September 26, 1996

Final Day Of The Trial
Baehr V. Miike (September 20)

The court room was packed as many people took a vacation day to witness the closing arguments. Deputy A. G. Rick Eichor went first with his closing arguments, for about 24 minutes. He maintained that the state has a compellinginterest "in promoting the optimal development of children", that "children do best when they have the personal involvement and material support of a father and a mother" and this is the "single, simple premise of our case and the single, simple premise of the marriage law." Mr. Eichor did not feel that Hawaii should begin a "grand social experiment" with same sex marriage. Two men and/or two women are not the same dyad as a family. In one of the most puzzling remarks made to date by Mr. Eichor, he maintained that children born into a same sex union always have one natural parent and one parent outside the union and the child is left without hope that mom and dad may someday marry. Mr. Eichor criticized the research presented, questioned the motivation of the plaintiff's witnesses, and promoted the myth that marriage is for procreation ("...the compelling stated interest that would legitimate the ban against same sex marriage is the procreation of children under the best possible circumstances"). "Generally all male/female couples can have children and all same sex couples can not" [in Hawaii, procreation was removed from the marriage statutes in 1984, as being discrimination against the elderly and the handicapped]. He ended with a completely scurrilous remark: marriage rights for gays and lesbians would endanger society's power to prohibit and regulate harmful behaviours such as prostitution, polygamy, and incest. This last possibility, backed by absolutely no testimony or earlier discussion in court, became the headline for the home edition of the Honolulu Star-Bulletin: that the state says incest could be next!

Dan Foley, attorney for the plaintiffs, had the final word. Foley admonished Mr. Eichor for comparing marriage with prostitution, polygamy, and incest. Foley said these are " herrings..." having nothing to do with the case. He then addressed the credibility and biases of the four witnesses for the state. Foley noted that two of the state's witnesses comndemmed homosexuality, one state witness testified against the field of psychology (in which he was alleged to be an expert), one state witness was against the theory of evolution, etc. According to Foley, the undisputed data and testimony of the experts showed:

  1. gays, lesbians and same sex parents are fit and loving as non-gay parents
  2. the sexual orientation of the parent, straight or gay, is not itself a determinant of optimal development; a successful, committed, loving relationship is
  3. gays and lesbians can and are allowed to adopt
  4. not the structure of the family (1 mom 1 dad, 2 moms,etc) nor the biology of the parents is the determinant- the loving, nurturing enviroment is
  5. children of same sex couples should be supported to reach their optimal development as are children of opposite sex parents (by the state, benefits, etc)
  6. there is no evidence that issuing marriage laws will have or has had an adverse effect on children
Foley finished by saying that
  1. the state should issue marriage liscences to same sex couples because:

  2. a. it would bring legal recognition to the couples
    b. it would promote stability
    c. it would give equal rights and benefits
  3. children of same sex parents are harmed and denied rights because their parents are denied the right to marry
  4. procreation is not the only reason people get married; rights and benefits come to all, regardless if the persons procreate or have children
  5. there is no evidence in this case that marriage in Hawaii will harm the citizens of Hawaii
  6. this court cannot condone sex discrimination nor draw an invidious distinction of a class of citizens based on gender
  7. the court is not tasked with deciding what is the best marriage for Hawaii
  8. the court is not deciding what is the best family for Hawaii (gay, lesbian, extended family, single parent families, etc)
  9. this case is about sex discrimination- good people, law-abiding people, tax-paying people are being discriminated against
  10. our Hawaii constitution puts sex discrimination on the same plane as race discrimination (citing the overturned ban in Virginia)
  11. as Virginia failed to meets its heavy burden in Loving vs Va., Mr. Eichor and the state failed to prove its burden
This is a simple matter of dscrimination and that no legal basis, nor social circumstance (regarding children and families) can prove or substantiate otherwise.

                        Tom Ramsey
                        Co-coordinator, h.e.r.m.p

P. S. Here are the players and organizations in Hawaii whose primary focus is on same gender marriage and which work closely with h.e.r.m.p:
h.e.r.m.p: the ONLY organization paying the legal fees of Dan Foley, the attorney who is in charge of the case with Evan Wolfson and Kirk Cashmere as co-counsels. h.e.r.m.p was created when the three plaintiff couples came to the Gay and Lesbian Community Center in 1993 for help in raising funds to pay the legal expenses (they had to distance themselves from an earlier organizational structure). Donations to h.e.r.m.p are fully tax-deductible and can be made to GLCC-HERMP, 1521 Alexander St., #503, Honolulu, HI 96822. h.e.r.m.p currently owes Dan Foley about $13,000, with the bill mounting rapidly during the trial in September.

Friends of h.e.r.m.p: an organization parallel to h.e.r.m.p to handle the NON-tax-deductible public education and media work. The address is PO BOX 11690, Honolulu, HI 96828. They have launched a 900-number, for donations of between $5 and $25: 1-900-97-MARRY.

Alliance for Equal Rights: this political action group predates h.e.r.m.p considerably. It played a strong role in getting Hawaii's law that bans discrimination in employment (with Leon Rouse as the lobbyist for that). It's top priority is the support of legislative candidates who support same gender marrige, but it can't give money directly to the candidate's election campaigns. The address is 2139 Chamberlain Street, Honolulu, HI 96822.

The Equality Fund: an organization parallel to the Alliance, which is a registered PAC giving money directly to legislative candidates. The address is PO BOX 11690, Honolulu, HI 96828.

The following national organizations endorse h.e.r.m.p and Friends of h.e.r.m.p (with its 900-number):
                        Astrea National Lesbian Action Foundation
                        Gay And Lesbian Medical Association
                        Gay/Lesbian/Straight Teachers Network
                        Human Rights Campaign
                        Lambda Legal Defense And Education Fund
                        National Black Gay And Lesbian Leadership Forum
                        National Gay And Lesbian Task Force
                        Parents And Friends Of Lesbians And Gays
                        Deaf Queer Resource Center
                        New York Freedom To Marry

                          P.S. Web sites for additional HERMP information:

                                The latter is provided by a BBS, which also provides BBS access to
                                HERMP messages:
                                Tropical Night BBS (808) 235-5558

                           For legal documents related to Baehr v. Lewin (now Baehr v. Miike):


                           which has a link to marriage and Baehr v. Lewin

                           For national as well as Hawaii information:


                                The Hawaii Equal Rights Marriage Project, HERMP, is the sole support of
                                the work of Dan Foley on Baehr v. Lewin (Foley is the attorney who
                                makes all court appearances on behalf of the plaintiff couples). Please be
                                generous in support of HERMP; Hawaii is a small state, and the tiny gay
                                and lesbian community here is very active in advocacy work which
                                HERMP cannot address. Donations to HERMP are fully tax-deductible,
                                and should be made out to:

                                1521 Alexander Street, #503
                                Honolulu, HI 96822.

                                The HERMP branch in Kona, on the Big Island, has produced a T-shirt for
                                sale. One can send a check for $17.50 to HERMP, P.O.Box 902, Captain
                                Cook, HI 96704, together with a note about being sent a T-shirt (S, M, L,
                                XL, XXL). It is also available in a tank top. The design is multi-color on
                                white. A large triangle points down, with the letters h.e.r.m.p above the
                                triangle, some male-male, female-female symbols in the border of the
                                triangle and some palm trees. To place an email order for T-shirts, or to
                                obtain more information, please email An image of the
                                T-shirt is available via the WEB on

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