Judge rules Hawaii laws against same-sex marriage not unconstitutional
The Hawaii Family Forum, a Christian educational organization, had intervened in the case to defend Hawaii’s marriage statutes, and its attorney, Jim Hochberg, said he was pleased Kay “agreed with every argument,” except one, “made on behalf of” the forum.
Three people had filed a lawsuit, supported by Hawaii Gov. Neil Abercrombie, asking the court to declare unconstitutional the 1998 constitutional amendment that gave the state Legislature the power to define marriage as the union of one man and one woman, and the state law that subsequently did that.
They argued that the amendment and the law violated due process and equal protection under the law.
Kay disagreed, however, saying any restructuring of “the traditional institution of marriage” should be done through the Legislature or by the people by amending the constitution and “not through judicial legislation that would inappropriately pre-empt democratic deliberation.”
He said the state could conclude that it has addressed the same sex marriage issue over the years “with caution,” first when the Legislature established reciprocal-beneficiary relationships 15 years ago, and last year when it legalized civil unions.
“To suddenly constitutionalize the issue would short-circuit the legislative actions,” he said.
Kay rejected Hochberg’s argument regarding the unusual situation of Abercrombie being both a defendant in the lawsuit, as governor, but also supporting the plaintiffs’ claims.
Hochberg argued the governor was “an improper party and should be dismissed,” but Kay disagreed with that point.
Honolulu Bishop Larry Silva said he was pleased with the ruling. He made the comments in response to questions by email from Chuuk in the Federated States of Micronesia, where he was traveling when Kay issued his decision.
“I think Judge Kay’s ruling makes a great deal of sense,” he told the Hawaii Catholic Herald. “The definition of marriage does indeed have great societal implications that go beyond any particular couple, and the state does have an interest in its own health and welfare when it limits marriage as the union of one man and one woman.”
The bishop said he liked that the judge “recognizes that it is not judges who make laws in a democracy but legislators — and even better, the people.” [More]