Senior U.S. District Judge Alan C. Kay ruled on August 8 that Hawaii's law excluding same-sex couples from marriage does not violate the 14th Amendment of the U.S. Constitution. Ruling in Jackson v. Abercrombie, 2012 WL 3255201, Judge Kay granted a motion for summary judgment filed by Loretta J. Fuddy, Director of Health for the State of Hawaii, who defended the statute along with an intervenor, the Hawaii Family Forum. Lead defendant Governor Neil S. Abercrombie agreed with the plaintiffs and supported their motion for summary judgment. Plaintiffs Natasha N. Jackson, Janin Kleid and Gary Bradley are represented by John D'Amato, a leading Hawaii trial attorney, who announced that they would appeal to the 9th Circuit.
Judge Kay's conclusion, stated in his opening "synopsis" of a lengthy (120 page) opinion, is that "Hawaii's marriage laws are not unconstitutional. Nationwide, citizens are engaged in a robust debate over this divisive social issue. 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 deomcratic deliberation regarding whether or not to authorize same-sex marriage."
Judge Kay based his ruling on alternative grounds.
First, he held that the U.S. Supreme Court's 1972 dismissal of a same-sex marriage appeal from Minnesota was binding on his court. In Baker v. Nelson, the Minnesota Supreme Court ruled against a claim to the right to marry by a gay male couple, holding that the state's refusal to issue them a marriage license did not violate their rights to due process or equal protection of the laws under the 14th Amendment or parallel provisions of the Minnesota Constitution. The men appealed to the Supreme Court. Under rules then prevailing, the Supreme Court was required to rule on the merits of a federal constitutional challenge to a state statute, but frequently resorted to the device of dismissing an appeal where the Court determined that the case did not present a "substantial federal question."
The Supreme Court took that dismissal route in Baker v. Nelson. As usual in such cases, the Court provided no explanation for its action. Under Supreme Court rules, such a dismissal is deemed to be a ruling on the merits of the questions presented to the Court. The plaintiffs presented two questions in Baker: Whether denying same-sex couples the right to marry violates (1) due process or (2) equal protection. Judge Kay concluded that these were the same questions presented to him by the plaintiffs challenging Hawaii's marriage law, and thus, since the Supreme Court has not subsequently ruled on these precise questions, they are foreclosed to any lower court as a matter of federal constitutional precedent.
Judge Kay found that nothing that has taken place since 1972 would indicate that Baker v. Nelson is no longer a valid Supreme Court precedent, rejecting the argument that either Romer v. Evans or Lawrence v. Texas, gay rights victories, had in any relevant way changed the calculus of judicial review for a same-sex marriage claim. In particular, he wrote that in Lawrence the Supreme Court stated that it was not ruling on whether the state was required to provide legal recognition to same-sex relationships, but only that the state could not subject such relationships to criminal penalties. 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 pointed out that in Romer v. Evans, the Supreme Court did not use heightened or strict scrutiny to strike down Colorado Amendment 2, so Romer did not, in his opinion, establish any departure from rationality review in its traditional form for sexual orientation discrimination claims.
Hedging his bets, however, Judge Kay, who was appointed to the district court by President Ronald Reagan in 1986 and retired from active full-time status in 2000, provided a lengthy alternative analysis on the merits of plaintiffs' claims.
Addressing the argument that heightened scrutiny should apply because the right to marry is a fundamental right, Judge Kay rejected the claim that this case was about, broadly speaking, the right to marry. In his view, Supreme Court and 9th Circuit precedent requires a narrower framing of the issue, and the correct question is whether same-sex couples have a right to marry. As to that, he rejected the argument that there is a fundamental right for same-sex couples to marry, seeing no support in American history or tradition for such a claim. Confronted by the argument that there was no history or tradition supporting interracial marriage when the Supreme Court invalidated the Virginia miscegenation statute in Loving v. Virginia, Kay responded that Loving involved a suspect racial classification, not the traditional definition of different-sex marriage.
He also found that the 9th Circuit's recent decision in Perry v. Brown, striking down California Proposition 8, was irrelevant to the questions before him. In Perry, the 9th Circuit panel stated that it was not deciding whether same-sex couples have a right to marry, but rather whether a state could constitutionally rescind the right to marriage after it had been extended to same-sex couples.
Judge Kay observed that the history of this issue in Hawaii is very different from California. Same-sex couples have never had a right to marry in Hawaii. The current version of the Hawaii marriage amendment and statute were both approved by the legislature in 1997 in response to a trial court ruling in favor of same-sex marriage that was then pending on appeal to the Hawaii Supreme Court. Unlike Proposition 8, which placed a ban on same-sex marriage in the California Constitution after same-sex couples had been marrying for about five months, the Hawaii marriage amendment merely states that only the legislature can decide whether same-sex couples can marry, which led the Hawaii Supreme Court to consider the marriage lawsuit to be moot. The legislative history of the Hawaii marriage amendment shows the intent of the legislature not to foreclose the possibility of making same-sex marriage available in the future through legislation. It did not enact a prohibition on same-sex marriage, merely a reservation of that issue to the political process.
