Date: Sat, 14 Jun 1997 09:42:15 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 17: AMERICAN FRIENDS SERVICE COMMITTEE Aloha kakahiaka kakou. The first of two more Amicus Briefs to be broadcast. Both are friendly to our side. No. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) Civil No. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS ) OF FACT AND CONCLUSIONS PlaintiffS-Appellees, ) OF LAW ) vs. ) ) FIRST CIRCUIT COURT LAWRENCE H. MIKKE [sic], in his ) official capacity as Director ) of the Department of Health, ) THE HONORABLE KEVIN State of Hawaii, ) S.C. CHANG ) Defendant-Appellant. ) ________________________________) AMICUS CURIAE BRIEF OF THE AMERICAN FRIENDS SERVICE COMMITTEE CERTIFICATE OF SERVICE MARY BLAINE JOHNSTON 1755-0 P. 0. Box 1030 Kula, Maui, Hawaii 97690-1030 TeQephone No. (808) 573-2416 Attorney for Amicus Curiae American Friends Service Committee TABLE OF CONTENTS Table of Contents.................... .............................i Table of Authorities..............................................ii I Statement of Case............................................1 II. Argument.....................................................2 III. Conclusion..................................................10 TABLE OF AUTHORITIES CASES PAGES Baehr v. Lewin, 74 Haw. 530, 852 P. 2d . 44 C 1993).......1, 3, 7, 8 Brown v. Board of Education, 347 U.S. 483 (1954)...................6 Loving v. Virginia, 388 U.S. 1 (1957)[sic]......................1, 6 Norweed v. Harrison, 413 U.S. 455 (1973)..........................10 Singer v. Hara, 11 Wash. App. 247, 522 P. 2d 1187, rev. den. 84 Wash. App. 2d 1008 (1974.............7 CONSITUTIONAL PROVISIONS Hawaii Constitution, Article 1, Section 5......................... 1 OTHER Report of the Commission on Sexual Orientation and the Law, Haw. Leg. Reference Bureau, Act 5, Session Laws of Hawaii, 1995................................................5, 6 1. STATEMENT OF CASE The Supreme Court of Hawaii remanded this case involving the application for marriage licenses by three same gender couples (Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), directing the Circuit Court to consider Article 1, Section 5 of the Hawaii Constitution (Equal Protection Clause) which reads: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. Suggesting an analogy to the United States Supreme Court opinion in Loving v. Virginia, 388 U.S.l (1967), a landmark racial miscegenation case, the Hawaii Supreme Court mandated that, for equal protection purposes, the State must show a compelling state interest in denying the right to marry to same gender couples. Upon trial of this case, the Circuit Court deterimined that the State had failed to show such an interest. (Findings of Fact, Conclusions of Law entered on December 3, 1996 hereinafter referred to as "FOF"/"COL".) This Court has granted The American Friends Service Committee ("AFSC")[fn1] leave to participate as Amicus Curiae on behalf of the children of same gender unions, as they are affected by the denial of benefits afforded by marriage. [fn1] The AFSC and the Religious Society of Friends (Quakers) are distinct entines. The AFSC tries to be an expression of the values and principles of Quakerism as AFSC understands them. Quakerism has no governing body, so no pwerson or group may speak for the Religious Society of Friends as a whole. 1 AFSC avers this Court should uphold the Circuit Court ruling that the denial of a large array of financial and intangible benefits to same gender couples which are enjoyed by married opposite gender couples serves to deprive the children of same gender parents and, as such, denies them equal protection of the laws alongside their parents. II. ARGUMENT DENIAL TO A SAME GENDER COUPLE OF A LARGE ARRAY OF FINANCIAL AND INTANGIBLE BENEFITS, WHICH ARE ENJOYED BY THE MARRIED HETEROSEXUAL COUPLE, IS A DEPRIVATION TO THE CHILDREN OF SAME GENDER PARENTS AND, THUS, SERVES TO DENY THE CHILDREN, AS WELL AS THEIR PARENTS, EQUAL PROTECTION OF THE LAW. In the past, lesbians and gay men usually incorporated children into their relationships via divorce from the opposite sex. Over the past 20 years, same sex couples have asserted their right to parent on a par with heterosexual couples. Lesbians and gay men in large numbers have chosen both to marry in religious ceremonies and to share their lives with children either by single parent adoption, second parent adoption and, more recently, by artificial insemination of lesbians. Studies indicate that lesbians and gay men have equal parenting skills with heterosexual Couples and, in the case of lesbian couples, sometimes, superior skills. The findings of science, as testified to by Plaintiffs' experts at the time of trial (See Paras. 75-115 of FOF/COL), support the Court's finding that gay and lesbian parents are doing a good job raising children and, most importantly the children are turning out fine.(FOF 125-135). As families headed by 2 same gender parents increase, their rights and the rights of their children can no longer be ignored. If same-sex marriage is allowed, the children being raised by gay and lesbian parents and by same-sex couples may be assisted, because they may obtain certain protections and benefits that come with or become available as a result of marriage. (FOF l36). The Circuit Court expressly found that people marry for a variety of reasons, including having and raising children; stability and commitment; emotional closeness, intimacy and monogamy; establishing a long-term relationship; and recognition by society. The Court, citing to Baehr v. Lewin, supra, 74 Haw. at 560-61, where fourteen different "salient marital rights and benefits" that attach to the opposite gender couples at the moment of marriage are enumerated, found that gay men and lesbian women share the same mix of legel and economic protections, benefits and obligations as reasons for wanting to marry as do opposite sex couples.