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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.

BRUCE S. ANDERSON, in his official capacity as Director of the Department of Health State of Hawaii, 

Defendant-Appellant.
CIVIL NO. 91-1394-05

APPEAL FROM THE FINAL JUDGMENT FILED ON DECEMBER 11, 1996

FIRST CIRCUIT COURT

HONORABLE PATRICK YIM
HONORABLE ROBERT KLEIN
HONORABLE HERBERT SHIMABUKURO
HONORABLE KEVIN CHANG
Judges

PLAINTIFFS-APPELLEES' SUPPLEMENTAL BRIEF

DECLARATION OF DANIEL R. FOLEY

CERTIFICATE OF SERVICE


PARTINGTON & FOLEY
DANIEL R. FOLEY 3556

Suite 1330 Pacific Tower
1001 Bishop Street
Honolulu, Hawaii 96813

Telephone: (808) 526-9500

KIRK H. CASHMERE 3928
201 Merchant Street
2300 City Financial Tower
Honolulu, Hawaii 96813
Telephone: (808) 523-7600

EVAN WOLFSON
Lambda Legal Defense and Education Fund, Inc.
120 Wall Street, Suite 1500
New York, New York 10005
Telephone: (212) 809-8585
 
 
 
 

Attorneys for Plaintiffs-Appellees

 


 
 
TABLE OF CONTENTS
Table of Authorities i-iv
I. REQUEST FOR SUPPLEMENTAL BRIEFS ON EFFECT OF CONSTITUTIONAL AMENDMENT 1
II. PROPOSAL AND RATIFICATION OF AMENDMENT 1
III. THE CONSTITUTIONAL AMENDMENT IS PROSPECTIVE AND THUS THIS COURT SHOULD AFFIRM THE LOWER COURT 3
III.A. THE VOTERS INTENDED THE CONSTITUTIONAL AMENDMENT TO BE PROSPECTIVE 3
III.B. THE LEGISLATURE DID NOT EXPRESSLY OR OBVIOUSLY INTEND THE CONSTITUTIONAL AMENDMENT TO BE RETROSPECTIVE 6
IV. ANY FUTURE LAW LIMITING MARRIAGE TO THOSE WITH OPPOSITE-SEX PARTNERS MUST BE PROSPECTIVE 9
V. THE CONSTITUTIONAL AMENDMENT DOES NOT OVERTURN THIS COURT'S DECISION ON SEX DISCRIMINATION 17
VI. H.R.S. § 572-1 CONTINUES TO GOVERN MARRIAGES 26
VII. CONCLUSION 29

APPENDICES
  

Conference Committee Report No. 1, re: H.B. No. 117, S.D. 1, C.D. 1, Nineteenth State Legislature, Regular Session of 1997 and H.B. No. 117, S.D. 1, C.D. 1 A-1
Senate Standing Committee Report No. 10, re: H.B. No. 117, S.D. 1, Nineteenth State Legislature,  Regular Session of 1997 and H.B. No. 117, S.D. 1 A-2
H.B. No. 117, Nineteenth State Legislature, Regular Session of 1997 A-3
Senate Standing Committee Report No. 799-96, re: H.B. No. 2366, H.D. 1, Eighteenth State Legislature, Regular Session of 1996 and H.B. No. 2366, H.D. 1 A-4

The explanation of the proposed constitutional amendment (H.B. No. 117, S.D. 1, C.D. 1) published
in newspapers on Oahu and elsewhere and mailed to registered voters prior to the November 3, 1998, election
A-5


CERTIFICATE OF SERVICE


TABLE OF AUTHORITIES
CASES Reference Page(s)
Advertising Publishing Co. v. Fase 43 Haw. 154 (1959) 25
Baehr v. Lewin 74 haw. 530, 852 P.2d 44 (1953) 15-17, 20, 27
Banaz v. Smith 65 P. 309 (Cal. 1901) 6
Bowers v. Alamo Rent-a-Car 83 Haw. 274, 965 P.2d 1274 (1998) 10, 11, 13
Clark v. Cassidy 64 Haw. 74, 636 P.2d 1344 (1981) 7, 11
Concalves v. Reno 144 F.3d 100 (1st Cir. 1998) 13
Council of Hawaii Hotels v. Aqsalud 594 F. Supp. 449 (1984) 25
Dash v. Wayne 700 F. Supp. 1056 (D. Haw. 1988) 7
Doe v. Roe 5 Haw. 558, 705 P.2d 535 (App. 1985) 14
Eastern Enterprises v. Appel 118 S. Ct. 2131 (1998) 14
Fuqua v. Fuqua 104 So. 2d 925 (Ala. 1958) 12
Graham Const. Supply, Inc. v. Schrader Const. 63 Haw. 540, 632 P.2d 649 (1981) 13, 14
Hughes Aircraft Co. v. United States Ex. Rel. Schumer 520 U.S. 939 (1997) 11, 13
Huihui v. Shimoda 64 Haw. 527, 644 P.2d 968 (1982) 3
In re R.A.S. 290 S.E.2d 34 (Ga. 1982) 6
International Tel. & Tel. Corp. v. General Telephone & Electronics Corporation 518 F.2d 913, on remand, 449 F. Supp. 1158 (9th Cir. 1975) 25
Jackson v. Colorado No. 97SA275, 1998 WL 661426, at *4 (Colo. Sept. 21, 1998) 29
Jackson v. State 966 P.2d 1046, 1052 (Colo. 1998), modified on other grounds, 1998 Colo. LEXIS 803 (1998) 4
Kahalekai v. Doi 60 Haw. 324, 590 P.2d 543 (1979) 5, 6
Keliipueleole v. Wilson 85 Haw. 217, 941 P.2d 300 (1997) 3
Kneip v. Herseth 214 N.W.2d 93 (S.Ct. S.D. 1974) 28
Ko'olau Agricultural Co. Ltd. v. Commission of Water Resource Management 83 Haw. 484, 927 P.2d 1367 (1996) 8
Landgraf v. USI Film Products 511 U.S. 244 (1994) 10, 11, 13
Lindh v. Murphy 521 U.S. 320 (1997) 10
Macon v. Costa 437 So.2d 806 (S.Ct. La. 1983) 28
Maile Sky Court, Ltd. v. City and County of Honolulu 85 Haw. 36, 936 P.2d 672 (1997) 4, 7
McGinley v. McGinley 295 S.W.2d 913 (Ct. Cv. App. Texas 1956) 12
Miller v. Tanaka 80 Haw. 358, 910 P.2d 129, recon. denied, and amended, cert. denied, 80 Haw. 357, 910 P.2d 128 (1995) 4
Morsebury v. Babyon 621 F.2d 972 (9th Cir. 1980) 14
Newberry v. United States 256 U.S. 232 (1921) 6
Pines v. Pacific Ins. Co. Ltd. 78 Hawa. 325, 893 P.2d 176, recon. denied, 78 Haw. 474, 896 P.2d 930 (1995) 25
Ross v. Goshi 351 F. Supp. 949 (D. Hawaii 1972) 27
Shopo v. Society of Professional Journalists 83 Haw. 378, 927 P.2d 386 (1996) 10
State v. Bloss 64 Haw. 148, 637 P.2d 1117 (1981), cert. denied, 459 U.S. 824 (1982) 27
State v. Cousan 684 So.2d 382 (La. 1996) 6
State v. Jordan 72 Haw. 597, 825 P.2d 1065 (1992) 12
State v. Kahlbaun 64 Haw. 197, 638 P.2d 309 (1981) 3
State v. Kam 69 Haw. 483, 748 P.2d 372 (1988) 3
State v. Lester 64 Haw. 659, 649 P.2d 346 (1982) 3
State v. Miyasaki 62 Haw. 269, 614 P.2d 915 (1980) 3
State v. Rodrigues 63 Haw. 412, 629 P.2d 111 (1981) 28
State v. Swanson 219 N.W.2d 726 (Neb. 1974) 6
State v. Toyomura 80 Haw. 8, 904 P.2d 893 (1995) 25
State v. Villeza 85 Haw. 258, 942 P.2d 522 (1997) 3
Tax Appeal of County of Maui v. KM Hawaii Inc. 81 Haw. 248, 915 P.2d 1349 (1996) 14
Turner v. Safley 482 U.S. 78 (1987) 15, 16
Valladues v. Valladues 438 N.Y.S.2d 810 (N.Y. App. Div. 1982), modified on other grounds, 434 NE. 2d 1050 (N.Y. 1982) 12

