FIRST CIRCUIT COURT

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

Judges

DEFENDANT-APPELLANT'S SUPPLEMENTAL BRIEF

CERTIFICATE OF SERVICE

MARGERY S. BRONSTER, 4750 Attorney General of Hawaii
DOROTHY SELLERS, 4069 Deputy Attorney General
Department of the Attorney General, State of Hawaii 425 Queen Street Honolulu, HI 96813 (818) 5W1387
CHARLES J. COOPER (Admitted pro hac vice)
MICHAEL A. CARVIN
MICHAEL W. KIRK
Cooper, Carvin & Rosenthal, PL 2060 K Street, N.W. Suite 401 Washington, D.C. 20006 (202) 822-8950

Counsel for Defendant-Appellant

December 23, 1998
 
 
 

TABLE OF AUTHORITIES
 
 

Cases	Page(s)
Baehr v. Lewin, 74 Haw. 530,852 P.2d 44 (1993)	13, 19
Basehore v. Hampden Indus. Dev., Auth., 248 A.2d 212 (Pa. 1968)	11
Beck v. Beck, 814 S.W.2d 745 (Tex. 1991). cert. denied, 503 U.S. 907 (1992)	14
Central Pac. R.A. Co. v. Nevada, 162 U.S. 512 (1896)	9
Cobb v. Cohron, 26 S.W. 846 (Tex. Civ. App. 1894)	11
Coleman V. State, 159 So. 504,118 Fla. 201 (1935)	18
Dr. G.H. Tichenor Antiseptic Co. v. Schwegmann Bros. Giant Supermarkets, 83 So. 2d 502 (La. App. 1955), revd on other grounds, 90 So. 2d 343 (La. 1956)	9
Employees'Retirement Sys. v. Wah Chew Chang, 42 Haw. 532 (1958)	5
In re Estate of Bishop, 37 Haw. 111 (1945)	5
In re Rahrer, 140 U.S. 545 (1891)	8, 9, 13
Johnson & Johnson. Inc. v. G.E.M. Sundries Co., 43 Haw. 103 (1959)	9
Landgraf v. USI Film Prods., 511 U.S. 244 (1994)	2, 3, 4
Leisy v. Hardin, 135 U.S. 100 (1890)	8
Nuuanu Neighborhood Ass 'n v. Department ofLand Utilization, 63 Haw. 444, 620 P.2d 107 (1981)	*
People ex rel. McClelland Y. Roberts, 42 N.E. 1082 (N.Y. Ct. App. 1896)	10, 11, 15
Samkoff v. Gerosa, 29 Misc. 2d 844 (Sup. Ct. N.Y. 1961)	11
State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), cert. denied, 459 U.S. 824 (1982)	*
State v. Cooper, 700 A.2d 306 (N.J. 1997)	11
State v. Gerald, 549 AN 792 (N.J. I****	*
State v. Mueller, 66 Haw. 616, 671 P.2d 13.51 (1983)	14
State v. Yothers, 659 A.2d 5 14 (N.J. Super. Ct. App. Div. 1995)	11, 12, 13, 15
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801*	*

 

    Pending before the Court is Defendant-Appeflant's appeal from the Circuit Court's order holding that the Equal Protection Clause of the Hawaii Constitution, article 1, section five, denies the Legislature the power to limit marriage to one man and one woman, as the Legislature has done in Hawaii Revised Statute ("HRS") § 572-1.Subsequent to the submission of this case to the Court for decision, the People of Hawaii amended their Constitution in order "to clarify that the legislature has the power to reserve marriage to opposite-sex couples." 1997 Haw. Sess. Laws, H.B. 117, § 1. Accordingly, the People have voted, by an overwhelming majority of nearly seventy percent, to add the following provision to their State Constitution: "The legislature shall have the power to reserve marriage to opposite-sex couples." Haw. Const. art. 1, § 23 (the "marriage amendment," or "amendment").

    Defendant-Appellant’s opening brief argues that HRS § 572-1 does not discriminate on the basis of sex and therefore did not run afoul of the State Equal Protection Clause even prior to the marriage amendment. This Court has directed the parties to submit supplemental briefing "explaining the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal."' Order, November 23, 1998. As set forth below, under well-settled and fundamental principles of law, the marriage amendment likewise requires reversal of the Circuit Court's decision.
 

