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NO. 20371

IN THE SUPREME COURT OF THE STATE OF HAWAII
NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO,
 
P1aintiffs-Appellees,
     vs.

Lawrence H. Miike, in his official capacity as Director of the Department of Health, State of Hawaii,
 

Defendant-Appellant.
 CIVIL NO. 91-1394-05
(INJUNCTIONS)

APPEAL FROM THE FINDINGS OF FACT AND CONCLUSIONS OF LAW

FIRST CIRCUIT COURT

THE HONORABLE KEVIN S.C. CHANG


 

BRIEF OF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES
UNION OF HAWAI'I FOUNDATION

and

CERTIFICATE OF SERVICE

SANDY S. MA #7133
AMERICAN CIVIL LIBERTIES UNION OF HAWAI`I FOUNDATION
Post Office Box 3140
Honolulu, Hawaii 96801
 

MATTHEW ~ COLES (NY Bar No. 076090)*
JENNIFER MIDDLETON (CA Bar No.178546)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004-2400
 

EDWARD C. KEMPER #893
KEMPER & WATTS
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 1455
Honolulu, Hawaii 96813

LESLIE G. FAGEN (NY Bar No.385862)
TOBIAS BARRINGTON WOLFF (NY Bar admission pending)
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064

*Matthew A. Coles was admitted pro hac vice before The Honorable Judge Chang in Baehr et al. v. Miike, Civ. No.91-1394-O5.
(Attorneys for Amicus Curiae AMERICAN CIVIL LIBERTIES UNION OF HAWAII FOUNDATION)

 
TABLE OF CONTENTS
PAGE
I. TABLE OF CONTENTS i
II. TABLE OF AUTHORITIES ii
III. QUESTION PRESENTED 1
IV. ARGUMENT 1
IV. A. THE PRESERVATION PRINCIPLE PROVIDES A CANON OF CONSTRUCTION FOR CONSTITUTIONAL PROVISIONS LIKE THE HAWAI`I MARRIAGE AMENDMENT 2
IV. B. THE PRESERVATION PRINCIPLE COUNSELS A NARROW INTERPRETATION OF THE HAWAI`I MARRIAGE AMENDMENT 7
V. CONCLUSION 10
APPENDIX 1-3
CERTIFICATE OF SERVICE

 
 
TABLE OF AUTHORITIES
CASES
In re B.L.V.B., 628 A.2d 1271 (Vt. 1993) 9
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) 10
Braschi v. Stahl Assocs. Co., 543 N.E.2d 49 (N.Y. 1989) 9
Brimmer v. Thomson, 521 P.2d 574 (Wyo. 1974) 4-5
Brushaber v. Union Pac. R.R. Co., 240 U.S. 1 (1916) 6
Evans v. Gore, 253 U.S. 245 (1920), overruled in part on other grounds, OMalley v. Woodrough, 307 U.S. 277 (1939) 6
In the Matter of the Adoption of Two Children bv H.N.R., 666 A.2d 535 (N.J. Super. A.D. 1995) 9
Knight v. Hollings, 129 S.E.2d 746 (S.C. 1963) 5
McLellan v. Aldredge, 159 S.E.2d 682 (Ga. 1968) 5
In re Opinion of the Justices, 151 N.E. 680 (Mass. 1926) 5
In re Opinion to the Governor, 178 A. 433 (R.I. 1935) 3-4
Poppen v. Walker, 520 N.W.2d 238 (S.D. 1994) 5
Rasmussen v. Baker, 50 P.819 (Wyo. 1897) 4
State ex rel Webb v. Cianci, 591 A.2d 1193 (R.I. 1991) 4
Tanner v. Oregon Health Sciences Univ., No.9201-00369 (Ore. Ct. App. filed Dec. 9, 1998) 8, 9
Vannatta v. Keisling, 931 P.2d 770 (Ore. 1997) 3, 7
William E. Peck & Co. v. Lowe, 247 U.S. 165 (1918) 6
CONSTITUTIONAL PROVISIONS
Haw. Const. art. I § 3 2, 7, 8, 9
Haw. Const. art. I § 5 2, 7, 8, 9
Haw. Const. art. I, § 23 (1997 Haw. Sess. Laws H.B. 117, § 2, at 1247) 2, 7, 8, 9
U.S. Const amend. XVI 2, 5-6
STATUTES
Haw. Rev. Stat. § 572-1(1993 & Supp. 1996) 2, 7, 8

NO. 20371

IN THE SUPREME COURT OF THE STATE OF HAWAII
NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO,
 
P1aintiffs-Appellees,
     vs.

