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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,
vs.
LAWRENCE H. MIIKE, in his official capacity as Director of the Department of Health, State of Hawaii,
Defendant-Appellant.

Civ. No. 91-1394-05
(Injunctions)

APPEAL FROM THE FINDINGS OF
FACT AND CONCLUSIONS OF LAW
FIRST CIRCUIT COURT
THE HONORABLE KEVIN S.C. CHANG

HAWAII'S FUTURE TODAY'S AMICUS CURIAE SUPPLEMENTAL BRIEF

CERTIFICATE OF SERVICE

KOSHIBA AGENA & KUBOTA
JAMES E.T. KOSHIBA 768-0
2600 Pauahi Tower
1001 Bishop Street
Honolulu, Hawaii 96813
Telephone No.: 523-3900

Attorney for
HAWAII'S FUTURE TODAY

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

ARGUMENT

A. The Will of the People Ultimately Governs

B. The Marriage Amendment Is the People's Final and Absolute Rejection of Judicially-Created Same-Sex Marriage

CONCLUSION
 
 

TABLE OF AUTHORITIES

Hawaii Cases

Baehr v. Lewin , 74 Haw. 530, 852 P.2d 44 (1993)

City & County of Honolulu v. Ariyoshi, 67 Haw. 412, 689 P.2d 757 (1984)

Convention Center Authority v. Anzai, 78 Haw. 15 7, 890 P.2d 1197 (1995)

State v. Mallan, 86 Haw. 440, 950 P.2d 178 (1998)

Constitutions. Statutes and Legislative History Conference Committee Report No. 1 (April 18, 1997)

The Declaration of Independence para 2 (U. S. 1776)

Haw. Const., art. I § 1

Haw. Const., art. 1 § 23

Hawaii Revised Statutes § 572-1

Hawaii Session Laws, Act 217, §§ 1 and 8 .....

Hawaii Session. Laws, H.B. 117 .............

Revised Laws of Hawaii Ch. 301, § 12351 (1945)

1997 House Journal

1997 Senate Journal

Books and Miscellaneous Cites

Gay Marriage: Moving Beyond Tolerance,
Honolulu Advertiser (May 9, 1993) at 132

Hilo forum on same-sex marriages draws heated debate,
Honolulu Advertiser (Oct. 16, 1993) at A3

Hundreds testify on same-sex marriage: Passions run high as backers and foes clash,
Honolulu Advertiser (October 30, 1993) at Al, A2

Kauai looks at euthanasia, gay marriage
Honolulu Star-Bulletin (Sept. 17, 1993) at A4

Mauai forum features 2 tough issues,
Honolulu Star-Bulletin (Oct. 1, 1993) at A5

Mighty Public Opinion ,
Honolulu Star-Bulletin (Sept. 2, 1993), at A 16

Same-Sex Marriages?
Honolulu Star-Bulletin (May 8, 1993) at A6

Same-Sex Marriages Not Popular ,
Honolulu Star-Bulletin (May 11, 1993) at A I

Waihee Opposes Same-Sex Marriage,
Honolulu Star-Bulletin (May 11, 1993) at A3

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,
vs.
LAWRENCE H. MIIKE, in his official capacity as Director of the Department of Health, State of Hawaii,
Defendant-Appellant.

Civ. No. 91-1394-05
(Injunctions)

APPEAL FROM THE FINDINGS OF
FACT AND CONCLUSIONS OF LAW
FIRST CIRCUIT COURT
THE HONORABLE KEVIN S.C. CHANG
 

INTRODUCTION

    The law of Hawaii has always limited marriage to opposite-sex couples. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Hawaii 1993), a plurality of this Court seriously questioned the constitutionality of that limitation. The People's elected representatives in the legislature responded with a law reaffirming the traditional definition of marriage and specifically defining marriage as a union between one man and one woman. Later, the legislature presented for the approval of the People a constitutional amendment expressly confirming that the legislature has the authority to reserve marriage to opposite-sex couples.

    The debate over same-sex marriage was then joined in earnest. Advocates on both sides expended hundreds of thousands of dollars promoting their positions. Politicians, lawyers, editorialists, and civic and religious leaders marshaled their arguments. All the while, the People of Hawaii listened and discussed and weighed the matter in numerous venues. When a vote was held in November of 1998, the People of Hawaii overwhelmingly approved the amendment and expressly rejected the possibility of judicially-mandated same-sex marriage.

    The People have now spokenThe debate has ended. The meaning of the Hawaii Constitution is now clear: there shall be no same-sex marriage unless the People's representatives in the legislature so decide. Therefore, Plaintiffs' attempt to secure a judicially-created right to same-sex marriage has failed. This case is over.

ARGUMENT


    A.    The Will of the People Ultimately Governs.

    The People are sovereign in Hawaii. No branch of Hawaii's government - legislative, executive, or judicial - has any inherent authority whatsoever. The power of the legislature to pass laws, of the governor to carry them out, and of the judiciary to interpret them, derives solely from the People of Hawaii.

