In Hawaii, gay couples may enter civil unions with all the state-based rights and legal protections of marriage, but without the official designation of being “married.” Same-sex couples sued to have the status of marriage, urging that they had a fundamental right to marry under the Due Process Clause and that the state could not discriminate against them under the Equal Protection Clause. Last week, a federal district court in Hawaii denied their claims. In a lengthy opinion in Jackson v. Abercrombie, Judge Alan C. Kay rejected the lawsuit on the grounds that he had no choice to do otherwise under binding Supreme Court precedent and that, even if he did, the plaintiffs’ claims failed on the merits. The judge argued that the Ninth Circuit’s decision striking down Prop 8 in Perry v. Brown was distinguishable because, as Judge Reinhardt ruled, the Perry case involved only the narrow circumstances where a state has granted marriage to same-sex couples and then taken it away. Hawaii, on the other hand, is a state where couples never had the right to marry.
Judge Kay, who was appointed by President Reagan, opened his opinion with the familar admonition that courts must restrain themselves when ruling on constitutional issues. He first concluded that the whole constitutional question of same-sex marriage was actually decided in 1971 by the Supreme Court in a memorandum opinion in Baker v. Nelson. That case involved an appeal from a Minnesota Supreme Court decision — the first in American history — rejecting a claim for same-sex marriage. The Court summarily dismissed the appeal “for want of a substantial federal question.” Judge Kay argued that this constituted binding precedent on the lower federal courts in same-sex marriage cases and that he therefore had no power to accept the plaintiffs’ claims. It’s an argument that’s been kicking around in the briefs of anti-gay marriage legal activists, including in the Perry litigation, but it has never gained traction. So much is different now about the law, the underlying arguments, and the legal status of gays that a single-sentence summary dismissal of same-sex marriage in 1971 isn’t controlling or very persuasive on the merits of modern cases. Indeed, Judge Kay himself seemed not to have much faith in this tidy resolution. He devoted the next 80 pages of his opinion to rebutting the plaintiffs’ claims on the merits. That 80 pages is what some people would call dicta — judges judging matters not necessary to the judgment — and it strains one’s patience to read them from a court that has just delivered a paean to judicial restraint. When the Supreme Court takes up the DOMA case and (likely) the Prop 8 case, it will pay little heed to Baker, no matter what it decides.
Judge Kay next opined that the unenumerated fundamental right to marry contained in the Due Process Clause does not include an unenumerated right of same-sex couples to marry. He cited decisions in which the Supreme Court has described fundamental rights in very narrow terms (like Washington v. Glucksberg), but mostly ignored cases in which the Supreme Court described the claimed right in much broader terms. These include the Supreme Court’s cases dealing with the marriage rights of deadbeat parents, prison inmates, and interracial couples. States have historically restricted marriage in ways the Court would simply not tolerate today, whether or not we could decorate the arguments with talk of history and tradition. Kay’s conclusion that there is no fundamental right to marry a person of the same sex is not indefensible, but it needs more defense than he gave it.
He also held that only rational-basis scrutiny applied under the Equal Protection Clause. As has been true for almost every court considering a gay-marriage claim, Judge Kay rejected the notion that marriage statutes discriminate on the basis of sex. And he invoked controlling circuit precedent for the conclusion that sexual-orientation discrimination does not warrant heightened scrutiny.
Judge Kay then listed Hawaii’s rational reasons to exclude gay couples from marriage: promoting heterosexual marriage, fostering the best environment for raising kids, and proceeding cautiously with social change. These arguments tread well-worn ground and I won’t go further into them here. One gets a sufficient taste for Judge Kay’s views on gay marriage in this sentence: “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.” For Kay, adding perhaps 3% more to the pile of existing marriages and second and third marriages and blended heterosexual families created by divorce, adoption, surrogacy, and donor insemination, amounts to restructuring the untouchable “institution” of “traditional” marriage. A judge who believes that is unlikely to accept any argument –political, moral, or legal — for same-sex marriage. It’s on to other courts, legislatures, and ballots.