[fn2] (FOF 138). Same gender couples who are denied benefits merely because their unions are not licensed by the State exist amomg us and are part of the fabric of our society. The [fn2] The list of "noteworthy marital rights and benefits" the Court refers to in FOF 138 include tax advantages; public assistance and exemptions relating to the Department of Human Services; control, division, acquisition and disposition of community property; dower, curtesy and inheritance rights; rights and protection under the Probate Code; child custody and support payments; right to spousal support; right to enter into pre-marital agreements; right to change name; right to file non- support action; post-divorce rights relating to support and property division; spousal privilege; benefit of exemption from attachment and execution; and right to bring wrongful death action. (Statutory citations omitted.) 3 growing trend of lesbian and gay people bearing and adoption children has not to our knowledge existed in American society in the past; therefore, the marriage laws have not been designed to reflect the nature of such relationships nor to address the rights and protections that may adhere to them. Some cities and corporations have adopted statutes and policies granting so-called domestic partnership rights. These statutes and policies are incredibly complex in their attempt to define the moment of inception of the reLationship, and the nature of and the possible ending of a donQestic partnership arrangement, not to mention the enumeration of benefits so acquired. Furthermore, they are recognized only by the adopting city or corporation and are not transferable to other entities, and they do not provide equal protection of law in comparison to heterosexual marriage rights. Although the Nineteenth State Legislature of the State of Hawaii (1997) passed House Bill No. 118 establishing the status of reciprocal beneficiaries and providing certain state government benefits to those with such status, as of the writing of this brief, the Governor has not acted on this bill. Adoption of this measure would provide certain benefits to children of gay and lesbian parents, but not the full panoply of intangible rights that statutory recognition of same gender marriage would confer. Recognition of the right to marry would make sense from the point of view of statutory efficiency since marriage laws have been in place since the founding of the Union. The 4 right of their parents to marry would help to enable the children of same sex relationships to feel equal to the children of heterosexual families, obviate the necessity of hiding the nature of their familial relationship and enable them to feel secure in their parents' unions, while providing themwith an equal array of benefits as their heterosexual counQerparts. The Report of the Commission on Sexual Orientation and the Law, Haw. Leg. Reference Bureau (1995) (hereinafter "Com. Rep."), which was established under Act 5 of the Session Laws of Hawaii 1995, divided the marital benefits into three categories: Intangible, Substantial and Quantifiable, and General. (Com.Rep., 1-22). The Commission (Corn. Rep, n. 44, 9-10) determined that the primary intangible benefit denied to same gender couples through denial of the right to marry is a right of equality and liberty enjoyed by opposite gender couples: The Commission further finds that beyond the specific intangible benefits listed above is one other that stands head and shoulders above all the other benefits combined. That is the intangible benefit of liberty and equality. What price, what cost, is it to lose equality? We cheapen the discussion (of the value of certified marriage for families and children) by reducing legal marriage to only a matter of dollars and cents. Certainly the majority of those married couples who are allowed to receive governmental certificates do not view these documents as passports to economic prosperity. we should step back and look at the bigger picture. What , for example, was the cost in human liberty to be forced to attend segregated 5 schools before Brown v. Board of Education, 347 U.S. 483 (1954)? What was the cost in terms of human equality for different-gender (sic, i.e., different race) couples to go to jail for marrying the one they loved, before Loving v. Virginia, 388 U.S. 1 (1966)? Add up the hundreds of special marriage certificate benefits. Now, subtract their purely economic value. What you have left is the greatest intangible benefit of all: simple recognition and equality. And the Commission finds that this value is priceless and is above and beyond the other values, intangible or otherwise, simply because the value of legal marriage is greater than the sum of its parts. Indeed, the Commission finds that this intangible idea of "being really married" (i.e., being a child in a `real' marriage) through governmental certification -- the intangible idea itself, removed from all the purely economic considerations -- is one of the primary benefits associated with legal marriage in the minds of most members of the general public. The Commission reiterates its finding: this benefit is of substantial and unquantifiable value. The AFSC supports these findings of the Commission. In accord with the substance of the Commission's findings, during the 1996 Hawaii State Legislative Session, the AFSC's representative gave the following testimony which is incorporated in this brief by reference: We have heard it said that children raised in gay and lesbian households are negatively affected [by this discrimination]. Let me tell you why by telling you a story about a boy named Robert. When Robert was seven, a school assignment asked him to draw his family. He labeled the characters: his mother, Catherine, and his stepmother, Jody. The teacher asked if Jody was married to his father. When Robert said no, the teacher said: "Then she can't be your stepmother. She must be your nanny or housekeeper." So Robert wrote, "Housekeeper." 