Date: Sun, 08 Jun 1997 18:31:32 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 16.1: URIE BROFEBBRENNER, PH.D., ET AL. Aloha auwinala kakou. This brief is the last one that I have currently in my possession. Several more should be available in the upcoming days. Also, please keep an eye out for an announcement about that new website where these briefs will be available, along with the much more length opening and answering briefs. NO.20371 IN THE SUPREME COURT OF THE STATE OF HAWAII Ninia Baehr, Genora Dancel, Tammy ) CIVIL NO.91-1394-OS Rodrigues, Antoinette Pregil, Pat Lagon, ) Joseph Melillo, ) APPEAL FROM THE FINAL JUDGMENT ) FILED DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) HONORABLE PATRICK YIM Lawrence Muke, in his official capacity as ) HONORABLE ROBERT KLEIN Director of the Department of Health, State ) HONORABLE HERBERT SHIMABUKURO of Hawaii, ) HONORABLE KEVIN CHANG ) Judges Defendant-Appellant. ) _____________________________________________) BRIEF OF AMJCI CURIAE CERTIFICATE OF SERVICE CARLSMITH BALL WICHMAN Of Counsel: CASE & ICHIKI GIBSON DUNN & CRUTCHER LLP RICHARD KIEFER, 5566-0 S. ELIZABETH FOSTER Pacific Tower, Suite 2200 LAWSON M. SULLIVAN 1001 Bishop Street 200 Park Avenue Honolulu, Hawaii 96813 New York, New York 10166 Tel. No. (808) 523-2500 Tel. No. (212)351-4000 Attorneys for Amici Curiae Ufie Brofenbrenner, Ph.D., Susan D. Cochran, Ph.D., Anthony R. D'Augelli, Ph.D., Susan E. Golombok, Ph.D., Richard Green, M.D., J.D., Martha Kirkpatrick, M.D., Lawrence A. Kurdek, Ph.D., Lettia Anne Peplau, Ph.D., Ritch C. Savin-Williarns, Ph.D., Royce W. Scrivner, Ph.D., and Fiona Tasker, Ph.D. TABLE OF CONTENTS Page I. STATEMENT OF QUESTIONS PRESENTED..........................1 II. INTRODUCTION AND INTEREST OF AMICI CURIAE.................1 III. ARGUMENT..................................................3 A. The State Has No Compelling Interest in Prohibiting Marriage for Same-Sex Couples in Order To Promote the Optimal Development of Children...........................3 1. Children Raised by Lesbian and Gay Parents Are as Psychologically Healthy and Well-Adjusted as Children Raised by Heterosexual Parents...........3 2. Sexual Orientation Is Not an Indicator of Parental Fitness..................................5 3. Denial of Marriage for Gay and Lesbian Parents Denies Children the Benefits that a Second Legal Parent Can Provide................................6 4. Lesbian and Gay Relationships Do Not Differ from Heterosexual Relationships in Any Aspect Which Impacts Parental Fitness..........................7 B. The Prohibition of Marriage for Same-Sex Couples Is Not Narrowly Drawn To Achieve Any Compelling Interest.........8 IV. CONCLUSION................................................9 TABLE OF AUTHORITIES CASES Page(s) Matter of Evan, 583 N.Y.S.2d 997 (Sur. Ct. 1992)...............5, 7 STATUTES Hawaii Revised Statutes § 572-l (1995)...........................l OTHER SOURCES American Psychological Ass'n, Lesbian and Gav Parenting (1995)....5 Bronfenbrenner, Discovering What Families Do, in Rebuilding the Nest: A New Commitment to the American Family 29 (Blankenhorn et al. eds., 1990)..................................................6 Golombok et al., Children in Lesbian and Single-Parent Households, 24 J. Child Psychol. & Psychiatry 551 (1983).............4,6,8 i Golombok & Tasker, The Role of Parents in the Development of Sexual Orientation in Their Children: Findings From a Longitudinal Study of Adults Raised as Children in Lesbian Families, 32 Developmental Psychol. 3 (1996).................4 Green, Sexual Identity of 37 Children Raised bv Homosexual or Transsexual Parents 135 Am. J. Psychiatry 692 (1978).........4 Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives Sexual Behav. 