Date: Sun, 08 Jun 1997 05:16:32 -1000 queerpolitics@abacus.oxy.edu, queerplanet@abacus.oxy.edu, submit@qrd.org, glb-news@listserv.aol.com From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 14: NA MAMO O HAWAI`I Aloha kakahiaka kakou. By way of introduction, Na Mamo O Hawai`i is a not-for-profit local activist organization based in Honolulu dedicated to fighting racism and sexism in the GLBT Community AND homophobia in the Hawai`ian Community, along with a keen focus on Hawai`ian Soverignity issues. Their chair, Ku`umeaaloha Gomes, can be reached in care of the Hawai`ian Studies Department, University of Hawai`i at Manoa, Honolulu HI 96822. No.20371 IN THE SUPREME COURT STATE OF HAWAI'I NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) ) Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) THE HONORABLE KEVIN S.C. CHANG LAWRENCE MIIKE, in His Official ) Capapity as Director of the Department ) of Health, State of Hawai'i, ) ) Defendant-Appellant. ) _________________________________________) NA MAMO 0 HAWAI'I'S AMICUS CURIAE BRiEF CERTIFICATE OF SERViCE Of Counsel: ALSTON HUNT FLOYD & ING Attorneys at Law A Law Corporation PAUL ALSTON 11260 LEA O. HONG 55580 18th Floor, Pacific Tower 1001 Bishop Street Honolulu, Hawai'i 96813 Telephone: (808) 524-1800 Attorneys for Amicus Curiae Na Mamo 0 Hawai'i TABLE OF CONTENTS I. QUESTION PRESENTED....................................2 II. ARGUMENT..............................................2 A. The Court Must Protect Hawaiian Traditional And Customary Rights.............................3 B. The State's Claims Are Not Consistent With Hawaiian Tradition And Custom....................4 III. CONCLUSION............................................8 TABLE OF AUTHORITIES CASES Estate of Emanuel Cunha, 49 Haw. 273, 414 P.2d 925 (1966)...6 In re Estate of Nakuapa, deceased, 3 Haw. 342 (1872).....5, 6 Estate of Farrington, 42 Haw. 640 (1958)....................6 Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 656 P.2d 745....3, 4 Estate of Kamaupha, 26 Haw. 439 (1922), rehearing denied, 26 Haw. 515............................................6 Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974)......4, 5 O'Brien v. Walker, 35 Haw. 104 (1939), aWd, 115 F.2d 956 (9th Cir. 1940), pert. denied, 312 U.S. 707............6 Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992).................................................4 Public Access Shoreline Hawai'i and Angel Pilago v. Hawai`i County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), cert denied1 134 L. Ed. 2d 660 (1996)..........3 STATUTES and CONSTITUTIONS Haw. Const. Art. XII, 7...................................3 Haw. Rev. Stat. 1-1.......................................3 MISCELLANEOUS E.S. Craighill Handy & Mary Kawena Pukui, The Polynesian Family System In Ka'u, Hawai'i (9th prtg. 1993)........5 Mary Kawena Pukul & Samuel H. Elbert, Hawaiian Dictionary 249 (1986 revised ed.).................................6 1 Mary Kawena Pukui, E.W. Haertig, Catherine A. Lee, Nana I Ke Kumu (6th prtg. 1983)........................5 2 Mary, Kawena Pukul, E.W. Haertig, Catherine A. Lee, Nana 1 Ke Kumu (1972)..................................6 ii Lilikala Kame'elehiwa, Native Lands And Foreign Desires - Pehea La E Pono Ai?(1992)..............................6 Robert J. Morris, Configuring The Bounds Of Marriage: The implications of Hawaiian Culture & Values For The Debate About Homogamy, 8 Yale J. L. & Human. 105 (1996).......7 iii NA MAMO 0 HAWAI'I'S AMICUS CURIAE BRIEF Amicus Curiae Na Mamo 0 Hawai'i, by and through its attorneys, Alston Hunt Floyd & Ing, hereby files its brief pursuant to the Court's Order dated May 7, 1997 granting Na Mamo 0 Hawai'i its Motion For Leave To File Amicus Curiae Brief filed May 7, 1997. I. QUESTION PRESENTED Does the State of Hawai'i have a compelling State interest in prohibiting legal recognition of same-sex marriage based on an interest in encouraging the rearing of children by biological parents when this professed interest is contrary to Hawai'i's well-recognized customs and traditions regarding the raising of children by non- biologi1ical parents? II. ARGUMENT The State argues that it is in the best interest of children to be raised by their biological parents - a concept that is, in part, based on traditional Western and Judeo-Christian religious concepts of "family." In making this argument, the State did not address the impact of this position on Kanaka Maoli (Native Hawaiian) rights, traditions, and customs relevant to child-rearing and same-gender relationships. Na Mamo has a vital interest in this issue. In the following sections, Na Mamo will: (1) explain the court1's obligation to preserve and protect Hawaiian traditional and customary rights (Section A, infra), and (2) establish that the State's contentions conflict with Hawaiian tradition and custom (Section B, infra). 