Date: Tue, 03 Jun 1997 17:21:31 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 08: Independent Women's Forum Aloha auwinala kakou. Will try to squeeze this last one in today %^6 No.20371 IN THE SUPREME COURT STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO.91-1394-05 TAMMY RODRIGUEZ, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGOON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF Plaintiffs-Appellees, ) LAW ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his official ) THE HONORABLE KEVIN S.C. capacity as Director of the Department of ) CHANG Health, State of Hawaii, ) ) Defendant-Appellant. ) ____________________________________________) INDEPENDENT WOMEN'S FORUM'S AMICUS CURIAE BRIEF RONALD V. GRANT* #3832-0 Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 1800 Pioneer Plaza 900 Fort Street Mall Honolulu, Hawaii 96813 Tel; (808) 524-8000 *counsel of record Attorneys for Independent Women's Forum TABLE OF CONTENTS I. STATEMENT OF THE QUESTION PRESENTED............................1 II. ARGUMENT.......................................................1 A. Constitutional Equal Protection Does Not Require A State To Legalize Marriages Between Persons Of The Same Sex.....1 B. The State Has A Compelling Interest In Protecting And Preserving Traditional Heterosexual Marriage..............4 C. Hawaii's Traditional Marriage Statute Is Narrowly Tailored To Serve A Compelling Governmental Interest...............6 D. In The Setting Of Broad Social Policy, The Democratic Process Should Be Respected...............................7 III. CONCLUSION.....................................................9 TOC-1 TABLE OF AUTORITIES U.S. Supreme Court Cases Adarand Constructors, Inc. v. Pena, 515 U.S. ___ 115 S. Ct. 2097 (1995).....................................................2 Bowers v. Hardwick, 478 U.S. 186 (1986).........................7 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)......................................................2 Frontiero v. Richardson, 411 U.S. 677(1973).....................8 Michael M v. Gerald D., 491 U.S. 110(1989)......................5 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992)............................................7,9 Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)................2 Romer v. Evans, 517 U.S. ___ 116 S. Ct 1620 (1996)............6-7 United States v. Virginia, 518 U.S.___116 S. Ct. 2264 (1996)..3,7 Zablocki v. Redhail, 434 U.S. 374 (1978)........................7 Hawaii Cases Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).................6 Baehr v. Miike, ___ Haw.___(1st. Cir. Ct. 1996).................4 Other Cases Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37,34 L. Ed. 2d 65 (1972) ................................................................2 Dean v. District of Columbia, 653 A.2d 307 (1).C. App. 1995)....2 DeSanto v. Banzsley, 328 Pa. Super. 181, 476 A.2d 952 (1984)....2 Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973)...........2 TOC-2 Statutes Cited I U.S.C. § 7 (1996).............................................8 28 U.S.C. § 1738c (1996)........................................8 Defense of Marriage Act, P.L. 104-199 (1996)....................8 Hawaii Constitution, Art. 1, § 5 (1978).........................2 Hawaii Revised Statutes § 572-1.................................4 U.S. Constitution, Art. IV, Sec. 1..............................8 U.S. Constitution, Amend. XIV...................................2 Books and Articles David Coolidge, SAME-SEX MARRIAGE? 2 (1996).....................8 David Frum, Dispatches & Dialogues, in SLATE (http://beta.slate.com), Mar.17, 1997...........................5 Gay Unions Score Low in Star-Bulletin Poll, HONOLULU STAR-BULLETIN, Mar. 29, 1996...................................................8 George Will, Remember the ERA?, WASH. POST, Mar. 20, '97 at Q7..2 U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNTIED STATES, Tables 142-149 (1995)...........................................7 TOC-3 I. STATEMENT OF THE QUESTION PRESENTED Whether the State of Hawaii's marriage statute, which defines marriage as a relationship between a man and a woman, is narrowly tailored to serve a compelling government INterest, namely, to promote the rights and well-being of children and families by channeling procreation into a legal structure of rights and responsibilities widely accepted by society. II. ARGUMENT A. Constitutional Equal Protection Does Not Require A State To Legalize Marriages Between Persons Of The Same Sex. This case arose under the Equal Protection clause of Hawaii's Constitution, which provides: "No person shall ... 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 1 of race, religion, sex or ancestry." Haw. Const. Art. 1, § 5 (1978). Similar language exists in the Fourteenth Amendment of the U.S. Constitution, U.S. Const. Amend. XIV, and in many other state constitutions.