167 (1986).....................................4 Kirkpatrick, Lesbians as Parents, in Textbook of Homosexualitv and Mental Health 353 (Cabaj & Stein eds., 1996)...............4,8 Kirkpatrick et al., Lesbian Mothers and Their Children: A Comparative Survey, 51 Am. J. Orthopsychiatry 545 (1981).............4,5,8 Kurdek, The Nature and Correlates of Relationship Quality in Gay, Lesbian and Heterosexual Cohabiting Couples, in Lesbian and Gay Psychology 133 (Greene & Herek eds., 1994)...............7 Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025 (1992)..................................................4 Patterson, Lesbian and Gav Parents and Their Children, in The Lives of Lesbians, Gays, and Bisexuals 274 (Savin-Williams & Cohen eds., 1996)..................................................4 Patterson, Lesbian Mothers, Gay Fathers, and Their Children, in Lesbian, Gay, and Bisexual Identities Over the Lifespan 262 (D'Augelli & Patterson eds., 1995)...........................4 Peplau & Cochran, A Relationship Perspective on Homosexuality, in Homosexuality/Heterosexuality: Concepts of Sexual Orientation 321 (McWhirter et al. eds., 1990)................7 Scrivner & Eldridge, Lesbian and Gay Family Psychology, in Integrating Family Therapy 327 (1995)........................7 Tasker & Golombok, Growing Up in a Lesbian Family: Effects on Child Development (1997).....................................4 ii BRIEF OF AMICI CURIAE Pursuant to this Court's May 15, 1997 Order, the Amici Curiae identified below, by and through their undersigned counsel, hereby respectfully submit their amicus brief. 1. STATEMENT OF QUESTIONS PRESENTED 1. Does Hawaii Revised Statutes ("HRS") § 572-1 (1995) further a compelling State interest in promoting the optimal development of children? 2. Is HRS § 572-I sufficiently narrowly drawn to avoid unnecessary abridgments of the constitutional rights of same-sex couples? II. INTRODUCTION AND INTEREST OF AMICI CURIAE Amici are eminent scholars and researchers of child and family issues and have been major contributors to the research and literature concerning family relationships and human development, including same-sex relationships, in the field of psychology. Urie Bronfenbrenner, Ph.D. is the Jacob Gould Schurman Professor Emeritus in the Department of Human Development and Psychology at Cornell University and is one of the most highly respected scholars in the field of child psychology today. Susan D. Cochran, Ph.D. is a Professor in the Department of Epidemiology, School of Public Health, at the University of California, Los Angeles and is Chair of the American Psychological Association's Committee on Lesbian, Gay, and Bisexual Concerns. Anthony R. D'Augelli, Ph.D. is a Professor of Human Development in the Department of Human Development and Family Studies at Pennsylvania State University. Susan E. Golombok, Ph.D. is a Professor of Psychology and Director of the Family and Child Psychology Research Center at City University in London and conducted one of the earliest and most comprehensive longitudinal studies of children raised by lesbian mothers. Richard Green, 1. M.D., J.D. is a Professor of Psychiatry Emeritus at the University of California, Los Angeles, a Visiting Professor of Psychiatry at Charing Cross and Westminster Medical School in London and has conducted several of the most highly regarded studies of children raised by gay and lesbian parents. Martha Kirkpatrick, M.D. is a Clinical Professor of Psychiatry at the University of California, Los Angeles and conducted one of the earliest blind controlled studies of the children of lesbian mothers. Lawrence A. Kurdek, Ph.D. is a Professor in the Department of Psychology at Wright State University and has conducted several of the most highly regarded studies of gay and lesbian relationships. Letitia Anne Peplau, Ph.D. is a Professor in the Department of Psychology at the University of California, Los Angeles and former President of the International Society for the Study of Personal Relationships. Ritch C. Savin-Williams, Ph.D. is a Professor of Developmental and Clinical Psychology in the Department of Human Development at Cornell University. Royce W. Scrivner, Ph.D. is a Family Psychologist with the Department of Veterans Affairs Medical Center in Dallas, Texas and is Co-Chair of the American Psychological Association's Committee on Lesbian, Gay and Bisexual Family Issues in the Division of Family Psychology. Fiona Tasker, Ph.D. is a Lecturer in Psychology at Birkbeck College, University of London and, together with Dr. Golombok, conducted one of the earliest and most comprehensive longitudinal studies of children raised by lesbian mothers. As the foremost scholars and researchers in the field, amici would like to assist the Court in its resolution of this case by discussing the body of empirical research and literature, cornpiled by amici and others and relied on by experts at trial, which concerns outcomes for children