"All political power [in Hawaii] 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., art. L, § 1.

This provision emphasizes that even the "exercise" of governmental power - be it legislative, executive, or judicial - is the "responsibility" of the People, and that they have the right to intervene in government affairs when they deem it appropriate.

    The fundamental will of the People is enshrined in the Constitution of Hawaii. There the People have created and defined the powers of the several branches of Hawaii's government, enumerated certain rights, and enacted various policy measures deemed too important to leave to the political process. These constitutional pronouncements bind and constrain Hawaii's government. Each branch of government has the duty to faithfully carry out the mandates of the Constitution so as to effectuate the will of the People.

    This Court has 1ong recognized that the Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and that the fundamental principle in interpreting a constitutional provision is to give effect to that intent." State v. Mallan, 86 Haw. 440, 950 P.2d 178, 186 (1998) (quoting Convention Center Authority v. Anzai, 78 Haw. 157, 890 P.2d 1197, 1207 (1995) (internal quotation marks and citations omitted)). Naturally, the interpretative process cannot occur in a vacuum. In determining what the People intended when enacting a constitutional provision, the Court "may look to the object sought to be established and the matters sought to be remedied along with the history of the times and state of being when the constitutional provision was adopted." City & County ofHonolulu v. Ariyoshi, 67 Haw. 412, 689 P.2d 757, 763, reconsideration denied, 744 P.2d 779 (1984); see also Anzai, 890 P.2d at 1207 (quoting Ariyoshi).

    The impact of Article 1, § 23 of the Hawaii Constitution (the "marriage amendment" or "amendment") on this case must be interpreted in light of the amendment's clear purpose and the People's repeatedly-expressed desire that marriage be reserved exclusively to opposite-sex couples. By enacting the amendment with full knowledge of the issues at stake in this case, the People have exercised their sovereign power to directly decide this case. The Court should respect that decision..

B .  The Marriage Amendment Is the People's Final and Absolute Rejection of Judicially-Created Same-Sex Marriage .

    "[B]y its plain language, HRS § 572-1" - the marriage statute in effect now and at the time the amendment was passed - "restricts the marital relation to a male and a female.... [o]n its face ... HRS § 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits." Lewin, 852 P.2d at 60. That has always been the case. The State of Hawaii has never permitted same-sex marriage.2

    On May 5, 1993, a plurality of this Court decided that limiting marriage to opposite-sex couples constitutes sex discrimination subject to strict judicial scrutiny. Id. at 67. Because it threatened to legalize same-sex marriage, this decision provoked an immediate political firestorm. Although both major Hawaii newspapers supported the decision,3 the People were instantly and overwhelmingly opposed.4 Governor Waihee came out against the ruling and instructed Attorney General Marks to file a Motion for Reconsideration.5In the Fall of 1993, the legislature convened a series of hearings on the issue of same-sex marriage, drawing heated public debate.6

    In response to the People's disapproval, in 1994 the legislature overwhelmingly passed Act 217 (1994 Haw. Sess. Laws), which (1) criticized the plurality opinion in Lewin for exceeding the constitutional authority of the judiciary, (2) confirmed that Hawaii's marriage statute was intended to limit marriage to opposite-sex couples, and (3) specified that out-of-state same-sex marriages would not be recognized in Hawaii.7 The bill was signed into law by Governor Waihee on June 22, 1994.

    Of course, the legislature does not have authority to overturn a decision of this Court about the meaning of the Hawaii Constitution. But these actions by the People's legislative representatives are expressions of the strong disapproval Lewin and the prospect of same-sex marriage evoked from the vast majority of the People.

    The People's opposition to same-sex marriage continued and ultimately culminated in the marriage amendment. The five-year history of the amendment is too lengthy to relate in full here. Suffice it to say that public pressure for a constitutional amendment mounted until, on April 29, 1997, both chambers of the legislature passed a bill submitting the proposed marriage amendment for approval by the People. Notwithstanding months of extended and at times rancorous debate, the final vote was dramatically in favor of the amendment. The Senate approved it unanimously and only six members of the House opposed it.8

    The amendment states: "The legislature shall have the power to reserve marriage to opposite-sex couples." See Haw. Const. art. 1, § 23 (emphasis added). The plain intent of this language was to overturn the ruling in Lewin by confirming that the entire question of same-sex marriage is reserved to the legislature, not the judiciary. The conference committee report highlighted the intent to reverse Lewin:

The purpose of this 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. Lewi on that issue.
See H.B. No. 117, S.D. 1, C.D. 1, Conf. Comm. Rept. No. 1 (April 18,1997), at 1.