I. The Court Must Apply Existing Law To Claims For Prospective Injunctive Relief And Declaratory Judgment

    It is a fundamental principle of law that a court's authority to grant prospective relief must be based on current law. That is, where there has been a change of law between the time of the trial court's decision and the time of appeal, the appellate court must, inactions for prospective relief, apply the law in existence at the time of appeal. Here, Plaintiffs-Appellees have sought only prospective relief.¹The only question before the Court, then, is whether Plaintiffs-Appellees are currently entitled to prospective relief and it is beyond dispute that Plaintiffs-Appellees’ equal protection challenge to HRS § 572-1 simply cannot be sustained in light of the recently ratified marriage amendment.

    That a court must apply current law to claims for prospective relief was made crystal clear by the United States Supreme Court in Landgraf v. USI Film Prods., 511 U.S. 244 (1994). There, the Court explained that when there has been a change in law while a case is pending on appeal, the question of whether the appellate court should apply the new law or the law that existed at the time of the lower court's decision depends upon whether the application of the new law would have a "retroactive effect." If application of the new law would operate "retrospectively," that is, if "the new provision [would] attach[ ] new legal consequences to events completed before its enactment," the appellate court should, absent a clear congressional intent to the contrary, apply the law in existence at the time of trial. Id. at 269-70.² The Court explained that "the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal."' Id. at 265 (quoting Kaiser Aluminum & Chem. Corp. v. Bonforno, 494 U.S. 827, 855 (1990) (Scalia, J, concurring)).

    But the Court made equally clear that where a party seeks prospective relief, the application of new law does not operate retroactively and, therefore, the appellate court must apply the new law -i.e., the law as it stands at the time that the appellate court rules - to the pending appeal. Indeed, Justice Stevens, who authored the Court's opinion in Landgraf, could not have been clearer on this point:
 

Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Thus, in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921), we held that § 20 of the Clayton Act, enacted while the case was pending on appeal, governed the propriety of injunctive relief against labor picketing. In remanding the suit for application of the intervening statute, we observed that relief by injunction operates in futuro, and that the plaintiff had no vested right in the decree entered by the trial court.

Id. at 273-74 (internal quotations omitted). Likewise, Justice Scalia, in his opinion concurring in the judgment, explained that courts have always applied current law to claims for prospective relief precisely because such claims involved no issue of retroactivity:
 

Statutes eliminating previously available forms of prospective relief provide another challenge to the Court's approach. Courts traditionally withhold requested injunctionsthat are not authorized by then-crit law, even if they were authorized at the time the suit commenced and at the time the primary conduct sought to be enjoined was first engaged in. The reason, which has nothing to do with whether it is possible to have a vested right to prospective relief, is that '[o]bviously, this form of relief operates only in futuro[.]' Since the purpose of prospective relief is to affect the future rather than remedy the past, the relevant time for judging its retroactivity is the very moment at whichit is ordered.

Id. at 293 (Scalia, J., concurring in the judgments) (citations omitted). See also United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (Marshall, CJ.) ("[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional ... I know of no court which can contest its obligation.").

    This Court has also recognized that in cases involving a claim for prospective relief, appellate courts must apply the law in existence at the time of appeal. In Nuuanu Neighborhood Ass'n. v. Department of Land Utilization, 63 Haw. 444,446, 630 P.2d 107,109 (1981), for example, the plaintiffs sought a declaratory judgment and prospective injunction prohibiting the defendant from constructing a subdivision on certain property. While the case was pending on appeal, however, the relevant zoning ordinance was repealed and replaced by a new one. Id. In response to plaintiffs' contention that the old law still governed, this Court "summarily resolved" the issue, explaining unequivocally that " [I]t iswell-established that, absent special circumstances, an appellate court will decide an appeal on the law as it exists at the time of its decision.’ " Id. (quoting Honolulu v. Midkiff, 62 Haw. 411, 414, 616 P.2d 213, 216 (1980). See 4150 In re Estate of Bishop, 37 Haw. 111, 140 (1945) (Le Baron, J., concurring) (application of new law to pending appeal is appropriate if 'it is not a true retrospective law nor has it retrospective operation in the sense that it reverts to and modifies a preexisting state of right [but] ... rather[,] is prospective in the sense that it applies onlyto a ruling to be made in the future, albeit with retrospective application in respect to transactions in the past which come up for adjudication."); Employees' Retiremenf Sys. v. Wah Cheui Chang, 42 Haw. 532, 536 (1958) (statute is not "retroactive" if it "does not take away or impair any vested rights").

    In this case, Plaintiffs-Appellees seek only prospective relief. And the Circuit Court below granted only prospective relief, "enjoin[ing] [the State] from denying an application for a marriage license solely because the applicants are of the same sex." Order, December 3,1996, at 45-46. Accordingly, under the universally accepted rule of law recognized in Landsgraf and Nuuanu Neighborhood, this Court must apply the law as it currently stands to Plaintiffs-Appellees' equal protection claim.

