Ari Ezra Waldman | Gay Marriage | Hawaii | Law - Gay, LGBT | News

Marriage Inequality in Hawaii: A Federal Court Gets It Wrong

BY ARI EZRA WALDMAN

Royal-hawaiian-weddings2Hawaii has long been at the vanguard of the national debate over including gays and lesbians in the institution of marriage. It was the Hawaii case Baehr v. Lewin that ended up not recognizing a right to same-sex marriage but sufficiently scared a conservative Congress to enact the so-called Defense of Marriage Act (DOMA). Support for marriage equality figured prominently in the state's last two gubernatorial elections, with the current governor, Neil Abercrombie, a vocal supporter. And, just last week, district judge Alan C. Kay upheld the state's ban on same-sex marriage under rational basis review.

Judge Kay got it wrong, and I say that not simply as a supporter of marriage recognition, but as an honest legal observer. He used an absurdly low standard of review and ignored the substantive analysis of similar cases at his sister district courts and at the Ninth Circuit. Though Perry v. Brown, the federal challenge to Prop 8 run by the American Foundation for Equal Rights (AFER), and its narrow holding are not directly on point for the Hawaii case, Judge Kay is nevertheless flying against the prevailing winds of legal analysis in gay marriage cases.

This case looked very much like the other marriage recognition cases winding their way through the federal courts (with important differences unique to the legal history of marriage in Hawaii, of course, but that is for another column). The plaintiffs, Hawaiian same-sex couples that would like to marry, argue that they are discriminated against by the state's separate-and-hardly-equal civil unions law, which grants many of the same rights as marriage, but denies gay couples the recognition and honor of the word "marriage" simply because of the sexual orientation of the spouses. Governor Abercrombie agreed with them, but the arm of the state that gives out marriage licenses elected to defend the duly enacted civil union law by arguing that the state has a legitimate interest in distinguishing opposite-sex and same-sex marriages to encourage the natural procreative institution of opposite-sex marriages and to step lightly in an area of great public debate.

I take a brief look at the court's decision and discuss its shortcomings, AFTER THE JUMP...

The court agreed with anti-gay marriage forces, concluding that "[t]he legislature could rationally speculate that by reserving the name 'marriage' to opposite-sex couples, Hawaii's marriage laws provide special promotion and encouragement to enter into those relationships advancing societal interests while the civil unions laws protects the individual interests of same-sex couples."

There are three problems in that one sentence.

First, the notion that "rational speculation" is sufficient for a legislature to connect some state interest to a given law that discriminates is outdated, at best, and ignorant of prevailing constitutional law, at worst. Ever since Romer v. Evans and Lawrence v. Texas, and as recently recognized again by the First Circuit in one of the DOMA cases, state actions that discriminate on the basis of sexual orientation merit at least a rational basis review, but with more exacting scrutiny than for simple economic legislation. This distinction between the lowest form of rational basis and "rational basis plus" was the primary difference between the majority's opinion in Perry and Judge Randy Smith's dissent. 

Judge Smith relied on Heller v. Doe to conclude that the Proponents of Prop 8 needed only "any reasonably conceivable state of facts" to "provide a rational basis" for discrimination against gays, and that their basis for Prop 8 could be "rational speculation" about those facts. Heller involved a challenge to a Kentucky law for the involuntary commitment of the mentally retarded, but was decided at a time (1993) where only the most permissive form of rational basis was used for every classification except those based on race, religion, national origin, and gender. Resurrecting that test today requires us to assume that our standards of review have not changed in 20 years.

As I argued after the Ninth Circuit handed down its decision in Perry

Of course, though, they have changed. After Romer and Lawrence, the Eleventh Circuit tried to apply an exceedingly  low rational basis standard to a Florida law that banned gay people from adopting, and today, most scholars see that effort as a form of judicial nullification. In Lofton v. Secretary of the Department of Children and Family Services (2004), the court majority restricted Lawrence to its facts and found that a state could conclude that heterosexuals were better parents even if the state was speculating on the basis of dubious science. Lofton's permissive test has come under fire from scholars -- Bill Eskridge called it "judicial nullification" because of its attempt to make Lawrence irrelevant -- and from subsequent courts: even Cook v. Gates (2008), the First Circuit's decision that accepted the validity of "Don't Ask, Don't Tell" didn't rely on this pre-Lawrence test. Plus, since Lawrence, various federal and state courts, not to mention the Obama Administration, have rejected rational basis review for discrimination on the basis of sexual orientation. Times have changed, except in Judge Smith's dissent.

