A Stroke of Judicial Sanity on Marriage

by Ed Whelan, National Review Online August 9, 2012

Via William Duncan at the Corner, I’ve learned of this strong and sound ruling yesterday in Hawaii by senior federal district judge Alan C. Kay holding that there is no federal constitutional right to same-sex marriage. Judge Kay determines (slip op. at 35-43) that the claim for such a right is foreclosed by the Supreme Court’s 1972 decision in Baker v. Nelson. Alternatively, properly applying rational-basis review and judicial restraint, he finds that such claim fails on the merits.

Because the proper exercise of rational-basis review has been so rare of late in the marriage context, I’m going to briefly outline Judge Kay’s reasoning:

1. On plaintiffs’ claim that the right of same-sex couples to marry is a fundamental right protected by the Due Process Clause: There is a fundamental right to marry, but that right has always been understood as the right to enter into a union between a man and a woman. The asserted right to same-sex marriage is a new notion that indisputably is not deeply rooted in this nation’s history and tradition. Therefore, the claimed right to same-sex marriage is not a fundamental right. (Slip op. at 57-68.)

2. On plaintiffs’ equal-protection claim:

a. The traditional definition of marriage does not discriminate on the basis of gender. (Slip op. at 69-70).

b. Binding Ninth Circuit precedent holds that classifications based on homosexuality are not suspect or quasi-suspect. That precedent is unaffected by Lawrence v. Texas. Unlike in Romer v. Evans, there is no basis for inferring that Hawaii’s marriage laws reflect animus against homosexuals. Therefore, rational-basis review applies. (Slip op. at 53-37, 70-79.)

c. There are various interests that the traditional definition of marriage, even alongside a regime of civil unions, can rationally be thought to serve: encouraging the stability of relationships that have the ability to procreate naturally (pp. 98-105); promoting the ideal that children be raised by both a mother and a father in a stable family unit (pp. 105-111); and cautiously experimenting with social change (pp. 111-116).

Congratulations to the ADF team that stepped in to help defend Hawaii’s marriage law after governor Neil Abercrombie declined to do so.

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Federal Court in Hawaii: No Constitutional Right to Redefine Marriage

by William C. Duncan August 9, 2012

There has been a well-publicized string of cases lately in which federal courts have struck down marriage laws like the federal Defense of Marriage Act and California’s Proposition 8. It remains to be seen whether a decision issued yesterday by a federal District Court in Hawaii will be treated as newsworthy.

In this case, the court comprehensively rejected the claim that the U.S. Constitution mandates same-sex marriage in the State of Hawaii. From the court’s synopsis (I’ve omitted the citations):

Carefully describing the right at issue, as required by both the Supreme Court and Ninth Circuit, the right Plaintiffs seek to exercise is the right to marry someone of the same-sex. The right to marry someone of the same-sex, is not “objectively, deeply rooted in this Nation’s history and tradition” and thus it is not a fundamental right.

***

Plaintiffs have failed to meet their burden [of showing that Hawaii had no rational basis for its marriage definition].

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 a stable, long-term relationship. The Supreme Court has stated that a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” It is undisputed opposite-sex couples can naturally procreate and same-sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.

The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex. Under rational basis review, as long as the rationale for a classification is at least debatable, the classification is constitutional. Both sides presented evidence on this issue and both sides pointed out flaws in their opponents’ evidence. Thus, the Court concludes this rationale is at least debatable and therefore sufficient.

Finally, the state could rationally conclude that it is addressing a divisive social issue with caution.

What explains the different outcome? As a legal matter, it was more careful attention to the actual Constitution and relevant precedent. This case may also be a better indicator of the validity of these claims. The other cases have been brought in carefully selected jurisdictions by national activist groups with any eye on strategy. The Hawaii case seems to have developed somewhat spontaneously and so may give us a better indication of what courts might do that are not predisposed to the same-sex marriage conclusion.

Dale Schowengerdt and the attorneys at Alliance Defending Freedom are to be congratulated for stepping in to defend the case when the governor refused to do so.

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