the real constitutional question.
    1. The Equal Protection clause requires that laws cannot classify and single out one group of citizens for unequal treatment unless failing to do so would result in harm (that's why it can be argued that people with certain criminal records can be singled out for denial of the right to own a gun, etc.).
    2. This decision AGREES that granting same sex couples access to civil marriage has no effect on other marriages and does not interfere with any states interests in things like 'encouraging responsible procreation' among those other couples who may accidentally procreate.
    3. But this court then concludes that, since same sex marriage has no effect on any states interest, it is not necessary for the law to provide equal treatment. >>FAIL<<.
    4. 'Having no effect on any states interest' is the same as 'not causing harm', and therefore a law that denies equal treatment, and which would not cause harm if repealed, is clearly in violation of the Equal Protection clause.
    Am I missing anything?

  • 20. Str8Grandmother  |  August 9, 2012 at 12:50 pm

    Wess, actually the Judge used that deeply flawed new research out of Texas the Mark Regnerus research that (falsely) shows gays make bad parents. Here are some links on that

    Who signed objection letter downloadable

    Informative article

    Blog of Doctor Sherkat who did the audit

  • 21. Straight Ally #3008  |  August 9, 2012 at 12:51 pm

    Bottom line, as I see it. Once upon a time, homosexuality was a DSM mental disorder, no doubt informed at least in part by prevailing religious attitudes. That is no longer the case; sexual orientation is recognized as an inherent trait. People are being discriminated against, i.e. barred from a civil contract available to their straight peers, due to an inherent trait. Framing it any other way lets the other side go on and on about polygamy and incest. Cut it down to the simplest argument and move ahead.

  • 22. Jamie  |  August 9, 2012 at 1:17 pm

    The Judge's point is that we can give benefits to certain groups if there is a rational reason. For example, a state could say we'll give $5 to any driver that hasn't had a car accident last year. You could claim that bicyclists should be included in the law as well, but there is no requirement that they should be included, so the state could continue to exclude them.

    I think the larger flaw in his reasoning is that allowing infertile couples to marry doesn't encourage procreation, so the argument as to why the state is incentivizing marriage doesn't make sense.

  • 23. davep  |  August 9, 2012 at 1:47 pm

    There are at least two flaws.
    1) The one you mentioned (the desire and/or ability to procreate and/or raise children are not inherent in all opposite sex marriages nor are they all inherently absent in all same sex marriages) and
    2) The fact that the question is NOT 'is there a rational basis for encouraging couples who might procreate to do so within a civil marriage'. The question is 'is there a rational for DENYING same sex couples access to civil marriage'? That's the whole reason for the trial and the whole point of a 'rational basis' argument. If a law denies equal treatment, there has to be a rational basis FOR THAT DENIAL OF EQUAL TREATMENT. The law, and the resulting denial of equal treatment, must serve a valid purpose or it is violating the Equal Protection clause.

  • 24. wes228  |  August 9, 2012 at 2:05 pm

    1) The problem is that while there must be some link between what the law's rational basis is and what it actually does, rational basis review will uphold the law even if this link is imperfect.

    2) The fact that allowing same-sex couples to marry does not affect responsible procreation is more of a policy argument to be taken up in a legislature than a judicial argument, as it presumes that same-sex couples have a right to marry in the first place. Under rational basis review, the law being challenged (e.g. marriage is for heteros only) is presumed constitutional, not the other way around.

    This being said, rational basis review is wholly inappropriate for laws that discriminate against gay people.

  • 25. davep  |  August 9, 2012 at 5:00 pm

    But it doesn't even pass rational basis review. While there may be a rational basis for a state to PROVIDE access to civil marriage for couples who MAY procreate irresponsibly, there is NO rational basis for DENYING access to civil marriage to those couples who do NOT procreate irresponsibly. Doing so does not support the stated intention of 'encouraging responsible procreation' at all, nor does it support any other valid states interest.
    And the Constitution does not attempt to list every individual right to which people are entitled, but I would argue that the 'presumption' is that same sex couples ARE entitled to equal protection under the law, unless there's a valid reason to deny the equal rights, and there aren't any for this issue. The law may not deny equal protection without a valid reason or it violates the Equal Protection clause.

  • 26. wes228  |  August 9, 2012 at 5:02 pm

    Can someone clarify the role that the Findings of Fact in Perry v. Brown should have played in this case? While the 9th Circuit affirmed the District Court's ruling on narrower grounds, didn't they still affirm the Findings of Fact in that decision? Those Findings of Fact do state that same-sex parents are equally capable as opposite-sex parents. Thus, in the 9th Circuit this should not longer be a valid question.

