Newsflash – a Court has actually decided to apply the Constitution instead of re-writing it!
A federal judge in Hawaii (of all places) has declared that same-sex couples do not have a constitutional right to get married. In a 117-page ruling, Senior U.S. District Judge Alan C. Kay held that the issue was controlled by the Supreme Court’s summary ruling in the 1972 case of Baker v. Nelson (a case that Vaughn Walker side-stepped in his activist decision striking down Prop 8). (h/t ScotusBlog)
Significantly, the judge went on to hold that, even if Baker didn’t control, a state ban on gay marriages satisfies the minimum level of constitutional analysis. Because there is no “fundamental right” to gay marriage, there is no need to apply “strict scrutiny” to laws restricting such marriage; rather, such laws need only satisfy the “rational basis” test. Ultimately, Judge Kay quite rightly concluded that the issue should be decided by elected representatives, not unelected judges.
“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.”
Judge Kay is not a household name; but he is a Reagan appointee who has been quietly toiling away all these years. At the risk of repeating myself, judicial appointments matter. A lot.