Court Upholds Hawaii Ban on Same Sex Marriage

Court Upholds Hawaii Ban on Same Sex Marriage August 10, 2012

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.

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  • M Groesbeck

    This isn’t even “rational basis”. It’s a judge adopting the policy that heterosexual-supremacists have demanding ever since they started losing cases on “rational basis” logic: irrational basis. For conservatives, it’s entirely acceptable to pass and uphold a law based on whether somebody might find it minimally reasonable based on a completely imaginary set of circumstances. Expecting that laws be grounded in the real world oppresses conservatives!

  • steve84

    I don’t rational means what he thinks it means. Even without using heightened scrutiny, there is still rational basis plus, which according to the Supreme Court is the correct standard to use when dealing with historically disadvantaged minorities. That requires a more searching consideration of justifications for a law.

    I challenge that clown to produce one straight couple who wouldn’t have married if gay people got married. Sure, he can find some liars for Jesus, but there is just no connection between the two.

  • harold

    I was wondering why I didn’t hear about it when Hawaii passed anti-gay marriage BS.

    It’s because it happened in 1998.

    Obviously, it happened because Hawaii was culturally close to being a state that would be an early supporter of equal marriage rights. It wasn’t a symbolic act of bigotry by a right wing legislature, it was a panicky reaction to potential progress.

    I briefly went through a stage of thinking that “civil unions that are exactly like marriage except in name” was a reasonable compromise myself. I thought that might be a way to prevent the worst kind of personal tragedies, like lifelong partners not being able to make medical decisions. I have since realized the error of that. It is always an error to ever compromise when it comes to full and equal human rights. Now the existence of “civil unions” is just an impediment to full marriage equality in Hawaii. However, I strongly suspect that won’t be the case for long.

  • Chiroptera

    What the hell is the clown trying to say?

    If same sex marriage is allowed, then it is possible that more heterosexual couples will have children outside of marriage?

    Or that if gay people marry each other, then they are more likely to have sex and produce a child with someone of the opposite sex than they would have been had they married someone of the opposite sex to begin with?

    ‘Cause both of these sound kind of crazy to me.

  • John Hinkle

    …defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry…

    Really??? Someone interview this guy on TV and ask him how this works. Because having been married twice, I can tell you that once you’re smitten with someone enough to wed, the last thing you’re thinking about is, gee, I wonder how the government defines marriage. If it’s as a man and a woman, I’m so going to propose to her. If not, well shit, I’m outta here.

  • Quite a few years ago, a friend told me about his Portuguese language tutor. She was married for several years to a gay friend of hers from Brazil so that he could become a permanent resident and eventually a citizen of the US. IIRC, they weren’t living together any longer and had no plans to divorce unless the marriage became inconvenient at some point.

    So you could say that the one-man-one-woman definition of marriage is an inducement to sham marriage.

  • netamigo

    Wikipedia says Judge Kay was appointed by Reagan. He is an elderly judge. His opinion is a disappointment. The decision represents a dogged insistence that such issues must be decided at the ballot box rather than in the courtroom, which has become a Republican screed for this issue. It seems to me the opinion has some fairly weak arguments as noted. I’ve been surprised at the rather muted reaction to it by opponents. One thing that struck me reading the opinion were the number of times Judge Kay quoted dissenting opinions to make his point.

    • steve84

      There is another such case going on at the moment in Nevada. The judge there is a Mormon with a degree from BYU. He was very skeptical at the initial hearing. That’s not going to end well either. But the appeals courts in the Ninth Circuit are usually better.

      • netamigo

        Yes, I know. I’m amazed at the comments I heard he made at the hearing.

  • Midnight Rambler

    For the record, Hawaii did not pass a constitutional amendment banning gay marriage like most states did; it passed one specifying that marriage is defined by the state legislature. Which is much more sensible and mean it can be easily changed without a referendum, and likely will be in a few years since the civil unions bill passed. Still years too long, but better than most states.