After a number of decisions by federal district courts that have concluded that the so-called "defense of marriage act" (DOMA) violates the federal constitutional guarantee of equal protection, a district court in Hawaii has taken the opposite stance and rejected the claim that the Constitution mandates same-sex marriage in Hawaii. See Jackson and Bradley v. Abercrombie (D Ct Hawaii Aug. 8, 2012) (with Hawaii Family Forum as intervenor).
This matters because DOMA and the laws of various states that prohibit same-sex marriage leave same-sex couples in a disadvantaged situation on many tax issues (e.g., married same-sex couples are not treated as married for purposes of the federal income tax) and other legal concerns (e.g., rights of survivorship and decision-making at end of life and rights to adopt).
The Hawaii court's rationale rests on two prongs: (1) denying the due process claim based on Scalia-type originalism: since same-sex marriage isn't "deeply rooted in this Nation's history and tradition", it must not be a fundamental right and (2) denying the equal protection claim based on a "rational basis" analysis: since same-sex couples cannot "naturally procreate" the state can legitimately limit marriage to opposite-sex couples that can.
As to the first claim, this notion of "tradition" as the basis for determining what rights we have, or the notion of originalism as the fundamentally correct approach to constitutional interpretation, has always been problematic. It tends to perpetuate the views of a privileged elite as the only constitutionally protected views, and to discriminate against "upstart" groups that gradually are recognized by society as suffering undue discrimination. Do we go all the way back to the original founding of the country, or do traditions that are evolving over time come into play? At what point does something become sufficiently rooted to count--one would think the fact that a majority of Americans now support same-sex marriage should be relevant. The reliance only on (very) "old" traditions/norms as the basis for due process permits long-ingrained and unfounded prejudices to stand in spite of the Constitution's glimmering promise of substantive due process and equal protection for all.
It is worth noting that the Supreme Court has long recognized (since Loving v. Virginia) that the blinders early Americans had as to race and the resulting perversions of justice apparently blessed by the Constitution (permitting slavery) and engaged in by the American people (treating non-whites as inferior, treating marriage between blacks and whites as a crime) can no longer be understood to comport with our evolving understanding of appropriate treatment and therefore of what is required to satisfy the Constitution.
As to the second claim of a rational basis based on "natural procreation", that is simply an invented logic for the existing discrimination. "Natural" procreation is, of course, defined a priori as something that gays can't do, even though gays can have sex with people of the opposite sex and then the couple can adopt the child. People of opposite sex frequently marry with no intent to have "naturally procreated" children. People of same sex marry with every intent of having children through the use of surrogates and sperm or egg donation, a method that is also used by opposite sex couples that cannot have children through "natural" procreation. So opposite-sex marriage is neither essential to "natural procreation" nor is "natural procreation" a sufficient or even necessary condition for existing opposite sex marriages. It is therefore a contrived and arbitrary basis for depriving same-sex couples of the innumerable legal and societal and personal benefits of legal marriage. The court goes on to justify limiting marriage to opposite sex couples with the idea that a legisalture could rationally conclude that children are better off raised by a parent of each sex, although it acknowledges that there is considerable evidence against this point. As long as it is debatable, such a "rationality" argument can win if there is not heightened scrutiny--but the Court must at the least demand heightened scrutiny as the standard for these same-sex equal protection issues.
The district judge in Hawaii is staking out the argument that will likely appeal to the right wing on the Supreme Court who have already indicated a willingness to overturn established Supreme Court precedents when it suits their objectives, from Gore v. Bush (overturning the long-settled law on nonintervention in political questions) to Citizens United (overturning long-settled law on corporate entities inability to influence political campaigns with money). The question is whetherthe Court will stp up to the plate and clearly proclaim the inappropriateness of applying rational basis analysis to equal protection claims of homosexual Americans, a group that has certainly suffered invidious discrimination as a "discrete and insular minority" throughout most of our history.
This case was defended by the misnamed "Alliance Defending Freedom" (it should be called the "Alliance for Sacrificing Freedom"). Not unexpectedly, the right-wing National Review suggests that this judge paid "more careful attention to the actual Constitution." William C. Duncan, Federal Court in Hawaii: No Constitutional Right to Redefine Marriage, National Review (Aug. 9, 2012). What that misses is that the point of constitutional review is to determine what the "actual Constitution" means on these matters.
Let churches and other religious institutions limit the types of marriages they will sanction within their religious walls however they like. But states, and the federal government, can no longer claim any rational basis for allowing a fundamentalist Christian or other religious viewpoint to determine the rights of those who do not share it. Not only due process, but also religious freedom and equal protection demand that the Supreme Court recognize a fundamental right of free Americans who happen to be same-sex couples to choose their intimate partners without the interference of the state and to have the same legal protections for that choice as opposite-sex couples.