[fn1] Even so, and despite several previous challenges,[fn2] no other federal or state court has ever found there is a constitutionally pr6tected right to marty a person of the same sex. Instead courts and agencies presented with this question have uniformly determined that marriage is legitimately limited to couples consisting of one man and one woman. Applying a "strict scrutiny" standard does not change this result. Strict scrutiny, as the U.S. Supreme Court has recently reiterated, does not automatically invalidate every challenged classification, even those involving race. Adarand Constructors, Inc. v. Pena, 515 U.S. ____ 115 S. Ct. 2097 (1995). Classifications subject to strict scrutiny under the U.S. Constitution are those which, almost invariably, are completely irrelevant to any assessment of a person's capabilities or qualifications. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). Thus, classifications based on factors like race or national origin are strictly scrutinized because it is highly likely that they are irrational and unrelated to any proper purpose. Strict scrutiny does not create an irrebuttable presumption of unconstitutionality; by its own terms it allows some limited forms of legal discrimination. Strict scrutiny is not a measure of the quality or desirability of legislative determinations, but a tool for discovering if they are founded on irrational or improper assumptions.[fn3] [fn1] Thirty-five states approved the federal Equal Rights Amendment before the time for ratification expired in 1982. Five later rescinded their approvals. George Will, Remember the ERA?, Washington Post, Mar. 20, 1997, at Q7. [fn2] E.g., Dean v. District of Columbia, 653 A.2d 307 (1).C. App. 1995); Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); DeSanto v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984). [fn3] "Indeed, the purpose of strict scrutiny is to 'smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensues that the means chosen 'fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). 2 Unlike race or national origin, sex manifests itself in inherent physical differences that affect a person's actual capabilities. "Skeptical scrutiny," the current federal constitutional standard for examining sex classifications articulated in United States V. Vfrginia, 518 U S ____ 116 5. Ct. 2264 (1996) [the Virginia Military Institute (VMI) case), forbids virtually all state laws or state actions that distinguish between persons based solely on sex, with only one exception: distinctions based on actual inherent physical differences between men and women. Thus, skeptical scrutiny differs from strict scrutiny only in name. In purpose and effect, it yields identical results. Explaining why the U.S. Supreme Court continues to treat sex and race differently, Justice Ruth Bader Ginsburg, on behalf of a seven-justice majority, wrote, Supposed `inherent differences' are no longer accepted as a sound for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967). Physical differences between men and women, however, are enduring: '[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.' Ballard v. United States, 329 U.S. 187, 193 (1946). VMI, slip op. at 15. Properly applied, strict scrutiny illuminates false prejudices and stereotypes, but does not ignore facts or obscure the truth. Regardless of the applicable level of scrutiny, constitutional equal protection never requires courts to disregard actual differences between persons. In the case of race, mere superficial differences in skin color are irrelevant to ability; in the case of sex, physical differences, if significant, may affect capacity. Numerous federal and state laws and practices, even in states that have a constitutional Equal Rights Amendment similar to Hawaii's, legitimately acknowledge sexual differences without violating equal protection. The mere fact that some classifications based on sex are unconstitutional does not mean that all such classifications 3 must be illegitimate. The court below has erroneously assumed that strict scrutiny is, as the saying goes, "fatal in fact." The U.S. Supreme Court has repeatedly rejected this formula, insisting that strict scrutiny, whether applied to race or sex, must involve a rigorous examination of the actual purposes and effects of laws challenged under equal protection. B. The State Has A Compelling Interest In Protecting And Preserving Traditional Heterosexual Marriage. In reaching its legal conclusion that the State had failed to demonstrate a compelling state interest to support Hawaii's marriage law, Hawaii Revised Statutes ("H.R.S.") § 572-I, the circuit court assumed away any possibility that the State ever could meet this burden. The circuit court determined that, because some children can survive without one or both of their biological parents, the State may not take measures to assist and encourage biological parents to remain jointly present and responsible for the upbringing of their own children. This in itself is an unreasonable assumption. Equal protection does not forbid honest efforts to achieve a better world merely because perfection is unattainable. In fact the State demonstrated, as the circuit court found, that "[t]here is a public interest in the rights and well-being of children and families." Baehr v. Miike ___ Haw.