Hawaii is one of thirty-nine 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.
-- Lyle DennistonThis is found in a discussion about a 9th Cir. district judge who held that it does not violate the federal constitution to not protect same sex marriage. It is important to note, since the quote is vague on the point, that Hawaii does not restrict marriage to one man and one woman (not "heterosexuals," so "gay marriage" is misleading) by constitutional fiat. The law there -- one reason it is different from some other laws, including Prop 8 -- gave the legislature discretion. The best of worst worlds.
The judge in the Prop 8 case ruled on this question broadly, even though Prop 8 allowed (as seen in the court of appeals) a more limited reach. Litigants here are pressing for a broader result, the state recently passing a generous civil union law that still is not complete equality. They lost, which realistically is to be expected given the state of the law, even though you can make the case. My problem is the breadth of the opinion, another mega-effort, this time supportive of the law itself.
First, Baker v. Nelson is more relevant when the state is denying marriage rights, but it still is doubtful it blocks this suit. The reasons I linked to before still apply in part, including change in federal precedent and the specific state of the law (broad civil union rights) in the state. Second, the reasoning to uphold the law is really specious, especially given the state is strongly protecting the unions via "civil union" protections. Third, it is a form of sex discrimination, which is put to a higher test. Fourth, rational basis without teeth is not warranted. Finally, though one probably can go on, "marriage" has changed over the years, and why SSM should not be protected under it along with other modern expressions is unclear to me.
I share the concern in using "caution" here and I think it reasonable to uphold the law pursuant to current precedent. Civil unions broadly protects same sex couples and intermediate scrutiny possibly can be met by that policy. I think heightened review should apply, but district court judges shouldn't lead the field in this area. This isn't a blatant Prop 8 or DOMA situation. The justification, honestly, is still rather weak in my opinion push comes to shove, but such is the nature of cautious judicial change. Long drawn out and somewhat preachy opinions of this sort, however, is ill advised in either direction.
Expect a more restrained 9th Circuit opinion, just like it tempered the overboard (though quite convincing on various matters) mirror image of sorts of this opinion.