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No. 20371

IN THE SUPREME COURT OF THE STATE OF HAWAI'I


NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO,
Plaintiffs-Appellees,
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 HON. KEVIN S.C. CHANG

SUPPLEMENTAL BRIEF OF AMICUS CURIAE
HAWAII CATHOLIC CONFERENCE
AND
CERTIFICATE OF SERVICE

ASHFORD & WRISTON
ROBERT BRUCE GRAHAM, JR. 1305-0
Alii Place, Suite 1400
1099 Alakea Street
Honolulu, F11 96813
Telephone: (808) 539-0400

Attorney for Amicus Curiae
HAWAII CATHOLIC CONFERENCE
 
 
 

TABLE OF CONTENTS
Table of Authorities ii
I. STATEMENT OF THE QUESTION PRESENTED 1
II. ARGUMENT 2
II A. THE MARRIAGE AMENDMENT OVERTURNS THE HOLDING OF THE PLURALITY IN LEWIN THAT THE MARRIAGE LAW, H.R.S. § 572-1, IS A "SEX BASED CLASSIFICATION" SUBJECT TO STRICT SCRUTINY 2
II B. THE MARRIAGE AMENDMENT TREATS BOTH MARRIAGE LICENSES AND MARRIAGE-RELATED BENEFITS AS AN INTEGRATED BODY OF LAW 3
II C. THE MARRIAGE AMENDMENT REAFFIRMS THAT A LAW WHICH REQUIRES BOTH A MAN AND A WOMAN FOR MARRIAGE IS FULLY CONSISTENT WITH OTHER PROVISIONS OF THE HAWAII CONSTITUTION 6
III. CONCLUSION 8

 

TABLE OF AUTHORITIES

STATE CASES
Citation Reference Page
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, clarified on grant of recon. in part 74 Haw. 645 (1993) 1
Baehr v. Miike, No. 91-1394-05 Haw. Cir. CL, 1st Cir. Dec. 3, 1996 1
H.B. No. 117, S.D. 1 2
Tanner v. Oregon Health Sciences University 1998 WL 869976 (Or. App.) 7

  STATE CONSTITUTION AND STATUTES Haw. Const. Article I, Section 1

Haw. Const. Article I, Section 5

Haw. Const. Article VIII

Haw. Const. Article IX

Haw. Const. Article X

Hawaii Revised Statutes ("HRS") § 572-1

1997 Haw. Sess. Laws Act 293

HAWAII LEGISLATIVE HISTORY 1997 House Journal

1997 Senate Journal

Stand. Com. Rep. No. 10

Stand. Com. Rept. No. 1

No. 20371

IN THE SUPREME COURT OF THE STATE OF HAWAI'I


NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO,
Plaintiffs-Appellees,
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 HON. KEVIN S.C. CHANG

SUPPLEMENTAL BRIEF OF AMICUS CURIAE
HAWAII CATHOLIC CONFERENCE

SUPPLEMENTAL BRIEF OF AMICUS CURIAE

HAWAII CATHOLIC CONFERENCE

I. STATEMENT OF THE QUESTION PRESENTED


    On May 5, 1993, this Court issued Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, clarified on grant of recon. in part, 74 Haw. 645 (1993) (hereinafter Lewin). Applying the standard of strict scrutiny enunciated in that case, Lewin at 580, 852 P.2d at 67, the Honorable Kevin S.C. Chang found Hawaii Revised Statutes ("HRS') § 572-1 unconstitutional in Baehr v. Miike, No. 91-1394-05 (Haw. Cir. Ct., 1st Cir. Dec. 3, 1996), although he stayed his decision pending this appeal. In response to these developments, on April 29, 1997, the Hawai'i State Legislature passed H.B. No. 117, S.D. 1, C.D. 1 (1997)1 (hereinafter the Marriage Amendment), which reads as follows: "'The legislature shall have the power to reserve marriage to opposite-sex couples."  On November 3, 1998, the people of Hawai'i approved the Marriage Amendment by a vote of 69 percent to 32 percent.

    By Order entered November 23, 1998, this Court invited any amicus curiae of record to file a supplemental brief on the issue of the retrospective and prospective effect, if any, of the Marriage Amendment upon the disposition of this appeal.2   The question presented is: Does the Marriage Amendment end the controversy started by Baehr v. Lewin?
 

1.  The proposed Marriage Amendment was approved in the Senate with 25 Ayes and 0 Nays, and in the House with 44 Ayes, 6 Nays, and 1 Excused. 1997 Senate Journal at 766; 1997 House Journal at 922 (April 29,1997).
 