CONSTITUTIONAL PROVISIONS
  

Provision Page(s)
Hawaii Const. art I, § 5 17, 18, 24, 25
Hawaii Const. art. I, § 23 1, 3, 4, 28, 29
Hawaii Const. art. XV, § 3 5
Hawaii Const. art. XVII, § 3 2, 4
Rev. Laws of Hawaii ch. 301, § 12351 (1945) 26-29
Rev. Laws of Hawaii §323-1 (1955) 26, 28
STATUTES
  
Statute Page(s)
Haw. Rev. Stat. § 1-3 (1993) 7, 10
Haw. Rev. Stat. § 572-1 (1994) 10, 26-28
Haw. Rev. Stat. § 572-1(2) (1994) 26
Haw. Rev. Stat. § 572-1(5) (1994) 26
RULES
  
Haw. R. App. P. 43(c) (1) 1
OTHER AUTHORITIES
 
Authority Page(s)
Conf. Comm. Rep. No. 1, 19th Hawaii Leg. Reg. Sess., 1997 Haw. Sess. Laws 1246-7 2
Merriam Webster's Collegiate Dictionary (10th ed. 1994) at 1075-6 3
S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 765 (statement of Sen. Metcalf) 24
S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 765-66 (statement of Sen. Chumbley) 23
S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 764 (statement of Sen. Matsunaga) 22
S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 928 19, 20

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.

BRUCE S. ANDERSON,1in his official capacity as Director of the Department of Health State of Hawaii,

Defendant-Appellant.
CIVIL NO. 91-1394-05

APPEAL FROM THE FINAL JUDGMENT FILED ON DECEMBER 11, 1996

FIRST CIRCUIT COURT

HONORABLE PATRICK YIM
HONORABLE ROBERT KLEIN
HONORABLE HERBERT SHIMABUKURO
HONORABLE KEVIN CHANG
Judges

PLAINTIFFS-APPELLEES' SUPPLEMENTAL BRIEF

I.  REQUEST FOR SUPPLEMENTAL BRIEFS ON EFFECT OF CONSTITUTIONAL AMENDMENT.

On November 23, 1998, this Court requested the parties in this case to file supplemental briefs "explaining, with appropriate argument and citation to authority, the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal.

II. PROPOSAL AND RATIFICATION OF AMENDMENT.

On November 3, 1998, the voters of Hawaii approved a constitutional amendment adding a new Section 23 to Article I of the Hawaii Constitution. The amendment reads as follows: "Section 23. The legislature shall have the power to reserve marriage to opposite-sex couples."

The constitutional amendment was proposed to the electorate by the legislature by H.B. No. 117, S.D. 1, C.D. 1, "A Bill for an Act Proposing a Constitutional Amendment Relating to Marriage." Conf. Comm. Rep. No. 1, 19th Hawaii Leg. Reg. Sess., 1997 Haw. Sess. Laws 1246-7 (Appendix A-1 hereto). H.B. No. 117, S.D. 1, C.D. 1 (a copy of which is attached as part of Appendix A-1 hereto), provided that "[t]his amendment shall take effect upon compliance with article XVII, section 3 [Amendments Proposed by Legislature] of the Constitution of the State of Hawaii." Section 3 provides in part:

Upon such adoption, the proposed amendments shall be entered upon the journals, with the ayes and noes, and published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district wherein such a newspaper is published, within the two months' period immediately preceding the next general election.
The Office of Elections published the proposed amendment in the newspaper as required by Section 3, along with information explaining the constitutional amendment. The language of the proposed constitutional amendment and its explanation were also mailed to registered voters (Appendix A-5 hereto). Voting "yes" on the constitutional amendment was explained as follows:
MEANING OF A "YES" VOTE
A "yes" vote would add a new provision to the Constitution that would give the Legislature the power to reserve marriage to opposite-sex couples only. The Legislature could then pass a law that would limit marriage to a man and a woman, overruling the recent Supreme Court decision regarding same-sex couples.
The explanation of a "yes" vote on the constitutional amendment stated:
People who want the proposed amendment to pass believe the Legislature, and not the Supreme Court, should decide who is eligible to marry in the State. If the proposed amendment is adopted, then it will be clear that the Legislature can legally reserve marriage for opposite sex couples. People in support of the proposed amendment believe passing this amendment is an important step to prohibit same-sex marriage in the State.

III. THE CONSTITUTIONAL AMENDMENT IS PROSPECTIVE AND THUS THIS COURT SHOULD AFFIRM THE LOWER COURT.

 

A. THE VOTERS INTENDED THE CONSTITUTIONAL AMENDMENT TO BE PROSPECTIVE.

The Hawaii Constitution must be construed with due regard to the intent of the framers and the people adopting it. State v. Lester, 64 Haw. 659, 667, 649 P.2d 346, 352-53 (1982); State v. Kam, 69 Haw. 483, 492, 748 P.2d 372, 377 (1988). The fundamental principle in interpreting a constitutional provision is to give effect to that intent. Huihui v. Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982); State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314 (1981); State v. Miyasaki, 62 Haw. 269, 281, 614 P.2d 915, 922 (1980); State v. Kam, supra.

The voters of Hawaii were asked to vote "yes" or "no" on amending Article I of the Hawaii Constitution by adding the following section: "Section 23. The Legislature shall have the power to reserve marriage to opposite-sex couples." Emphasis added. The legislature has not yet acted under this new power -- which, of course, gives a new prospective option (not a mandate) to restrict the choice of a marital partner.

The question before this Court is whether this language granting new power to the legislature is prospective or retrospective. The answer lies in the meaning of the word "shall." "Shall" is defined as "will be able to"; something "to happen in the future"; "used to express simple futurity." Merriam Webster's Collegiate Dictionary (10th ed. 1994) at 1075-6.

When construing a statute, the starting point is the language of the statute itself. Keliipueleole v. Wilson, 85 Haw. 217, 221, 941 P.2d 300, 304 (1997). The words in the statute are given their common meaning unless some wording requires a different interpretation. Id. Where the language of the statute is plain and unambiguous, the court's sole duty is to give effect to the plain and ordinary meaning of the statute. State v. Villeza, 85 Haw. 258, 272-3, 942 P.2d 522, 536-7 (1997). Ascertaining and giving effect to the intention of the legislature, and in this case the intention of the people, is obtained primarily from the language contained in the statute itself. Maile Sky Court, Ltd. v. City and County of Honolulu, 85 Haw. 36, 39, 936 P.2d 672, 675 (1997). Resort to legal or other well accepted dictionaries is one way to determine the ordinary meaning of words in a statute. Miller v. Tanaka, 80 Haw. 358, 363, 910 P.2d 129, 134, recon. denied, and amended, cert. denied, 80 Haw. 357, 910 P.2d 128 (1995).

