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Wednesday, August 8, 2012
Full Text: Hawaii Gay Marriage Suit Thrown Out of Court
By News Release @ 5:33 PM :: 6558 Views :: Energy, Environment, National News, Ethics

Marriage remains protected in Hawaii

Alliance Defending Freedom represented Hawaii Family Forum in defense of state’s marriage law, constitutional amendment

News Release from ADF Wednesday, August 08, 2012

HONOLULU — A federal court Wednesday upheld Hawaii’s definition of marriage as one man and one woman. The court rejected a lawsuit that sought to tear down the state’s law defining marriage as the union of one man and one woman and Hawaii’s constitutional amendment that gives the legislature the power to maintain the timeless definition.

Alliance Defending Freedom attorneys defended the law and the amendment on behalf of Hawaii Family Forum, which the court allowed to intervene in the case in April.

“This ruling affirms that protecting and strengthening marriage as the union of one man and one woman is legitimate, reasonable, and good for society,” said Legal Counsel Dale Schowengerdt. “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.”

The three individuals who filed the suit asked the court to declare the state’s constitutional amendment on marriage and the state’s law defining marriage as the union of one man and one woman unconstitutional. The lawsuit also assailed Hawaii’s “civil unions” law, which became effective Jan. 1, arguing that nothing less than a complete redefinition of marriage would be satisfactory.

In its order in Jackson v. Abercrombie, the U.S. District Court for the District of Hawaii concluded, “Throughout history and societies, marriage has been connected with procreation and childrearing…. It follows that it is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure.”

“In this situation,” the court continued, “to suddenly constitutionalize the issue of same-sex marriage ‘would short-circuit’ the legislative actions that have been taking place in Hawaii…. Accordingly, because Hawaii’s marriage laws are rationally related to legitimate government interests, they do not violate the federal Constitution.”

Gov. Neil Abercrombie stated both publicly and in the lawsuit that he would not defend the state’s marriage law. His attacks on the law’s constitutionality prompted Hawaii Family Forum through its Alliance Defending Freedom attorneys and local counsel James Hochberg to ask the court to allow it to intervene in defense of marriage in the state.


Alliance Defending Freedom (formerly Alliance Defense Fund) is an alliance-building legal ministry that advocates for the right of people to freely live out their faith.

Attorney sound bite: Dale Schowengerdt


Here are some highlights from ruling:

“…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 protects the individual interests of same-sex couples….”

This case does not involve a fundamental right or suspect classification, such as the race-based classification at issue in Brown v. Board of Education, 347 U.S. 483 (1954). Thus, the analogy to Brown set forth by Plaintiffs and Defendant Abercrombie is unpersuasive. See Abercrombie’s Mot. Mem. 62 (“This two-tiered system . . . is no better than the long discredited ‘separate but equal’ regime denounced in Brown v. Bd. of Educ.”). Moreover, unlike the Jim Crow laws and segregated school systems, the civil unions law was enacted not to perpetuate discrimination but to afford same-sex couples rights they had not previously had….

Defendant Fuddy asserts that Hawaii has a legitimate interest in encouraging the stability of naturally procreative relationships. Defendant Fuddy states that this “responsible procreation” interest rests on two factual premises. First, “[i]t is an ‘inescapable fact that only two people, not three, only a man and a woman, can beget a child’ without the intervention and assistance of third parties and as an ordinary result of their sexual union.” Id. (quoting House Judiciary Committee, H.R. Rep. No. 104-664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917). Second, “[w]hen procreation and childrearing take place outside stable family units, children suffer.” Id. Defendant Fuddy states that in light of these two facts, “the state has an interest in encouraging opposite-sex couples to channel their sexual relations in a stable, long term relationship, an interest that does not apply as to same-sex couples.” ….

Defendant Fuddy and HFF have presented evidence that children fare better on many different levels when raised in a stable family unit by both of their parents….

Accordingly, it follows that encouraging procreation to take place within a marital relationship advances two legitimate goals identified by Defendant Fuddy: “1) to increase the percentage (not necessarily the total number) of ‘children raised in stable married families’ and 2) to decrease the number and percentage of children accidently conceived outside such relationships.”….

The fact that not all opposite-sex couples have the ability or desire to procreate does not render this interest irrational. Plaintiffs and Defendant Abercrombie’s arguments to the contrary fail to appreciate the deference the Court must afford the state in rational basis review. “A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.”…

Although the legislature has flexibility to amend or repeal social experiments that prove unwise, courts have no such ability once they constitutionalize an issue.….

PDF: Full Text of Ruling

ADF: Jackson v. Abercrombie resource page

SA: Federal judge upholds Hawaii ban on same-sex marriage

Senior U.S. District Judge Alan Kay upheld today Hawaii laws banning same-sex marriages.

The judge issued a 117-page decision which throws out the lawsuit filed by a lesbian couple and a gay man who contended the state laws violate the U.S. Constitution due process and equal protection provisions.

Kay ruled in favor of state Health Director Loretta Fuddy and the Hawaii Family Forum, and against the three plaintiffs and Gov. Neil Abercrombie, who contended the law violated the Constitution.

Hawaii’s marriage laws reserving marriage to a man and a woman “are not unconstitutional,” Kay said.

“Nationwide, citizens are engaged in a robust debate over this divisive social issue,” he said.

“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.”

…John D’Amato, lawyer for the plaintiffs, earlier indicated he plans to appeal to the U. S. 9th Circuit Court of Appeals if Kay ruled against his clients.

read … The Rest



News Release from Hawaii Family Forum
"This ruling affirms that protecting and strengthening marriage as the union of one man and one woman is legitimate, reasonable, and good for society." Dale Schowengerdt, Alliance Defense Fund.
"Hawaii Family Forum is very pleased that Judge Alan C. Kay, Senior Judge for the United States District Court for the District of Hawaii, has granted our motion and ruled that Hawaii's marriage law (which reserves marriage to opposite sex couples) does not violate the United States Constitution by not allowing same-sex couples to marry, " stated Jim Hochberg, local counsel for Hawaii Family Forum.
The judge also granted Director Fuddy's similar motion and denied motions by the plaintiffs and the Governor seeking to hold Hawaii's marriage statute unconstitutional.
The board and staff of Hawaii Family Forum extend our deepest gratitude to the legal team of Alliance Defense Fund attorneys including Holly Carmichael, Dale Schowengerdt, and local attorney, Jim Hochberg for all their hard work in supporting our motion.
We also appreciate all of YOU and your continued prayers of support for our ministry to the community. We can't do what we do without you and we are proud to stand beside you!
This is great news but the battle is not over. We anticipate that there will be an appeal to the 9th Circuit and ultimately to the United States Supreme Court. We ask for your continued prayers.

Governor Statement on Same-Sex Marriage Ruling

News Release from August 8, 2012

HONOLULU –A U.S. District Court judge today upheld Hawai'i law banning same-sex marriages. Governor Neil Abercrombie, who contended that the law violated the Constitution, released the following statement.

“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.”



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