In a ruling that is bound to be appealed, a federal judge in Hawaii has ruled that same-sex couples do not have a constitutional right to marry.
According to Lyle Denniston, writing for the SCOTUS Blog, Senior U.S. District Judge Alan C. Kay concluded that because there is no right to marry in the U.S. Constitution, any constitutional challenge must be analyzed only on the basis of determining if the ban on such marriages has a ”rational basis.”
Judge Kay ruled that such bans are rational based on the legislature’s belief that confining marriage to opposite-sex couples would encourage those couples to wed, thus promising that more children will be raised in “a stable, long-term relationship.” Because same-sex couples cannot have children naturally, reserving marriage for those who can create life serves this social goal.
The “rational basis” also can be found in a legislature’s belief that it is generally “best for children to be raised by a parent of each sex.” As Denniston points out, even though this last point is seen by some to be “debatable,” the fact that it is debatable satisfies “rational basis.”
Judge Kay also found a “rational basis” in the legislature’s belief that taking on the divisive social issue of same-sex marriage should be done with “caution.” His 117-page ruling asserts that the issue should be decided by legislative bodies or the people, not the courts.
“If the traditional institution of marriage is to be restructured,” the judge wrote, “it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”
Residents of Hawaii voted on the issue in 1998 and decided by more than a two-thirds majority on a law that bans same-sex marriages.
Judge Kay also based his opinion on a Supreme Court decision issued in 1972 in the Baker v. Nelson case in which the Justices dismissed a challenge to a similar ban in Minnesota, claiming the case did not raise “a substantial federal question.” Court watchers say the Supreme Court will have to address this precedent should it decide to take on any of several challenges to state same-sex marriage bans that are heading its way.
Those wishing to challenge Kay’s decision will now have two options – they can appeal to the liberal Ninth Circuit Court, or bypass them entirely and ask the Supreme Court to take the case without waiting for a lower court ruling.
Hawaii is one of 39 states that, by provisions in their state constitutions or in state laws, restrict marriage to one man and one woman. Six states and Washington, D.C., allow same-sex marriages. Voters in four states will vote on the issue in November: Maine, Maryland, Minnesota, and Washington.
© All Rights Reserved, Living His Life Abundantly®/Women of Grace® http://www.womenofgrace.com
