Ruling that the Supreme Court settled the issue forty years ago, a federal judge in Hawaii has declared that same-sex couples do not have a constitutional right to get married. In a 117-page ruling (found here), Senior U.S. District Judge Alan C. Kay concluded on Wednesday that the Supreme Court’s summary ruling in 1972 in Baker v. Nelson controlled the question. But even if it did not, the judge added, a state ban on gay marriages satisfies the minimum level of constitutional analysis.

In a brief lecture on civics, going beyond the pure legal questions, Judge Kay argued that the issue should be left to legislative bodies across the nation or to the people, not to the courts. “If the traditional institution of marriage is to be restructured,” the judge wrote, “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.” The ruling came in the case of Jackson v. Abercrombie (District docket 11-734).

The judge, who sits in the geographic area that is in the federal Ninth Circuit, said that his ruling did not conflict with the ruling last February by the Ninth Circuit Court striking down California’s “Proposition 8,” a statewide ban on same-sex marriage. That decision, he noted, was based upon the fact that California once allowed gays and lesbians to marry, and then took away the right. Hawaii, he said, had never allowed those marriages and none have ever been performed there. The state since last year has assured same-sex couples who join in a “civil union” the same legal rights as in marriage, but state laws and the state constitution forbid them from marrying. Voters of the state in 1998 wrote into the Hawaii constitution — by more than a two-thirds majority — a provision validating an existing law against such marriages.

The Supreme Court has never issued a full-scale ruling on same-sex marriage. Without written briefs or a hearing, the Justices in 1972 summarily dismissed a challenge to a Minnesota Supreme Court decision upholding that state’s ban under the federal Constitution. The brief order said the case did not raise “a substantial federal question.” Some lower-court judges in recent years have questioned whether that action, in the case of Baker v. Nelson, is still binding law, but Judge Kay found it to be. The status of that ruling is one of the issues that the Supreme Court probably will have to clear up, if it grants one or more of the new same-sex marriage cases that have already started to reach its docket. The Justices may react to some of those as early as late September.

Hawaii is one of thirty-nine states that, by provisions in their state constitutions or in state laws, restrict marriage to one man and one woman. Six states and Washington, D.C., allow same-sex marriages. Voters in four states will vote on the issue in November: Maine, Maryland, Minnesota, and Washington.

Although a recent trend in the federal courts has developed against the constitutionality of the federal Defense of Marriage Act (DOMA), which defines marriage in more than a thousand federal laws as reserved for opposite-sex couples, Judge Kay’s new ruling upholding the same definition at the state level follows a well-established trend in favor of states’ authority to decide the issue for their own residents — except, of course, for the Ninth Circuit ruling on “Proposition 8.” That ruling is being challenged in one of the new cases now pending at the Supreme Court (Hollingsworth v. Perry, docket 12-144). The other pending cases all involve the federal marriage law, but those do not raise the issue of whether there is a right to marry; all of those involved in the DOMA cases were already legally married under state laws.

Before the “Proposition 8” case was decided by the Ninth Circuit, in a quite narrow decision that confines its legal impact mainly to California, a federal judge in San Francisco had issued a sweeping decision against that ban, declaring it invalid under both the due process guarantees of the federal Constitution and its guarantee of equal legal protection. That was a historic decision, with potentially nationwide impact — until it was cut down to far more modest dimensions by the Ninth Circuit.

Those same constitutional provisions were cited by three individuals in Hawaii in the case just decided by District Judge Kay. In direct contrast with the “Proposition 8” ruling by District Judge (now retired) Vaughn R. Walker, Judge Kay flatly rejected both of those challenges.

In summary, these were the key points of Judge Kay’s decision:

** The constitutional challenges to Hawaii’s laws and constitution “are foreclosed” by the Supreme Court’s summary ruling in Baker v. Nelson.

** There is no recognition of a right to gay marriage in America’s “history and tradition,” so it cannot be regarded as a “fundamental right.”

** The status of being homosexual does not put one into a “suspect classification” — that is, a category that indicates hostility or bias against a group.

** Because there is no right to marry, any constitutional challenge is to be analyzed only to see if the ban on such marriages has a “rational basis” — that is, the easiest-to-meet constitutional standard.

** The “rational basis” for Hawaii’s ban can be found in a legislature’s belief that confining marriage to opposite-sex couples would encourage those couples to wed, thus promising that more children will be raised in “a stable, long-term relationship.” Opposite-sex couples can have children naturally, but gay couples cannot, so reserving marriage for the former serves this social goal.

** The “rational basis” also can be found in a legislature’s belief that it is generally “best for children to be raised by a parent of each sex.” While that is debatable, the mere fact that it is debatable satisfies “rational basis.”

** Finally, the “rational basis” also can be found in a legislature’s belief that taking on the “divisive social issue” of same-sex marriage should be done with “caution.”

Some of those legal conclusions obviously contributed to Judge Kay’s view that the issue is better left to legislatures or to the people. His comment about “judicial legislation” appeared to reflect his view that finding a right to marry in a court case would not be accomplished by interpreting the Constitution — as courts often do — but rather as a result of actually legislating from the bench. At several points in the long opinion, Judge Kay stressed how cautious he felt he had to be in confronting gay couples’ constitutional claims, and how controversial he regarded the issue of same-sex marriage to be.

The judge’s ruling actually took two overall approaches to the challenges. First, he concluded that the summary Supreme Court ruling in Baker v. Nelson had resolved the issue of the constitutionality of a state’s ban on gay marriages, finding that the new case before him involved the same kind of challenge that the Supreme Court had resolved in 1972. “Baker,” the opinion said, “is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this court.” In the second major part of the decision, as an alternative basis for it, Judge Kay examined the specific claims of due process and equal protection violations, and rejected both of them on the merits.

Although the lawsuit was nominally aimed at Hawaii’s governor, Neil S. Abercrombie, the governor has made it clear that he is in favor of same-sex marriage. And, after the ruling, he said that he disagreed with the outcome and that, if the case is appealed, he would join in the challenge.

The challengers would have the option of appealing to the Ninth Circuit Court, or of asking the Supreme Court to take the case without waiting for a ruling by the Circuit Court. While the Ninth Circuit would have to rule if an appeal were filed there, the Supreme Court has complete discretion whether to hear a case brought to it.

Recommended Citation: Lyle Denniston, Judge: No right to same-sex marriage, SCOTUSblog (Aug. 10, 2012, 3:32 PM), https://www.scotusblog.com/2012/08/judge-blocks-same-sex-marriages/