___(1st Cir. Ct. 1996), slip op. at 34. Although children and families can survive under all sorts of circumstances, some conditions have proven to be much more favorable than others for the nurture of children and families. Traditional marriage, which binds one woman and one man to each other and to their children, is not a perfect institution; but it has many virtues that make it naturally superior, as a rule, to other possible arrangements for promoting the welfare of children and families. The virtues of marriage are that it aims to create an exclusive, permanent bond between persons whose sexual activity may result in conception and birth. Not every male-female couple 4 produces children; but every child has two, and only two, biological parents, who always consist of one man and one woman. Not all couples are faithful or stay together, but marriage at least extracts the promise from both to be responsible to each other and to their children. Human children (unlike other animals' young) require years of care and attention before they are self-sufficient. While examples abound of people who have selflessly raised others' children, it remains generally true that of all possible candidates, the biological parents are the persons most likely to be willing to invest their time in the care of their own child. Traditional marriage is no insurance against fate, but for thousands of years it successfblly served society by providing strong protection for the great majority of children, women and families. The mere fact that children are sometimes raised in circumstances without both biological parents does not mitigate society's compelling interest in encouraging and protecting traditional heterosexual marriage.[fn4] To legalize same-sex marriage is, as Manhattan Institute Fellow and author David Frum recently wrote, to endors[e] the conscious creation of families intended from the beginning to be fatherless or motherless or both. To believe in gay marriage, you have to be ready to accept that girls might be raised by two men - and that it won't matter. You have to be ready to accept that boys will be taken away from their fathers, and led to manhood by two women - and that it won't matter. You have to be ready to accept children being raised by foursomes: Two men, two women who mutually impregnate each other. (No, I'm not inventing this: Just such a family lives in Vancouver, British Columbia, and was admiringly profiled by Canada's Globe and Mail last year.) You have to be ready to accept children being bought and sold like prize heifers as lesbians purchase semen from sperm banks and gay men rent wombs from surrogate mothers. Gay marriage is maybe not the last step to the transformation of children into commodities. But it's close to the last. David Frum, Dispatches & Dialogues, SLATE (http://beta.slate.com), Mar.17, 1997. [fn4] Conspicuously missing from the circuit court's findings was a serious discussion of children's rights and interest in knowing and living with their biological parents, as well as the potentially staggering degeee of confusion and suffering that accompanies the departure from traditional marriage norms. See Michael M. V. Gerald D., 491 U.S. 110, 113 (1989). ("The facts of this case are, we must hope, extraordinaiy.") 5 The State's arguments below established that the vast majority of children and families specifically rely on the very kind of rights and security afforded by traditional marriage to protect their welfare. The State did indeed demonstrate that Hawaii has a compelling interest in assisting and encouraging couples who engage in procreative sex to commit themselves exclusively and permanently to each other and their children. C. Hawaii's Traditional Marriage Statute Is Narrowly Tailored To Serve A Compelling Governmental Interest. The appellees have frankly admitted they are seeking the full array of legal benefits associated with marriage, including the long list enumerated in this Court's previous opinion in this case, Baehr v. Lewin, 74 Haw. 530, 560, 852 P.2d 44, 50 (1993).[fn5] Whether couples or groups of the same or mixed sexes should be entitled to various ancillary legal benefits must be considered a separate matter from the issue in this case, which is the definition of marriage. Thus, the question for this Court is whether, consistent with constitutional equal protection, the legislature may properly limit marriage to couples consisting of one man and one woman. Last year the U.S. Supreme Court reviewed Colorado's Amendment 2, which expressly forbade any state or local government action to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Justice Anthony Kennedy, for the majority, wrote, The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. [Citations omitted.] We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a flindamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. [Citation omitted.] [fn3] The state-granted benefits generally include tax advantages, public assistance, community property rights, dower and inheritance rights, child custody and support, spousal privilege for confidential communications, etc. 6 Romer v. Evans, 517 U.S. ___ 116 S. Ct. 1620 (1996), Slip op. at 10. Unlike the Colorado referendum, Hawaii's marriage law does not target any class of persons. It restricts marriage to man-woman couples for the obvious reason that human reproduction occurs only heterosexually. To be sure, some biological parents never choose to marry, or else they divorce, depart or die, sometimes leaving another to care for the children. But marriage, even today, succeeds much more often than it fails. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNTIED STATES, Tables 142-149 (1995). In defining marriage as a contract between one man and one woman, the legislature has not abridged any person's constitutional rights. There is no absolute right to marry, Zablocki v. Redhail, 434 U.S. 374 (1978), and no unencumbered right to procreate, Planned Parenthood of Southeastern Pennsylvania V. Casey, 505 U.S. 833 (1992). Attraction to one's own sex (homosexuality) is not a proscribed or suspect legal classification, id., citing Bowers v. Hardwick, 478 U.S. 186 (1986). Sex discrimination simply does not enter into Hawaii's marriage law: Women and men are treated precisely the same, and for reasons having to do with "enduring" physical differences. See VMI at page 3 supra. Given the State's compelling interest in protecting the rights and well-being of children and families, its decision to establish a legal structure within which biological parents may commit themselves exclusively and permanently to each other and their children is narrowly tailored, rational, measured and appropriate. D. In The Setting Of Broad Social Policy The Democratic Process Should Be Respected. Even if Hawaii were to legalize same-sex marriage, it would not follow automatically that public benefits now associated with marriage would be extended to same-sex couples. Decisions 7 about setting tax rates and flinding insurance programs, welfare programs, and the like must be made by the legislature on a sound fiscal basis. The State legislature might well determine in the future that it is not feasible financially to expand the definition of marriage and continue to provide the same historical benefits to a larger pool of beneficiaries. Significantly, the federal government has already determined, under the Defense of Marriage Act, P.L. 104-199 (1996) ["DOMA"], that it will use the traditional definition of marriage in administering its laws. 1 U.S.C. § 7 (1996). This will limit federal benefits for same-sex couples. DOMA also invokes the Full Faith and Credit provision of Article W, Section 1, of the U.S. Constitution to permit states not to recognize the validity of same-sex marriages contracted in other states. 28 U.S.C. § 1738c (1996). Seventeen states have already enacted laws to define marriage in a fashion consistent with DOMA. See David Coolidge, SAME-SEX MARRIAGE? 2 (1996).[fn6] In Frontiero V. Richardson, 411 U.S. 677 (1973), when four members of the U.S. Supreme Court moved to adopt the Equal Rights Amendment (which was then before the states for ratification), Justice Powell would not join their analysis, but wrote. There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes. Id. at 692. [fn6] Surveys have shown that over seventy percent of Hawaii residents disapprove of same-sex marriage, similar to poll results found on the Mainland. See Gay Unions Score Low in Star-Bulletin Poll, Honolulu Star-Bulletin, Mar. 29, 1996. 8 On a similarly controversial subject, abortion rights, Justice Scalia wrote in dissent in Casey, supra, 505 U.S. at 1001: "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, ... the Court merely prolongs and intensifies the anguish." The circuit court below has reached an unprecedented legal conclusion, which, if upheld, will have widespread and unpredictable effects. If this Court upholds the ruling below, it will appear to foreclose an important public debate. On the other hand, deference to the legislative and democratic process will improve public confidence in the judiciary and public acceptance of the final legal result. III. CONCLUSION This Court should rule in favor of the State and declare that Hawaii's marriage statute, which limits the marriage contract parties to one man and one woman, is narrowly tailored to serve a compelling governmental interest and thus valid under Hawaii's Constitution. DATED: Honolulu, Hawaii, APR 21, 1997 /s/ RONALD V. GRANT* #3832-0 Dwyer Imanaka Schraff Kudo Meyer & Fujimoto 1800 Pioneer Plaza 900 Fort Street Mall Honolulu, Hawaii 96813 Tel: (808) 524-8000 *counsel of record Attorneys for Independent Women's Forum 9 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "I personally do not intend to stay in a politics dominated by smearing and mudslinging--a politics which has all too often been characteristic of recent years in this country." --Newt Gingrich, 1983 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~