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HONOLULU — As activists on both side of the marriage debate await word on whether the U.S. Supreme Court will hear appeals to rulings overturning the Defense of Marriage Act (DOMA) and Proposition 8, a U.S. district court upheld traditional marriage in Hawaii on Aug. 8.
In Jackson v. Abercrombie, the federal judge rejected challenges to both Hawaii’s marriage law and a constitutional amendment that gives the state Legislature the power over marriage laws.
In language that echoed briefs filed in other key related cases, senior U.S. Judge Alan Kay issued a lengthy ruling that affirmed the state’s interest in upholding traditional marriage and backed the right of U.S. citizens, through direct vote or through their elected legislatures, to determine the marriage laws for their states.
“Throughout history and societies, marriage has been connected with procreation and child rearing,” read the ruling. “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.”
Further, Kay found that “to suddenly constitutionalize the issue of same-sex marriage ‘would short-circuit’ the legislative actions that have been taking place in Hawaii. … Accordingly, because Hawaii’s marriage laws are rationally related to legitimate government interests, they do not violate the federal Constitution.”
Dale Schowengerdt, the lead attorney defending Hawaii’s marriage law, celebrated the victory for traditional marriage. However, he noted that the plaintiffs were expected to appeal the ruling, sending the case to the Ninth Circuit Court of Appeals, which ruled against Proposition 8 earlier this year.
Judge Kay’s “ruling affirms that protecting and strengthening marriage as the union of one man and one woman is legitimate, reasonable and good for society,” said Schowengerdt, legal counsel for the Alliance Defending Freedom (ADF), a public interest group.
“The people of Hawaii adopted a constitutional amendment to uphold marriage, and the court rightly concluded that the democratic process shouldn’t be short-circuited by judicial decree,” noted Schowengerdt, who represented the Hawaii Family Forum, a Christian organization.
Last year, after two women in a same-sex relationship and a man filed the high-profile lawsuit, Gov. Neil Abercrombie signaled that he would not defend the constitutionality of the state’s law on marriage. The governor’s refusal to defend the law resulted in the unusual practice of two teams from the state Attorney General’s Office representing opposing sides in the court case.
Subsequently, the Hawaii Family Forum, through the ADF, requested and received permission from the court to intervene in the defense of marriage.
Bishop Clarence Silva of Honolulu was traveling and not available for comment. Patrick Downes, the editor of the Hawaii Catholic Herald, the diocesan newspaper, said the local diocese had not played a significant role in the legal challenge and that the Hawaii Family Forum had taken the lead.
The Importance of Studies
However, Archbishop-designate Salvatore Cordileone of San Francisco, the chairman of the U.S. Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage, said he was “heartened” by the ruling.
In 2008, while serving as auxiliary bishop of San Diego, he helped to secure the passage of Proposition 8, which upheld traditional marriage in the state. This year, the Ninth Circuit ruled against Prop. 8. The U.S. Supreme Court is expected to decide by October whether it will hear an appeal for this case, as well as for a parallel lawsuit challenging the constitutionality of the federal Defense of Marriage Act, which defines marriage as between one man and one woman.
“Judge Kay has affirmed the public interest of marriage and its importance for the flourishing of society, thereby recognizing the rational basis for preserving the traditional definition of marriage in the law,” noted Archbishop-designate Cordileone.
“This ruling bodes well for preserving the only institution which unites children to their mothers and fathers, and so will help to safeguard our nation’s social stability into the future.”
Helen Alvare, a professor of family law at George Mason University, noted that when Kay affirmed the state’s interest in upholding traditional marriage, he cited new social research that has ignited a furor among proponents of same-sex “marriage.”
In recent decades, researchers have consistently documented better outcomes for children raised in two-parent homes with both biological parents. This year, Mark Regnerus, a University of Texas sociologist released a “New Family Structures” study, which concluded that children raised by parents who had, at some point, engaged in a same-sex relationship faced a host of serious problems in childhood and beyond.