raised by gay, lesbian and same-sex parents. Specifically, amici seek to advise this Court~that, because this body of research indicates that children of gay and lesbian parents are in 2. no way detrimentally affected by their parents' sexual orientation, the prohibition of marriage for same-sex couples does not - and cannot - further the State's purported goal of "promoting the optimal development of children." Trial Transcript ("Tr.") 9/10/96 p.4. Indeed, the current marriage law impedes rather than furthers this goal. The Circuit Court found, and amici agree, that children raised by same-sex couples "may be assisted" should the State of Hawaii extend the "protections and benefits" of marriage to their parents. Findings of Fact and Conclusions of Law filed December 3, 1996 ("Order") p.37. Thus, the State can achieve its goal of protecting the health and welfare of existing and future children by extending marriage rights to all parents and potential parents, including same-sex parents. III. ARGUMENT A. The State Has No Compelling Interest in Prohibiting Marriage for Same-Sex Couples in Order To Promote the Optimal Development of Children 1. Children Raised by Lesbian and Gay Parents Are as Psychologically Healthy and Well-Adjusted as Children Raised by Heterosexual Parents The Circuit Court held that the State "failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children." Order p.36. This finding was based largely on the fact that "the available scientific data, studies and clinical experience presented at trial suggest[ed] that children of gay and lesbian parents and same-sex couples tend to adjust and do develop in a normal fashion." Id. As witnesses for defendant as well as plaintiffs testified (Tr. 9/10/96 p.134, Tr. 9/16/96 p.79, Tr. 9/17/96 pp.49- 52), and as studies by amici and others unanimously conclude, children being raised by gay and lesbian parents experience developmental outcomes substantially similar to those of children 3. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "You can't put a cost . . . on something that is tantamount to civil rights." --Governor Ben Cayetano ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date: Sun, 08 Jun 1997 18:32:07 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 16.2: URIE BROFENBRENNER, PH.D. ET AL. Aloha auwinala kakou. For some reason this brief wouldn't scan in one part. I don't know, most of this computer stuff is still magic to me . . . . It's like my car, I turn it on, it goes, hey, I'm a happy man. raised by heterosexual parents.[fn1] Furthermore, studies which follow such children into adulthood continue to find no significant differences.[fn2] Studies by amici and others have specifically confirmed that the gender identity and gender rote behavior[fn3] as well as the sexual orientation of these children are equivalent to those of children raised by heterosexual parents.[fn4] As did the Circuit Court in this case (Order pp.36-37), other courts have recognized the similarity in the development and outcomes of children raised by lesbians and gay men and same-sex couples, as compared to children raised by heterosexuals and opposite-sex [fn1] E.g, Golombok et al., Children in Lesbian and Single-Parent Households, 24 J. Child Psychol. & Psychiatry 551 (1983); Green, Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents, 135 Am. J. Psychiatry 692 (1978); Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives Sexual Behav. 167 (1986); Kirkpatrick et al., Lesbian Mothers and Their Children: A Comparative Survey, 51 Am. J. Orthopsychiatry 545 (1981). For comprehensive reviews of this research see Kirkpatrick, Lesbians as Parents, in Textbook of Homosexuality and Mental Health 353 (Cabaj & Stein eds., 1996); Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025 (1992); Patterson, Lesbian Mothers Gay Fathers. and Their Children, in Lesbian, Gay, and Bisexual Identities Over the Lifespan 262 (D'Augelli & Patterson eds., 1995). [fn2] E.g, Tasker & Golombok, Growing Up in a Lesbian Family: Effects on Child Development (1997); Gotombok & Tasker, The Role of Parents in the Development of Sexual Orientation in Their Children: Findings From a Longitudinal Study of Adults Raised as Children in Lesbian Families, 32 Developmental Psychol. 