2 A. The Court Must Protect Hawaiian Traditional And Customary Rights The Constitution of Hawai'i requires this court to protect and preserve all rights customarily and traditionally exercised for subsistence, cultural, or religious purposes. Article XIII, Section 7 of the Hawai'i State Constitution expressly states that: The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.[fn1] In light of this clear constitutional mandate, the Hawai'i Supreme Court has resoundingly reaffirmed the State's obligation to protect Hawaiian traditional and customary rights. In its landmark decision in Public Access Shoreline Hawai'i and Angel Pilago v. Hawai'i County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), cert denied, 134 L.Ed. 2d 660 (1996) the court found that, "Customary and traditional rights in these islands flow from native Hawaiians' pre-existing sovereignty," id. at 449, and held that "legitimate customary and traditional practices must be protected to the extent feasible in accordance with article XII, section 7." Id. at 451. See also Kalipi v. Hawaiian Trust Co., 66 Haw. 1,10, 656 P.2d 745,750 (1982) ("Where these practices have, without harm to anyone, been continued, we are of the opinion that the reference to Hawaiian usage in 1-1 insures their continuance for so long as no actual harm is done thereby."); Pele Defense Fund v. Paty, 73 Haw. 578, 618, 837 P.2d.: 1247,1270 (1992) ("retention of a Hawaiian tradition should in each case be [fn1] See also HRS 1-11 which requires this court to follow Hawaiian common law as established by Hawaiian custom and usage. ("The common law of England,... is declared to be the common law of the State of Hawai'i in all cases, except as otherwise . . . established by Hawaiian usage."). 3 determined by balancing the respective interests and harm once it is established that the application of the custom has continued . . .") (quoting Kalipi, 66 Haw. at 103 656 P.2d at 751). Thus, the State has an unequivocal obligation to preserve and protect Hawaiian traditional and customary rights. This obligation extends not only to gathering rights, but to State's alleged interest in promoting the raising of children by their biological parents and its disparate and discriminatory treatment of same-gender couples. B. The State's Claims Are Not Consistent With Hawaiian Tradition And Custom. The State has argued that HRS 572-1 serves a compelling interest by promoting the stability of "natural-parent" families (biological mother and father) and creating the "best" environment for "optimal" child development. However, this argu- ment is premised on confined Western and Judeo-Christian concepts of "family" and child-rearing that are contrary to well-accepted and well-documented Hawaiian tradi- tions and customs that embrace the raising of children by persons other than their biological parents. Hawai'i's courts have long-recognized the special nature of Hawaiian `ohana and family relationships. In Leong v.Takasaki, 55 Haw. 398, 520 P.2d 758 (1974), the Hawai`i Supreme Court ruled that a child who had witnessed his step- grandmother being struck and killed by an automobile was not precluded from bringing a claim for negligent infliction of emotional distress merely because of the absence of a blood relationship: 4 Hawaiian and Asian families of this state have long main- tained strong ties among members of the same extended family group. The Hawaiian word 'ohana has been used to express this concept. It is not uncommon in Hawai'i to find several parent-children family units, with members of three and even four generations, living under one roof as a single family. The Hawaiian concept of adoption also differs from that in other common law jurisdictions. The ancient Hawaiians cherished the principle of adoption, which took two forms: A child or adult one loves, but for whom one might not have exclusive care, might be adopted as keiki ho'okama (child), or kaikua'ana ho'okama, kaikaina ho'okama, kaikuahine ho'okama (adult). A child so adopted would be adopted as a child of the family, and entitled to inherit through his parents, while an adult would be adopted as a form of showing affection or respect. On the other hand, a keiki hanai is a child given to another to raise, as a foster child as adoption under the statute replaced ancient Hawaiian custom and usage, the term ho'okama has fallen into disuse and the term hanai has since been used to refer to all types of adoption. Nevertheless the custom of giving children to grandparents, near relatives, and friends to raise whether legally or informally remains a strong one. Id. at 410-11, 520 P.2d at 766. See also E.S. Craighill Handy & Mary Kawena