“When the court says that the state has a rational basis for preserving marriage between a man and a woman, it relies on two studies that show problematic outcomes for children born in other kinds of households,” said Alvare, editor of the forthcoming book of essays Breaking Through: Catholic Women Speak for Themselves (OSV Books).
To defend the constitutionality of traditional marriage, she added, “The state needs a rational argument for why its law is good for people.” The emerging social research strengthens the rational basis for the state’s defense of marriage as between one man and one woman.
If the plaintiffs in Jackson v. Abercrombie appeal, the Ninth Circuit is expected to hear the case within the year. It will be the third important case framing opposing views of legal same-sex “marriage.” But the ultimate outcome in the Hawaii legal challenge, which argued more broadly that the state’s marriage law was unconstitutional, could have ramifications for marriage laws in other states..
“The Prop. 8 case was very different because the ruling was not so much based on whether homosexuals have the right to marry under the U.S. Constitution, but whether once they have the right to marry (which occurred in California for a short period of time before the Prop. 8 vote,) is it constitutional for the people to vote to take away that right,” said James Hochberg, the Honolulu-based co-counsel for the ADF-led defense.
Be Prepared
In May, in a separate legal challenge to the traditional definition of marriage, a federal appeals court in Massachusetts found that DOMA violated the rights of same-sex “married” couples to due process and equal protection by withholding federal benefits available to legally married opposite-sex couples.
The ruling against DOMA was viewed as a major victory for the “marriage equality” movement. But ADF’s Schowengerdt stresses that the Hawaii and DOMA cases address different issues.
“The state of Massachusetts had already redefined marriage to include same-sex couples. Now, they are saying that the federal government has to acquiesce and give federal benefits to same-sex couples in that state,” he noted.
For now, Schowengerdt is relishing the victory for traditional marriage in Hawaii. But whatever the ultimate outcome of Jackson v. Abercrombie, he underscored the point that the debate on marriage would continue, with ongoing efforts to redefine a central social institution — if not in the courts, then in the state legislatures and the voting booth.
“Yes, every time marriage has been put to a vote, traditional marriage has won. But that advocacy and debate continues, and we have to be prepared to meet that in the legislative process. We have to be prepared to explain why marriage should remain a union between a man and a woman.”
Joan Frawley Desmond is the Register’s senior editor.
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There’s no such thing as “traditional” marriage. That’s simply a made-up construct of nonsense. The same kind of nonsense that allowed couples of different races to be discriminated against all the way to 1967 in the Loving v. Virginia case. Face it, this fight is going no where. It is a Civil Rights issue, and marriage will be equal regardless of what those who hate gay folks want.
This is a timely ruling. We must never allow the issue to lose sight of the fact that the essential purpose of Marriage is to publicly register the founding of the institution of a Family for the ordered procreation, education and protection to maturity of the next generation - so Marriage cannot be redefined without the loss of the privacy and freedom from State interference that the institution of the Family is guaranteed.
The purpose of a Marriage ceremony is for a Husband and Wife to publicly commit in a monogamous sexual union to the founding of the institution of their Family for the procreation of children to whom they accept exclusive joint responsibility for rearing to maturity.
The public aspect of a marriage ceremony is essential. A Marriage is not valid if it is conducted behind locked doors and without witnesses. The public must be both able to see which man and woman are joining together to form a Family and be given an opportunity to challenge that they should be allowed to do so. From the moment the Marriage is entered into the public register the Family that is founded by so doing enjoys all the Constitutional rights to privacy and guarantees from State interference derived from being acknowledged as a moral institution and the fundamental unit group of society.
If Marriage is allowed to be defined without the essential procreation, protection and education of children principle i.e. that Marriage is the founding of a Family, activists including Judge Walker in California will have a field day claiming it is discrimination and unfair when it is prohibited to two people of the same sex.