But, more importantly, if it were true that a "conceivable state of facts" could be based on "rational speculation" about dubious science, the precise situation envision by Romer, where the absence of any legitimate interest leads to the inference of animus, would be impossible. We could always speculate in good faith about this or that theory, or, to use Judge Smith's words, anyone "might ... believe[]" that a ban on gay marriage "arguably" furthers responsible procreation or "may promote" optimal parenting. For that matter, I might believe that moving to Boston arguably furthers my goal of getting tenure at Harvard; I would be wrong, but I wouldn't be irrational: Harvard is next door to Boston, so hanging around the dean's office may give me a jump on applying for faculty openings. In this way, by making the animus inference impossible, Judge Smith's exceedingly permissive rational basis text ran afoul of the Supreme Court's decision in Romer.

Judge Kay's decision faces the same problems. He accepted that the legislature could merely speculate about a ridiculous connection between using the word "marriage" and encouraging heterosexuals to marry and have children via vaginal intercourse. To Judge Kay, that highly speculative connection need be nothing more than possible or conceivable. Of course, as numerous courts have stated, simply withholding the word "marriage" from committed same-sex couples, especially while granting them all the rights and benefits of marriage (including adoption and family) cannot encourage opposite-sex couples to marry more often, and it certainly cannot encourage natural procreation (even assuming that is something the state should be in the business of encouraging). That is the second problem: there is no rational connection between marriage discrimination and encouraging natural procreation.

The third problem is that Judge Kay implies that there are no social benefits that can derive from state support, recognition, and encouragement of same-sex couples. The willful blindness to the social good of gay marriage -- its stabilizing, assimilatory, and selfless benefits -- is typical not only of conservative jurists, but of many liberals on the pro-gay side. Many gay rights advocates prefer to think of marriage in terms of equality and rights, the benefits that inure to an individual of another sexual orientation when the state starts treating all people equally. That is hardly a sufficient case for marriage recognition. Giving gays and lesbians the honor and dignity of the word "marriage" provides social benefits exogenous to the marriage itself, as Judge Reinhardt recognized in his Perry majority opinion. 

Judge Kay, then, is running afoul of the letter, substance, and implications of his superior court, and trying to return us to a pre-Romer and pre-Lawrence legal framework. The Ninth Circuit -- which may hear this case on appeal -- should not let that stand.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

 

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Comments

  1. I was wondering how any lower court judge in the 9th would think this would stand.

    Posted by: Gus | Aug 15, 2012 12:36:14 PM


  2. Hopefully this ruling will be appealed. It was a total shock to hear about it when the ruling came down.

    Posted by: Oz in OK | Aug 15, 2012 12:38:34 PM


  3. Hawai'i's anti-marriage state constitutional amendment was already challenged once in court and was upheld, so this new case has to apply the ruling made by the ninth recently, but that was extremely narrow--to the effect that you can't lose a right you have because of prejudice. In this case the right never existed per se, but that's how they have to argue on appeal.

    Posted by: anon | Aug 15, 2012 1:03:53 PM


  4. I clerked in the HI District Court about 20 years ago and at that time Judge Kay was well known as an extremely devout christian and conservative, so when this case was assigned to him I had no real doubt about how he would rule. Reading the ruling I was also struck by how it felt like reading something written in the early 90s, without significant regard to major decisions since then. Yes, the 9th Circuit surely should and will reverse this ruling. It's also sad to see a federal judge failing to exercise much intellectual rigor.

    Posted by: Rick | Aug 15, 2012 1:05:48 PM


  5. My partner and I have long planned on retiring in Hawaii. We are about ten years away now. What will determine if we go are The affordable health care act and gay marriage. I hope both are in place by then or we will be taking our retirement dollars elseware.

    Posted by: Mikey Dallas | Aug 15, 2012 2:01:43 PM


  6. I would add, that Judge Kay accepted as valid citations of studies by Mark Regnerus and Loren Marks, and that as of the date of Kay's decision, it had been documented that those two anti-gay studies were published only through corrupt peer review.

    After the publication of the two studies, a group of over 200 Ph.D.s and M.D.s sent the journal Social Science Research a letter, expressing concern over -- particularly -- the Regnerus study's conspicuous lack of intellectual integrity and the suspicious publication process for it, which appeared to violate all of the journal's published Peer Review Policies.

    In reaction, SSR editor-in-chief James Wright assigned an SSR editorial board member, Darren Sherkat, to conduct an "audit" of the publication process.

