Hawaii Court Upholds Marriage
BY Joan Frawley Desmond
August 26-September 8, 2012 Issue | Posted 8/17/12 at 5:10 PM
HONOLULU — As activists on both sides 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.
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.
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.”
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