Yesterday, Reagan-appointed Judge Alan C. Kay, a federal judge in Hawai’i, handed down a lengthy opinion holding that the Constitution does not provide gay Hawai’i couples with the same marriage rights as straight couples.
Kay’s opinion is 117 pages long, and its length is not surprising. Kay walks meticulously through the Supreme Court’s and other relevant gay rights precedents, identifies ambiguities — often in places where recent opinions have not found any ambiguity at all — and resolving every single uncertainty he finds in existing law in the light least favorable to gay couples. Kay cites a one sentence Supreme Court decision dismissing a gay rights case because the Court did not want to hear it as definitive proof that the justices reject equality. He reads the Ninth Circuit’s Prop 8 decision establishing that a state cannot withdraw equal marriage rights that it previously granted as narrowly as possible to diminish the significance of a 1993 Hawai’i Supreme Court decision holding that marriage discrimination is subject to the most skeptical constitutional review. And he cites favorably to an anti-gay dissenting opinion by Justice Scalia.
He also uses the word “homosexual” 50 different times.
The most important decision Kay makes, however, is that laws which discriminate on the basis of sexual orientation are only subject to “regular rational basis review,” an exceedingly low standard of constitutional scrutiny which virtually ensures that the law under consideration will be upheld. The Supreme Court’s landmark gay rights decisions in Romer v. Evans and Lawrence v. Texas suggest that a more skeptical inquiry is required — a suggestion that convinced a Republican-dominated panel of the First Circuit to strike down the Defense of Marriage Act. Neither Lawrence nor Romer, however, explicitly state that judges should treat anti-gay laws with increased skepticism, so Kay once again resolves this ambiguity against equality.
The upshot of this decision is that Kay can then uphold marriage discrimination based on flimsy arguments and studies from anti-gay organizations:
[I]t is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure. See HFF’s Mot. Ex. 33, Witherspoon Institute, Marriage and the Public Good: Ten Principles, 18-19 (2008) (concluding that changing the meaning of marriage “would further undercut the idea that procreation is intrinsically connected to marriage. It would further undermine the idea that children need both a mother and father, further weakening the societal norm that men should take responsibility for the children they beget.”); HFF’s Mot. Ex. 34, Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 Journal of Marriage & Family 848, 848-50 (November 2004) (explaining that the movement to legalize same-sex marriage is the most recent development in the deinstitutionalization of marriage, i.e., the “weakening of the social norms that define people’s behavior” in the social institution of marriage).
Under rational basis review, the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite-sex couples from marrying. Rather, the standard is whether the legislature could rationally speculate that it might.
So this is not a good opinion for equality, but it is also not clear that it will matter much in the long run. Kay’s decision will appeal to the Ninth Circuit, which has recently shown far more acceptance for gay rights than Kay. When higher courts weigh in on this case — and the plaintiffs are guaranteed at least one appeal to the Ninth Circuit as a matter of right — Kay’s opinion is likely to be forgotten. Moreover, it is worth noting that Kay is careful to distinguish his opinion from previous precedents striking down Prop 8 and DOMA. Thus, even if Kay’s reasoning stands the test of time, these particularly egregious anti-gay laws could still be on the way out.
Nevertheless, Kay’s opinion reads much like an opinion by conservative Justice Samuel Alito would read if he takes the opportunity to weigh in on marriage equality. It hunts for every single leverage point anti-gay groups can work to preserve discrimination, and struggles to pry each one open.