  • 27. wes228  |  August 9, 2012 at 5:11 pm

    If rational basis is used, then the law being challenged is presumed constitution and the burden of proof is on you to prove otherwise. This is flipped under strict scrutiny.

    The "rational basis" is that by opening marriage up to same-sex couples, the institution of marriage is severed from its role of providing stable relationships for couples who engage in procreative activity. Marriage would, in a sense, be "watered down" to mean merely a contractual relationship between two parties and would lose its ties to its procreative purposes. I personally don't buy into this, however it is probably sufficient to justify rational basis review given how extremely deferential that standard is to the government.

    Another rational basis is that it is society's opinion that children are best raised in opposite-sex households and thus same-sex couples should not be encouraged to rear children by providing them with the legal ability to form a family. Again, scientific evidence does not have to be considered under rational basis.

    Another possibly rational basis that I haven't heard anyone ever suggest but I think could work is that opposite-sex relationships are preferable to same-sex relationships, and that by denying same-sex couples the right to marry the government thus has the possibility of lowering the number of same-sex relationships as it could conceivably convince some bisexuals to form relationships with people of the opposite sex.

    Rational basis allows government to enact such laws based on policy preference (e.g. opposite-sex relationships are better than same-sex ones). However, policy preference does not rise to the level of "compelling government interest" required under strict scrutiny.

  • 28. SHOES THROWER  |  August 9, 2012 at 5:50 pm

    The 9th Circuit might not get the chance to rule.

    I would not be surprised if plaintiffs petitioned the Supreme Court for a writ of certiorari before judgment the same day or the day after filing notice of appeal. In addition to the petitions by the Proposition 8 proponents and the state of Arizona, pro- and anti-DOMA forces are petitioning the Supreme Court to rule on this very issue. There would be no point for litigants to wait for a Ninth Circuit ruling when a Supreme Court decision may upend the precedents on which they are relying.

  • 29. SHOES THROWER  |  August 9, 2012 at 5:54 pm

    No, they did not rely on the findings of fact.

  • 30. wes228  |  August 9, 2012 at 6:04 pm

    But should the court have? In other words, how much precedential value are findings of fact from one case given in another?

  • 31. wes228  |  August 10, 2012 at 5:01 am

    This has nothing to do with DOMA.

  • 32. fiona64  |  August 10, 2012 at 9:08 am

    I can't help wondering if this is our same pedantic little friend, the failed real estate agent who liked to pretend he was a lawyer. You know, the guy who was banned? (I have fortunately forgotten his name). The style here looks awfully familiar.

  • 33. SHOES THROWER  |  August 10, 2012 at 9:36 am

    If DOMA is upheld by the Supreme Court, I fail to see how litigation like the Hawaii lawsuit can succeed.

  • 34. davep  |  August 10, 2012 at 9:38 am

    Perhaps because they are two separate legal issues.

  • 35. Mike in Baltimore  |  August 10, 2012 at 3:32 pm

    One of the reasons given by SCOTUS for heightened scrutiny is that the plaintiffs have a lack of political power (the opposite being politically powerful, where rational basis would be used).

    If the GLBT community was actually politically powerful, would any of these laws be on the books?

  • 36. Mike in Baltimore  |  August 10, 2012 at 3:53 pm

    Rational basis is the default level of review; however, rational basis review does not usually apply in situations where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated.

    Congress (and by extension, states) is required to have a rational basis for legislation that, without it, might violate a right of a person under the U.S. Constitution's Fourteenth Amendment's Equal Protection Clause but is not required to validate scientific conclusions to the same degree that may be required in academic science; rather, the legislative reasoning must not be arbitrary.

  • 37. Mike in Baltimore  |  August 10, 2012 at 4:10 pm

    At one time, people who were left-handed were severely looked down upon by society, so much that laws were passed to make exhibiting left-handedness illegal.

    I'm not talking centuries ago about the discrimination against people who were left-handed. Apparently I showed signs of being left-handed when I was young, and my mother forced me to write with my right hand. Her 'excuse'? To save me from being discriminated against because I was left-handed.

    That attitude was illogical then, and it's illogical now. Same with having a sexual orientation 'different from the norm'.

  • 38. SHOES THROWER  |  August 13, 2012 at 12:10 am

    One problem that I have with this ruling is that it assumed that Hawaii's constitution did not mandate recognition of same-sex marriage, merely because the Hawaii Supreme Court never ruled so. See op. at 42.