2.  A comprehensive and thoughtful analysis of the Hawai'i Marriage Amendment and the Legislative process incident to its passage appears in a forthcoming University of Hawai 7 Law Review article, The Hawai'i Marriage Amendment: Its Origins, Meaning and Constitutionality, by David Orgon Coolidge, Director, Marriage Law Project, Columbus School of Law, The Catholic University of America.
 
 
 
 

II. ARGUMENT

 

A. THE MARRIAGE AMENDMENT OVERTURNS THE HOLDING OF THE PLURALITY IN BAEHR v. LEWIN THAT THE MARRIAGE LAW, HRS § 572-1, IS A "SEX-BASED CLASSIFICATION" SUBJECT TO STRICT SCRUTINY.

    There is a straight line from the plurality opinion in Lewin to Judge Chang's decision in Miike, to the people's rejection of these decisions in the Marriage Amendment. Lewin is explicitly addressed in the conference committee report accompanying H.B. 117, C.D. 1:
The purpose of the bill is to provide the people of Hawaii with the opportunity to
amend the Hawaii State Constitution to expressly state that the Legislature has the
power to constitutionally reserve marriage to couples of the opposite sex, thereby
addressing the ruling in Baehr v. Lewin on that issue.
H.B. No. 117, S.D. 1, C.D. 1, Conf. Comm. Rept. No. 1 (Apr. 18,1997), at 1.

    The text of the conference committee report demonstrates that the Marriage Amendment was intended to overrule the plurality opinion in Lewin. It would be unpersuasive to argue that the Legislature intended merely to overturn Judge Chang's 1996 application of the test set forth in Lewin. Such an argument would have it that the Marriage Amendment supplies the "compelling state interest" found lacking in that case but does not reverse the holding in Lewin that HRS § 572-1 is subject to strict scrutiny as a "sex-based classification.". The argument is unpersuasive because the conference committee report does not refer to Miike, but explicitly refers to "the ruling in Baehr v. Lewin on that issue. " Id. (emphasis added). The "issue," of course, is the power of "the Legislature ... to constitutionally reserve marriage to couples of the opposite sex…"

    Use of the qualifying words "on that issue," suggests that the Legislature did not intend to overturn all of Lewin by the passage of the Marriage Amendment. It can be argued that the earlier portion of Lewin, which holds that there is no fundamental right to "same-sex marriage" under the right to privacy, Lewin, 74 Haw. at 557, 852 P.2d at 58, survives the passage of the Marriage Amendment. By the same token, it can be argued that the Lewin's holding that sex-based classifications are generally subject to strict scrutiny, Id at 580, 852 P.2d at 67, also survives the passage of the Amendment. In other words, the Amendment does not compel this Court to reject the entire text of Lewin.

    The words of the conference committee report ("the ruling in Baehr v. Lewin on that issue") therefore must be taken to address the specific holding that HRS § 572-1 is a "sex-based classification" subject to strict scrutiny. This was the "ruling" that triggered the remand in Lewin and that governed the ensuing trial in Miike.

    The ruling that HRS § 572-1 constituted "sex discrimination" was only possible because the Court adopted an unprecedented approach to "sex-based classifications." Instead of defining a sexually discriminatory law as one which favors one sex over the other, the Court treated the Plaintiffs as couples and then concluded that a male-female couple differed from a male-male or female-female couple "on account of sex." From this analytical vantage point, the issue became whether there were "unnecessary abridgements of the applicant couples' constitutional rights." Lewin, 74 Haw. at 580, 852 P.2d at 67 (emphasis added to highlight apostrophe).

    The Marriage Amendment overturns this method of analysis. The Marriage Amendment clarifies that the marriage law is not a "sex-based classification" subject to strict scrutiny, and "couples" are no longer the unit of comparison. Sex discrimination involves laws which classify on the basis of sex to the disadvantage of one sex. Neither sex is disadvantaged by any law contemplated by the Marriage Amendment.
 

B. THE MARRIAGE AMENDMENT TREATS BOTH MARRIAGE LICENSES AND MARRIAGE-RELATED BENEFITS AS AN INTEGRATED BODY OF LAW.

    The Marriage Amendment speaks of the power of the Legislature "to reserve marriage to opposite-sex couples." The term "marriage" should be interpreted to include both marriage licenses and those rights, responsibilities, benefits and burdens that flow from marital status.