6 That night, Robert told his mother what had happened and how ashamed he felt because Jody was his stepmother. He asked her what to do and she told him to do what he felt comfortable doing. Next day, Robert pulled his teacher aside and said she was wrong. Jody was his mother's lover and therefore she was his stepmother. Happily for Robert, the teacher was able to learn from him. Sadly, it is easy to imagine an alternative and damaging response. What is negative for children raised in lesbian and gay households is the knowledge that society does not respect their parents. Tolerance and respect, even appreciation of difference, is essential to democratic, civil society. There is a compelling reason to grant... [equal rights]: simple equality and justice. Hovey, "AFSC Testimony" before Haw. Sen. Comm. on Judiciary, 1996. The Hawaii Supreme Court's linkage of this gender discrimination to racial discrimination is insightful. We now understand that racial discrimination vindictively hurts members of the racial minority groups, but it ultimately also distorts the perceptions of the white majority. We see this in the instant case: children in the privileged class of having different-gender parents are ultimately harmed by being forced to live in a society which discriminates against their peers and teaches them bigotry by example, all for no compelling reason. These privileged children, no less than their minority playmates and school colleagues, have the right to live in an equal society devoid of invidious discrimination. Judge Walter M. Heen in his dissenting opinion in Baehrr, supra, at 44, cites to Singer v. Hara, 11 Wash. App. 247, 253-55, 522 P. 2d 1187, 1192-94, rev. den. 84 Wash. App. 2d 7 1008 (1974) for the proposition that "...[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no same sex couple offers the possibility of the birth of children by their union..." Thus, the refusal of the State to authorize same sex marriage results from such impossibility of reproduction rather than from an invidious discrimination "on account of sex." Baehr, supra, at 44. It is inaccurate to suggest, as has Judge Heen, that the primary purpose of marriage is procreation and rearing of children. The history of marriage demonstrates that marriage laws were designed to protect transfer of wealth for inheritance purposes for which procreation can be a necessary condition. Nevertheless, heterosexual couples who are either infertile or who have no desire to procreate are not denied a license to marry. It is equally inaccurate to suggest it is impossible for lesbians and gay men to reproduce. Artificial insemination is considered a form of reproduction for heterosexuals and is routinely made available to both single parents and lesbians. Gay men may seek out surrogate mothers and both genders are free to adopt. Judge Heen has not addressed the realities of alternative families that have come into being during the past two decades both among heterosexuals and lesbians and gay men. The Circuit Court was correct in making a specific finding that the State was unable to establish a "causal 8 link between allowing same-sex marriage and adverse effects upon the optimal development of children," (FOF 134, 135), thereby rejecting the State's defense that it should only license unions between opposite gender couples, an argument, that if adopted, would negate foster parent laws, adoption laws and artificial insemination, all of which are state licensed ways in which children join families by alternative routes without prejudice to their parents' marital rights. Indeed, many of the children in foster care have been removed from so-called `optimal homes" (i.e., those with married, biological parents) and placed in foster homes. With a very large proportion of opposite gender marriages ending in divorce and perhaps remarriage or single parenthood, it can be said that a substantial portion, perhaps a majority, of children in Hawaii are not living in an environment in which their biological parents are cohabiting in wedlock. Defendant in this case has not demonstrated a basis for the claim of compelling state interests sufficient to deny the legal status of marriage from Plaintiffs and has failed to show that the public interest in the well-being of children and families, or the optimal development of children, would be adversely affected by same-sex marriage. (COL 14, 18). Through its traditional foundational spiritual beliefs, AFSQ recognizes that of God within each of us and the infinite worth of every person. AFSC further believes that society's laws should reflect this fundamental principle of 9 humanity and human rights through the equal protection of the laws for all persons, including all children, and particularly children who have been stigmatized or excluded. This principle is far older and more fundamental than the issues presented in the instant case. AFSC believes in the power of love to overcome violence and injustice. "Government cannot legislate the end of bias and the violence and injustice that comes from them." (Norweed v. Harrison, 413 U.S. 455, 469-70 (1973), but government can prevent legislation from being interpreted to support private bias which harms the innocent and hence fosters misanthropy. III. CONCLUSION For the reasons discussed above, the American Friends Service Committee supports extending Hawaii marriage laws to permit same sex couples to wed equally with opposite sex couples. AFSC respectfully asks this Court to uphold the Findings of Fact and Conclusions of Law entered by the Circuit Court on December 3, 1996. DATED: Kula, Maui, Hawaii, May 26, 1997. /s/ MARY BLAINE JOHNSTON Attorny for Amicus Curiae AMERICAN FRIENDS SERVICE COMMITTEE 10 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "To imply that lesbians and gay men are somehow incompatible with, or incapable or unworthy of, marriage or morality is not morality; it is discrimination." --Dan Foley, Evan Wolfson and Kirk Cashmere Answering Brief, Baehr v. Miike ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~