Federal Judge Upholds Hawaii Marriage Ban

By Julie Bolcer

Originally published on Advocate.com August 09 2012 10:38 AM ET

A federal judge in Hawaii ruled Wednesday that the state’s ban on same-sex marriages is constitutional, and said that any changes to the law should be made by lawmakers or voters through a constitutional amendment process.

U.S. District Judge Alan Kay issued a 120-page decision that said court involvement at this point would “short-circuit” the legislative activity that has taken place against the issue. A civil unions law took effect in 2011, but the co-plaintiffs in the suit, Jackson v. Abercrombie, argued that only marriage would give them certain federal benefits.

Judge Kay acknowledged that the state has been “moving towards providing more rights for same-sex couples,” but he concluded that the court was the wrong venue to settle the question.  He said that unlike California, where Proposition 8 took away marriage rights granted by the state’s highest court, same-sex couples in Hawaii were never legally able to marry, according to the Hawaii Reporter.

“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 preempt democratic deliberation regarding whether or not to authorize same-sex marriage,” wrote Judge Kay.

Hawaii has long been at the forefront of the marriage equality debate in the United States. The state’s supreme court ruled in 1993 that denying same-sex couples marriage rights constituted discrimination, but in 1998, voters became the first in the nation to approve a ban on same-sex marriage. The House Republicans' legal team defending the Defense of Marriage Act in court this year has argued that the possibilities sparked by Hawaii at the time gave Congress a “rational basis” for passing the 1996 law that prohibits the federal government from recognizing same-sex marriages.

The Hawaii attorney general found itself on both sides of the latest lawsuit, an unusual position. Governor Neil Abercrombie, who signed the civil unions legislation last year, declined to support the marriage ban, but Health Director Loretta Fuddy argued for it.

The Hawaii Family Forum, a Christian group, was allowed to intervene in the case on the side of the Health Department, reports the Associated Press.

Governor Abercrombie issued a statement after the ruling that said he would join the plaintiffs if they decide to appeal, the AP reports. The appeal would be heard in the Ninth Circuit.

“I respectfully disagree and will join the Plaintiffs if they appeal this decision. To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law,” said Governor Abercrombie. “For me this is about fairness and equality.”