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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,

                Plaintiffs-Appellees,

        vs.

LAWRENCE MIIKE, in his capacity as Director of the Department of Health, State of Hawai'i,

                Defendant-Appellant.
________________________ 

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Civil No. 91-1394-05

BRIEF OF AMICI CURIAE
REPRESENTATIVE
MICHAEL KAHIKINA,
REPRESENTATIVE EZRA
KANOHO, REPRESENTATIVE
COLLEEN MEYER,
REPRESENTATIVE DAVID
STEGMAIER, AND
REPRESENTATIVE ROMY
M. CACHOLA;
CERTIFICATE OF SERVICE

BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANT/DEFENDANT


ROBERT K. MATSUMOTO #1330

1441 Kapiolani Boulevard
Suite 910
Honolulu, Hawai'i 96814
(808) 942-2281

MARIE A. SHELDON #5964
1000 Pacific Tower
1001 Bishop St.
Honolulu, Hawaii 96813
(808) 540-4207

JAY ALAN SEKULOW*

The American Center for Law & Justice 1000 Regent University Drive Virginia Beach, VA 23464 (757) 579-2489

*Admitted pro hac vice


 
 
TABLE OF CONTENTS
TABLE OF AUTHORITIES
...ii
STATEMENT OF THE QUESTION PRESENTED
....1
ARGUMENT
....1
1.  HRS SECTION 572-1 IS A VALID LAW BECAUSE IT WAS IN FORCE AT THE TIME OF THE AMENDMENT, AND IT IS ENTIRELY CONSISTENT WITH THE AMENDMENT
 
....2
II.  ARTICLE 1, SECTION 23 OF THE HAWAI'I CONSTITUTION IS SELF- EXECUTING AND, THEREFORE, REQUIRES NO ADDITIONAL LEGISLATIVE ENACTMENT FOR ITS IMPLEMENTATION
 
....2
  A The amendment is self-executing because it recognizes a Right and it provides a rule for the exercise of that Right
 
....2
  B The framers of the amendment intended the amendment to clarify and confirm the existing power of the Legislature to limit marriage to same-sex couples
 
....3
CONCLUSION
....5

 
 
TABLE OF AUTHORITIES
Cases
City and County of Honolulu v. Ariyoshi, 67 Haw. 412, 689 P. 2d 757 (Haw. 1984) ....3
Cobb v. State by Watanabe, 68 Haw. 564, 722 P.2d 1032 (Haw. 1986) ....3
Hawai'i State AFL-CIO v. Yoshina, 84 Haw. 374, 935 P. 2d. 89 (Haw. 1997) ....3
Other sources
Hawai'i Constitution Article 1, Section 23 ....1
Hawai'i Constitution Article XVIII, Section 9 ....2
1997 Hawai'i House Journal at 919 (Apr. 29, 1997) ....3
1997 Senate Journal at 765 (Apr. 29, 1997) ....4
H.B. No. 117, 19th Leg., Reg. Sess. Section 1 (Apr. 18, 1997) ....4
H.B. No. 117, S.D. 1, C.D. 1., Conf. Comm. Rpt. No. 1 (Apr. 18,1997) ....4

 

    Come now AMICI CURIAE, REPRESENTATIVE MICHAEL KAHIKINA, REPRESENTATIVE EZRA K. KANOHO, REPRESENTATIVE COLLEEN MEYER, REPRESENTATIVE DAVID STEGMAIER, and REPRESENTATIVE ROMY M. CACHOLA, and submit their brief in support of Appellant/Defendant Lawrence Miike,
pursuant to this Court's November 23, 1998 Order.

STATEMENT OF QUESTION PRESENTED

WHETHER THE SUPREME COURT SHOULD DISMISS THE
PRESENT CASE AS MOOT IN LIGHT OF THE PASSAGE OF
ARTICLE I, SECTION 23 OF THE HAWAII CONSTITUTION
("THE MARRIAGE AMENDMENT') WHICH AFFIRMS THE
LEGISLATURE'S POWER TO LIMIT MARRIAGE TO ONE
MAN AND ONE WOMAN?