In this case the clear and unambiguous language of Section 23 gives power to the legislature to act in the future. Courts have held the term "shall" in an amendment vesting power in the legislature indicates the amendment acts prospectively and does not alter past law. See Jackson v. State, 966 P.2d 1046, 1052 (Colo. 1998), modified on other grounds, 1998 Colo. LEXIS 803 (1998).

This interpretation of the word "shall" in Section 23 is consistent with Section 5 of H.B. No. 117, S.D. 1, C.D. 1 (proposing Section 23 to the electorate), which states the "amendment shall take effect upon compliance with article XVII, Section 3, of the Constitution of the State of Hawaii." It means the legislature was given "power to reserve marriage to opposite-sex couples" on November 3, 1998 -- power that could be exercised in the future and power the legislature lacked at the time Plaintiffs-Appellees were improperly denied marriage licenses.

This interpretation of Section 23 is consistent with the explanation of Section 23's meaning as published in the newspaper (as required by Article XVII, Section 3, of the Hawaii Constitution and mailed to registered voters by the office of Elections). As explained to the voters by the Office of Elections, a "yes" vote "would give the Legislature the power to reserve marriage to opposite-sex couples." The Office of Elections explained that following the ratification of the amendment the "Legislature could then pass a law that would limit marriage to a man and a woman." Emphasis added. The Office of Elections explained that the people who supported the proposed amendment believed passing the amendment was "an important step to prohibit same-sex marriage." Emphasis added. Passing the amendment did not in itself restrict marriage. Another step after passage of the amendment was required. That step would be passing a law to limit marriage.

The language and meaning of the constitutional amendment, as explained by the Office of Elections, was clear. Passage of the amendment would empower the legislature to act in the future. This Court must look solely to the language of the constitutional amendment and the published and mailed explanation by the Office of Elections on the meaning of the constitutional amendment. A determination of any other inducements that may have motivated voters is "outside the scope of any judicial examination" of what the voters may have intended in casting their ballots, Kahalekai v. Doi, 60 Haw. 324, 335, 590 P.2d 543, 551 (1979), and is unnecessary given the clear language of the amendment and the explanation of its meaning by the Office of Elections.

The requirement of Article XV, § 3, of the Hawaii Constitution for legislatively initiated constitutional amendments to be published in the newspaper is to ensure there will be an informed electorate -- informed as to the meaning of the proposed amendment as published in the newspaper. 60 Haw. at 339, 590 P.2d at 553. There is a "conclusive presumption that the electorate was aware of the terms of the amendment" as published. 60 Haw. at 339 n.8, 590 P.2d at 553 n.8. Given the language of the constitutional amendment and its meaning, as explained by the Office of Elections in the newspapers, the intent of the voters in adopting the amendment was to empower the legislature to act in the future. To the extent that the intent of the voters and legislators may differ, the intent of the voters, as manifested in the explanation of the Office of Elections, prevails: "it was for the people, based upon adequate information, to determine whether and to what extent the organic law of the state ought to undergo revision." 60 Haw. at 345, 590 P.2d at 556.

The language of the constitutional amendment and the explanation of that amendment by the Office of Elections are clear that the amendment is prospective. It granted power to the legislature to act in the future, and the legislature has not acted pursuant to this amendment. This Court's inquiry on "the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal" should end with the examination of the language of the amendment and its explanation by the Office of Elections. The Attorney General's effort to invoke legislative history regarding the legislature's intent must be disregarded by this Court because it is the intent of the voters, not of the legislature, that must ultimately prevail in amending the constitution.2Attempts to retroactively validate an unconstitutional statute have been rejected by other jurisdictions as well.3

B. THE LEGISLATURE DID NOT EXPRESSLY OR OBVIOUSLY INTEND THE CONSTITUTIONAL AMENDMENT TO BE RETROSPECTIVE.

The Attorney General's brief notwithstanding, ascertaining the legislature's intent as to "the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal" is unnecessary and inappropriate given the clear intent of the voters. But if this exercise is undertaken by this Court, the only conclusion that can be drawn, given the language of the constitutional amendment itself, is that the amendment is prospective. The amendment does not by its own language expressly state it is retrospective.

In Hawaii, it is "an established rule that '[n]o law has an retrospective operation, unless otherwise expressed or obviously intended.'" Clark v. Cassidy, 64 Haw. 74, 77, 636 P.2d 1344, 1346 (1981), quoting H.R.S. § 1-3 (1993). This principle "is particularly applicable" when the challenged law or laws affect "substantive rights," i.e., "take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." 64 Haw. at 77, 636 P.2d at 1346-47. In such a situation, "a subsequent amendment involving substantive rights will not be read as operating retrospectively in the absence of a clear legislative expression that such operation is intended." 64 Haw. at 77, 636 P.2d at 1347. Dash v. Wayne, 700 F. Supp. 1056, 1059 (D. Haw. 1988) (citing general principle in Clark in refusing to apply statute retroactively). The language of the constitutional amendment lacks express language or obvious intent that it be applied retroactively.

Ascertaining and giving effect to the intention of the legislature is obtained primarily from the language contained in the statute itself. Maile Sky Court, Ltd., supra. Where the language of the statute is plain and unambiguous, the court's only duty is to give effect to the statute's plain and obvious meaning. Id.

First of all, it is clear that the amendment confers a new power, not a mandate, upon the legislature. Unless and until it acts, any restriction on marriage is not brought into being. See III.A., supra.

Second, the constitutional amendment states the legislature "shall" have power -- not "does have," "has," "has had," or "is empowered." The effective date of the constitutional amendment, and empowerment of the legislature, is upon its ratification. The effective date of the constitutional amendment (Section 5 of H.B. 117, S.D. 1, C.D. 1) by its own express terms is not retrospective. The constitutional amendment on its face does not expressly or otherwise state or indicate that its effective date or application is retrospective. Instead it states or indicates its application is prospective.

Additionally, Section 1 of H.B. No. 117, S.D. 1, C.D. 1 (proposing the constitutional amendment) does not expressly or obviously intend the constitutional amendment to be retrospective. Section 1 must be read along with Section 5 of the same bill which states the grant of power to the legislature by the constitutional amendment takes place when the constitutional amendment is ratified by the voters. Ko'olau Agricultural Co. Ltd. v. Commission of Water Resource Management, 83 Haw. 484, 488, 927 P.2d 1367, 1371 (1996) (court must read statutory language in context of entire statute). The language in Section 5 is prospective, not retrospective.

Section 1 of H.B. No. 117, S.D. 1, C.D. 1, states that it is the intent of the legislature to give itself power to decide who can marry: opposite-sex couples, same-sex couples, or both. Section 1 states these questions are "to be decided" in the future with the legislature remaining "open to the petitions of those who seek a change in the marriage laws." At best, the language of Section 1 is ambiguous as to whether or not the legislature thought the constitutional amendment might be retrospective or prospective. This is especially true when Section 1 is read alongside Section 5 and the language of the constitutional amendment itself. H.B. No. 117, S.D. 1, C.D. 1, therefore does not meet the test of retrospective application.