    Although Sherkat in part shielded Wright from criticism, he did admit that the peer review process failed and was corrupt. Specifically, some of the peer reviewers were paid consultants on the Regnerus study also were assigned to do the peer review. What that means, is that the same people who designed the study to be booby trapped against gay parents also were allowed to approve the study for publication.

    No judge should be allowing such garbage in his court documents.

    Posted by: Scott Rose | Aug 15, 2012 2:31:59 PM


  7. I would add, that Judge Kay accepted as valid citations of studies by Mark Regnerus and Loren Marks, and that as of the date of Kay's decision, it had been documented that those two anti-gay studies were published only through corrupt peer review.

    After the publication of the two studies, a group of over 200 Ph.D.s and M.D.s sent the journal Social Science Research a letter, expressing concern over -- particularly -- the Regnerus study's conspicuous lack of intellectual integrity and the suspicious publication process for it, which appeared to violate all of the journal's published Peer Review Policies.

    In reaction, SSR editor-in-chief James Wright assigned an SSR editorial board member, Darren Sherkat, to conduct an "audit" of the publication process.

    Although Sherkat in part shielded Wright from criticism, he did admit that the peer review process failed and was corrupt. Specifically, some of the peer reviewers were paid consultants on the Regnerus study also were assigned to do the peer review. What that means, is that the same people who designed the study to be booby trapped against gay parents also were allowed to approve the study for publication.

    No judge should be allowing such garbage in his court documents.

    Posted by: Scott Rose | Aug 15, 2012 2:32:02 PM


  8. Hope this judge's willful ignorance is overturned!

    Posted by: Tom in long beach | Aug 15, 2012 3:37:56 PM


  9. But Ari, didn't Kay decide that Baker v. Nelson controlled, and then unnecessarily went on with his rational basis review?

    I thought most telling was his deciding to quote the dissent in Goodridge, a 9 year old state case.

    Posted by: Bingo | Aug 15, 2012 4:04:38 PM


  10. The Nevada case will have the same result. The judge is a Mormon with a degree from BYU who openly ridiculed the Perry trial.

    Posted by: Steve | Aug 15, 2012 4:58:51 PM


  11. I will just have to say thank you Ari for the legal insight you give. I can't understate how much your posts make me happy (heartfelt). Thank you for all the great/beautiful work you do! Cheers!

    Posted by: MJ (PHX) | Aug 18, 2012 12:56:48 PM


  12. If you know about the history of sex laws and the use of the media, back in the late sixties the message phone and emergency medical phone services did not feel they were getting their moneys worth from their employees so some of the messaging phone service started employing sex phone services funded by television companies willing to run the ads late at night to find people they could track. In fact when I owned a public relations office during that time called Guys and Dolls Public Relations sold to me by a Mr. George Hamilton for one dollar, maybe to get out of taxes owed because I was under age but a hard worker so the firm lasted longer than I am sure they expected, but Hollywood wanted all competition out of the movie business, I only had late night time to call the service for messages and one night late I called in to to talk to a live lady from a radio ad, and recognized her voice right away. Talking to her I found out where she worked and went by to visit. We talked some time and went for coffee. She explained a lot about the operation and the building is now the CNN building on sunset in Hollywood. The public radio service became quite involved in this ruse and if you look at the phone sex numbers, many used to belong to NPR. These people say they are for the public but in fact they are more about their own agendas like KPCC who's advertises being dedicated to stopping homelessness but by their direct encouragement of laws that create homelessness, and the promotions of services and charities which they get tax deductions to promote, the money collected goes in pockets of the promoter not the poor. If you look on the web by Goggling "Bank Fraud" you will see what the fake news and any news is not reporting which is millions and billions of dollars in fines being levied on banks across the nation because when this was started the candle was lit on both ends to burn to the middle and it's all catching up with them by their use of false scams, telemarketing enterprises, money laundering, and gold i.e.: futures buyouts that leave people broke or do not ever pay out because their targets are the old people with big bucks to pay into something they think is going to help America while increasing over time their net worth leaving the penniless much like religions do to their old parishioners. This is the bunch of the save the world from sex scam brought to us by the same people selling the enterprise. Religious people will screw you and screw you and screw you till you're old enough to screw and then set you up, for screwing and send you to prison so they can manipulate governments and buy laws so they can kill you for screwing.

    Posted by: Keith Richard Radford Jr | Aug 31, 2012 4:37:48 PM


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