When Perry v. Brown, in which the 9th Circuit Found Prop 8 was unconstitutional, was decided, Judge Reinhardt’s opinion went out of its way to hold how limited it was (a right to marriage was given, then taken away), and how it would not affect any other ban on same sex mariage. At the time, I was somewhat incredulous, and wondered whether Hawaii’s (a state also in the 9th Circuit) ban on SSM could stand.

In Jackson v. Abercrombie, (D HI, Aug. 8, 2012), the district court upheld the constitutionality of the ban, finding that the state has a rational basis, under both the equal protection and due process clauses, to enact the ban. More interestingly is how the Court distinguished away the Perry opinion from the 9th Circuit:

 The Court first notes that Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), a case in which the Ninth Circuit held that an amendment to the California Constitution that stated “[o]nly marriage between a man and a woman is valid or recognized in California” (“Proposition 8”) violated the Equal Protection Clause of the United States Constitution, does not control this case. The Ninth Circuit repeatedly asserted that its holding was limited to the unique facts of California’s same-sex marriage history, i.e., “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” Id. at 1064 (“We need not and do not answer the broader question in this case . . . [The] unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.”). No same-sex couples have been married in Hawaii nor have ever had the legal right to do so. Thus the legislature’s amendment to § 572-1 and Hawaii’s marriage amendment did not take away from same-sex couples the designation of marriage while leaving in place all of its incidents as Hawaii, unlike California, did not have a civil unions law at the time the legislature amended § 572-1 or when the people ratified the marriage amendment. Consequently, this case does not involve the same unique facts determined dispositive in Perry.

In other words, in California, the right to same-sex marriage was given to the people, but rescinded by Prop 8. On this basis, Prop 8 was unconstitutional. Because the people of Hawaii never had this right, the law in question took nothing away. Thus, Perry  and Jackson are not aligned.

I will read the rest of the opinion later, but wanted to flag this one precedential point.

H/T Religion Clause