A federal district court judge in Honolulu has ruled that Hawaii’s law excluding same-sex couples from marriage does not violate the 14th Amendment of the US Constitution.
Senior District Judge Alan C. Kay, on August 8, granted a motion for summary judgment filed by Hawaii’s director of health, Loretta J. Fuddy, who defended the statute along with an intervenor, the Hawaii Family Forum, a Christian group that characterizes its mission as “strengthening marriage and family.”
Governor Neil S. Abercrombie, the lead defendant, sided with the plaintiffs and supported their contrary motion for summary judgment. Plaintiffs Natasha N. Jackson, Janin Kleid, and Gary Bradley are represented by John D’Amato, a leading Hawaii trial attorney, who announced they would appeal to the Ninth Circuit Court of Appeals.
Kay’s conclusion is that “Hawaii’s marriage laws are not unconstitutional… 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.”
Kay offered alternative grounds for his ruling.
First, he held that the US Supreme Court’s 1972 dismissal of a same-sex marriage appeal from Minnesota was binding. After the Minnesota Supreme Court ruled against a gay male couple’s claim to the right to marry, finding no due process or equal protection violation under the US or State Constitution, the US high court dismissed their appeal, ruling that the case did not present a “substantial federal question,” but providing no further explanation. Pointing out that the Hawaii case presented the same due process and equal protection questions dismissed 40 years ago and never revisited by the Supreme Court, Kay concluded that lower federal courts are bound by the 1972 outcome.
Kay specifically rejected the argument that either Romer v. Evans, the 1996 Supreme Court ruling that threw out a Colorado voter amendment barring gay rights protections, or the 2003 Lawrence v. Texas sodomy decision had in any relevant way changed the calculus of judicial review for a same-sex marriage claim. He noted that in Lawrence, the Supreme Court stated it was not ruling on whether the state was required to provide legal recognition to same-sex relationships, but only that it could not subject such relationships to criminal penalties. And, he pointed out that the Court expressly refrained in Lawrence from any ruling on equal protection, basing the decision solely on due process.
He also argued that since the Supreme Court, in Romer v. Evans, did not apply a heightened or strict scrutiny standard of judicial review in striking down Colorado’s Amendment 2, it did not depart from rational basis review for sexual orientation discrimination law. In other words, Hawaii need only rebut the claim that its marriage law had no rational basis.
Kay, appointed to the court by President Ronald Reagan in 1986 and retired from active full-time status since 2000, hedged his bets, however, providing a lengthy alternative analysis on the merits of the plaintiffs’ claims.
Taking on the argument that heightened scrutiny is required since the right to marry has been deemed fundamental by the Supreme Court on numerous occasions, Kay rejected the claim that the case, broadly speaking, was about the right to marry. Both Supreme Court and Ninth Circuit precedent, in his view, requires a narrower framing of the issue; the correct question is whether same-sex couples have a right to marry. He rejected the argument that there is a fundamental right for same-sex couples to marry, seeing no support in American history or tradition for such a claim.
Confronted by the argument that history and tradition similarly did not support interracial marriage when the Supreme Court struck down miscegenation laws in 1967, Kay responded that the earlier case involved a constitutionally suspect racial classification, not the traditional definition of different-sex marriage.
He also found that the Ninth Circuit’s recent decision striking down California’s Proposition 8 was irrelevant, since that panel stated it was not deciding whether same-sex couples have a right to marry, but rather whether a state could constitutionally rescind the right to marriage after it had been extended to same-sex couples.
Kay noted that Hawaii, unlike California, adopted its current marriage law in the late 1990s prior to resolution by the State Supreme Court of pending state court litigation seeking marriage equality. The Legislature did not enact a prohibition on same-sex marriage, but merely reserved authority on the question to the political process rather than the Hawaii state courts.
On the question of equal protection, Kay said he was bound by Ninth Circuit precedent –– a 1990 ruling in High Tech Gays v. Defense Industrial Security Clearance Office –– to apply rational basis review because sexual orientation, unlike race, is not a constitutionally suspect classification. High Tech Gays relied on the 1986 Supreme Court ruling that upheld the Georgia sodomy law, a decision overruled in the 2003 Lawrence case. Still, Kay noted, High Tech Gays continues to be cited by the Ninth Circuit –– in a recent Don’t Ask, Don’t Tell case, for example. His conclusion, however, is different than that of Judge Jeffrey S. White, who found in favor of Karen Golinski in her challenge to the Defense of Marriage Act. Appeal of Golinski’s victory by attorneys hired by the Republican leadership of the US House has not been heard by the Ninth Circuit Court of Appeals.