Pukui, The Polynesian Family System In Ka'u. Hawai'i 40-74 (9th prtg. 1993) (discussing how kinship in Hawai'i extends far beyond the immediate biological family); 1 Mary Kawena Pukui, E.W. Haertig, Catherine A. Lee, Nana I Ke Kumu 49-50 (6th prtg. 1983) (explaining Hawaiian concepts of adoption and fostering). Significantly, the Takasaki court noted it had previously ruled, in recognition of Hawai'i's unique customs and traditions regarding family, that adopted children are the "issue" of their adopting parents, and may inherit through them, contrary to the majority of mainland states and England (now codified in HRS 578- 16). Id. at 411 n.2. See also In re Estate of Nakuapa, deceased, 3 Haw. 342, 342-43 5 (1872) ("[T]he customs and usages which have long prevailed, and have been universally recognized, have the same force of law as those subsequently passed and incorporated in a Code."); Estate of Kamauoha, 26 Haw. 4391 448 (1922) (noting that children were given and received freely in adoption in ancient Hawai'i), rehearing denied, 26 Haw. 515; O'Brien v. Walker, 35 Haw. 104, 117-36 (1939) (comparing Hawaiian custom and usage to other states), aff'd, 115 F.2d 956 (9th Cir. 1940), cert. denied, 312 U.S. 707; Estate of Farrington, 42 Haw. 640 (1958); Estate of Emanuel S. Cunha, 49 Haw. 273, 414 P.2d 925 (1966). Thus, Hawai'i courts have long-recognized the special nature of child-rearing practices, adoption, and family in Hawai'i, and to the extent possible, sought to preserve these unique customs and traditions. Moreover, the State's attempt to deny same-gender couples the civil rights and responsibilities associated with marriage is contrary to the Hawaiian tradition of recognizing and tolerating same-gender relationships. In traditional Hawaiian culture, same-gender relationships were not considered "sins" - there were no kapu (laws) against such behavior. 2 Mary kawena Pukui1 E.W. Haertig, Catherine A. Lee, Nana I Ke Kumu 109 (1972) ("Even the critical David Malo wrote that, `In ancient times... moe aikane[fn2] . . . [was) not considered wrong... [or] regarded as evil.'"). See also Lilikala Kame'elehiwa, Native lands And Foreign Desires - Pehea La E Pono Ai? 47, 157, 160-61,166 (1992) (noting that same-gender relationships existed among some ali'i and that partners in such relationships often held positions of political power). [fn2] Moe aikane is defined literally as "friend mating." Mary kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 249 (1986 revised ed.). 6 In a recent law review article published in the Yale Journal of Law and the Humanities, Robert J. Morris, an in-house attorney for the Office of Hawaiian Affairs, reviews Hawai'i's cultural history and concludes that same-gender relationships were recognized at law and as part of the Hawaiian extended family or 'ohana. Robert J. Morris, Configuring The Bounds Of Marriage: The Implications of Hawaiian Culture & Values For The Debate About Homogamy, 8 Yale J. L. & Human. 105, 132-57 (1996). [A]ikane relationships were recognized at law in probate proceedings as part and parcel of the Hawaiian extended family . . . [T]he Hawaiian concept of "home" . . . was much more flexible than in the West. Certainly families were united by marriage (alohiki), but also by various forms of adoption (hanai po'olua, ho'okama). In fact, a far more useful concept in understanding the Hawaiian extended family is the ramage ("companions" or "associates") spoken of so frequently in Hawaiian literature. This analysis reveals how procreation, crucial though it was, was not the sine qua non of marriage or the home, or vice versa.... Id. at 133-34. In summary, concepts of "family" are broader and more flexible in Hawaiian culture than in traditional Western/Judeo-Christian culture. The hanai practice continues to be a vital part of Hawaiian culture and society today. In arguing that biological-parent families create the "best" environment for a child's development, the State denigrates and ignores centuries-long Hawaiian traditions of child-rearing. Finally, the State's disparate treatment of same-gender couples also conflicts with the tolerance and recognition given to same-gender relationships in Hawaiian custom and practice. 7 III. CONCLUSION Based on the foregoing, Na Mamo respectfully requests that the Court hold that the State cannot carry it[s] burden of proving there is a compelling interest in promoting the rearing of children by biological parents because Hawaiian traditions and customs place no higher value on such biological relationshps and demand tolerance of non-biological familial relationships. Dated: Honolulu, Hawai'i, May 13, 1997 /s/ PAUL ALSTON LEA 0. HONG Attorneys for Amicus Curiae NA MAMO 0 HAWAI'l 8 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~