    It is now argued by some that Plaintiffs suit is for marriage licenses, and that the passage of the Marriage Amendment should be understood to address only marriage licenses. This formulation distinguishes between marriage licenses and marriage-related benefits in order to salvage some remaining constitutional claim, if not for licenses, then at least for benefits.

    This controversy, however, has treated marriage licenses and marriage-related benefits as inseparable from the beginning. Plaintiffs, this Court, and the Legislature all have assumed this link between marriage licenses and marriage-related benefits. In interpreting the Marriage Amendment, this unanimity of opinion should be taken into account.

    Plaintiffs' original challenge of HRS § 572-1 was premised on the intrinsic connection between licenses and benefits. Plaintiffs argued that they were entitled to marriage licenses precisely because marriage licenses are the gateway to rights and benefits. Plaintiffs' Memorandum in Opposition to Defendant's Motion for Judgment on the Pleadings Filed on July 9, 1991 (Aug. 29, 1991), at 20 et seq. ("Plaintiffs are denied numerous state rights and benefits by the denial of marriage licenses," followed by a long list of statutes).

    Similarly, the plurality opinion in Lewin noted the connection between marriage licenses and "a multiplicity of rights and benefits reserved exclusively to that particular relation":

By its very nature, the power to regulate the marriage relation includes the power
to determine the requisites of a valid marriage contract and to control the
qualifications of the contracting parties, the forms and procedures necessary to
solemnize the marriage, the duties and obligations it creates, its effect upon
property and other rights, and the grounds for marital dissolution.
Lewin, 74 Haw. at 558-559, 852 P.2d at 58 (emphases added).3 In this passage, "the marriage relation" embraces "requisites," "duties," "obligations" and "rights" as a seamless garment.

    The Legislature also assumed that licenses and benefits go together. This arises from the view that licenses and benefits serve to recognize and support marriage, not to somehow create it. The Legislature sees marriage law as a category built upon a social institution, rather than the other way around. The conference committee text for the Marriage Amendment finds that "the unique social institution of marriage involving the legal relationship of matrimony between a man and a woman is a protected relationship of fundamental and unequaled importance to the State, the nation, and society." H.B. No. 117, S.D. 1, C.D. 1 (Apr. 18, 1997), lines 5-8. The Legislature clearly regards marriage as a unique social institution that requires a man and a woman.

    The debate during conference committee negotiations preceding the passage of the Marriage Amendment made it very clear that the Legislature intended to link licenses and benefits. This can be seen from a comparison of the successive conference versions of the Marriage Amendment, including the final text.

    After initial versions of the Marriage Amendment passed the House and the Senate and the conference committee convened, on April 1, 1997, the House put forth the following proposal which explicitly linked licenses and benefits: "The legislature shall have the power to reserve the legal recognition of the marriage relationship, and its attendant rights, benefits, and burdens to couples of the opposite sex." H.B. No. 117, C.D. 1 Proposed (April 1, 1997). The Senate conferees responded to the House with an alternative version: "The legislature shall have the power to regulate the issuance of marriage licenses." Senate Judiciary Committee, "For Immediate Release," April 8, 1997. 1. PROPOSED CONSTITUTIONAL AMENDMENT SB 117, SD1, CD1," 2 pp. This proposal was broader in that it did not limit the object of the amendment to the question of opposite-sex couples, but it was narrower in that it reduced the focus of the regulatory power to licensing, rather than to marriage's "attendant rights, benefits and burdens." The Senate's own commentary makes clear that at this stage in the negotiations, the Senate was seeking to distinguish between "marriage licenses"' and marriage-related "rights and benefits:"

B. Rights and Benefits: The constitutional amendment does not impose any restrictions upon access to (the) legislature, administration or courts on the recognition to others of rights and benefits afforded married couples. No such rights are intended to be constitutionally conferred. But no limitation on the due process or equal protection rights of any person are imposed.
Id. at 1. This ambiguous language still left open the possibility of distinguishing licensing (the object of the Senate's text) from rights and benefits (separately subject to Article 1, Section 5 of the State Constitution).

    Within a day, the House conferees returned to the table with the following language: "The legislature shall have the power to reserve marriage to opposite-sex couples." H.B. No. 117, C.D. 1 PROPOSED 2 (Apr. 9, 1997), p. 1, lines 34. This language, in contrast to the Senate's language, was both narrower and broader: It was narrower because it focused specifically on opposite-sex couples, yet broader in that it reinstated the term "marriage," rather than "marriage licenses."