H.B. No. 117, S.D. 1, C.D. 1, omitted language of Section 1 of the previous draft, H.B. No. 117, S.D. 1 (copy attached as part of Appendix A-2 hereto), that showed express intent to limit marriage to a union of one man and one woman by validating what the legislature believed to be the existing marriage law limiting marriage to a union of one man and one woman.4  The following language was deleted from H.B. No. 117, S.D. 1, in H.B. No. 117, S.D. 1, C.D. 1:

SECTION 1. The legislature finds it necessary and appropriate for the people of the State of Hawaii to constitutionally reserve the institution of marriage to a union between one man and one woman. This action would constitutionally preserve the existing restriction in our marriage laws. The legislature further finds that Hawaii's existing marriage laws were intended to principally foster the traditional family and should, therefore, be reserved for couples of the opposite sex.
                                    *                           *                               *
The purpose of this Act is to propose an amendment to Article IX of the Constitution of the State of Hawaii that will preserve traditional marriage. [Emphasis added.]
The deletion of this language contained in the Senate draft (but deleted from the conference draft) removed any possible retroactivity claim regarding the amendment.

This amendment is neither self-executing nor retroactive; it did not limit marriage nor confer any power to do so retroactively so as to cure the improper denials in the past. Nor did it raise past discriminatory laws from the dead. The law of this State remains as it was once Judge Chang ruled that Plaintiffs-Appellees had been wrongfully denied licenses. This Court should affirm.

IV. ANY FUTURE LAW LIMITING MARRIAGE TO THOSE WITH OPPOSITE-SEX PARTNERS MUST BE PROSPECTIVE.

Not only is the constitutional amendment prospective, but any future law passed by the legislature limiting marriage to people choosing partners of the same sex must be prospective as well. Enactment of a new law by the legislature attempting to retrospectively overturn this Court's May 5 and 27, 1993, decisions and the December 3, 1996, order of Judge Chang would be an impermissible application of a new statute "to the litigation of events that occurred before it was enacted." Lindh v. Murphy, 521 U.S. 320, 324 (1997).

Contrary to the Attorney General's contention that this case is solely about prospective injunctive relief (Anderson's Supp. Brief at 2), this case is about the past improper denial of marriage applications and a declaratory judgment holding that the sex-based classification in H.R.S. § 572-1 was unconstitutional. This case does not involve the sort of prospective relief that "operates in futuro," such as injunctive relief against future labor picketing (see Landgraf v. USI Film Products, 511 U.S. 244, 2723-74 (1994)), or current disclosure of old records by a government agency (see Shopo v. Society of Professional Journalists, 83 Haw. 378, 389, 927 P.2d 386, 397 (1996) ("Because Act 191 affects only an agency's prospective duty of disclosure and impairs no existing rights, we reject the City's argument that the 1993 amendments were improperly applied retroactively [to the agency's decision over current disclosure].")).

Rather, this case is about making whole those who for the past eight years were wrongfully denied civil marriage for their loving unions. They deserve not to be forever deprived of the permanent status that no one, save them, could set asunder -- which they would have had but for the improper denial. Application of a new statute to this appeal would involve application "to the litigation of events that occurred before it was enacted," Lindh v. Murphy, supra, and thus raises retroactivity concerns.

Hawaii Revised Statutes § 1-3 (1993) specifies that no "law has any retrospective operation, unless otherwise expressed or obviously intended." SeeBowers v. Alamo Rent-a-Car, 83 Haw. 274, 281, 965 P.2d 1274, 1281 (1998). Furthermore, in Hawaii as in the common law "[s]tatutes or regulations which say nothing about retroactive application are not applied retroactively if such a construction will impair existing rights, create new obligations or impose additional duties with respect to past transactions." Id. (citations omitted).5

It is not possible at this time to determine if a future statute, yet to be enacted, would be intended by the legislature to be retroactive. Assuming arguendo that the legislature did expressly (or obviously intend to) make a future statute retroactive, it could not apply it retroactively to this appeal. Application of a statute is unconstitutionally retroactive if "such a construction will impair existing rights, create new obligations or impose additional duties with respect to past transactions." Bowers, 83 Haw. at 281, 965 P.2d at 1281. This principle "is particularly applicable" when the challenged law or laws affect "substantive rights," i.e., "take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." Clark v. Cassidy, supra; see also State v. Jordan, 72 Haw. 597, 599, 825 P.2d 1065, 1067 (1992).

Here, application of a new statute to this appeal would attach a new disability on otherwise qualified couples seeking marriage licenses that were improperly withheld on December 17, 1990, as declared by Judge Chang in his December 3, 1996, order (a declaratory judgment that was not stayed pending appeal). This is precisely the type of right and "privilege" that the legislature cannot infringe on retroactively. The infringement of this "vital personal right" and entitlement would be a perfect example of unconstitutionally retroactive application of a statute.

The Attorney General argues no rights have vested in this case despite a lower court's ruling to the contrary. This is wrong; the presenting couples qualified for licenses and were denied them on a basis for which the State lacked power, as Judge Chang subsequently held. Entering the status of civil marriage itself is a far cry from the type of matrimonial incidents that courts have held are not vested or are subject to alteration by retroactively applied statutes. See Fuqua v. Fuqua, 104 So. 2d 925 (Ala. 1958) (allowing retroactive effect of statute making separation for four years grounds for divorce); McGinley v. McGinley, 295 S.W.2d 913, 915 (Ct. Cv. App. Texas 1956) (discussing retroactive application of a statute reducing the period of separation required for divorce). Such cases simply permit statutes affecting procedures for marriage and divorce to be applied retroactively, not statutes completely prohibiting entrance into marriage, as would be the case here. See Valladues v. Valladues, 438 N.Y.S.2d 810 (N.Y. App. Div. 1982), modified on other grounds, 434 N.E.2d 1050 (N.Y. 1982). Here, the subject is not mere procedural rights which depend upon the existence of the marital status. Instead, the subject is the very status of marriage itself -- a status improperly withheld by the State at a time it lacked power to do so.

Furthermore, even if this Court somehow found that the right to marry had somehow not vested, the application of a hypothetical future statute to this appeal would still constitute a retroactive infringement of an important right. See Graham Const. Supply, Inc. v. Schrader Const., 63 Haw. 540, 545, 632 P.2d 649, 652-53 (1981) (holding that a law would have unpermissible retroactive effect if it infringed on plaintiff's "non-vested privilege" to assert a claim to claim on a judgment secured prior to the passage of the statute in question); Concalves v. Reno, 144 F.3d 100, 130 (1st Cir. 1998) (when examining the retrospective application of a statute bearing on an alien's right to seek relief from deportation, noting that it was of no importance that "aliens have no 'vested rights' to discretionary relief"). See also Hughes Aircraft Co., 520 U.S. at 947 (finding that the Landgraf definition of retrospective legislation as, in part, those laws effecting "vested rights" is only "sufficient," not "necessary," to establish retroactive application).

Here, retroactive application of any new law clearly infringes upon the parties' right to marry as recognized by Judge Chang. It would truly be odd justice if a law cannot operate to retroactively increase an insurance company's obligations to a client, as was the case in Bowers, 83 Haw. at 281, 965 P.2d at 1281, but the law can operate retroactively to validate the previous (and then-unconstitutional) denial of a marriage application. Any hypothetical legislative interference with past qualification and entitlement to be married and to marriage licenses improperly withheld would clearly be unconstitutionally retroactive.