    Voting on the amendment was set for November 3, 1998. Between April and November, debate raged over same-sex marriage and the constitutional impact of the proposed amendment. Groups on both sides published statements in the papers, purchased television and radio time to advocate their respective positions, and held rallies and other activities to garner support. Politicians high and low, including gubernatorial candidates, declared themselves for or against the amendment. The People witnessed debates on the evening news, read commentaries in the papers, attended gatherings devoted to the issue, put up signs in their yards showing their support or opposition, and participated in countless private discussions around the proverbial kitchen table.

    Throughout this debate the issue before the People - the issue which the People and their legislative representatives sought to definitively resolve - was simply this: shall the judiciary have the authority to legalize same-sex marriage as a matter of State constitutional law, or should that explosive issue remain within the cognizance of the legislature? In other words: shall the plurality opinion in Lewin be overruled?

    On November 3, 1998, the People of Hawaii gave their unequivocal answer. By a huge majority, the People adopted the marriage amendment and rejected Lewin.

    Thus, the People have spoken - repeatedly and unambiguously - to the very issue in this case. At every turn since Lewin, the People of Hawaii have overwhelmingly rejected same-sex marriage and the authority of this Court to mandate its legalization under any constitutional theory. Short of convening a constitutional convention, there is no political avenue left for the People to express their will on this matter. The legitimacy of Hawaii's constitutional order requires the judiciary to recognize the final decision of the People on this issue and declare the matter closed. The Circuit Court's ruling should be overturned and the case dismissed.

CONCLUSION

    Chief Justice Moon recently remarked that "if [the judiciary] stray[s] into the legislative prerogative, the legislature has the ability to cure the trespass." The Honorable Ronald T.Y. Moon, State of the Judiciary Address, Supreme Court of Hawaii (1997), reprinted in 1997 Haw. H.J., at 112 (Jan. 22. 1997). This Court's plurality decision in Lewin provoked a 5-year constitutional conversation among the People, the legislature, and the judiciary over same-sex marriage and the power of the judiciary to decide that issue. With deepest respect, in the opinion of the legislature and the People, the decision of this Court in Baehr v. Lewin was the very sort of "trespass" to which Chief Justice Moon has referred. The People of Hawaii have now done exactly what the Chief Justice outlined to cure this trespass: first through their elected representatives, and then by direct vote, the People have amended their Constitution to confirm that the legislature has the authority to reserve marriage to opposite-sex couples. In so doing, the People have exercised their sovereign authority to clarify the law. That clarification must now be accepted as the binding will of the People. This case should be dismissed.

DATED: Honolulu, Hawaii, December 23, 1998

KOSHIBA AGENA & KUBOTA
JAMES E.T. KOSHIBA
Attorney for Hawaii's Future Today
 
 

ENDNOTES:

1. Cf The Declaration of Independence para. 2 (U.S. 1776) (because governments "deriv[e] their just Powers from the Consent of the Governed ... it is the right of the People to alter or abolish [their Government], and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness").

2. See, e.g., Revised Laws of Hawaii Ch. 301, § 12351 (1945.) (indistinguishable from HRS § 572-1 on issues of same-sex marriage).

3.   "Same-Sex Marriages?," Honolulu Star-Bulletin [hereinafter Star-Bulletin] (May 8, 1993) at A6; "Gay Marriage: Moving Beyond Tolerance," Honolulu Advertiser [hereinafterAdvertiser] (May 9, 1993) at B2.

4.  See "Same-Sex Marriages Not Popular," Star-Bulletin (May 11, 1993) at A 1.

5.  "Waihee Opposes Same-Sex Marriage," Star-Bulletin (May 11, 1993) at A3.

6.  See "Mighty Public Opinion," Star-Bulletin (Sept. 2, 1993), at A 16 (Editorial); "Kaui looks at euthanasia, gay marriage," Star-Bulletin (Sept. 17, 1993), at A4; "Maui forum features 2 tough issues," Star-Bulletin (Oct. 1, 1993), at A5; "Hilo forum on same-sex marriages draws heated debate," Advertiser (Oct. 16, 1993), A3; "Hundreds testify on same-sex marriage; Passions run high as backers and foes clash," Advertiser (Oct. 30, 1993), at A 1, A2 (covering hearing in Smyth auditorium).

7.  1994 Haw. Sess. Laws, Act 217, §§ 1 and 8 provide, in part: "The legislature finds that Hawaii's marriage licensing laws were originally and are presently intended to apply only to male-female couples, not samesex couples. This determination is one of policy. Any change in these laws must come from either the legislature or a constitutional convention, not the judiciary. The Hawaii Supreme Court's recent plurality opinion in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), effaces the recognized tradition of marriage in this State and, in so doing, impermissibly negates the constitutionally mandated role of the legislature as a co-equal, coordinate branch of government."

8.  1997 Senate Journal at 766 (Apr. 29, 1997); 1997 House Journal at 922 (Apr. 29, 1997) (44 ayes; 6 nays; I member excused).


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