Federal court rules state’s ban legitimate

A challenge of state laws banning same-sex marriage will now move to the 9th U.S. Circuit Court of Appeals, after a federal judge’s ruling Wednesday upholding the prohibition and throwing out a lawsuit contending the ban violates the U.S. Constitution.

Senior U.S. District Judge Alan Kay issued a 117-page decision that rejected the arguments by a lesbian couple and a gay man, and by Gov. Neil Abercrombie.

They contended the ban violates the constitutional guarantees of due process and equal protection under the law.

John D’Amato, lawyer for Natasha Jackson and Janin Kleid, who were denied a marriage license, and for Gary Bradley, said they believe Kay’s ruling is "erroneous" and will appeal the decision.

Abercrombie issued a statement saying he "respectfully" disagrees with the judge and will join in the appeal.

"To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law," he said. "For me, this is about fairness and equality."

The governor signed legislation last year that allows same-sex couples to enter into civil unions, which have the same rights and responsibilities as marriage.

James Hochberg, lawyer for the Christian-based Hawaii Family Forum, said the group is "very pleased" the judge threw out the lawsuit and ruled that the state laws do not violate the Constitution.

"I think he did the right thing," Hochberg said.

Loretta Fuddy, Abercrombie’s health director, defended the laws, creating the unusual situation of two teams of lawyers from Attorney General David Louie’s office taking opposing positions.

One team represented Abercrombie and the other represented Fuddy in often taking opposite positions on the effect of leading court cases on the issue.

James Walther, a deputy attorney general acting as the office spokesman, said each team would "independently" review and evaluate Kay’s ruling and advise their clients on the next step.

Kay’s decision is the latest development in the controversial marriage equality issue that has spanned more than three decades in Hawaii, but it won’t be the last in view of the appeal, which could take at least months to resolve.

The next step could be turning to the U.S. Supreme Court for a definitive ruling that would have nationwide implications.

In his decision, Kay said Hawaii marriage laws are "not unconstitutional."

The lawsuit challenged a 1998 state constitutional amendment that negated a Hawaii Supreme Court decision five years earlier that paved the way for Hawaii to become the first state to legalize same-sex marriages.

The amendment gave state lawmakers the authority to reserve marriages to opposite-sex couples, which the Legislature earlier did with a law making clear marriage is for a man and a woman.

"Nationwide, citizens are engaged in a robust debate over this divisive social issue," Kay said in his ruling.

"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 pre-empt democratic deliberation regarding whether or not to authorize same-sex marriage," he said.

Kay said a 1972 decision by the U.S. Supreme Court summarily rejecting a federal challenge to Minnesota’s same-sex marriage ban "foreclosed" the constitutional claims in the Hawaii lawsuit.

The judge also ruled that a highly publicized U.S. 9th Circuit Court ruling this year does not apply to Hawaii.

The federal appeals court struck down California’s Proposition 8, which overruled state court decisions that legalized same-sex marriages.

Same-sex couples could get married in California before the voters approved the proposition, which also amended their state constitution.

Kay said that unlike in California, same-sex couples in Hawaii were never allowed to enter into legal marriages.

The judge said Hawaii’s ban is justified because state lawmakers had a "rationale basis" to reserve marriage to a man and a woman.

One is an inducement for opposite-sex couples to marry, "thereby decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship," the judge said.

"It is undisputed opposite-sex couples can naturally procreate and same-sex couples cannot," he said.

"Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so."

He also said lawmakers could conclude that "other things being equal, it is best for children to be raised by a parent of each sex."

Kay said both sides presented evidence on the issue, which makes the rationale "at least debatable and therefore sufficient" to uphold the same-sex marriage ban.

D’Amato said the child-raising rationale raised by the Hawaii Family Forum, but not by Fuddy, is both "disturbing" and "extremely offensive."

"We find it especially regrettable that Judge Kay’s ruling perpetuates the outworn myth that it is OK to treat same-sex couples as second-class citizens because they make second-class parents," he said.

The fitness of parents to raise children depends on the parents’ relationship to each other and with the children, not on the sexual orientation of the parents, D’Amato said.

"It is not debatable," he said. "It is clearly false. It is not supported by any data."

Forum’s Hochberg said studies this year dispute the findings by the plaintiffs’ experts and support children are better off raised by opposite-sex couples.

He said a debate among the experts supports a rationale basis for the keeping marriage between a man and a woman.

Clyde Wadsworth, who was allowed to argue in the case in behalf of Equality Hawaii and the Hawaii LGBT Legal Association, called the decision "dead wrong."

Wadsworth said Kay’s ruling conflicts with the appeals court ruling in the Proposition 8 case.

Although Hawaii never legalized same-sex marriages, the state Supreme Court ruled that there was a presumptive right for same-sex marriages before the 1998 Hawaii constitutional amendment took away that right, Wadsworth said.

Kay disagreed in his ruling.

He said the appeals court repeatedly asserted its ruling was limited to California’s same-sex marriage history that included the legalization of same-sex marriage.

"No same-sex couples have been married in Hawaii nor have ever had the legal right to do so," Kay said.

Hochberg said Kay thoroughly evaluated every issue in his decision, which will make it easier for the appeals court to review his ruling.

Hochberg said the judge ruled in favor of his client and Fuddy’s attorneys on every issue, except for the group’s contention that Abercrombie should be dismissed from the case.

It was unclear when the appeals court would issue a ruling, although it is expected to take months, if not years.

Also, some believe the appeals court might want to wait to see what the U.S. Supreme Court does with California’s Proposition 8 case.

Advocates of the proposition have asked the high court to review the 9th Circuit Court’s decision.

D’Amato said his clients were notified of Kay’s decision and that they still support the challenge to the same-sex marriage ban as well as the appeal.

"We knew from the beginning this would be an uphill battle," he said.

US. District Court ruling on same sex marriage