Furthermore, the Attorney General's argument that no rights would be infringed because the parties never actually received their marriage license from the Director of Health Services has no merit. The State should not benefit from its previously unconstitutional behavior. To claim that no rights would be infringed because no licenses were issued leads to rather circular reasoning -- the unconstitutional refusal to grant marriage licenses is constitutional because, and only because, the State unconstitutionally refused to issue the licenses. In that respect, this case is similar to Graham Const. Supply, Inc., 63 Haw. at 540, 632 P.2d at 649. There, the court examined whether the application of a new statute to an agency's decision not to make a payment to a party would be retroactive. 63 Haw. at 544, 632 P.2d at 651. In finding that such application would be retroactive, the court found that this was an infringement of a "non-vested privilege" and would amount to an imposition of a "new disability" with regard to such party's request. 63 Haw. at 545, 632 P.2d at 652-53. The retroactive application to this appeal would infringe upon the parties' right to marry -- a right and privilege they had, and the qualifications for which they had met, regardless of the State's previous denial. Acquiring a new power to restrict marriage in the future with legislation as yet unpassed does not wash clean the dirty hands with which the State improperly withheld the licenses eight years ago.

Even under the new amendment, the legislature could not pass a law barring same-sex couples from marriage that could be applied retroactively to this appeal. The intentional retroactive application of a statute constitutionally violates due process if its retroactive application is "harsh and oppressive." Tax Appeal of County of Maui v. KM Hawaii Inc., 81 Haw. 248, 257 n.12, 915 P.2d 1349, 1358 n.12 (1996); Doe v. Roe, 5 Haw. 558, 563, 705 P.2d 535, 541 (App. 1985). See also Eastern Enterprises v. Appel, 118 S. Ct. 2131, 2158-59 (1998) (noting that retroactive application is unconstitutional if it is arbitrary and irrational); Morsebury v. Babylon, 621 F.2d 972, 980 (9th Cir. 1980) (noting the "harsh and oppressive" standard).

To apply a law forbidding a person to marry the person of his or her choice because of that person's sex retroactively would clearly be harsh and oppressive. The retroactive application of a new statute restricting marriage would effectively bar each of the Plaintiffs-Appellees from marrying the person he or she loves, when they would already have been married for eight years had it not been for the improper denial. The oppressive nature is further obvious through consideration of the result of such a retroactive statute if the State actually issued the marriage licenses in the first instance.

During the eight years that they were baselessly denied licenses, Plaintiffs-Appellees' loving relationships were branded not worthy of the institutional opportunity for "expressions of emotional support and public commitment" that are key attributes of civil marriage under our constitutional system. Turner v. Safley, 482 U.S. 78, 95-96 (1987). Every day that they were barred from fulfilling their own choice to marry has been a day they labored under the stigma and injury of a legally-mandated separate and unequal status.

Every day Plaintiffs-Appellees were denied their right to marry deprived them of choice regarding, and access to, "salient marital rights and benefits" identified by this court six years ago, including:

(1) a variety of state income tax advantages . . .; (2) public assistance from and exemptions relating to the Department of Human Services . . .; (3) control, division, acquisition, and disposition of community property . . .; (4) rights relating to dower, curtesy, and inheritance . . .; (5) rights . . . under the Uniform Probate Code . . .; (6) award of child custody and support payments in divorce proceedings . . .; (7) the right to spousal support . . .; (8) the right to enter into premarital agreements . . .; (9) the right to change of name . . .; (10) the right to file a non-support action . . .; (11) post-divorce rights relating to support and property division . . .; (12) the benefit of the spousal privilege and confidential marital communications . . .; (13) the benefit of the exemption of real property from attachment or execution . . .; (14) the right to bring a wrongful death action . . . .
Baehr v. Lewin, 74 Haw. 530, 560-61, 852 P.2d 44, 59 (1993) (citations omitted). As this court held then, "applicant couples would be entitled to all of these marital rights and benefits, but for the fact that they are denied access to the state-conferred legal status of marriage." Id. (emphasis added).

Plaintiffs-Appellees, like the prisoners challenging their exclusion from civil marriage a decade ago, have been deprived every day of the four "important attributes of marriage" identified by the United States Supreme Court in Turner v. Safley, supra. These are: the opportunity to partake in civil marriage's institutionally recognized "expressions of emotional support and public commitment," its "spiritual significance" for some, its "expectation [of] consumma[tion]," and its accompanying "government benefits . . ., property rights . . ., and other less tangible benefits." Id.

They deserve to be made whole not only for those eight years, but for the now-threatened permanent denial of entrance into the civil marriage that they would have already had, had it not been for the ultra vires and wrongful refusal by the State. The only way to make them whole and put them where they would rightfully have been is to grant them what was rightfully theirs: licenses to wed.

An argument that retroactive application would be unconstitutionally harsh and oppressive had the State acted constitutionally in the first place, but is instead constitutional and valid because the State previously acted in an unconstitutional manner, is itself completely harsh and irrational. Here, the retroactive application of a new statute to this appeal would simply condone the State's unconstitutional denial. It would effectively permit the State to get away with having robbed them of the status and resulting rights and benefits which they could have relied on for eight years and enjoyed for years to come without gainsaying by the State. Such a culmination would be "harsh and oppressive," and thus retroactive application of a hypothetical new statute restricting marriage would be unconstitutional.

V. THE CONSTITUTIONAL AMENDMENT DOES NOT OVERTURN THIS COURT'S DECISION ON SEX DISCRIMINATION.

This Court held "that, on its face and as applied, HRS § 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits, thus implicating the equal protection clause of article I, section 5." Baehr, 74 Haw. at 581, 852 P.2d at 67. The constitutional amendment authorizing a legislative restriction on who can get married did not overturn (or empower the legislature to overturn) this Court's decision that it is sex discrimination under the equal protection clause of the Hawaii Constitution to deny same-sex couples access to the rights and benefits concomitant with marriage. The amendment permits one specific restriction, not carte blanche to discriminate.

The only effect of the constitutional amendment is to prospectively empower the legislature to withhold the marital status as such, including the marriage licenses, from same-sex couples. There is nothing on the face of the constitutional amendment or the explanation to the voters by the Office of Elections that indicates the voters or the legislature intended to amend Article I, § 5 (or overturn this Court's decision on the same) to deny to same-sex couples the rights and benefits that are contingently limited to marriage, or to legitimate wholesale discrimination against them.

Moreover, the legislative history of H.B. 117, S.D. 1, C.D. 1, indicates the legislature did not intend to amend Article I, § 5, or overturn this Court's decision as it pertained to same-sex couples accessing the rights and benefits at present linked to marriage. Senate amendments to the original House bill deleted language that would have amended Article I, § 5, and given the legislature power to deny the benefits of marriage to same-sex couples. The Senate in its amendments to the House version of H.B. 117 (Appendix A-3 hereto) could not have been more emphatic in preserving this Court's ruling that denying same-sex couples access to the rights and benefits concomitant with the status of marriage implicates the equal protection clause of Article I, § 5. The Senate conferees and Senate did not yield to the House on this point in crafting and adopting the final conference draft.