3 (1996). [fn3] E.g., Green, supra note 1; Green et at., supra note 1. [fn4] E.g, Golombok et al., supta note 1; Patterson, Lesbian and Gay Parents and Their Children. in The Lives of Lesbians, Gays, and Bisexuals 274 (Savin-Williams & Cohen eds., 1996). 4. couples.[fn5] As the foremost experts in the field, amici assure this Court that such findings of similarities are empirically valid and were correctly relied on by the Circuit Court. 2. Sexual Orientation Is Not an Indicator of Parental Fitness The State can have no compelling interest in prohibiting marriage for same-sex couples based on any alleged connection between sexual orientation and parental fitness. The research of amici and others[fn6] supports the Circuit Court's conclusion that sexual orientation is simply not an indicator of parental fitness. Order p.35. As plaintiffs' witnesses testified (Tr. 9/16/96 pp.79, 96, Tr. 9/17/96 p.51), and defendant's witnesses acknowledged (Tr. 9/10/96 p. 134, Tr. 9/11196 p.88-89, Tr. 9/12/96 p.83-84), not one study has found that lesbian and gay parents are unfit or that children are disadvantaged by their parents' sexual orientation. As witnesses testified at trial (Tr. 9/10/96 p.115, Tr. 9/16/96 p.129, Tr. 9/17/96 p.48, Tr. 9/18/96 p.42), and as the Circuit Court correctly concluded (Order p.35), the quality of the parent-child relationship is far more important than the gender, sexual orientation or [fn5] E.g, Matter of Evan, 583 N.Y.S.2d 997, 1001 n.1 (Sur. Ct. 1992) ("Concern that a child would be disadvantaged by growing up in a single sex household is not borne out by the professional literature examined by this Court.") (citing, inter alia, trial testimony of Dr. Charlotte Patterson and studies by amici Dr. Susan Golombok, Dr. Richard Green and Dr. Martha Kirkpatrick). [fn6] E.g, American Psychological Ass'n, Lesbian and Gay Parenting (1995) (summarizing research confirming the fitness of lesbian and gay parents); Kirkpatrick et al., supra note I at 550 (finding basic similarity between lesbian mothers and heterosexual mothers relating to child-rearing practices, among other areas). 5. biological relationship of the parents. The research of amici and others[fn7] supports the Circuit Court's finding that "the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child." Order p.35. 3. Denial of Marriage for Gay and Lesbian Parents Denies Children the Benefits that a Second Legal Parent Can Provide[fn8] As outlined above, the research and literature support the Circuit Court's conclusion that the State can have no compelling interest in preventing marriage for same-sex couples based on any alleged superiority of opposite-sex couples as parents. Rather, as both plaintiffs' and defendant's witnesses testified (Tr. 9/10/96 pp.95-96, 141, Tr. 9/16/96 p.81), children benefit from the additional emotional and material resources which a second legal parent can provide irrespective of either parent's sex. The research of amicus Dr. Urie Bronfenbrenner and others emphasizes the importance for a child's development of being raised in a household in which there are at least two adults who are committed to the child.[fn9] The presence of this second adult is especially important in today's societal context of decreasing economic and social support for families with children. [fn7] E.g., Golombok et al., supra note 1 at 570 ("it is the quality of family relationships and the pattern of upbringing that matters for psychosexual development, and not the sexual orientation" of the parents). [fn8] Dr. Bronfenbrenner has not reviewed the research cited in other sections of this brief and therefore joins this section of the brief only. [fn9] E.g., Bronfenbrenner, Discovering What Families Do, in Rebuilding the Nest: A New Commitment to the American Family 29 (Blankenhorn et al. eds., 1990). 6. Contrary to suggestions made by the State (Tr. 9/11/96 p.139), this thesis is gender neutral - Dr. Bronfenbrenner's work does not suggest or permit the inference that the two adults bearing primary responsibility for the child should be of opposite sexes in order to optimize child outcomes. Courts have similarly confirmed the benefit to today's children of having two legal parents regardless of gender. E.g, Matter of Evan, 583 N.Y.S.2d 997, 1002 (Sur. Ct. 1992) (holding it in child's best interest to be adopted by his biological mother's same- sex partner). 