Evidence that the public purpose of Marriage is to bind a Husband and Wife to each other and the Spouses to their children in the formation of a Family includes:
A) The right is stated in all the international covenants and treaties as - “The right to Marry and found a Family”. It is a compound right not two individual rights. See Universal Declaration of Human Rights, Article 16, International Covenant on Civil and Political Rights, Article 23, The European Convention on Human Rights, Article 12
B) A Marriage is voidable in law if it is not consummated, i.e. absence of the intention to procreate by either Spouse is grounds for annulment as no valid Marriage ever took place.
C) For a society to flourish it must continually look to the procreation of the next generation. To properly safeguard the health of its offspring society has to regulate who has sexual intercourse with who. The taboo of incest has served this function for hundreds of generations and this was codified in the 1835 Marriage Act and forbids certain blood relatives, step-relatives and relatives-in-law from getting Married i.e. from legitimately having sexual intercourse.
These restrictions are officially known as forbidden degrees of Relationship and all marriages after 1835, between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void.
When one sees the extent of this list of prohibited ‘degrees’ one understands more fully how the primary function of Marriage is to regulate procreation and therefore what an absurdity it is for people to promote Marriage between people of the same sex who patently can not procreate.
These people show their ignorance further by arguing that preventing people of the same sex from marrying is a form of discrimination against them. If their argument was to be accepted as having any merit then obviously the people who are prohibited from marrying at present, by these degrees of prohibition, should also be allowed to marry as they surely are far more discriminated against than same-sex couples because, being heterosexual pairings they at least have the biological capacity to procreate!
*******************************************
Re A)
Universal Declaration of Human Rights
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
International Covenant on Civil and Political Rights
Article 23
• The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
• The right of men and women of marriageable age to marry and to found a family shall be recognized.
The European Convention on Human Rights
ARTICLE 12
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
(3) Notwithstanding subsections (1) and (2), an order made under subsection (1) shall not be construed as entitling parties to a legal relationship otherwise recognised by that order to be treated as civil partners under the law of the State if those parties are within the prohibited degrees of relationship set out in the Third Schedule to the Civil Registration Act 2004 (inserted by section 26 ).
Re C)
“THIRD SCHEDULE
Prohibited Degrees of Relationship
Section 2 .
A person may not enter a civil partnership with someone within the prohibited degrees of relationship, as set out in the table below. Relationships within that table should be construed as including relationships in the half-blood (e.g. sibling includes a sibling where there is only one parent in common, etc.), and all the relationships include relationships and former relationships by adoption.
A man may not enter a civil partnership with his:
A woman may not enter a civil partnership with her:
Grandfather
Grandmother
Grandparent’s brother
Grandparent’s sister
Father
Mother
Father’s brother
Mother’s sister
Mother’s brother
Father’s sister
Brother
Sister
Nephew
Niece
Son
Daughter
Grandson
Granddaughter
Grandnephew
Grandniece
Nullity of Civil Partnership
Grant of decree of nullity.
107.— On application to it in that behalf by either of the civil partners or by another person who, in the opinion of the court, has sufficient standing in the matter, the court may grant a decree of nullity if satisfied that at the time the civil partners registered in a civil partnership—
Roger,
Marriage is not being re-defined. You are just making that up. Allowing equal rights for GLBT members of society is no different than the Loving case. Indeed, a lot of the same racist rhetoric is now used against gay folks just like it was againt black folks prior to 1967. It’s sad that you have to conflate totally unrelated issues just because of your hatred of gays. They will have equal rights, there is nothing you can do about it. “Procreation” has nothing to do with it. If you want it to have something to do with the issue, I suggest you start lobbying against elderly people and people who are not capable of having children from also being able to marry. The fact that you are not, shows your true motivations.
Marriage is already equal. Anyone can get married—to someone of the opposite sex. Same-sex perversion given a tragicomic legal stamp is not a marriage any more than saying the average dog has five legs because we are counting the tail as a leg.
People who want to be together are free to be together all they want. Nobody will interfere with them or bother them.