    And in light of the marriage amendment, there can be no doubt that Plaintiffs-Appellees' equal protection claim, evaluated under the Equal Protection Clause as it currently stands, must fail. The Hawaii Constitution, as recently amended, now explicitly provides that "[t]he legislature shall have the power to reserve marriage to opposite-sex couples." Haw. Const. art. 1, § 23. Thus, whatever the Equal Protection Clause might have meant when Plaintiffs-Appellees brought this action, it cannot today be interpreted so as to prohibit the State from restricting marriage licenses to opposite-sex couples.

    In short, the only plausible interpretation of the Equal Protection Clause now squarely forecloses Plaintiffs-Appellees' claim that the Hawaii Constitution requires the State to issue marriage licenses to same-sex couples. And because this Court’s authority to award prospective relief is governed by today's law, the judgment of the Circuit Court must be reversed.

II. Whether Or Not HRS § 572-1 Was Unconstitutional Prior To The Marriage Amendment, It Must Now Be Given Its Full Force And Effect

A. Under The Plain Text Of The Hawaii Constitution, HRS § 572-1 Continues To Be Good Law After The Marriage Amendment

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. art. XVIII, § 9. This provision, then, requires the Court to evaluate the constitutionality of HRS § 572-1 in light of the marriage amendment --i.e., in light of 'the constitution as amended." Indeed, it is difficult to determine what other meaning this provision could possibly have.

    As HRS § 572-1 has never been invalidated by this Court, it continues to remain in force.⁴And since HRS § 572-1 is "not inconsistent with the constitution as amended," it therefore "remain[s] in force, mutatis mutandis, until [it] expires] by [its] own limitation or [is] amended or repealed by the legislature." Haw. Const. art. XVIII, § 9. Neither of these conditions having occurred, HRS § 572-1 continues to be the law of Hawaii, and so prohibits the State from issuing marriage licenses to same-sex couples.
 

B. The Hawaii Legislature Had The Power To Enact HRS § 572-1 Whether Or Not, Prior To The Marriage Amendment, It Was Unconstitutional In Its Application To Same-Sex Couples; Any Constitutional Impediment Having Been Lifted, The Statute Must Now Be Given Its Full Force And Effect

    Quite apart from this constitutional provision, however, this Court is obligated to evaluate HRS § 572-1 under the Constitution as it currently stands and, therefore, uphold the constitutionality of HRS § 572-1. Plaintiffs-Appellees do not and cannot argue that HRS § 572-1 was void ab initio -that is, that the marriage statute was beyond the power of the Hawaii Legislature to enact and, therefore, was an absolute nullity as if it were never enacted. Such an argument not only would immediately call into question the validity of every marriage performed in Hawaii, it would not provide Plaintiffs-Appellees with the relief that they seek -a marriage license. Instead, the most that Plaintiffs-Appellees can argue is that at the time of enactment, HRS § 572-1 was unconstitutional only insofar as it applied to same-sex couples. It is well established, however, that a statute that is within the general power of a state legislature to pass but which, due to a constitutional impediment, is invalid as to some of its applications, must be accorded full force and effect once that constitutional impediment has been removed. In other words, in evaluating the validity of such a statute, a court must apply the Constitution as it currently stands.

    Over a century ago, in In re Rahrer, 140 U.S. 545 (1891), the United States Supreme Court recognized that laws that the legislature is competent to pass need not be reenacted once a constitutional impediment to their full enforcement has been lifted. Prior to Rahrer, the Court had invalidated an Iowa liquor law insofar as it prohibited the importation of liquor from another state (but not insofar as it regulated domestically manufactured liquor), explaining that "whenever the law of the State amounts essentially to a regulation of commerce with foreign nations or among the States, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity, . . . it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void." Leisy v. Hardin, 135 U.S. 100, 123, 125 (1890). In the immediate wake of this decision, however, Congress lifted the constitutional impediment by enacting a statute "providing that imported liquors should be subject to the operation and effect of the state laws to the same extent and in the same manner as though the liquors had been produced in the state." Rahrer, 140 U.S. at 564.

