HONOLULU (CNS) — U.S. District Court Judge Alan Kay in an Aug. 8 ruling said Hawaii's laws banning same-sex marriage “are not unconstitutional” and he threw out a lawsuit that had argued otherwise.

The Hawaii Family Forum, a Christian educational organization, had intervened in the case to defend Hawaii's marriage statutes, and its attorney, Jim Hochberg, said he was pleased Kay “agreed with every argument,” except one, “made on behalf of” the forum.

Three people had filed a lawsuit, supported by Hawaii Gov. Neil Abercrombie, asking the court to declare unconstitutional the 1998 constitutional amendment that gave the state Legislature the power to define marriage as the union of one man and one woman, and the state law that subsequently did that.

They argued that the amendment and the law violated due process and equal protection under the law.

Kay disagreed, however, saying any restructuring of “the traditional institution of marriage” should be done through the Legislature or by the people by amending the constitution and “not through judicial legislation that would inappropriately pre-empt democratic deliberation.”

He said the state could conclude that it has addressed the same sex marriage issue over the years “with caution,” first when the Legislature established reciprocal-beneficiary relationships 15 years ago, and last year when it legalized civil unions.

“To suddenly constitutionalize the issue would short-circuit the legislative actions,” he said.

Kay rejected Hochberg's argument regarding the unusual situation of Abercrombie being both a defendant in the lawsuit, as governor, but also supporting the plaintiffs' claims.

Hochberg argued the governor was “an improper party and should be dismissed,” but Kay disagreed with that point.

Honolulu Bishop Larry Silva said he was pleased with the ruling. He made the comments in response to questions by email from Chuuk in the Federated States of Micronesia, where he was traveling when Kay issued his decision.

“I think Judge Kay's ruling makes a great deal of sense,” he told the Hawaii Catholic Herald. “The definition of marriage does indeed have great societal implications that go beyond any particular couple, and the state does have an interest in its own health and welfare when it limits marriage as the union of one man and one woman.”

The bishop said he liked that the judge “recognizes that it is not judges who make laws in a democracy but legislators — and even better, the people.”

“In approximately 32 states where the issue of the definition of marriage was put to a vote of the people, every single state affirmed marriage as the union of one man and one woman,” he said.

Bishop Silva said that the Diocese of Honolulu also had been asked to intervene in the lawsuit, but decided not to.

“I thought it would be best for this case to stand on its own merits and not be spun as the Catholic Church trying to forcefully impose its moral teachings on the rest of society,” he said.

He said that while the church is opposed to same-sex marriage, “its reasons are not strictly religious but can be seen by many reasonable people, whether Catholic or not.”

In addressing the arguments of the case, Kay wrote: “The Legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently conceived outside of a stable, long-term relationship.”

“It is undisputed opposite-sex couples can naturally procreate and same-sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so,” he said.

Because of Hawaii Family Forum's history in publically defending traditional marriage, Kay “allowed HFF to intervene and defend the marriage statute,” Hochberg said.

To get the forum intervenor status, Hochberg sought help from the Alliance Defending Freedom, formerly the Alliance Defense Fund, a Christian-based organization that provides legal defense against attacks on religious freedom, to get the forum.

Hochberg said the case is likely headed to the 9th U.S. Circuit Court of Appeals and then the U.S. Supreme Court.

Two of the plaintiffs, who are a couple, argued they needed to be married to get certain federal benefits, and their co-plaintiff wanted to marry his foreign national partner to help him change his immigration status. They said they would appeal Kay's ruling, and Abercrombie said in a statement he would join with the plaintiffs in any appeal.

“To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law,” he was quoted as saying.

“Our side agrees with the ruling, but the other side considers it a travesty of justice,” Hochberg said. “The debate rages on because the two positions are irreconcilable. There can be no mediated resolution, otherwise civil unions would have accomplished that.”

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— By Patrick Downes, editor of the Hawaii Catholic Herald, newspaper of the Honolulu Diocese.

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