Having found that neither a fundamental right nor a suspect classification was at issue, Kay concluded Hawaii had a rational basis for excluding same-sex couples from marriage. Referring to the importance of “judicial restraint” and the danger of constitutionalizing hotly disputed public policy questions, he adopted a highly deferential form of rational basis review, finding that a distinction in law “will be upheld when ‘the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not,’” quoting from a 1974 Supreme Court decision.
“The state is not required to show that denying marriage to same-sex couples is necessary to promote the state’s interest or that same-sex couples will suffer no harm by an opposite-sex definition of marriage,” Kay wrote. “Rather, the relevant question is whether an opposite-sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry.”
As with many state courts, including New York’s highest bench in 1986, Kay concluded that the state’s interest in incentivizing different-sex couples to marry and provide a stable household for children they might accidentally conceive provided a sufficient basis to sustain the law against constitutional challenge. He also professed to be agnostic on the question of whether children are better raised in households headed by two biological parents in a marital relationship than in ones headed by same-sex couples –– and concluded the unsettled question meant that the rationality of the Hawaii marriage policy, therefore, could not be definitively rebutted.
Kay likely became the first judge to cite as evidence the controversial –– now infamous –– recent study by University of Texas professor Mark Regnerus, which the Hawaii Family Forum (HFF) cited in its brief. After summarizing the plaintiffs’ evidence of scientific studies that show “there is no support for the assertion that children fare better when raised by opposite-sex rather than same-sex couples,” he wrote, “On the other hand, HFF presents evidence that children do best when raised by their two biological parents.” Presumably quoting directly from the HFF brief, Kay characterized Regnerus’ research as “finding that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes.” Even the author, who is under professional review by the University of Texas for the lack of peer review of his published study, would concede that Kay’s characterization was incorrect. Regnerus compared children raised by their married biological parents to those households in which either parent had at some time engaged in a same-sex relationship with another adult, including many single-parent households and households affected by divorce.
So, despite a Supreme Court ruling in a birth defects lawsuit nearly 20 years ago that essentially requires federal trial courts to exclude “junk science,” Kay looked to Regnerus –– or rather an even less reputable conflation of Regnerus –– to conclude that the child-rearing question is “debatable” and therefore not dispositive in his analysis. Since he was ruling on summary judgment motions, the plaintiffs had no opportunity to raise a formal objection to consideration of the Regnerus study.
Kay also pointed to the 11th Circuit’s infamous 2004 decision in the Florida gay adoption case, which similarly relied on the proposition that the impact of having gay parents on kids was “debatable” to justify rejecting a constitutional challenge to the state’s bar on “homosexuals” adopting children. Sad to say in Gay City News, the 2006 ruling from New York’s Court of Appeals was cited in this same context.
Kay also bought HFF’s argument that Hawaii is “entitled to experiment with its social policy to determine what is in the state’s best interest.” Citing as well a publication from the Witherspoon Institute, the right-wing foundation that provided funding for Regnerus’ study, he wrote, “Under rational basis review, the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite-sex couples from marrying. Rather, the standard is whether the legislature could rationally speculate that it might. It is at least debatable that altering ‘that meaning would render a profound change in the public consciousness of a social institution of ancient origin.’”
Unwilling to leave the matter there, Kay cited old cases of incest prosecutions and wrote, “Once the link between marriage and procreation is taken away, and encouraging a socially desirable family structure is deemed irrational, there is no rational limiting principle for other types of relationships.”
The Ninth Circuit has put off hearing appeal of the Golinski DOMA case pending resolution of Lambda Legal’s effort to take the case directly to the Supreme Court, and it may similarly decide to refrain from hearing any appeal from the Hawaii plaintiffs while the high court decides whether to take the Prop 8 case. At its heart, the Prop 8 litigation raises the same question presented here –– whether a state violates the 14th Amendment by reserving marriage for different-sex couples while providing all the state law rights of marriage to same-sex couples through another legal construct.