    In Rahrer, then, the Court confronted the question whether statutes invalidated by Leisy insofar as they applied to imported liquor had to be reenacted in order to be accorded their full force and effect (i.e., the same effect upon foreign liquor that they already had upon domestic liquor). The Court flatly rejected this proposition. It acknowledged that in Leisy it had "reversed the judgment upon the ground that the legislation ... was repugnant to the third clause of section 8 of article I of the constitution of the United States, in that it could not be given operation without bringing it into collision with the implied exercise of a power exclusively confided to the general government." Id. at 563. But it explained that "[t]his was far from holding that the statutes were absolutely void, in whole or in part, and as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the state." Id. Accordingly, the Court concluded:
 

This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to congress, but of a law which it was competent for the state to pass, but which could not operate upon articles occupying a certain situation until the passage of the act of congress. That act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a re-enactment of the state law was required before it could have the effect upon imported which it had always had upon domestic property.

Id. at 565. See also Johnson & Johnson Inc. v.G.E.M. Sundries Co., 43 Haw. 103,114 (1959) (quoting Rahrer in support of the proposition that the "'reenactment of [state] fair trade statutes was not necessary to make such statutes valid"); Central Pac. R.R. Co. v. Nevada, 162 U.S. 512, 523-24 (1896); Dr. G.H. Tichenor Antiseptic Co. v. Schwegmann Bros. Giant Supermarkets, 83 So. 2d 50Z 507-08 (La. App. 1955), rev'd. on other grounds, 90 So. 2d 343 (La. 1956).

    Shortly after the Rahrer decision, the Court of Appeals of New York likewise recognized that a law within the legislature's legitimate scope of power but unconstitutional as to some of its applications, need not be reenacted once the constitutional impediment has been lifted. Thus, People ex rel. McClelland v. Roberts, 42 N.E. 1082,1084 (N.Y. Ct. App. 1896) held that New York's civil service statute, previously held unconstitutional in its application to the department of public works (but not in its application to other state departments), did not have to be reenacted after New York had amended its Constitution to lift the constitutional impediment. In so holding, the Court explicitly rejected the argument, advanced by the dissent, that
 

[i]f the statute was unconstitutional, and consequently void when passed, so far as it applied to the department [of public works], I am unable to agree to the proposition that the constitutional amendment ... revived or infused new life into it and rendered it valid. It makes no difference that it was only void in part, for so far as it was void it had no effect, and could not be rendered valid except by re-enactment.

See also id. at 1085 (Marting, J., dissenting); see also id. at 1084 (addressing the argument that because "the Civil Service Law has not been re-enacted since the change [in the Constitution] or any other legislation supplied, there is now no law or regulation applicable" to the department of public works). Instead, the Court held that
 

a general law, when passed, may be incapable of application to certain cases within its general scope and policy by reason of the existence of other and conflicting enactments of equal or higher authority, but when the latter are repealed or modified, the general law is given full operation .... The section of the Constitution with which it was then found in conflict ... having since been modified in such a manner that both the organic law and the general statute are in harmony, . . . the suggestion that, in order to make the general law operate upon this case, the legislature must re-enact it, has no reasonable or just foundation and, so far as I am aware, is not sustained by authority.

Id. at 1084-85 (CYBrien, J.). See also Cobb v. Cohron, 26 S.W. 846, 847 (Tex. Civ. App. 1894) (statute regulating the trial of contested elections had been held void insofar as it conferred jurisdiction on district courts, but not as to the procedures it set forth governing the trials; therefore, "'though ineffectual, at that time,... . [it] was not unlawful and void," and became fully "'operative" upon enactment of the constitutional amendment granting jurisdiction to district courts); Samkoff v. Gerosa, 29 Misc. 2d 844, 847 (Sup. Ct. N.Y. 1961) (relying on McClelland to hold that "[t]here is no overriding rule which required the city to go through the purely formalistic process of re-enacting verbatim the existing local tax law"); cf. Basehore v. Hampden Indus. Dev. Aufh., 248 A.2d 21Z 222 (Pa. 1968) ("not[ing] in passing ... that [itl should be most reluctant to declare this Act unconstitutional and then state that the legislature could re-enact the same law after January 1, 1969 when it would become constitutional").

