Bench Memos

A Stroke of Judicial Sanity on Marriage

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.

Most Popular

Culture

Thank You, Kanye West

It was “a plan by the Devil to have our kids committing suicide at an all-time high.” So said Kanye West, who recently declared, via Twitter, that he was running for president, on the “Birthday Party” ticket. It’s about the best explanation I’ve heard for the non-coronavirus that plagues us. There’s ... Read More
Culture

Thank You, Kanye West

It was “a plan by the Devil to have our kids committing suicide at an all-time high.” So said Kanye West, who recently declared, via Twitter, that he was running for president, on the “Birthday Party” ticket. It’s about the best explanation I’ve heard for the non-coronavirus that plagues us. There’s ... Read More
Education

The Case for Reopening Schools

On the menu today: My reader who is the head of research for a top-ten hospital weighs in on how to get kids back into classrooms safely this fall, a blathering Biden comment I missed that could have gotten his Twitter account suspended, and California’s state government tries to implement an ambitious ... Read More
Education

The Case for Reopening Schools

On the menu today: My reader who is the head of research for a top-ten hospital weighs in on how to get kids back into classrooms safely this fall, a blathering Biden comment I missed that could have gotten his Twitter account suspended, and California’s state government tries to implement an ambitious ... Read More
Science & Tech

The Ideological Corruption of Science

Why don't many people “trust the science” anymore? Perhaps because science, as an institution, has fallen prey to the same ideological infection that has invaded and corrupted many other institutions. But it is too rarely discussed, which is why a Sunday Wall Street Journal column by theoretical physicist ... Read More
Science & Tech

The Ideological Corruption of Science

Why don't many people “trust the science” anymore? Perhaps because science, as an institution, has fallen prey to the same ideological infection that has invaded and corrupted many other institutions. But it is too rarely discussed, which is why a Sunday Wall Street Journal column by theoretical physicist ... Read More
Culture

In Defense of Terry Crews

There are many worthy nominees for the craziest moment in the current cultural turmoil, but the controversy over tweets by actor Terry Crews deserves to be high on the list. In one of his offending tweets, Crews said on July 4th: https://twitter.com/terrycrews/status/1279493774679261185?s=21 It wasn’t ... Read More
Culture

In Defense of Terry Crews

There are many worthy nominees for the craziest moment in the current cultural turmoil, but the controversy over tweets by actor Terry Crews deserves to be high on the list. In one of his offending tweets, Crews said on July 4th: https://twitter.com/terrycrews/status/1279493774679261185?s=21 It wasn’t ... Read More
Science & Tech

Evaluating Fauci’s Record

The White House is getting a lot of heat by pointing out that Dr. Anthony Fauci, the country’s top infectious-disease official, has a spottier record on predicting the course of pandemics than the media would have you believe. “White House officials now want to rein in Fauci by cherry-picking instances in ... Read More
Science & Tech

Evaluating Fauci’s Record

The White House is getting a lot of heat by pointing out that Dr. Anthony Fauci, the country’s top infectious-disease official, has a spottier record on predicting the course of pandemics than the media would have you believe. “White House officials now want to rein in Fauci by cherry-picking instances in ... Read More