    This April 9 language became the final version which was passed by both chambers.4 The final text of the bill also refers to "the unique social institution of marriage involving the legal relationship of matrimony between a man and a woman." H.B. No. 117, S.D. 1, C.D. 1 (Apr. 18, 1997), p. 1, lines 5-7. The phrase "Legal relationship of matrimony" reinforces the view that the Amendment intends "marriage" to include both marriage licenses and marital rights and benefits.

    Thus, based upon the views of the Plaintiffs, this Court, and the Legislature, the Marriage Amendment's use of the term "marriage" should be understood to include licenses and benefits. It is constitutional in Hawai'i for the Legislature to confer "special" benefits upon those who marry because of the special status of marriage as an institution of tremendous social value.

    Does this therefore remove any constitutional claim of same-sex couples to marital benefits? Yes, for the following reasons. First for the reasons just discussed, under the Marriage Amendment unmarried persons have no "right" to marital benefits. Second, as argued above in Section A, the relevant unit of analysis for such claims is one of individuals rather than "couples." Thus, the question becomes "does every individual have a constitutional right to marital benefits?" This question answers itself, because it is absurd on its face. If the category of marriage has valid constitutional meaning, then no unmarried person has a constitutional right to a marital benefit.5

    Significantly, the Legislature is always free through the normal democratic process to widen eligibility for certain benefits beyond the circle of married persons. This is precisely what was done in the Reciprocal Beneficiaries legislation. Act 383, 1997 Haw. Sess. Laws.
 

3.  Similar connections can be found 74 Haw. at 564, 852 P.2d at 60. Accordingly, on its face and (as Lewin admits) as applied, HRS § 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits"), and id. at 581, 852 P.2d at 67 (almost identical quote). Judge Chang repeated these same connections in Miike, slip opinion at 3-5, 3940, and 45 (Dec. 3, 1996), 1996 WL 694235, reprinted in 23 Fam. L. Rep. (BNA) 2001 (Haw. Cir. Ct., 1996).

4.  Senator Matsunaga later inserted additional written remarks into the Senate Journal that he did not deliver orally to his colleagues on April 29, which appear to be an attempt to backtrack to the Senate's April 8 version. Describing the language of the Amendment as "necessarily somewhat ambiguous regarding impact and intent," he stated: "The only substantive expression of intent in the purpose clause is to address the issue of the issuance of marriage licenses. Our intent is to thus limit the scope of the amendment to the ministerial act of issuing licenses. Other constitutional rights regarding attendant rights and benefits are not to be affected." 1997 Senate Journal at 764 (Inserted Statement of Sen. Matsunaga) (Apr. 29, 1997). This after-the-fact attempt to reinterpret what the Senator already voted for should be ignored.

5.  The only way around this would be (1) to treat marital benefits as non-marital, (2) to hold that "sexual orientation" is a suspect classification, (3) to conclude that these (now nonmarital) benefits are unequally distributed to favor heterosexuals, and (4) to order that all individuals (or couples of some kind) be offered the same benefits. Something like this may be the effect of Tanner v. Oregon Health Sciences University, 1998 WL 869976 (Or. App.) (holding that making certain benefits made available solely to spouses violates Article 20 of the Oregon Constitution). Tanner, however, arguably calls into question the very concept of a marital benefit. In Hawai'i, which now has the Marriage Amendment, it is questionable whether the Constitution would permit this. In any event, none of these claims are relevant to the question before this Court. If Plaintiffs wish to make these arguments, they will need to file a new suit, with a new set of claims.

C. THE MARRIAGE AMENDMENT REAFFIRMS THAT A LAW WHICH REQUIRES BOTH A MAN AND A WOMAN FOR A MARRIAGE IS FULLY CONSISTENT WITH OTHER PROVISIONS OF THE HAWAIII CONSTITUTION.

    The message of the Marriage Amendment may be summarized as follows: civil marriage that requires both a man and a woman does not contradict the Constitution's Bill of Rights. This may be stated in minimal or maximal ways. Minimally, it can be taken as a mere statement that Article 1, Section 5 of the State Constitution has nothing to do with whether marriage should be defined as a male-female community. Maximally, the Amendment can be read as a more substantive statement that marriage is a unique community which complements, rather than contradicts, the Bill of Rights. In either case, however, the people have left the question to the province of the Legislature.

    The specific location of the Marriage Amendment in the State Constitution amplifies its message that civil marriage, understood as a unique male-female community, does not contradict individual rights. The Legislature's choice of the location for the Marriage Amendment indicates three things.