But marriage? Marriage is for the future. Marriage is for bringing forth and nurturing children.
And study after study reveals that children fare best living in a home with their own mother and their own father who are married to each other.
Children who lose a parent to death, abandonment, or divorce, or children with same-sex parents, or children living in multiple custodial situations do not fare as well. They can survive and do OK, but these situations are tragedies, not something to be sought out.
Children and families are our country’s future. We owe it to them and to ourselves to do all we can to encourage *optimal* situations for as many children as possible. Not *sub-optimal*.
Marriage of one man and one woman is the optimal arrangement for their children.
Our future depends on this. Our children don’t need any more post-modern chaos in their lives. Let’s stay focussed on the sanctity of marriage.
Again, no one need bother or interfere with persons living out their own lifestyles, even lifestyles we don’t agree with. But children deserve the very best that our society can offer to them. The sanctity of marriage of one man and one woman helps to ensure that children receive our best.
It is good that the courts are finally starting to recognize that there really are reasons that laws exist to grant married couples certain privileges and benefits - that they aren’t merely arbitrary. Those promoting same-sex “marriage” have utterly failed to even acknowledge those reasons, let alone show how they might apply to the union of two people of the same sex.
The tired argument using the “Loving” case actually just proves the point that Marriage is the ceremony by which the founding of a Family takes place for the ordered procreation of children. The Loving case found the law to be un-Constitutional which banned miscegenation or so-called “mixed blood” marriages on the basis that the resulting children would be of mixed race, i.e. the “Loving” case completely supports the PRESUMPTION that Marriage is for the procreation of children in the formation of a Family.
(From Wikipedia) In the United States, the various state laws prohibited the marriage of whites and blacks, and in many states also the intermarriage of whites with Native Americans or Asians.[10] In the U.S., such laws were known as anti-miscegenation laws. From 1913 until 1948, 30 out of the then 48 states enforced such laws.[11] Although an “Anti-Miscegenation Amendment” to the United States Constitution was proposed in 1871, in 1912–1913, and in 1928,[12][13] no nation-wide law against racially mixed marriages was ever enacted. In 1967, the United States Supreme Court unanimously ruled in Loving v. Virginia that anti-miscegenation laws are unconstitutional. With this ruling, these laws were no longer in effect in the remaining 16 states that still had them.
Ahhh, the gay haters just cannot fathom plain old common sense. When y’all start calling for EVERYONE to only be allowed to be married because they are willing to prove it is for procreation and procreation only; then you will have a leg to stand on. A shaky one to be sure, but an untenable position nonetheless. For those who actually delve into Supreme Court common law jurisprudence, they will quickly learn that procreation is NOT the anti-gay marriage “silver bullet” that they pretend it is just to satisfy an intense hatred of a specific group of people.
Michael, Do you have any references to explain what you are saying as I can not follow it. What Supreme Court precedents do you cite and how do they prove that Marriage is not for the founding of a Family?
I’m not a psychologist, but my reasoning leads me to think that the characterization of those who defend traditional marriage as “haters” and “bigots” is more of a defense mechanism than an honest assessment on the part of those who make this charge.
If someone tells you a truth that you don’t want to hear, I think it’s much easier to dismiss what they’re saying if you convince yourself that they hate you or are out to get you. But if someone who you know loves you and/or has your best interest at heart tells you a truth you don’t want to hear, your only choices are to either accept it or hate them instead. This is actually consistent with what Jesus said: “This I command you: love one another. If the world hates you, realize that it hated me first.” John 15: 17-18
Michael, marriage predates the Supreme Court, which really has no authority to determine what marriage is (just like it proved it has no authority to determine when human life begins). Do you think that the legislators who originally enacted the state and federal statutes that recognize and treat marriage were operating according to some court’s definition of marriage, or did their idea of marriage come from somewhere else?
I suggest that if intimate relationships didn’t tend to result in the birth of children who require decades of care and education, the institution of marriage wouldn’t exist at all. What other factor would have led to its inception?
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