A federal district court has upheld Hawaii’s ban on same-sex marriage, which was passed by popular referendum. The state then legalized civil unions that apparently offer all the same rights at the state level, but not federal rights like the right to change immigration status. You can read the full ruling here.
Judge Alan Kay, who was appointed by the first President Bush, applied only the rational basis test, the lowest level of scrutiny, because, “The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation.” The Supreme Court has hinted at it in a couple of cases, both written by Justice Kennedy, but never actually declared that LGBT people are to be considered a “suspect class” — one that has historically faced serious discrimination — and therefore laws that affect them should be subjected to heightened or strict scrutiny. Applying the rational basis test, Judge Kay invents some rather fanciful justifications:
[T]he 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 [sic.] conceived outside of a stable, long-term relationship…Under rational basis review, as long as the rationale for a classification is at least debatable, the classification is constitutional.
That’s absurd. Anything is “debatable” as long as someone wants to debate it. The only thing that matters here is whether a given justification is rational. Opponents of marriage equality love to make that argument, but it is fundamentally irrational. The notion that straight couples are going to stop getting married because gay couples are allowed to get married is monumentally idiotic — and so is the claim that such an argument would be a rational conclusion.