ARGUMENT

I.  THIS CASE IS MOOT BECAUSE THE MARRIAGE AMENDMENT REMOVES THE BASIS FOR PLAINTIFF'S CLAIM BY CONFIRMING THE LEGISLATURE'S POWER TO RECOGNIZE ONLY RELATIONSHIPS BETWEEN MEN AND WOMEN AS MARRIAGES.
 
A.  The Marriage Amendment Logically Negates any Claim that the Hawai'i Constitution Includes a Right to Same-Sex Marriage.

        In the present case, this Court has been asked by plaintiffs to hold that Hawaii Revised Statute Section 572-1 violates the Hawai'i Constitution by not recognizing same-sex relationships as marriages. Put another way, plaintiffs claim that the Hawai'i
legislature has no power to refuse to recognize same-sex relationships as marriages. But the basis for the plaintiff s claim was removed when the Hawaiian people overwhelmingly approved Article I, Section 23 of the Hawai'i Constitution (the "Marriage Amendment"). In the Marriage Amendment, the people of Hawai'i have made clear that the Hawai'i legislature does not have the power to recognize only relationships between men and women as marriages: "The legislature shall have the power to reserve marriage to opposite-sex couples. Haw. Const. Art I, Section 23. The Marriage Amendment logically negates any claim that the Hawai'i Constitution recognizes any right to same-sex marriage. Since an alleged right to same-sex marriage under the Hawai'i Constitution was the basis of the plaintiffs claim, the Court no longer has before it a live controversy and the case should be dismissed as moot.
 
  B.  The Hawai'i Constitution and the Legislative History Surrounding the Marriage Amendment's Passage Demonstrate that Hawai'i's Marriage Law which Does not Recognize Same-Sex Marriage, Need not Be Reenacted.

        While plaintiffs cannot dispute the conclusion that the Hawai'i Constitution now provides no basis for any right to same-sex marriage, plaintiffs might contend that they are entitled to marry because Hawaii Revised Statute Section 572-1, which recognizes as marriages only relationships between men and women, is no longer in force. That argument is wrong. Section 572-1 has been in force throughout this litigation, and the Hawai'i Constitution and the legislative history surrounding the Marriage Amendment's passage both show that Section 572-1 remains in force. Thus, Hawai'i law provides no right to same-sex marriage.
 

  1.  Article XVIII, Section 9 of the Hawai'i Constitution Requires that Hawai'i Revised Statute Section 572-1 Remain in Force Because Section 572-1 Is Consistent with the Marriage Amendment and Was in Force when the Amendment Was Passed.

        The Hawai'i Constitution provides that "all laws in force at the time amendments to this constitution take effect that are not inconsistent with the constitution as amended shall remain in force, mutatis mutandis, until they expire by their own limitation or are amended or repealed by the Legislature."  Haw. Const. Article XVIII, Sec. 9, Hawai'i Revised Statute Section 572-1 was in force at the time the amendment took effect; the Circuit Court's ruling was stayed pending appeal and no final decision has been rendered by this Court adjudicating this section as unconstitutional. Were that not so, Hawai'i would now be issuing marriage licenses to same-sex couples. But Hawai'i continues to issue marriage licenses only to opposite-sex couples, with no sanction from any court.  Therefore, Hawai'i Revised Statute Section 572-1 still is, and always has been, a valid law under the Hawai'i Constitution. Because Hawai'i Revised Statute 572-1 is consistent with the Marriage Amendment, Article XVIII, Section 9 mandates that Hawai'i Revised Statute Section 572-1 remain in force.  Thus, Hawai'i law still recognizes only relationships between men and women, as it always has done.
 
  2.  The Legislative History Surrounding the Amendment's Passage Shows that the Amendment Merely Clarifies and Confirms the Legislative's Existing Power To Recognize Only Relationships Between a Man and Woman as Marriages.