    More recently, this proposition was acknowledged in a forceful dissenting opinion written by Judge Skillman in State v. Yothers, 659 A.2d 514 (N.J. Super. Ct. App. Div. 1995), which has since been approved of by the New Jersey Supreme Court. See State v. Cooper, 700 A.2d 306, 376 (NJ. 1997) ("[W]e agree with Judge Skillman’sdissent in State v. Yothers, . . . that... no implementing legislation was required to effectuate the constitutional amendment."). In Yothers, a case virtually indistinguishable from this one, the court addressed the question whether New Jersey's death penalty statute, previously held unconstitutional in part by the New Jersey Supreme Court, should be accorded its full force and effect once the constitutional impediment had been lifted. A previousdecision had invalidated the statute pursuant to the state constitution's "cruel and unusual punishment" clause insofar as the statute applied to the purposeful and knowing infliction of serious bodily harm resulting in death (the statute's application to purposeful and knowing murder was upheld). See State v. Gerald, 549 A.2d 792 (NJ. 1988). Following this decision, however, New Jersey amended its constitution to expressly provide that "it shall not be cruel and unusual punishment to impose the death penalty on a person convicted of . . purposely and knowingly causing serious bodily injury resulting in death." N.J. Const. art 1, para. 12. In Yothers, then, Judge Skillman concluded that the statute did not have to be reenacted in order to apply to serious bodily injury murder, but instead should be given full effect.⁵ His reasoning on this point, moreover, is indistinguishable from the Supreme Court's in Rahrer, differentiating between a law that was an "'unauthorized exercise of a power," on the one hand, and "a law which it was competent for the state to pass, but which could not" be given its full force and effect because of a constitutional impediment, on the other. Rahrer, 140 U.S. at 565. The latter, he explained, "remained in effect subject to implementation in its original form in the event that the ... Constitution were amended to remove the constitutional impediment," Yothers, 659 A.2d. at 522-23 (Skillman, J., dissenting):
 

A declaration that a validly enacted statute is unconstitutional in certain of its applications must be distinguished from a declaration that the Legislature lacks the constitutional authority to enact a particular kind of legislation. As one commentary has noted, "the legislature cannot pass a statute that exceeds its powers; if the meaning of the Constitution changes so that the powers of the legislature expand, legislation once beyond the legislature's scope but now Permissible must be repassed to be enforceable.". . . . Thus, in In re De Falco, 9 N. J. 236 (1952). .. [t]he Court concluded that since th[e] (gambling] statute was beyond the Legislature's lawmaking authority at the time of its enactment, it could not be validated by subsequent constitutional amendment repealing this limitation upon legislative authority. In contrast, the Legislature unquestionably had the constitutional authority to adopt a death-penalty statute in 1982, and the Court's declaration in Gerald that some applications of the statute were unconstitutional did not invalidate the statute. Therefore, the Legislature was not required to reenact legislation authorizing imposition of the death-penalty for SBI murder when the electorate passed a constitutional amendment removing the constitutional impediment to full implementation of the 1982 death-penalty statute.

Id. at 523 (Skillman, J., dissenting) (internal citations omitted).

    Here, it cannot be disputed that it is well within the Hawaii Legislature's power to provide for and regulate the issuance of marriage licenses and, more specifically, to issue marriage licenses to opposite-sex couples. Indeed, as the plurality recognized in Baehr v. Lewin, 74 Haw. 530, 560, 852 P.2d 44, 48 (1993)(Baehr I), "the state's monopoly on the business of marriage creation hasbeen codified by statute for more than a century." HRS § 572-1, in other words, is, was, and always has been well within scope of the legislature's power to enact. Instead, the most that Plaintiffs-Appellees can argue is that from ratification of the State Constitution until November 3, 1998, when th marriage amendment was ratified, Hawaii's marriage law was invalid insofar as it applied to same-sex couples. But just as the statutes in Rahrer, McClellanA and Yothers had to be accorded full force and effect upon the lifting of the constitutional impediment to certain applications, so too must HRS § 572-1 be accorded its full operation now that it no longer can be questioned that the Hawaii State Constitution permits the legislature to limit marriage to opposite-sex couples. In short, the Court must apply the current Constitution to HRS § 572-1, and under that Constitution, the statute, in its full operation, is constitutional.
 

C.  The Legislature's Intent In Enacting (And The People's In Ratifying) The Marriage Amendment Was To Validate The Current Law

    Moreover, that HRS § 572-1 is currently valid pursuant to the marriage amendment is independently confirmed by theframers’ intent in enacting that amendment. This Court has always recognized that its "duty is 'to give effect to the intentions of the framers and the people adopting' the provision" of Hawaii's Constitution at issue. State v. Mueller, 66 Haw. 616, 629, 671 P.2d 1351, 1360 (1983) (quoting HGEA v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978)). Thus, it is well established that if a constitutional amendment is clearly intended to validate preexisting law, then a court must give effect to the unequivocal meaning of the amendment. See, e.g., Beck v. Beck, 814 S.W.2d 745, 748 (Tex. 1991), cert. denied, 503 U.S. 907 (1992) (previously unconstitutional statute is validated by a subsequent constitutional amendment where "the legislative history of the amendment, its purpose and the circumstances of its enactment persuade [the court] that the legislature intended to cure" the constitutional defect), McClelland, 42 N.E. at 1085 (concluding from "the language of the new provision of the Constitution and from the debates in the convention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were intended to give it immediate practical operation"); Yothers, 659 A.2d at 520 ("Constitutional amendments can validate previously unconstitutional statutes if there is a clear intent to do so."). This bedrock principle is nothing more than an acknowledgment that it is the People who create the law, and that it is their intent that must govern its effect.