Lawrence H. Miike, in his official capacity as Director of the Department of Health, State of Hawaii,
 

Defendant-Appellant.
 CIVIL NO. 91-1394-05
(INJUNCTIONS)

APPEAL FROM THE FINDINGS OF FACT AND CONCLUSIONS OF LAW

FIRST CIRCUIT COURT

THE HONORABLE KEVIN S.C. CHANG

BRIEF OF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES
UNION OF HAWAI'I FOUNDATION



 

III. QUESTION PRESENTED


    What is the retrospective and prospective effect, if any, of the marriage amendment on the disposition of this appeal?
 
 

IV. ARGUMENT


    The American Civil Liberties Union ("ACLU"), as Amicus Curiae, respectfully submits this response to the Court's November 23, 1998 order authorizing supplemental briefing on the issue of the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal. The ACLU believes that the effect to be given to the marriage amendment should be controlled by a basic and long-established principle of constitutional construction. When a Constitution is amended to confer a new power upon government, and that power stands in derogation of an express reservation of  rights already contained in the Constitution, then the power granted by the amendment should be narrowly construed. This canon of construction might best be termed a "preservation principle." The highest courts of a number of States have embraced this preservation principle when presented with questions of constitutional construction similar to the one before this Court. The United States Supreme Court did the same when it gave a narrow interpretation to the Sixteenth Amendment to the Federal Constitution, which removed some of the restraints that had previously existed on the power of the federal government to levy income taxes. This principle militates in favor of a narrow interpretation of the Hawai`i marriage amendment, one that would empower the legislature to reserve the
marriage contract provided for in Haw. Rev. Stat. § 572-1 (1993 & Supp. 1996) [attached as Appendix 1] to opposite-sex couples but otherwise would not derogate from the continuing role of article I, sections 3 and 5 of the Hawai`i Constitution in barring discrimination against couples in committed relationships on the basis of sex or sexual orientation.

A. The Preservation Principle Provides a Canon of Construction for Constitutional Provisions Like the Hawai`i Marriage Amendment.


    The question of interpretation that the marriage amendment presents is not an unprecedented one. Other States have already been forced to confront similar interpretive questions in construing their own Constitutions. Their examples are instructive. The highest courts of a number of States have concluded that the appropriate canon of construction for an amendment that operates in derogation of expressly reserved rights is one that adopts a narrow interpretation of the new provision.
 

    The most recent decision to address the issue comes from the Supreme Court of Oregon. Last year, that Court was asked to determine the extent to which a campaign finance amendment had carved out an exception to the free speech provision contained in the Oregon Constitution. The Court grounded its analysis firmly in the preservation principle, embracing a narrow construction of the new amendment.
 

[The free speech provision of the Oregon Constitution] has protected expression in the most sweeping terms since its enactment in 1859. Any particular forms of expression that have been removed from that protection by a subsequent constitutional amendment must be construed carefully to give effect to the scope of the later exception, but no more, lest the salutary value of [the free speech provision] unintentionally be lost.


Vannatta v. Keisling, 931 P.2d 770, 779 (Ore. 1997). The Court went on to rule that portions of a recently enacted statute that placed broad limitations on contributions and expenditures in state political campaigns violated the free speech provision of the State Constitution, the amendment notwithstanding. See Id. at 78~87.

    The Supreme Court of Rhode Island has charted a similar course. In a landmark 1935 opinion, that Court held that a provision in its Constitution that empowered the legislature to draft and propose constitutional amendments on its own initiative had not derogated from the legislature's preexisting power to call a full-scale constitutional convention that would enable the people to frame amendments themselves.  The right of the people to have a direct voice in the shaping of their Constitution, the Court held, should not be infringed if such a result could be avoided.
 

The power granted to the General [Legislative] Assembly by article 13 can naturally and reasonably be viewed as an additional rather than an exclusive power, and the recognized rule is that if two constructions of a constitutional provision are reasonably possible, one of which would diminish or restrict a fundamental right of the people and the other of which would not do so, the latter must be adopted.


In re Opinion to the Governor, 178 A. 433, 441~2 (R.I. 1935). Half a century later, the Rhode Island Court reaffirmed this preservation principle when it gave a narrow construction to a constitutional amendment that restricted the right of convicted felons to hold elective office. See State ex rel Webb v. Cianci, 591 A.2d 1193, 1202 (R.I. 1991) ("When more than one construction of a constitutional provision is possible, `one of which would diminish or restrict a fundamental right of the people and the other of which would not do so, the latter must be adopted."') (quoting In re Opinion to the Governor, 178 A. at 44142).

    The Supreme Court of Wyoming first embraced the preservation principle when it was presented with a constitutional provision that imposed a literacy requirement on the exercise of the franchise in that State. The Court explained that it had a duty to give a narrow construction to the amendment because it infringed on basic rights.
 