At the same time that the legislature put the marriage amendment on the ballot, it passed a Reciprocal Beneficiaries Law, the first of its kind in the U.S., that extended a limited number of marital rights to same-sex partners. More recently, the legislature enacted a Civil Union Act, effective in 2011, that allows both same-sex and different-sex couples to register as civil union partners and enjoy all the state law rights of marriage (without the name of marriage). Thus, in Hawaii there has been an unfolding political process of gradually extending more rights to same-sex couples. Judge Kay said it would be inappropriate for the court to intervene in this process by declaring a federal constitutional right to same-sex marriage.
In light of this history, Judge Kay said that the Perry v. Brown case, which was about rescinding existing rights, was not relevant. That was a case about "taking away" rights that a particular group enjoyed.
As to equal protection, Judge Kay said he was bound by 9th Circuit precedent — High Tech Gays v. Defense Industrial Security Clearance Office (1990) — to apply the rationality test because sexual orientation is not a "suspect classification" for purposes of the 14th Amendment. Although the High Tech Gays opinion cited and relied upon the now-overruled Supreme Court decision in Bowers v. Hardwick, Judge Kay found that this did not undermine the continued validity of High Tech Gays, observing that the 9th Circuit has continued to cite High Tech Gays as a precedent even after Lawrence v. Texas overruled Bowers. Kay asserted that Supreme Court decisions since 1990 have not undermined High Tech Gays as a precedent binding on trial judges in the 9th Circuit, disagreeing with the recent contrary ruling by Judge Jeffrey S. White (N.D. California) in Golinski v. Office of Personnel Management. (Judge White's ruling was appealed to the 9th Circuit, which has put off oral argument while the Supreme Court considers a petition for certiorari filed by Lambda Legal on behalf of Karen Golinski.) In particular, Judge Kay pointed out that the 9th Circuit had continued to cite High Tech Gays in recent litigation over the "don't ask, don't tell" military policy, and has not questioned its continuing validity.
Having found that neither a fundamental right nor a suspect classification was at issue in this case, Judge Kay determined that Hawaii had a rational basis for excluding same-sex couples from marriage. The dye was cast for this outcome when Judge Kay determined that the most deferential form of rationality review was appropriate for this case. At the beginning of his opinion, he spoke about the importance of "judicial restraint" and the danger of constitutionalizing hotly disputed questions of public policy, and emphasized that under rationality review, a classification "will be upheld when 'the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not,'" quoting from Johnson v. Robinson, a 1974 Supreme Court decision.
In Judge Kay's view, the Hawaii exclusion survives judicial review if the court can hypothesize a rational reason for the state to provide marriage for different-sex couples. "Thus," he wrote, "the state is not required to show that denying marriage to same-sex couples is necessary to promote the state's interest or that same-sex couples will suffer no harm by an opposite-sex definition of marriage. Rather, the relevant question is whether an opposite-sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry."
Using this standard, Judge Kay concluded that the state's interest in incentivizing different-sex couples to marry so as to provide a stable family unit in which to raise children they might accidentally conceive provided a sufficient basis to sustain the law against constitutional challenge. He also found that it was fairly debatable that children benefit from being raised by their two biological parents in a marital relationship.
In the course of his analysis, Judge Kay became the first judge, so far as we can tell, to cite as evidence the controversial — now infamous — Regnerus study, which the intervenor, Hawaii Family Forum, cited in its brief. After summarizing the plaintiffs' evidence of scientific studies showing "that there is no support for the assertion that children fare better when raised by opposite-sex rather than same-sex couples," he wrote, "On the other hand, HFF presents evidence that children do best when raised by their two biological parents," and cites University of Texas Professor Mark Regenerus's article in 41 Soc. Sci. Research 752 (2012), described in a parenthetical as "finding that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes." Presumably this parenthetical is taken from the HFF brief. It misrepresents the Regnerus study, and Prof. Regnerus would concede as much. His study did not compare children raised in same-sex households with children raised in households headed by married biological parents. Rather, its comparison was to households in which either parent had at some time engaged in a same-sex relationship with another adult, including many single-parent households and households affected by divorce, and few households in which the children were actually raised by a same-sex couple comparable to the married parent households. A recent internal "audit" conducted by Social Science Research concluded that the study was not properly peer-reviewed and was not scientifically credible, and the University of Texas is now considering a professionalism charge against Prof. Regnerus.