    And in this case, it cannot seriously be disputed that the intent of the Legislature in drafting (and of the People in ratifying) the marriage amendment was to validate Hawaii's current restriction on marriage to couples of the opposite sex. Indeed, this question is explicitly resolved by the plain text of the statute, passed by near unanimous and unanimous votes in the House and Senate, respectively, and signed by the governor, setting forth the marriage amendment as well as its express purpose. Thus, the statute provides:
 

The purpose of this Act is to propose an amendment to article I of the Constitution of the State of Hawaii, to clarify that the legislature has the power to reserve marriage to opposite-sex couples.... This constitutional measure is thus designed to confirm that the legislature has the power to reserve marriage to opposite-sex couples and to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statute.

1997 Haw. Sess. Laws, H. B. 117, § 1 (emphases added). The words "confirm" and "clarify" quite obviously imply that, in view of the amendment, the law already in existence will be constitutional. The unmistakable import of the amendment is further confirmed by the manner in which the statute contrasts "those who seek a change in the marriage laws," against "those who oppose a change in our current marriage" statutes. According to this language, proponents of same-sex marriage may seek a change in current marriage laws; opponents of same-sex marriage, however, do not have to change current law because that law, in existence after the marriage amendment, already prohibits same-sex marriage. In short, the plain language of this statute explicitly sets forth the purpose of the marriage amendment, which clearly is to validate HRS § 572-1, as it is currently written.

    The clear and unequivocal intent of the marriage amendment is further confirmed by the debates surrounding the drafting, ratification, and enactment of the amendment. During those debates, members of the Legislature explicitly addressed the question whether HRS § 572-1 would have to be reenacted in light of the marriage amendment. For example, House judiciary Committee Chairman Tom stated:
 

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 reenact marriage legislation.⁶ 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 J., at 919 (statement of Rep. Tom) (Apr. 29,1997). See also 1997 Haw. SEN. J., at 765 (Statement of Sen. Chumbley) (Apr. 29,1997) ("Through the passage of this measure, . . . we hope to make apositive statement to reaffirm the right of the people over their constitution.") (emphasis added). Likewise, Senators Chumbley and Matsunaga agreed with Representative Tom's understanding of the amendment, stating that "[i]n 1994, the Legislature passed such a [marriage] law, therefore, if the amendment passes, the 1994 law becomes valid." Matt Matsunaga and Avery Chumbley, Marriage Amendment Not Meant To Mislead, Honolulu Advertiser, Sept. 14, 1998, at A8. Significantly, not a single member of either the House or the Senate seems to have expressed any disagreement on this matter.⁷

    In short, it is beyond doubt that the marriage amendment was designed to validate Hawaii's existing marriage statute, HRS Section572-1. The Court should accord this amendment the explicit purpose for which it was intended by the People of Hawaii and if the Court reaches the issue at all, hold that HRS § 572-1 remains the operative law of the State of Hawaii.

D. Whether Or Not HRS § 572-1 WasVoid Ab Initio, The Circuit Court's Judgment Must Be Reversed

    This Court has recognized and applied the well-established rule that where a court invalidates a statute as unconstitutional it should, rather than leave a hole in the statute books, reinstate the preexisting statute that the unconstitutional one replaced if the earlier statute is not itself in conflict with the Constitution. Thus, in State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), cert. denied, 459 U.S. 824 (1982), after this Court held that Honolulu's ordinance regulating peddling in public areas was unconstitutional, the Court reinstated the earlier peddling ordinance that had been superceded by the unconstitutional one. As the Court explained:
 

By declaring Section 26-6.2(b), R.O.H., unconstitutional, we do not intend to leave a void in the ordinances of the City and County of Honolulu. It is the general rule that where an act purporting to amend and re-enact an existing statute is void, the original statute remains in force.
- - - - - -
As our above discussion reveals, Ordinance No. 4302 amended Section 26-6.2(b), R.O.H., in 1974. It is Ordinance No. 4302 which infringed on appellee's rights to free speech and due process of law. Thus, the provisions of Ordinance No. 4302 due to its unconstitutionality, would be void and have no effect to amend a valid prior enactment. Therefore, Section 26-6.2(b), R.O.H., prior to the 1974 amendment is hereby reinstated.