As a reasonable corollary of [the basic principle that the elective franchise should extend broadly], we think it should follow that any provision which excludes any class of citizens from the exercise of the elective franchise ought to receive a strict construction, without, however, doing violence to or distorting the language, to the end that none shall be held excluded who are not clearly designated.


Rasmussen v. Baker, 50 P.819, 822 (Wyo. 1897). As in Rhode Island, this application of the preservation principle continues to guide the High Court's jurisprudence in Wyoming to this day. See Brimmer v. Thomson, 521 P.2d 574, 580 (Wyo. 1974) ("[It is a] basic and universally accepted rule that . . . constitutional provisions which tend to limit the candidacy of any person for public office or exclude any citizen from participation in the elective process must be construed in favor of the right of the voters to exercise their choice and should be construed strictly and not extended to cases not clearly covered thereby.").

    The South Carolina Supreme Court followed the preservation principle as well when it gave an exquisitely narrow construction to an amendment that empowered the legislature to enact certain kinds of"special laws" -- individualized legislation that can be misused for political favoritism -- in derogation of a general prohibition against such laws already contained in the State Constitution. See Knight v. Hollings, 129 S.E.2d 746, 747~50 (S.C. 1963). Many other States have seen the wisdom of adopting such a measured approach when presented with questions of constitutional construction. See, e.g. Poppen v. Walker, 520 N.W.2d 238, 241 (S.D. 1994) (holding that amendment that carves out exception to "the general prohibition against gambling in the South Dakota Constitution . . . must be strictly construed"); In re Opinion of the Justices, 151 N.E. 680, 720 (Mass. 1926) (explaining that when "a [general constitutional] provision . . . is followed by a proviso, . . . the proviso is to be strictly construed"); cf McLellan v. Aldredge, 159 S.E.2d 682, 686 (Ga. 1968) ("An amendment to a constitution repeals by implication existing constitutional provisions only when they are in irreconcilable conflict, and when they cannot reasonably stand together.").

    The United States Supreme Court has itself been presented with an occasion to determine what canon of construction should govern an amendment that confers a power upon the federal government that had previously been denied to it by other constitutional provisions. The Sixteenth Amendment to the Federal Constitution empowered Congress to levy income taxes without satisfying the requirement of "apportionment" that article I of the Constitution imposes upon all "direct taxes," providing instead that "[t]he Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."  U.S. Const. amend. XVI. Uncertainty remained following the ratification of the amendment, however, as to whether the phrase "from whatever source derived" operated to remove other limitations that the Constitution places upon the power of Congress to tax certain individuals or goods. The Court put that uncertainty to rest in a series of opinions that embraced the preservation principle as the proper canon to govern the construction of the amendment. See Evans v. Gore, 253 U.S. 245, 259 (1920) (holding that new income tax cannot be applied to seated federal judge and explaining that "a purpose to depart from or imperil a constitutional principle so widely esteemed and so vital to our system of government as the independence of the judiciary is not lightly to be assumed"), overruled in part on other grounds, O'Mallev v. Woodrough, 307 U.S. 277, 282-83 (1939); William E. Peck & Co. v. Lowe, 247 U.S. 165, 172-73 (1918) (Sixteenth Amendment had no impact on Constitution's categorical prohibition on taxation of exports); Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 18-19 (1916) (Sixteenth Amendment did not effect wholesale repeal of Constitution's distinction between "direct" and "indirect" taxation).

    This powerful trend among our State and Federal Supreme Courts is a salutary one.  It preserves the vital role of the courts in protecting the citizenry against immoderate expansions of government power while giving due regard to the express will of the People in determining how their charter of government should be structured. This Court should follow the example set by so many of its sister courts and embrace the preservation principle as a basic canon of constitutional construction in the State of Hawai`i.
 

B. The Preservation Principle Counsels a Narrow Interpretation of the Hawai`i Marriage Amendment.


    The text of the Hawai'i marriage amendment is spare and precise. It provides only that "[t]he legislature shall have the power to reserve marriage to opposite-sex couples."  1997 Haw. Sess. Laws H.B. 117, § 2, at 1247 [attached as Appendix 2].  The preservation principle counsels that these economical words receive an equally economical construction, one that does precisely what the amendment was intended to do, but no more. See Vannatta, 931 P.2d at 779. Following this principle, the amendment should be read to confer upon the legislature a single power: the power to reserve the status of marriage provided for in H.R.S. § 572-1 to opposite-sex couples. That power should not be construed to interfere with the continuing role of article I, sections 3 and 5 of the Hawai`i Constitution in preventing discrimination against those in other committed relationships on the basis of sex or sexual orientation.