H.B. No. 117 as introduced and passed in the House of Representatives intended to give the legislature power to deny same-sex couples the rights and benefits of marriage. H.B. No. 117 would have proposed an amendment to the equal protection clause of Hawaii's Constitution (Article I, § 5) by adding the following language:

Statutes, regulations, laws, rules, orders, decrees and legal doctrines that define or regulate marriage, the parties to marriage, or the benefits of marriage shall not be deemed in violation of this section or any other section of this Constitution by virtue of a limitation of the marriage relationship to the union of only one man and one woman. [Emphasis added.]

Section 1 of H.B. 117 stated:

The purpose of this Act is to propose an amendment to article I, section 5, of the Constitution of the State of Hawaii to clarify that statutes, regulations, laws, rules, orders, decrees, and legal doctrines that define or regulate marriage, the parties to marriage, or the benefits of marriage shall not be deemed in violation of this section or any other section of this constitution by virtue of a limitation of the marriage relationship to the union of only one man and one woman. [Emphasis added.]

This language authorizing the legislature to enact laws contrary to Article I, § 5 of the Hawaii Constitution's equal protection clause was deleted in the Senate. The Senate amended H.B. No. 117 by proposing a constitutional amendment as follows:
SECTION 2. Article IX of the Constitution of the State of Hawaii is amended by adding a new section to be designated and to read as follows:
"MARRIAGE
Section 11. The State shall have the power to regulate and define the institution of marriage, including the reservation of marriage to couples of the opposite sex; provided that this reservation shall be effective only if the laws of the State ensure that the application of this reservation does not deprive any person of civil rights on the basis of sex."
H.B. 117, S.D. 1.

The Senate's Committee on Judiciary explained the amendments to H.B. 117 as follows:

However, your Committee finds that there are fundamental flaws in H.B. No. 117 as received. First, the proposed amendment would alter the due Process and Equal Protection Clause of our Constitution. Your Committee notes that this clause in our constitution ensures that none of our citizens will be discriminated against because of "race, religion, sex or ancestry." Therefore, your Committee finds that it is unwise and inappropriate to condition our State's promise and commitment to civil rights.

Second, the proposed amendment, by conditioning judicial interpretation of and administrative determinations regarding our Constitution violates the principle of Separation of Powers. Our government is one of three co-equal branches, and this balance of powers has served the people of our State and nation well. It is a fundamental element of our democracy that this delicate balance will ultimately reflect the best of our people. Therefore, your Committee believes that this Separation of Powers principle should not be violated.

Third, the proposed amendment will have the effect of denying substantial governmental benefits and privileges to some of our citizens on the basis of sex. Your Committee believes that the legislature should not condone nor perpetuate any form of unwarranted discrimination upon any of our citizens, simply because they are involved in committed, caring relationships that the majority are not yet prepared to recognize.

S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 928 (emphasis added).

The conference committee draft of H.B. 117 that was passed by the legislature deleted the second clause of the Senate draft that would have prohibited the legislature from limiting marriage to those choosing an opposite-sex partner unless it first, or at the same time, passed laws extending rights and benefits to those who choose a same-sex marital partner.6

However, H.B. 117, S.D. 1, C.D. 1 did not change the intent of H.B. 117, S.D. 1 not to overrule the Baehr v. Lewin decision that same-sex couples should have access to the rights and benefits of marriage unless the State demonstrated compelling state interest in withholding those rights. What the conference draft did was allow the legislature to enact laws limiting marriage to opposite-sex couples without first or at the same time enacting laws extending the rights and benefits of marriage to same-sex couples. This intent was expressed by the co-chairmen of the Senate Judiciary Committee and members of the conference committee on H.B. 117, S.D. 1, C.D. 1, in advocating the passage of this bill. H.B. 117, S.D. 1, C.D. 1 was explained by Senate Judiciary Committee co-chair, Senator Matsunaga, as follows:

Last session, a majority of this body opposed any constitutional amendment which addressed the issue of same gender marriage. This opposition was based on the belief that the provision of equal rights through the provision of domestic partnership status would moot the Supreme Court's ruling in Baehr v. Lewin and thereby retain marriage's opposite gender reservation while ensuring equal access to government benefits for all of Hawaii's citizens. The House of Representatives, on the other hand, sought to resolve the issue by simply barring same gender marriage in a way that we felt smacked of animus and potentially perverted our constitution.

This year we have made a commitment to put to rest the public furor over this issue. In an effort to reach agreement with the House, we proposed a constitutional amendment to allow the voters of this state to decide the issue. However, as we began this process, we made three commitments in the framing of any amendment. These commitments were:

1. We would not permit our state's commitment to due process and equal protection to be conditioned or diminished;

2. We would not permit nontraditional couples to be deprived of substantial economic marital rights; and

3. We would not permit any hint of "animus" in the language of our constitution.

The measure we vote on today satisfies these commitments. Essentially, it accomplishes what we sought to achieve last year. That is, marriage licenses will be limited to opposite sex couples, but coupled with the passage of H.B. No. 118, C.D. 1, nontraditional couples will be provided access to substantially similar economic marital rights and benefits.

                                       *                *                *

Mr. President, the language of the amendment, as a legislative compromise, is necessarily somewhat ambiguous regarding impact and intent. But we have tried, in the purpose clause, to make certain that our intended effect is clear. That is, 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.

The language of the amendment raises an arguable conflict with our Constitution's Equal Protection Clause, as interpreted by our Supreme Court. The resolution of any such conflict will be left to the courts. As the latest expression on the subject, we expect that the express language of this amendment will control. However, we acknowledge that the courts are also bound by rules for the interpretation of statutes in pari materia (on the same subject) and that there may be an arguable hierarchy among constitutional provisions when conflicts arise. We do not, and cannot, pretend to have spoken definitively on such interpretation. It is the role and duty of the courts to interpret the constitution. And it is the right of prospective plaintiffs to frame these issues.

These avenues for interpretation do not diminish the import of what we do today. The people of Hawaii will have an opportunity to definitively express their will on the issuance of marriage licenses. As legislators we are bound to acknowledge their power and abide by their will. We think that this amendment does so -- but does no harm to our commitment to equal rights in the process.

S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 764 (emphasis added).

Senator Chumbley, Senate Judiciary Committee co-chair, stated:

I support this proposed constitutional amendment, Mr. President, because I support and believe in the right of the citizens of Hawaii to define their own constitution. I also trust that, upon full and fair debate, our citizens, over time, will do the right thing.

The preamble to the Hawaii State Constitution vests in "the people" the power to "control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire." And it is in the name of the "people of Hawaii" that our State Constitution was drafted and adopted. And because the current controversy is a product of language that is unique to the State Constitution, we have a duty to permit the people to effect its interpretation.

In framing this amendment, we have been careful to respect the structure of our government and the rights of all our citizens. We do not believe that the people of Hawaii want their constitution infected by inferences of prejudice or bigotry, nor do we believe that our people favor jurisdiction stripping or discrimination on the basis of sex. Other versions of this measure would have manifested these prejudices. They were unacceptable and we accordingly rejected them.

The amendment before us today is as finely tailored as we could accomplish. The people will decide on the simple issue of whether marriage should be limited to couples of the opposite sex -- the courts are not insulted, equal protection is not conditioned, and no religious or social dogma is adopted. Instead, an affirmative expression of our understanding of marriage is incorporated in the supreme law of our land.

                                *                   *                     *

Over the past five years that I have served as a member of the Hawaii legislature, and most recently as co-chair of the Senate Judiciary Committee, I have spent countless hours of soul searching regarding the issue of same-sex marriage. On Wednesday, I agreed to support a constitutional amendment which would reserve marriage to opposite sex couples. I also agreed to support establishing reciprocal beneficiary relationships with certain governmental rights and benefits. I would like to take this opportunity to explain why I supported these measures.