Id. at 166-67 (citing Frost v. Corporation Comm'n, 278 U.S. 515, 525-27 (1929)).

    Here, even assuming that HRS § 572-1 is void today because it was unconstitutional when enacted, under the rule set out in Bloss, this Court must rather than leave Hawaii with no law governing the issuance of marriage licenses, reinstate
RLH ch. 301, § 12351 - the law that ultimately became HRS § 572-1. As that statute was enacted prior to ratification of the Hawaii State Constitution and its Equal Protection Clause, it is not susceptible to the challenge that it was unconstitutional from its inception. And because under Bloss this"originalstatute remains in force" today, 64 Haw. at 166, and is "not inconsistent with the constitution as amended," Haw. Const. art. XVIII, § 9, it must, pursuant to section nine of article X**** of the Hawaii State Constitution, "remain in force, mutatis mutandis, until [it] expire[s] by [its] own limitation or [is] amended or repealed bythe legislature." And this earlier statute, like HRS § 572-1, also prohibits same-sex marriages.

    In sum, even assuming that HRS § 572-1 is void today because it was unconstitutional when enacted, the law that governs in its place is that which was in existence just prior to the adoption of the Hawaii State Constitution. And that law, like HRS § 572-1 and every other Hawaii marriage law, prohibits same-sex marriage. Accordingly, the judgment of the Circuit Court must be reversed.

[T]he courts are sometimes characterized as legislating from the bench, that is making or remaking law. When deciding cases, judges often apply common law, statutory law, or constitutional law to new facts and circumstances. In so doing, we do not intend to usurp the legislative function. However under our system of checks and balances, if we strayinto the legislative prerogative, the Legislature has the ability to cure the trespass. As you know, in our legal system, statutes trump common law, and constitutions trump statutes. We are ever mindful that the Legislature - the peoples' representatives - hold the highest trumps. That is, the peoples' representatives have the authority, within constitutional limits, to write or rewrite statutes and to propose amendments to our [state] Constitution.

THE HONORABLE RONALD T.Y. MOON, STATE OF THE JUDICIARY ADDRESS, SUPREME COURT OF HAWAII (1997), reprinted in1997 Haw. House J., at 112 (Jan. 2Z 1997). The People have spoken. The Circuit Court’s decision must be reversed.

December 23,1998

Margery S. Bronster, 4750
Attomey General of Hawaii
Dorothy Sellers, 4069
Deputy Attorney General

Department of the Attorney
General, State of Hawaii
425 Queen Street
Honolulu, HI 96813

(818) 586-1387

Respectfully submitted,

Charles J. Cooper
(Admitted pro hac vice)
Michael A. Carvin
Michael W. Kirk

Cooper, Carvin & Rosenthal, PLLC 2000 K Street, N.W. Suite 401 Washington, D.C. 20006 (202) 822-8950

Counsel for Defendant-Appelant
 
 
 
 

ENDNOTES:

1 In their complaint filed in the Circuit Court, entitled "Complaint For Injunctive And Declaratory Relief," Plaintiffs argued that because HRS § 572-1 "den[ied] Plaintiffs equal protection of the laws under §5 of Art. 1 of the Hawaii State Constitution, "thecourt should grant them declaratory and injunctive relief "prohibiting ... [the State from] den[ying] application for a marriage license solely because the applicant couple is of the same sex." Complaint For Injunctive And Declaratory Relief, at 3, 4 (May 1, 1991).

2 Hawaii has codified this rule at HRS § 1-3, which provides that "[n]o law has any retrospective operation, unless otherwise expressed or obviously intended."

3 Of course, for the reasons set forth above, the Court need not reach this question to properly dispose of this case.

4 There has been no final decision invalidating HRS § 572-1. This Court has not invalidated the statute. And while the Circuit Court below did, prior to the marriage amendment, hold that the statute is unconstitutional, the order of that court has been stayed pending the outcome of this appeal. Consequently, pursuant to HRS § 572-1, the State continues to issue marriage licenses to opposite-sex couples only.

5 The majority in Yothers "[did] not question the logic or authority for [Judge Skillman's] position." 659 A.2d at 518. Instead, the majority simply disagreed with the meaning of the statute as it existed prior to the constitutional amendment, reasoning that, the State Constitution aside, the statute itself foreclosed imposition of the death penalty in the case before it. See id. ("Once the constitutional amendment removed the constitutional prohibition, further legislation was required to make the death penalty statute applicable to SBI murder because thedeath penalty statute, as it stood upon enactment in 1982, did not apply to SBI murders."). Indeed, the majority even went so far as to acknowledge that had it agreed with JudgeSkillman's interpretation of the statute as it existed prior to the constitutional amendment, "the constitutional amendment would have served to validate the statute." Id. at 520.

