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,
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LAWRENCE H. MIIKE, in his official capacity as Director
of the Department of Health, State of Hawaii,
Defendant-Appellant.
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Civil No. 91-1394-05
(Injunctions)
APPEAL FROM THE FINDINGS OF
FACT AND CONCLUSIONS OF LAW
FIRST CIRCUIT COURT
THE HONORABLE KEVIN S.C. CHANG
SUPPLEMENTAL BRIEF OF AMICI CURIAE STATES OF ALABAMA
CALIFORNIA, COLORADO, IDAHO, MISSISSIPPI,
NEBRASKA, SOUTH CAROLINA, SOUTH DAKOTA
AND UTAH
CERTIFICATE OF SERVICE
AND ATTORNEYS FOR AMICI CURIAE STATES
Don Sternberg
Attorney General State of Nebraska |
ASHFORD & WRISTON
Robert Bruce Graham, Jr., #1305 1099 Alakea Street, 10 Floor Honolulu, HI 96813 Tel: (808) 539-0400 |
L. Steven Grasz*
Deputy Attorney General State of Nebraska 2115 State Capitol Lincoln, NE 68509 Tel: (402) 471-2682 |
|
Bill Pryor
Attorney General of Alabama Office of the Attorney General State House 11 South Union Street Montgomery, AL 36130 |
Don Stenberg
Attorney General of Nebraska Office of the Attorney General Department of Justice 2115 State Capitol Lincoln, NE 68509 |
Mike Moore
Attorney General of Mississippi Office of the Attorney General Department of Justice Post Office Box 220 Jackson, MS 39205-0220 |
Mark Barnett
Attorney General of South Dakota Office of the Attorney General 500 East Capitol Pierre, SD 57501-5070 |
Jan Graham
Attorney General of Utah Office of the Attorney General State Capitol, Room 236 Salt Lake City, UT 84114-0810 |
Gale Norton
Attorney General of Colorado Office of the Attorney General Department of Law 1525 Sherman Street Denver, CO 80203 |
Daniel Lungren
Attorney General of California Office of the Attorney General 1300 I Street, Suite 1740 Sacramento, CA 95814 |
Charlie Condon
Attorney General of South Carolina Office of the Attorney General Rembert C. Dennis Office Building Post Office Box 11549 Columbia, SC 29211-1549 |
Alan Lance
Attorney General of Idaho Office of the Attorney General Statehouse Boise, ID 83720-1000 |
* Counsel of Record (Admiited pro hac vice) |
TABLE OF AUTHORITIES |
I. Statement of the Question Presented |
II. Argument |
II A. Introduction |
II B. The Concept of "Prospective Application" is not Relevant in the Context of Voter Reaffirmation and Constitutional Codification of Existing Marriage Law. |
II C. The Recognition of Even a Small Number of Same-Sex "Marriages" Would Offend Hawaii's Compelling Comity Interest in Maintaining a Definition of Marriage That is Consistent With That Accepted in all 49 Other States |
Certificate of Service |
TABLE OF AUTHORITIES
Cases
Parke v. Parke, 25 Haw. 397 (1920)
Other Authorities
Syposium on Interjurisdictional Marriage Recognition (multiple authors
and articles), 32 Creighton L. Rev. 1-485 (Oct. 1998)
Whether Hawai'i has a compelling State interest in maintaining harmonious
relations with other States concerning interjurisdictional marriage recognition
regardless of whether the recent marriage amendment is deemed to be prospective,
retrospective, or merely a reaffirmation of existing marriage law.
On November3,1998, the voters of Hawai'i approved a constitutional amendment affirming the authority of the Hawai'i legislature to reserve marriage to opposite-sex couples. Nearly 70% of Hawai'i voters favored the amendment.
On November 23, 1998, this Court entered an order taking judicial notice of the election results and requesting supplemental briefing from the parties as to "the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal." The Court further ordered that any amicus curiae of record may file a supplemental brief on this issue.
This supplemental brief of amici curiae States will focus on the common interests of Hawai'i and its sister States concerning interjurisdictional marriage recognition in light of the question presented.
Hawai'i continues to have a compelling interest in "mak[ing] of marriage a homogenous, stable and certain institution." Parke v. Parke, 25 Haw. 397, 404 (1920). It would be contrary to this compelling State interest to adopt a drastic redefinition of marriage, even for a limited number of couples, that would cause significant strains on interjurisdictional marriage recognition in the United States. See Syposium on Interjurisdictional Marriage Recognition, 32 Creighton L. Rev. 1-485 (Oct. 1998) (multiple authors and articles).
ROBERT BRUCE GRAHAM, JR.
BY DON STENBERG
Attorney General of Nebraska
Counsel for Amici States