Senior District Judge Alan C. Kay granted a motion for summary judgement in a case filed by Hawaii’s director of health, Loretta J. Fuddy and the Hawaii Family Forum, an anti-gay group masquerading as a Christian group. Kay ruled that the law excluding same-sex couples from marriage did not violate the 14th Amendment of the US Constitution despite precedent saying otherwise.
Governor Neil S. Abercrombie, the lead defendant in the case, sided with the plaintiffs and supported their contrary motion for summary judgement. The plaintiffs in the case have announced that they will appeal the ruling to the 9th Circuit Court of Appeals.
Kay’s ruling read like the usual propaganda out of the anti-gay groups. He stated that “Hawaii’s marriage laws are not unconstitutional… 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.”
According to GayCityNews:
First, he held that the US Supreme Court’s 1972 dismissal of a same-sex marriage appeal from Minnesota was binding. After the Minnesota Supreme Court ruled against a gay male couple’s claim to the right to marry, finding no due process or equal protection violation under the US or State Constitution, the US high court dismissed their appeal, ruling that the case did not present a “substantial federal question,” but providing no further explanation. Pointing out that the Hawaii case presented the same due process and equal protection questions dismissed 40 years ago and never revisited by the Supreme Court, Kay concluded that lower federal courts are bound by the 1972 outcome.
Kay specifically rejected the argument that either Romer v. Evans, the 1996 Supreme Court ruling that threw out a Colorado voter amendment barring gay rights protections, or the 2003 Lawrence v. Texas sodomy decision had in any relevant way changed the calculus of judicial review for a same-sex marriage claim. He noted that in Lawrence, the Supreme Court stated it was not ruling on whether the state was required to provide legal recognition to same-sex relationships, but only that it could not subject such relationships to criminal penalties. And, he pointed out that the Court expressly refrained in Lawrence from any ruling on equal protection, basing the decision solely on due process.
He also argued that since the Supreme Court, in Romer v. Evans, did not apply a heightened or strict scrutiny standard of judicial review in striking down Colorado’s Amendment 2, it did not depart from rational basis review for sexual orientation discrimination law. In other words, Hawaii need only rebut the claim that its marriage law had no rational basis.
Kay went further taking on the argument that, while the Supreme Court has deemed marriage to be a fundamental right, that same-sex couples were not allowed that right due to the fact that there was no history or tradition of same-sex marriage in the United States.
Kay relied upon a number of anti-gay tracts, including the recent debunked study by University of Texas researcher Mark Regnerus. The HFF cited the junk science report in their filing, and the Supreme Court ruled many years ago that junk science was not admissible in court.