Federal District Judge Alan Kay for the District of …(you won’t believe this)…Hawaii says there is no Constitutional right to gay marriage. The issue is governed by the 1972 summary decision in Baker v. Nelson, [gay marriage presents no substantial Federal question] according to Judge Kay. The Baker decision was sidestepped by the only Federal court decision finding a Constitutional right to gay marriage, that being the ruling of San Francisco Federal Judge Vaughan Walker throwing out California’s Proposition 8 in which California voters overwhelming rejected gay marriage.
Judge Kay’s decision will no doubt be appealed to the 9th Circuit which has already found a Constitutional right to gay marriage in a strange opinion that purports to limit its ruling to California. It’s a strange opinion (not unusual in the 9th Circuit) that relies on California having once allowed gay marriage and then taking it back. Can’t take back something already given, the 9th Circuit says (Hawaii has never allowed gay marriage and none have occurred there).
It’s a weird ruling because imagine if California had once allowed amputation of limbs as punishment for criminals and later rescinded that law. The law would have violated the 8th amendment when first enacted, and no Court would order California to reinstate a law that was unconstitutional in the first place. If the law allowing gay marriage is constitutionally neutral, so that like any other such law states may enact it or not, then surely such a law can be changed at the will of the state’s legislature, or the people by referendum.
At any rate, the previous precedent by the 9th Circuit was no barrier to Judge Kay’s ruling, which he aptly explains in his opinion.
The part of Judge Kay’s opinion that I find most in line with intelligent constitutional jurisprudence and judicial policy is this:
“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.”
The people of Hawaii have rejected gay marriage by an overwhelming majority when they were allowed to vote on it, and the State Constitution bans it. Gay marriage has been defeated every time the people of any state have been allowed to vote on it.