    First, the Marriage Amendment did not directly revise the Equal Protection clause, as initially proposed by the House. The House proposed that the Amendment be placed in Article 1, Section 5, as an additional paragraph in the clause. In the House view, since it believed the Court had misinterpreted the clause, this was the logical place to put the Amendment. See Stand. Com. Rept. No. 1, House Judiciary Committee, H.B. No. 117 (Jan. 22, 1997), at 2. This drew criticism from Senators as tantamount to placing an "exception" in the heart of the Equal Protection clause.

    Second, the Marriage Amendment was not placed in Section IX as initially proposed by the Senate. It proposed that the Amendment be located in the Public Health and Welfare Article, as reflection of the Legislature's "commitment to the health and welfare of the citizens of Hawaii." Statement of Senator Avery B. Chumbley, Co-Chair Senate Judiciary Committee, Regarding H.B. 117, Proposing a Constitutional Amendment Relating to Marriage (Feb. 3, 1997), at 3; see also Stand. Com. Rep. No. 10, Senate Judiciary Committee, H.B. No. 117, S.D. 1, (Feb. 4, 1997), at 2. The House rejected this proposal, arguing that the Senate's version left untouched both the text of the clause and what the House believed to be the Court's misinterpretation of the clause.

    The decision not to place the Marriage Amendment in Article IX has a deeper meaning. Sandwiched between Article VIII (Local Government) and Article X (Education), Article IX is a laundry list of ten functions that the State will perform, beginning with public health and ending with public safety. To have placed the Marriage Amendment here would only have reinforced the plurality's view in Lewin that the State is "the exclusive progenitor of the marriage partnership." Lewin, 74 Haw. at 559, 852 P.2d at 58. By rejecting this proposal, the Legislature made it clear that marriage is not to be understood as one more possible "State interest," alongside "Slum Clearance" and "Public Sightliness," to be "balanced" against the individual rights in Article 1.

    Third and finally, the Marriage Amendment was placed directly into the Bill of Rights. On April 1, the House conferees proposed a new text, this time to be placed in Article I as a new Section 23. This proposed location was accepted by both sides.

    Placing the Marriage Amendment in Article I, but not in the Equal Protection Clause, made two things clear: (1) the Amendment does not "condition" the Equal Protection Clause; and, (2) the Amendment is a specific clarification of how the Court should properly interpret Article I.

    In short, with the Marriage Amendment, individual rights, social institutions and government are all acknowledged to be essential parts of the community and the legal order which reflects that community, subject to the Constitution and statutes of Hawaii.
 

III. CONCLUSION


    There is a time for everything, a time to begin controversies and a time to end them. The controversy over Hawai'i's marriage law began many years ago. Now, it is time to accept that the controversy is over. The people of Hawaii have exercised their inherent authority over the Hawai'i Constitution and have overruled the Court.

    In 1993, a plurality of this Court chose to take the Hawai'i Constitution into uncharted territory by declaring HRS 572-1 presumptively unconstitutional and subject to strict scrutiny. Lewin, 74 Haw. at 580, 852 P.2d at 67. Whatever the wisdom of that decision, the people always held the final power to correct it. While the Hawai'i Supreme Court has the solemn duty of interpreting the Hawai'i Constitution, including the Marriage Amendment, it is finally the people's Constitution, because "all political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority" Haw. Const. Article I, Section 1.

    The people, the ultimate authors of the Hawai'i Constitution, have now spoken. Their message is loud and clear: The Court's 1993 decision was wrong and should be reversed. The Legislature is free, as it has always been, to define marriage as the union of a man and a woman, unless that same Legislature, through its normal representative process, changes the definition.

    With the Marriage Amendment, the marriage case is over. Lewin and Miikeare overruled.

    For the foregoing reasons, Amicus Hawaii Catholic Conference asks this Court to declare that the Marriage Amendment ends the constitutional controversy over "same-sex marriage" begun with Baehr v. Lewin, and reaffirms the Legislature as the proper venue for deciding the opposite-sex definition of marriage and questions regarding benefits for others. In doing so, this Court will be faithful to the people of Hawai'i and consistent with the Hawai'i Constitution.

DATED: Honolulu, Hawai'i, December 23, 1998.

ROBERT BRUCE GRAHAM, JR.
Attorney for Amicus Curiae
HAWAII CATHOLIC CONFERENCE

RBGI#224563
 


 



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