Judge Kay goes on to state: "Both sides point out flaws in their opponents' evidence," citing a contention in the brief filed by Gov. Abercrombie that the Regnerus study was flawed and an article by Loren Marks cited in the HFF brief criticizing social science studies on same-sex parenting as being based on small, non-random convenience samples. In other words, Kay equates the criticisms of each side, and treats them as if they cancel each other out, because under his brand of rationality review it doesn't make any difference! "In applying rational basis review," he wrote, "if 'the question is at least debatable,' the Court must uphold the classification." That is, legislatures need not based their policy judgment on established facts; they can hypothesize — or courts can hypothesize for them — any justification that would be "at least debatable." As long as a party submits "junk science" – in the form of a published journal article - contradicting the findings of valid scientific inquiry, the question becomes "debatable" and a legislative judgment can be based on the "findings" of either side.
This can't be correct — and the Supreme Court's Daubert ruling requiring federal trial courts to exclude "junk science" from admission as evidence says as much — but the Supreme Court's equal protection rulings lend themselves to this kind of interpretation, unfortunately. Judge Kay was ruling on summary judgment motions; there was no trial, and no opportunity for plaintiffs to raise a formal objection to any consideration of the Regnerus study, so it gets cited by the court and treated as "evidence" despite the lack of any foundation for its introduction as such. This is an example of the abuse to which the summary judgment process has been put by license of a conservative Supreme Court majority that has been eager to empower federal district judges to dispose of an ever higher percentage of cases without affording plaintiffs the right to a trial.
Judge Kay also pointed to the 11th Circuit's infamous decision in Lofton, the Florida gay adoption case, which similarly relied on the proposition that the impact of having gay parents on kids was "debatable" to justify rejecting a constitutional challenge to a Florida statute disqualifying "homosexuals" from adopting children. And he cited the New York Court of Appeals ruling, Hernandez v. Robles, which rejected a same-sex marriage claim based on the same dubious "rationality" justification relying on "assumptions" about what was best for children, regardless of any social science evidence to the contrary.
Judge Kay devoted a section of his opinion to HFF's argument that Hawaii is "entitled to experiment with its social policy to determine what is in the state's best interest." Judge Kay bought their argument. "Throughout history and societies, marriage has been connected with procreation and childrearing," he wrote. "The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce 'the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other,'" citing the dissenting opinion in the Massachusetts marriage case, Goodridge. "It follows that it is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure." For this proposition, he cited a publication by the Witherspoon Institute, the right-wing foundation that provided funding for Prof. Regnerus's "study" so that defenders of traditional marriage would have a published article in a "respectable" social science journal to cite.
"Under rational basis review," Kay continued, "the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite-sex couples from marrying. Rather, the standard is whether the legislature could rationally speculate that it might. It is at least debatable that altering 'that meaning would render a profound change in the public consciousness of a social institution of ancient origin.'" Here, Judge Kay drops a footnote raising the specter of incest, writing, "Once the link between marriage and procreation is taken away, and encouraging a socially desirable family structure is deemed irrational, there is no rational limiting principle for other types of relationships," then citing some old cases of incest prosecutions.
Judge Kay concludes that the state can decide to proceed "cautiously" in dealing with such issues, as Hawaii had done by enacting the Reciprocal Beneficiaries Law in 1997 and then the Civil Union Law in 2011. "By doing so, it may observe the effect of the reciprocal beneficiaries and civil union laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples," he continued. Kay reiterated his opening remarks about judicial restraint, asserting that "to suddenly constitutionalize the issue of same-sex marriage 'would short-circuit' the legislative actions that have been taking place in Hawaii. The Court reiterates that rational basis review is the 'paradigm of judicial restraint' and the Fourteenth Amendment 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choice.'"
Plaintiffs' counsel, John D'Amato, will appeal this ruling to the 9th Circuit. Although Judge Kay is correct that the 9th Circuit's decision in Perry v. Brown refrained from deciding whether same-sex couples have a right to marry, that court's opinion did take on and reject many of the same arguments that Judge Kay accepted as satisfying the rationality requirement in this case. By the time this appeal comes before the 9th Circuit for decision, there will likely be a ruling by the Supreme Court on whether it is granting review in Perry v. Brown and rulings on the pending petitions for review in several challenges to Section 3 of DOMA, the statute banning federal recognition of same-sex marriages. Just as the 9th Circuit has put off oral argument in the Golinski case while waiting to see what happens in the Supreme Court, it is possible that the circuit would delay deciding this case if the Supreme Court agrees to review Perry, since the question presented to the Court in Perry is, at its heart, the same question presented in this case: whether a state violates the 14th Amendment by reserving marriage for different-sex couples while providing all the state law rights of marriage to same-sex couples through another legal construct (civil unions in Hawaii, domestic partnerships in California).