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Federal Judge Upholds Hawaii’s Lack of Marriage Equality

Judge Alan Kay rules that Hawaii’s marriage laws, which prohibit gay and lesbian couples from marrying, are constitutional, rejecting a lesbian couple’s claim that the laws violate their Fourteenth Amendment rights.  In a 120-page opinion, Judge Kay writes that “Hawaii’s marriage laws are not unconstitutional,” and says that “[i]f the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature of the people through a constitutional amendment.”

Judge Kay, a Reagan appointee, bases his ruling in part on the 1971 Supreme Court case Baker v. Nelson, in which the Court issued a summary dismissal of a Minnesota gay couple’s claim that it was unconstitutional for the state to deny marriages to gay and lesbian couples.  Because of Supreme Court precedent at the time, that decision is considered a ruling on the merits and thus stands as precedent, so, as Kay writes in his opinion, the Supreme Court’s lack of an explicit overturning or modification of the Baker dismissal limits lower courts’ ability to hear challenges like those in Jackson.

When a federal court considers an equal protection challenge to a law that applies certain rules to specific groups of people, that court must decide the level of constitutional scrutiny it will apply.  Essentially, the question before the court when it comes to scrutiny is whether or not a law should be looked at deferentially, as though it is likely to be constitutional, or whether it should be considered critically, as though it is likely to be unconstitutional.

In his ruling, Judge Kay argues that gays and lesbians should not be considered a suspect class meriting heightened judicial scrutiny.  In making this determination, Judge Kay relies on the 1990 Ninth Circuit decision in High Tech Gays which ruled that gays and lesbians do not constitute a suspect class.  The reasoning of High Tech Gays, however, was based on the Supreme Court’s decision in Bowers v. Hardwick which upheld sodomy laws across the United States, a ruling that was explicitly disavowed by the high court in its 2003 ruling in Lawrence v. Texas.

In his ruling, Judge Kay writes that “because a fundamental right or suspect classification is not at issue” in the case (asserting that there is no fundamental right to marry somebody of the same sex), the plaintiffs’ claims should be considered under the most deferential rational basis scrutiny test.

Judge Kay then goes on to argue that Hawaii’s ban on marriage equality does not violate the U.S. Constitution because the state has legitimate reasons to offer marriages only to straight couples.  In his ruling, he writes, “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.  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.”

Judge Kay’s opinion references the Ninth Circuit’s decision in Perry v. Brown, the Prop 8 case, that Proposition 8 violates the U.S Constitution, but argues that the ruling in that case is not controlling on Jackson because the Ninth Circuit specifically limited its decision to California only.  In addition, Judge Kay notes that California’s Proposition 8 prohibited both the courts and the legislature of California from restoring marriage equality to the state, putting it only in the hands of the people and making another constitutional amendment necessary to modify it.  In Hawaii, he writes, Amendment 2 left it to the state legislature to decide the definition of marriage.

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