        This Court repeatedly has held that "the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it." Cobb v. State by Watanabe, 68 Haw. 564, 722 P.2d 1032, 1033 (Haw
1986). See also Hawaii State AFL-CIO v. Yoshina, 84 Haw. 3 74, 3 76, 935 P.2d 89, 91 (Haw. 1997); City and County of Honolulu v. Ariyoshi, 67 Haw. 412, 419, 689 P-2d 757, 763 (Haw. 1984). The framers of the Marriage Amendment, the Hawai'i Legislature, enacted this amendment not to create any new legislative power, but merely to clarify and confirm the Legislature's existing power to limit marriage to same-sex couples.
        Chairman Tom addressed this very issue on the night of the Amendment's final passage:

There are those who, for their own purposes, have tried to argue that in proposing this amendment the intention is that the 1999 Legislature must re-enact marriage legislation. This is absolute nonsense. We have, and continue, to issue marriage licenses solely to opposite-sex couples because that is the law. Our marriage laws have not been nullified or overturned because there has been no final ruling from the Supreme Court.
1997 Haw. House Journal at 919 (Statement of Rep. Tom) (Apr. 29, 1997). The Senate Judiciary Co-Chair made a similar statement.
Through the passage of this measure, and the rights package of H.B. No. 118 (which incidentally, colleagues just passed through the House a little while ago by 41 votes in the affirmative), we hope to make a positive statement to reaffirm the right of the people over their constitution; we express our trust in the judgment of the people; and we manifest our commitment to equal rights.
1997 Senate Journal at 765 (Statement of Sen. Chumbley) (Apr. 29, 1997) (emphasis added).
        The intent merely to clarify and confirm existing Legislative power (and, therefore, confirm existing law) was not merely the private sentiment of the Marriage Amendment's sponsors. Rather, this intent is expressly stated in the Bill proposing the Marriage Amendment for the ballot: "The purpose of this Act is to propose an amendment to article I of the Constitution of the State of Hawai'i, to clarify that the legislature has the power to reserve marriage to opposite-sex couples."  H.B. No. 117, 19th Leg., Reg. Sess. Section 1 (Apr. 18, 1997) (emphasis added). The conference committee report accompanying the legislation elaborates on this point:
The purpose of the bill is to provide the people of Hawai'i with The opportunity to amend the Hawai'i 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., Conf Comm. Rept. No. I (Apr. 18,1997), at 1 (emphasis added).
        The sentiments conveyed by the statements of the legislators, the amendment itself, and the documents surrounding the amendments are unambiguous:  The amendment was meant to clarify the existing power of the Legislature and not to create a new power. Therefore, this Court must defer to the framers' intent and hold that this case is moot because the amendment merely clarified that the Legislature possesses and always has possessed the power to recognize only relationships between men and women as marriages.

CONCLUSION

        The Marriage Amendment logically negates any claim that the Hawai'i Constitution includes any right to same-sex marriage, The Amendment confirms and perpetuates in force Hawai'i Revised Statute section 572-1, which recognizes only relationships between men and women as marriages, The Hawai'i Constitution and this Court's jurisprudence establish that laws which are in force at the time an amendment is enacted, which are consistent with the amendment, are valid and enforceable. Hawai'i Revised Statute section 572-1 was in force at the time the Marriage Amendment was passed, and it is wholly consistent with the Amendment's provisions.  The legislative history surrounding the Marriage Amendment's enactment confirms that the Amendment reaffirms existing marriage law rather than granting a new power over marriage law. To continue to argue that this case should proceed despite the Marriage Amendment - is to ask this Court to repudiate the clear mandate of the Hawai'ian people. The present case challenging Hawai'i Revised Statute section 572-1 should be dismissed as moot.

        DATED: Honolulu, Hawaii,          DEC 23 1998_
 
 
ROBERT K. MATSUMOTO #1330 1441 Kapiolani Blvd.
Suite 910
Honolulu, HI 96814
(808) 942-2281
 

MARIE A. SHELDON #5964 1000 Pacific Tower
1001 Bishop St.
Honolulu, HI 96813
(808) 540-4207

Attorneys for Amici

JAY ALAN SEKULOW*
The American Center for Law & Justice
1000 Regent University Drive
Virginia Beach, VA 23464
(757) 226-2489

*Admitted pro hac vice

REPRESENTATIVE MICHAEL KAHIKINA
REPRESENTATIVE EZRA KANOHO
REPRESENTATIVE COLLEEN MEYER
REPRESENTATIVE DAVID STEGMAIER
REPRESENTATIVE ROMY M. CACHOLA


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