4. Lesbian and Gay Relationships Do Not Differ from Heterosexual Relationships in Any Aspect Which Impacts Parental Fitness The State can have no compelling interest in prohibiting marriage for same-sex couples based on any alleged differences in the relationships of such couples. Research by amici and others comparing the relationships of same-sex couples and heterosexual couples have found no differences that bear on parenting ability.[fn10] This research supports the Circuit Court's findings that "same-sex couples can, and do, have successful, loving and committed relationships" (Order p.37), and have the "same mix of reasons for wanting to be able to marry" as opposite-sex couples (Order p.38).[fn11] [fn10] E.g., Kurdek, The Nature and Correlates of Relationship Ouality in Gay, Lesbian, and Heterosexual Cohabiting Couples, in Lesbian and Gay Psychology 133 (Greene & Herek eds., 1994); Peplan & Cochran, A Relationship Perspective on Homosexuality, in Homosexuality/Heterosexuality: Concepts of Sexual Orientation 321 (McWhirter et al. eds., 1990); Scrivner & Eldridge, Lesbian and Gay Family Psychology, in Integrating Family Therapy 327 (1995). [fn11] As the Circuit Court found (Order p. 16), defense testimony suggesting that same- (contin ued...) 7. The State has asserted that so-called "unique" role contributions of male and female parents are beneficial to children. Tr. 9/ 0/96 pp.8, 48-49. However, because the research of amici and others demonstrates that the development and outcomes of children of same-sex parents are as positive as those for children of opposite-sex parents, there is no evidence that "unique" maternal and paternal contributions, if any, which opposite-sex parents can provide contribute to better outcomes for their children.[fn12] B. The Prohibition of Marriage for Same-Sex Couples Is Not Narrowly Drawn To Achieve Any Compelling Interest As discussed above, there is absolutely no evidence that children raised by same- sex couples are harmed as a result or that gay and lesbian parents are unfit. Thus, the Circuit Court correctly found no connection between promoting optimal child outcomes and preventing marriage for same-sex couples. Order p.36. Indeed, the research of amici and others suggests that prohibition of marriage for gay and lesbian parents interferes with optimal child outcomes, (...continued) sex couples' relationships are less stable than those of married couples was premised on outdated research. Dr. Pepper Schwartz, the author of this research, testified at trial (Tr. 9/16/96 pp.52-58, 192-93), and amici agree, that the data relied on by the State is not representative of gay men and lesbians in the 1990's whose focus has shifted toward building long-term, monogamous relationships and raising farnilies. [fn12] See supra notes 1 and 2 and accompanying text. In addition, children of same-sex couples do not live in exclusively same-sex environments - there may be grandparents, other family members, and friends who provide such children with exposure to genders other than that of their parents. Indeed, studies by two amici "found relationships with men, especially fathers, to be much better in the lesbian households than the divorced heterosexual households" which were studied. Kirkpatrick, supra note 1 at 355 (referring to Golombok et al., supra note 1 and Kirkpatrick et al., supra note 1). 8. and that the current and future children of same-sex couples only stand to benefit from extension of marriage to their parents. Therefore, in amici's expert opinion, preventing marriage for same-sex couples is not narrowly drawn to achieve the State's interest in promoting the optimal development of children but, to the contrary, actually impedes the State's furtherance of this interest. IV. CONCLUSION For all of the above reasons, amici urge the Court to affirm the Circuit Court's ruling. DATED: Honolulu, Hawaii, May 23, 1997. RICHARD KIEFER Attorney for Amici Curiae Urie Brofenbrenner, Ph.D., Susan D. Cochran, Ph.D., Anthony R. D'Augelli, Ph.D., Susan E. Golombok, Ph.D., Richard Green, M.D., J.D., Martha Kirkpatrick, M.D., Lawrence A. Kurdek, Ph.D., Letitia Anne Peplau, Ph.D., Ritch C. Savin-Williams, Ph.D., Royce W. Scrivner, Ph.D., and Fiona Tasker, Ph.D. 9. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "You can't put a cost . . . on something that is tantamount to civil rights." --Governor Ben Cayetano ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~