6 The people to whom Representative Tom was referring do not appear to have been other members of the legislature, nor were they members of the public at large; instead, they seem to have been Plaintiffs-Appellees' attorneys in this case, who had been reported to have claimed that HRS § 572-1 would have to be re-enacted. For example, on April 17,1997, almost two week before Representative Tom made this statement on the House Floor, the Honolulu Advertiser reported that "Dan Foley, the lawyer representing the gay and lesbian couples who sued the state for marriage licenses, said yesterday that even if ... the proposed amendment is ratified by the voters in the November 1998 election, the 1999 Legislature still would need to pass a law banning same-sex marriage." William Kresnak, Accord Reached On Same-Sex Bills, Honolulu Advertiser, Apr. 17,1997, at Al.

7 This uniform understanding of the language of the marriage amendment is further confirmed by two alternative amendments proposed by the Senate. While differing in other respects, the Senate's proposals were, insofar as the question sub judice is concerned, identical to the amendment ultimately adopted: all three provided that the legislature "shall have the power" to limit the issuance of marriage licenses to opposite-sex couples. Compare Haw. Const. art. 1, § 23, to S.B. No. 1800,19th Leg., Reg. Sess. (Haw. 1997) ("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") and Senate Judiciary Committee, "For Immediate Release" (Apr. 8, 1997) ("Senate Handout") ("[t]he legislature shall have the power to regulate the issuance of marriage licenses"). It cannot be disputed, however, that the Senate understood that these two proposed texts would validate existing law at least insofar as existing law restricted the issuance of marriage licenses to opposite-sex couples only. See S.B. No. 1800 ("This action would constitutionally preserve the existing restriction in our marriage laws.")(emphasis added); Stand. Com. Rep. No. 117, S.D. 1, reprinted in1997 Haw. SEN.J., at 928 (Feb. 4, 1997)(S.B. No. 1800 "will have the effect of constitutionally validating existing limitations in current law and protect them against interpretive challenge")(emphasis added); Senate Handout ("Effect: Existing restrictions limiting marriage licenses to couples of the opposite sex would be validated.")(emphasis added).

8Insofar as is relevant to the question whether RLH ch. 301, § 12351 prohibits same-sex marriages, RLH ch. 301, § 12351 is indistinguishable from HRS § 572-1. Thus, the plurality's conclusion in Baehr I that "[r]udimentary principles of statutory construction render manifest the fact that, by its plain language, HRS § 572-1 restricts the marital relation to a male and a female," 74 Haw., at 563, 852 P. 2d, at 55, likewise compels the Court to conclude that RLH ch. 301, § 12351 prohibits same-sex marriages. RLH ch. 301, § 12351 provides: "In order to make valid the marriage contract, it shall be necessary that the respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as of thewhole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate; that the male at the time of contracting the marriage shall be at least eighteen years of age and the female at least sixteen years of age; that the man shall not at the time have any lawful wife living and that the woman shall not at the time have any lawful husbandliving; that neither of the parties shall be impotent or physically incapable of entering into the marriage state; that consent of neither party to the marriage shall have been obtained by force, duress or fraud; that neither of the parties shall be a leper or afflicted with any loathsome disease concealed from, and unknown to, the other party; and it shall in no case be lawful for any persons to marry in the Territory without a license for that purpose duly obtained from the agent appointed to grant marriage licenses; provided, however, that with the written approval of the circuit judge having jurisdiction over juvenile cases in the circuit within which she shall reside, it shall be lawful for a female under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject, however to the provisions of section 12352. The marriage ceremony shall be performed only in the judicial district in which the license is issued." (Emphasis added).

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of December, 1998, two copies of Defendant-Appellant's Supplemental Brief were served in the manner described on the following counsel of record:

By Facsimile and U.S, Mail, postage pre-paid:

Daniel R. Foley
Partington & Foley
Suite 2450, Pacific Tower
1001 Bishop Street
Honolulu, HI 96813

By U.S. Mail, postage pre-paid:

Kirk H. Cashmere
201 Merchant Street
2300 City Financial Tower
Honolulu, HI 96813

Evan Wolfson
Lambda Legal Defense and Education Fund, Inc. 120 Wall Street Suite 1500 New York, NY 10005