First, I believe that as a society, we can only gain by supporting committed relationships between people who love each other and want to provide mutual support for each other. Our governmental structure extends hundreds of benefits to married couples because we believe that our society and our state benefit from relationships based on mutual care and the pooling of resources. Therefore, I was encouraged by the Supreme Court's ruling that as a state we should extend government recognition of rights and benefits to all persons equally.

S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 765-66 (emphasis added).

Senator Metcalf, a member of the Senate Judiciary Committee and conference committee on H.B. 117, S.D. 1, C.D. 1, with Senators Matsunaga and Chumbley, stated:

This measure, a proposed ballot question in the form of a constitutional amendment, along with H.B. No. 118, H.D. 1, S.D. 1, C.D. 1, that we earlier voted on, seeks to deal with issues flowing from the decision in Baehr v. Lewin. In this case the court has ruled that, absent a compelling state interest, same-sex couples cannot be denied the right to marry. Beyond the arguments and the passions expressed in the debate that has followed the court's decision, are fundamental questions regarding the effective parameters of the legislature and the courts to act.

Most Hawaii citizens favor extending rights, benefits and burdens associated with marriage to same-sex couples. Yet it is clear they wish at this time to reserve to themselves the question of whether the legislature shall have the power to determine whether the rite of marriage shall be limited to opposite sex couples only.

                                          *        *           *

In drafting the proposed constitutional amendment, your Senate conferees have been mindful of the need to advance public discussion on this question. This approach has been taken in recognition of the constraints of what can be accomplished without weakening the legislature's position as that instrument of government designed specially to best reflect the public will. We also have been mindful that the courts not be foreclosed from exercising their special mandate to adjudicate the cases and causes of those who may otherwise not be counted among the popular majority.

S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 765 (emphasis added).

The language of the constitutional amendment itself does not indicate any intention by the legislature or voters to overturn this Court's decision on sex discrimination under Article I, § 5, of the Hawaii Constitution, and thus it cannot.7

Because it is not clear from the language of the constitutional amendment that the voters or the legislature intended to overturn this Court's decision that to deny the rights and benefits of marriage to same-sex couples is itself sex discrimination, this Court may resort to the legislative history of the constitutional amendment to determine legislative intent.8  State v. Toyomura, 80 Haw. 8, 19, 904 P.2d 893, 904 (1995). Reports of legislative committees may be considered in determining legislative intent. Advertising Publishing Co. v. Fase, 43 Haw. 154 (1959); Council of Hawaii Hotels v. Agsalud, 594 F. Supp. 449, 454 (1984). Committee reports are entitled to greater weight than floor debates. International Tel. & Tel. Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 921, on remand, 449 F. Supp. 1158 (9th Cir. 1975). Statements by committee members are given more weight in determining legislative intent than comments by non-committee members. Id.; Pines v. Pacific Ins. Co. Ltd., 78 Haw. 325, 332, 893 P.2d 176, 183, recon. denied, 78 Haw. 474, 896 P.2d 930 (1995).

The legislative history of H.B. 117, H.D.1, S.D. 1, C.D. 1, indicates the legislature did not intend to overturn this Court's decision that the equal protection clause of Article I, § 5, is implicated by denying the rights and benefits of marital status to same-sex couples. This is found in the Senate's deletion of House language in H.B. 117 that would have allowed the legislature to deny these rights and benefits, in the language of the Senate draft and committee report, and in the Senate floor comments of Senate judiciary chairs and Senate judiciary committee and conference committee members in support of the conference draft. What the constitutional amendment did, and all it did, was to empower the legislature to act in the future to withhold or grant marriage licenses to same-sex couples. Whether or not same-sex couples are entitled to the rights and benefits currently linked to the status of marriage remains before this Court in the pending appeal and is not affected by the constitutional amendment.

In the absence of the clarity constitutionally required to overturn this Court's May 5 and 27, 1993, decisions, there is no such effect. If licenses are to be withheld, the sex discrimination analysis, which is the law of the case, still forbids discrimination in the important rights, responsibilities, and benefits that these couples seek. (See Amicus Curiae Brief of the American Civil Liberties Union of Hawaii Foundation filed December 22, 1998, on preservation principle counseling a narrow interpretation of the amendment consistent with other constitutional provisions).
 

VI. H.R.S. § 572-1 CONTINUES TO GOVERN MARRIAGES.


The Attorney General argues that, "rather than leave Hawaii with no law governing the issuance of marriage licenses," this Court should "reinstate RLH ch. 301, § 1251 -- the law that ultimately became HRS § 572-1." Anderson's Supp. Brief at 20. This argument is wrong for at least four reasons.

First, Hawaii does have a valid law governing the requisites of marriage licenses. That law is H.R.S. § 572-1. All of the non-gender-based provisions of that statute -- such as the prohibition of marriage where one of the applicants is under 16 years old and does not get written parental approval to marry or is "afflicted with any loathsome disease concealed from, and unknown to, the other party" -- remain valid law. H.R.S. § 572-1(2) and (5). The circuit court invalidated H.R.S. § 572-1 only to the extent that it has a "sex-based classification" which prohibits issuance of a marriage license "solely because the applicants are of the same sex." Hawaii Revised Statutes § 572-1 (minus its presently-unconstitutional sex-based classification) continues to exist and to govern the issuance of marriage licenses in Hawaii.

Second, and by contrast, Revised Laws of Hawaii ("R.L.H.") ch. 301, § 12351 (1945) no longer exists. Therefore, it cannot be reinstated. Revised Laws of Hawaii ch. 301, § 12351 became § 323-1 of Revised Laws of Hawaii (1955) and later H.R.S. § 572-1 when the Hawaii legislature recodified the code in 1968.9  As the forward to Revised Laws of Hawaii 1955 and preface to Hawaii Revised Statutes (1968) states, the changes that Revised Laws of Hawaii (1955) and Hawaii Revised Statutes (1968) made to R.L.H. (1945) were stylistic, not substantive. Hawaii Revised Statutes, in other words, did not amend R.L.H.; the statutes are one and the same. Thus, State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), cert. denied, 459 U.S. 824 (1982), on which Defendant-Appellant relies (see Anderson's Supp. Brief at 20) is inapposite. In Bloss, this Court voided an unconstitutional amendment to an otherwise-valid statute. Here, by contrast, the portion of H.R.S. § 572-1, which the circuit court voided as unconstitutional, is -- by Defendant-Appellant's own admission -- "indistinguishable" from the comparable portion of R.L.H. ch. 301, § 12351, which Defendant-Appellant suggests could take the place of H.R.S. § 572-1. See Anderson's Supp. Brief at 19 n.8.10See also Ross v. Goshi, 351 F. Supp. 949 (D. Hawaii 1972) (refusing to sever unconstitutional amendment from original statute unless the court first determined that the original statute was constitutional).

Further, while H.R.S. § 572-1 and R.L.H. ch. 301, § 12351 are indistinguishable with respect to prohibiting same-sex couples from marrying, because H.R.S. § 572-1 has been amended since R.L.H. ch. 301, § 12351 was recodified, its reinstatement today is not a viable option for other reasons as well. For example, H.R.S.. § 572-1 has been amended to permit men who are impotent to marry. See Baehr v. Lewin, 74 Haw. at 536 n.1, 852 P.2d at 48 n.1. If this Court were to now reinstate R.L.H. ch. 301, § 12351, impotent men who wanted to marry would no longer be able to do so, despite the legislature's amendment of H.R.S. § 572-1 to specifically permit this.

