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.


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