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Marriage loss in Hawaii

Timothy Kincaid

August 9th, 2012

Recently we have become accustomed to hearing good news on the legal front. With the quite obviously unconstitutional federal Defense of Marriage Act (section 3) being litigated in several courts, there have been half a dozen back-to-back victories to report.

However, the constitutionality of state laws is less legally certain, and occasional setbacks, though disappointing, are not surprising. One such setback occurred yesterday. (AP)

U.S. District Court Judge Alan C. Kay’s ruling sides with Hawaii Health Director Loretta Fuddy and Hawaii Family Forum, a Christian group that was allowed to intervene in the case.
“Accordingly, Hawaii’s marriage laws are not unconstitutional,” the ruling states. “Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment,” and not through the courts.

Hawaii’s laws are unique. It was in this state that the first “marriage protection” constitutional amendment was passed, and rather than prohibit marriage equality outright, it gives the state legislature the power to do so.

Until last year, when the legislature enacted a civil unions law, Hawaii had a meaningless and insulting reciprocal benefits program (which offered very few benefits and did not recognize relationships). Although the state has a virtual one-party government, the state’s vocal social conservatives have been effective in quashing equality. However, the current governor is an advocate for marriage and I predict that Hawaii will join the ranks of equality states in fairly short time.

Judge Kay was appointed to the federal bench in the 80’s by President Reagan.

The decision will be appealed to the Ninth Circuit. It will be interesting to see where that court falls in that its decision on California’s Proposition 8 was narrowed to address just the unique circumstances of that state and did not speak to the constitutionality of anti-gay bans in general.



August 9th, 2012 | LINK

depending on how this was rationalized, does it provide an argument for those who want to slap it down at the national level – i.e. along equal protection lines. i find it very disturbing that a judge could overlook those fundamentals. just saying “well, these things aren’t my problem” doesn’t really qualify as a decision, and i hope the plaintiffs appeal…

Mark F.
August 9th, 2012 | LINK

Hawaii Democrats, who literally run a one party state (there is only one Republican in the State Senate, for example), need to be called on the carpet for not changing their laws and making this case moot. Especially with the new pro-marriage plank to be included in the National Platform.

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