Third, the sex-based classification of R.L.H ch. 301, § 12351 cannot be reinstated because it is just as void as the sex-based classification in H.R.S. § 572-1, as declared by Judge Chang in his December 3, 1996, order. The Attorney General's argument that a statute is void only if it was void ab initio is simply wrong. Further, the Attorney General's argument that the sex-based classification of R.L.H. ch. 301, § 12351 "is not susceptible to the challenge that it was unconstitutional from its inception" due to being enacted prior to the equal protection clause (Anderson's Supp. Brief at 20) is irrelevant. The law is clear that a constitutional amendment repeals an inconsistent statute, even if the statute was valid at the time of its enactment. See, e.g., Macon v. Costa, 437 So.2d 806, 810-11 (S.Ct. La. 1983) (holding that a constitutional amendment repealed portions of statute that "were inconsistent with its provisions"); Kneip v. Herseth, 214 N.W.2d 93, 101 (S.Ct. S.D. 1974) ("if there is a conflict between a statute and a new constitutional provision, the statute is repealed by implication"). Thus, when the Hawaii Constitution went into effect, along with its equal protection clause, the sex-based classification of R.L.H. ch. 301, § 12351, which was at that time R.L.H. § 323-1 (1955), (like the virtually identical sex-based classification in H.R.S. § 572-1) became void on its face.

Finally, there is no judicial authority to reinstate R.L.H. ch. 301, § 12351. The marriage amendment, which provides that the "legislature shall have the power to reserve marriage to opposite-sex couples" (emphasis added) is not self-executing. Another step by the legislature is required before any statutory change occurs in Hawaii's marriage laws and, therefore, before Article I, § 23, of the Hawaii Constitution may have any affect on this case. As this Court held in State v. Rodrigues, 63 Haw. 412, 629 P.2d 111 (1981), "a constitutional provision which only establishes a general principle is not self-executing and requires more specific legislation to make it operative." 63 Haw. at 414, 629 P.2d at 1113 (holding that a constitutional amendment providing that there "shall be" an independent counsel whenever a grand jury is impaneled was not self-executing). See also Jackson v. Colorado, No. 97SA275, 1998 WL 661426, at *4 (Colo. Sept. 21, 1998) (en banc) (holding that referendum which amended state constitution to grant legislature authority to amend a statute would not retroactively validate a prior statute when there was no language indicating such an intent within the amendment; use of the term "shall" in the constitutional amendment only vested the legislature with authority to act prospectively).

If the Hawaii legislature wanted R.L.H. ch. 301, § 12351 to be reinstated upon the adoption of the constitutional amendment, the legislature could have, and should have, written that into the amendment.11  It did not. Instead, the legislature proposed, and the people approved, a non-self-executing amendment. The legislature, therefore, has only the prospective power to enact a discriminatory marriage law. And any such law cannot control the outcome of this case, undo the lower court's ruling, or alter Plaintiffs-Appellees' entitlement to marriage licenses improperly denied.

VII. CONCLUSION.

This Court should promptly affirm the decision of the lower court and order relief now. This Court should further declare that any future law passed by the legislature pursuant to Article 1, § 23, of the Hawaii Constitution, limiting marriage to opposite-sex couples, may not deny same-sex couples access to the rights and benefits that have been linked to marriage and may not be applied retrospectively.

An expeditious ruling by this Court in this matter, resolving all issues in this case once and for all, is in the public's interest.

DATED: Honolulu, Hawaii, January ____, 1999.
  

_____________________________
DANIEL R. FOLEY
    Attorney for Plaintiffs-Appellants




Footnote:
1.  Bruce S. Anderson has been appointed by Governor Benjamin Cayetano as Director of the Department of Health following the resignation of Lawrence H. Miike.  Pursuant to HRAP 43 (c) (1), Anderson has been substituted automatically for Miike as a defendant in the present action.   Back to the main text.

2.  Had the Attorney General disagreed with the Office of Elections' explanation of the constitutional amendment, it was incumbent upon the Attorney General to have brought an appropriate action in the appropriate forum(s) to have challenged the Office of Elections' explanation.  It is now untimely for the Attorney General to disagree with the Office of Elections' explanation of the constitutional amendment.  Any objection the Attorney General may have with that explanation is untimely and cannot now be raised to contradict the explanation given to and relied upon by the voters.  Back to the main text.

3.  See Newberry v. United States, 256 U.S. 232 (1921); State v. Cousan, 684 So.2d 382 (La. 1996); In re R.A.S., 290 S.E.2d 34 (Ga. 1982); State v. Swanson, 219 N.W.2d 726 (Neb. 1974); Banaz v. Smith, 65 P. 309 (Cal. 1901).  Back to the article.  Back to the main text.

4.  Judge Kevin Chang declared this restriction unconstitutional on December 3, 1996.  This declaration was not stayed pending this appeal as suggested by the Attorney General.  Only the injunction issued in the December 3, 1996, order was stayed.  Back to the main text.

5.  This analysis is quite similar to that adopted by the Supreme Court:

When a case implicates a federal statute after the events in the suit, the court's first task is to determine whether congress has expressly prescribed the statute's proper reach.  If Congress has done so, of course, there is no need to resort to judicial default rules.  When, however, the statute contains to such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.  If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).  The Court expressly held that these examples of "retroactive effect" that would ring alarm bells "merely describe . . . a sufficient, rather than a necessary, condition for retroactivity."  Hughes Aircraft Co. v. United States Ex. Rel. Schumer, 520 U.S. 939, 947 (1997).  Back to the main text.

6.  This provision from the senate draft was explained by the Senate Committee on the Judiciary as follows:

Conditioning any reservation of marriage to couples of the opposite sex upon the passage of laws ensuring that no deprivation of civil rights on the basis of sex results from the reservation.  It is your Committee's intention that this proviso effectively require that similarly situated couples who are prohibited from marriage be provided all substantial government benefits of marriage unless a substantial governmental interest supports their witholding.  Your committee finds that such a proviso will ensure equality in the application of our laws while permitting the protection of relevant substantial governmental and community interests.
S. Stand. Comm. Rep. No. 10 (on H.B. 117), 19th Hawaii Leg., Reg. Sess., 1997 Sen. J. 928.  Back to the main text.

7.  This is quite different from the question on whether or not the constitutional amendment is prospective or retrospective.  That question is answered by the clear and unambiguous language of the constitutional amendment itself and the Office of Elections' published and mailed explanation that the constitutional amendment is prospective. Back to the main text.

8.  Unlike the issue of retrospective or prospective application of the constitutional amendment, the issue of rights and benefits of marital status under Article I, § 5, of the Hawaii Constitution was not specifically addressed or explained by the Office of Elections.  Back to the main text.

9.  Why the Attorney General wants to skip R.L.H.  § 323-1 (1955) is not explained. Back to the main text.

10.  Bloss is also inapposite because, unlike in Bloss, the Baehr decision does not leave a gap in the law.  Back to the main text.

11.  The House of Representatives did in fact do this in 1996 in passing H.B. No. 2366, H.D. 1, but this House bill was not adopted by the Senate.  See, H.B. No. 2366, H.D. 1, §§ 2 and 5 (attached as part of Appendix A-4 hereto).  Back to the main text.

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