    A law that reserved marriage to opposite-sex couples would pose two questions for review: (1) Would it violate the Hawai`i Constitution for the legislature to exclude same-sex couples from the status of marriage under H.R.S. § 572-1; and (2) Would it violate the Hawai`i Constitution for the legislature to deny to same-sex couples a host of benefits and responsibilities created by other laws by making eligibility for those benefits and responsibilities depend upon marriage?

    The first of these questions must now be considered in light of the marriage amendment. Under the amendment, the legislature has the power to reserve H.R.S. § 572-1 to opposite-sex couples.1 The second of these questions, however, is entirely distinct.  That the legislature has the power to reserve the status of marriage to opposite-sex couples does not mean that it may also use that power to discriminate in other ways against couples whom it excludes from that status. To read the marriage amendment to authorize such discrimination would be to place upon it the most expansive possible interpretation, in derogation of the broad reservation of rights contained in article I, sections 3 and 5.

    An appellate court in Oregon issued a decision earlier this month that recognized and relied upon this important distinction between the institution of marriage and the legal uses to which that institution is put. In Tanner v. Oregon Health Sciences Univ., No.9201-00369 (Ore. Ct. App. filed Dec. 9, 1998) [attached as Appendix 3], three lesbian couples petitioned the court for equal access to certain employment benefits that the State provided to married couples alone. The court explained that each of the couples "enjoyed a long-term and committed relationship, which each wishes to continue for life" and each "would be married if Oregon law permitted homosexual couples to marry." Id., slip op. at 3.  The petitioners did not claim, however, that any authority required that Oregon admit them to the institution of marriage. See Id., slip op. at 17 n3. Rather, they argued that it would violate the equal protection clause of the Oregon Constitution for the State to use the marriage contract as the exclusive touchstone for the provision of employment benefits, given that same-sex couples are prevented from entering into that contract. The court agreed.  Limiting these important benefits to married couples, it found, was tantamount to denying those benefits to committed gay and lesbian couples altogether.2 The court concluded that there could be no justification for using the marriage contract as an instrument of exclusion in this fashion, even assuming that the contract itself could legitimately be reserved to opposite-sex couples. See Id., slip op. at 27-29. In so holding, the Oregon court advanced a recent trend that has found adherents among an increasing number of States, recognizing that the rights and responsibilities traditionally associated with marriage ought to be extended on equal terms to same-sex couples who are not permitted to marry. See, e.g., In re B.L.V.B., 628 A.2d 1271, 1275 (Vt. 1993) ("To deny the children of same-sex partners, as a class, the security of a legally recognized relationship with their second parent serves no legitimate state interest."); Braschi v. Stahl Assocs. Co., 543 N.E.2d 49, 53-54 (N.Y. 1989) (finding that term "family" as used in noneviction provision of rent-control law should be read to include unmarried same-sex partner of tenant); In the Matter of the Adoption of Two Children by H.N.R., 666 A.2d 535, 538 {N.J. Super. A.D. 1995) (construing state law to allow unmarried same-sex and opposite-sex partners to adopt partner's child on equal terms).

    It remains open to this Court to chart a similar course. The power to reserve marriage to opposite-sex couples that the new amendment grants to the legislature should not eclipse the fundamental principle of equality that is embodied in article I, sections 3 and 5 of the Hawai`i Constitution. The amendment should not be read to disturb the application of this Court's prior holding in Baehr v. Lewin, 852 P.2d 44, 59-64 (Haw. 1993), to the many consequences that the legislature may attach to the status of being married.3
____________________

1.  The question of what action would be required for the state legislature to make use of that newly granted power is beyond the scope of this brief.

2.  The Oregon court found that this denial of benefits constituted discrimination on the basis of sexual orientation, a question that is posed in this case but that this Court has not yet reached.

3.  The "consequences" following such an application of Baehr is beyond the scope of this brief.

V. CONCLUSION


    The preservation principle counsels this Court to remain faithfull to the provisions of article I by adopting a construction of the marriage amendment that recognizes the equal dignity of unmarried same-sex couples.

    Dated: Honolulu, Hawaii; December 22 1998
  

Respectftilly Submitted,

/s/SANDY S. MA

American Civil Liberties Union of Hawai`i Foundation
P.O. Box 3410
Honolulu, HI 96801

EDWARD C. KEMPER
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 1455
Honolulu, HI 96813

MATTHEW A. COLES
JENNIFER MIDDLETON
American Civil Liberties Union Foundation
125 Broad Street, l8~ Floor
New York, NY 10004-2400

LESLIE G. FAGEN
TOBIAS BARRINGTON WOLFF
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064

(Attorneys for Amicus Curiae American Civil Liberties Union of Hawai'i Foundation)


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