    Defendant Abercrombie asserted that the Hawaii marriage amendment took away same-sex couples' ‘right’ to same sex marriage absent the state’s ability to satisfy strict scrutiny.” Abercrombie’s Mot. Mem. 6, quoted in op. at 46. The Court was correct in opining that the pre-1998 constitution required the state to recognize their marriages, and as such, Defendant Abercrombie's argument is insufficient. But neither was the Court correct in concluding that same-sex couples did not have a right under Hawaii law to marry prior to 1998.

    “The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples.
    Accordingly, whether or not in the past it was violative of the
    equal protection clause in the foregoing respect, HRS § 572-1 no
    longer is.
    Baehr v. Miike, No. 20371,
    1999 Haw. LEXIS 391 at *6 (emphases added) Like Proposition 8, the Hawaii amendment established "a new substantive state constitutional rule" Perry v. Brown, 671 F.3d 1052 at 1084 (Feb. 5, 2012) Whether this rule repealed a requirement for the state to recognize same-sex marriage depends on "whether or not in the past…[refusing to recognize same-sex marriage] was violative of the [Hawaii] equal protection clause.

    Therefore, this Court should have certified a question to the Hawaii Supreme Court, asking if Hawaii's marriage laws violated the pre-1998 Hawaii constitution.

    (And yes, I disagree with the Perry ruling. But unless and until it is overruled or vacated by a subsequent 9th Circuit en banc or Supreme Court ruling, lower courts must follow it.)

    I would grade this ruling I for Incomplete.

  • 39. SHOES THROWER  |  August 13, 2012 at 11:19 am

    I think the similarities are more important than the differences.

  • 40. Mike in Baltimore  |  August 13, 2012 at 9:42 pm

    I used to work with a guy who got married, then the wife accidentally got pregnant (the condom broke is the excuse Peter gave, but the couple were anti-anything that interfered with conception, so who knows the REAL reason).

    One of my uncles got a woman pregnant, then they married about six months before one of my cousins was born. Later on, her two brothers were born.

    In both cases, divorce of the married couple occurred prior to the youngest child being of age to be in high school.

    So even though marriage provides an inducement for opposite-sex couples to marry, it does NOT mean the relationship is guaranteed to be a long-term and stable relationship, thus best for the 'resultant children'.

    And reading that comment, and the judge's statement in his decision, it makes little to no sense as to what inducement marriage provides to cause an opposite-sex couple to marry. For one thing, even if marriage provides an inducement for procreation, procreation can and does occur outside opposite-sex marriages. And where does that leave adoptions, invitro fertilization when one or both spouses have trouble conceiving due to 'organ problems', etc.

  • 41. Mike in Baltimore  |  August 13, 2012 at 9:56 pm

    "Therefore, this Court should have certified a question to the Hawaii Supreme Court, asking if Hawaii's marriage laws violated the pre-1998 Hawaii constitution."

    So a Federal Court can pass the case to the state court system of Hawaii?

    And I thought that question was, in effect, answered in the 1992 case that led to the 1998 Constitutional Amendment (which authorized the Hawai'i legislature to pass a law on what the definition of marriage in Hawai'i was.) After all, the main reason given for DOMA was the fear that Hawai'i would legalize marriage equality, and the backers of DOMA didn't want it to spread to any other state.

    By the way, wish all you want for a 9th Circuit 'en banc' hearing on Perry, but the 9th has already denied that procedure for Perry.

  • 42. Prop 8 Trial Tracker &raq&hellip  |  September 13, 2012 at 9:10 am

    […] making its way through the court system, Jackson v. Abercrombie, in which a district court judge ruled just this week against gay couples seeking full equality in the state.  If either case makes its […]

  • 43. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 9:02 pm

    […] the state’s ban on marriage equality.  In early August, a district court judge in Hawaii ruled against the two women; about a month later, both the governor of Hawaii, Neil Abercrombie, and the […]

  • 44. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 9:21 pm

    […] federal marriage equality lawsuit, Jackson v. Abercrombie, resulted in a loss for the plaintiffs in district court. The judge applied a form of rational basis review in which he […]

  • 45. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 4:49 pm

    […] of review, and the court may use “rational speculation” (as did the district court in the Hawaii case Jackson v. Abercrombie, an even more lenient form of judicial review (4) strict scrutiny is barred by circuit precedent […]

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