• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Travel
  • Sports
  • Law/Justice
  • Celebrities
  • Republicans
  • Madonna
  • Books
  • Men
  • Trans Rights
  • Royals
  • Monkeypox
  • Sophia Bush’s girlfriend ‘proud’ the actress has opened up about coming out as queer
  • Mel B declares she’ll ‘always be open’ when it comes to her sexuality!
  • Megan Thee Stallion being sued for ‘forcing cameraman watch her having lesbian sex!’

Marriage Inequality in Hawaii: A Federal Court Gets It Wrong

Ari Ezra Waldman August 15, 2012

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.

 

Topics: History, News, Religion More Posts About: Ari Ezra Waldman, gay marriage, Hawaii, Hawaii, Law - Gay, LGBT, News

Related Posts
  • Hawaii volcano shoots lava fountains 200 feet high: USGS
  • Former Roommate Indicted For Murder Of Florida LGBTQ Activist Jorge Diaz-Johnston, One of the Public Faces In State Fight For Marriage Equality
  • Russia Blocks Facebook, Accusing it of Restricting Access to Russian Media;
  • Mel B declares she’ll ‘always be open’ when it comes to her sexuality!

    Mel B declares she’ll ‘always be open’ when it comes to her sexuality!

    Published by BANG Showbiz English Mel B will “always be open” when it comes to her sexuality. The Spice Girls singer, 48, who reunited with her bandmates including the group's ex-singer Victoria Beckham for the fashion …Read More »
  • Megan Thee Stallion being sued for ‘forcing cameraman watch her having lesbian sex!’

    Megan Thee Stallion being sued for ‘forcing cameraman watch her having lesbian sex!’

    Published by BANG Showbiz English Megan Thee Stallion is being sued for allegedly creating a hostile work environment and forcing her cameraman to watch her having lesbian sex. The 29-year-old ‘Savage' rapper faces the salacious claims …Read More »
  • Mean Girls star Jonathan Bennett recalls the moment his life ‘changed forever’

    Mean Girls star Jonathan Bennett recalls the moment his life ‘changed forever’

    Published by BANG Showbiz English Jonathan Bennett's life was “changed forever” by his role in ‘Mean Girls'. The 42-year-old actor starred as heartthrob Aaron Samuels in the 2004 cult classic – which followed Lindsay Lohan, Rachel …Read More »
  • Sir Elton John sent Lance Bass gift basket to celebrate coming out

    Sir Elton John sent Lance Bass gift basket to celebrate coming out

    Published by BANG Showbiz English Sir Elton John sent Lance Bass a gift basket after he came out as gay. The 44-year-old NSYNC star revealed the legendary singer showed his support when Lance decided to reveal …Read More »
Previous Post: « Adam Levine Speaks Up for Marriage Equality
Next Post: Underwear-Clad David Beckham Statues to Take Over U.S. »

Primary Sidebar

Most Recent

  • Sophia Bush’s girlfriend ‘proud’ the actress has opened up about coming out as queer

    Sophia Bush’s girlfriend ‘proud’ the actress has opened up about coming out as queer

  • Mel B declares she’ll ‘always be open’ when it comes to her sexuality!

    Mel B declares she’ll ‘always be open’ when it comes to her sexuality!

  • Megan Thee Stallion being sued for ‘forcing cameraman watch her having lesbian sex!’

    Megan Thee Stallion being sued for ‘forcing cameraman watch her having lesbian sex!’

  • Mean Girls star Jonathan Bennett recalls the moment his life ‘changed forever’

    Mean Girls star Jonathan Bennett recalls the moment his life ‘changed forever’

  • Sir Elton John sent Lance Bass gift basket to celebrate coming out

    Sir Elton John sent Lance Bass gift basket to celebrate coming out

  • Relationship status influences heterosexual women’s sexual prejudice towards lesbians

    Relationship status influences heterosexual women’s sexual prejudice towards lesbians

  • JoJo Siwa had a challenge transitioning to new grown-up image

    JoJo Siwa had a challenge transitioning to new grown-up image

  • Liz Hurley defends lesbian sex scene in new movie that was directed by her son

    Liz Hurley defends lesbian sex scene in new movie that was directed by her son

Partner Links

  • Morning Man Classic: Ricky Nelson!
    Ricky Nelson, one of the best looking men and most talented […]
  • Intel Chief Gabbard Failed Basic Cybersecurity Protocol For Years
    Once again, Wired did the digging and got the scoop about […]
  • On the Rag, Vol. 856
     This week's rag 'n' mag roundup features Sergio Fernandez, Kevin Fernandez, […]
  • Our Favorite Good News Story Of The Day: Do You Have A Flag?
    To work around the fuckery of the anti-DEI hysteria, in response […]
  • King Charles has left Princess Diana’s childhood home, Park House, to disrepair & rot
    For the first years of Princess Diana’s life, her father was […]

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd

About

  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy
[towleroadmr] [towleroadtn]

Footer

Ptown Hacks 2018

Read

  • Travel
  • Film
  • Law – LGBT Rights
  • Columns
  • Specials

About

  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Copyright © 2025 · Log in

×
×