Date: Mon, 02 Jun 1997 20:17:26 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 05: Rutherford Institute Aloha ahi ahi kakou. It's getting bleary-eyed out. Please pardon any mistakes. These Baehr v. Miike briefs will be coming at irregular intervals and out-of-sync for a variety of reasons. I have only broadcast two so far, but will broadcast more in the immediate future. No. 20371 IN THE SUPREME COURT STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) Civ. No.91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF LAW Plaintiffs-Appellees, ) ) vs. ) FIRST CIRCUIT COURT ) LAWRENCEH.MIIKI,inhis ) official capacity as Director ) THE HONORABLE KEVIN S.C. CHANG of the Depart~ent of Health, ) State of Hawaii, ) ) Defendant-Appellant. ) __________________________________________) BRIEF OF THE RUTHERFORD INSTITUTE AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT OF COUNSEL: THE RUTHERFORD INSTITUTE JOHN W. WHITEHEAD, ESQ. STEVEN H. ADEN, ESQ. (5189-0) THE RUTHERFORD INSTITUTE DOLD LaBERGE & ADEN P.O. Box 7482 Ste 507, Bishop Trust Bldg. Charlottesville, Virginia 22906-7482 1000 Bishop Street 1.804.978.3888 Honolulu, Hawaii 96813 1.808.531.8886 Attorneys for Movant (Counsel of Record) THE RUTHERFORD INSTITUTE TABLE OF CONTENTS STATEMENT OF THE QUESTIONS PRESENTED DID THE PLURALITY IN BAEHR V. LEWIN ERR IN APPLYING THE STRICT SCRUTINY STANDARD OF REVIEW, RATHER THAN THE RATIONAL BASIS STANDARD, TO THE DIRECTOR'S DECISION TO DECLINE TO ISSUE MARRIAGE LICENSES TO APPELLEES?..........................................1 ARGUMENT I. THE BAEHR V. LEWIN PLURALITY OPINION EERED IN REJECTING ANY DEFINITIONAL BASIS FOR INTERPRETING THE SCOPE OF THE "RIGHT TO MARRY"..............1 II. THE DECISION OF THE DIRECTOR OF THE DEPARTMENT OF HEALTH NOT TO ISSUE MARRIAGES LICENSES TO SAME-SEX COUPLES DID NOT CONSTITUTE "INVIDIOUS DISCRIMINATION", AND ACCORDINGLY THE DIRECTOR'S DECISION IS NOT REVIEWABLE LNDER THE STRICT SCRUTINY STANDARD......................................4 A. The Director's Decision Not to Issue Mairiage Licenses to Appellees Did Not Infringe on Any "Fundamental Civil Rights" of the Appellees...........................................5 B. The Director's Decision Not to Issue Marriage Licenses to Appellees Was Not Based Upon Their Membership in Any Suspect Class ....................................................6 III. REVIEWED UNDER THE RATIONAL BASIS STANDARD OF REVIEW, THE DIRECTOR'S DECISION IS SUPPORTED BY MORE THAN ADEQUATE EVIDENCE IN THE TRIAL COURT BELOW ..............................................9 CONCLUSION....................................................9 TABLE OF AUTHORITES i. Hawaii Case Law Authority Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).1, 2, 5 - 7, 10 Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568(1973)..............5, 7 Hasegawa v. Maui Land and Pineapple Co., 52 Haw. 327, 475 P.2d 679(1970)..................................................4, 9 Hawaii State AFL-CIO v. Yoshino, No.20267 (March 24, 1997).1, 9 In re Tax Appeal of Hawaiian Land Co., Ltd., 53 Haw. 45, 487 P.2d 1070 (1971)..........................................9 Hirano v. Peabody, 81 Haw. 230, 232, 915 P.2d 704, 706 (1966).9 Mahiai v. Suwa 69 Haw. 349, 742 P.2d 359 (1987)...............7 Nagle v. Board of Education of State of Hawaii, 63 Haw. 389, 629 P.2d 109 (1981)...........................................4 Ross v. Stouffer, 72 Haw. 350, 816 P.2d 302(1991).......1, 2, 8 Shibuya v. Architects Hawaii Ltd., 65 Haw. 26, 647 P.2d 276 (1982).....................................................4, 7 State v. ROSS, 62 Haw. 147, 613 P.2d 354 (1980)...............7 State v. Mueller, 66 Haw. 616, 671P.2d 1351 (1983)............6 ii. Federal Case Law Authority Adams v. Howerton, 486 F.Suppl. 1119, 1122, 1123 (CD. Cal. 1980).........................................................9 Antonio School Dist. V. Rodriguez, 411 U.S. 1(1973) (C.J. Burger, dissenting)..................................................10 Bowers v. Hardwick, 478 U.S. 186 (1986).......................5 Burkeff v. Zablocki, 54 F.R.D. 626 (E.D. Wis 1972)...........10 Craig v. Boren, 429 U.S. 190 (1976).......................8, 10 Griswold v. Connecticut, 381 U.S. 479 (1995)...............3, 5 Loving v. Virginia, 388 U.S. 1 (1967)......................3, 8 -i- Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)...................................................4, 6 Michael M. v. Superior Court, 450 U.S. 464 (1981)...........7 Rinaldi v. Yeager, 384 U.S. 305 (1966)......................4 Romer v. Evans, U.S. Sup.Ct. No.94-1039 (May 20, 1996)...4, 6 Schlesinger v. Ballard, 419 U.S. 498 (1975).................8 Skinner v. Oklahoma, 316 U.S. 535 (1942).................5, 6 Stanton v. Stanton, 421 U.S. 7 (1975).......................8 iii. Case Law Authority of Other Jurisdictions Anonymous v. Anonymous, 325 N.Y.S. 2d 499 (Sup. Ct. 1971)..10 Baker v. Nelson, 191 NW. 2d 185, 185-186 (Minn 1971).......10 In re Estate of Cooper, 564 N.Y.S. 2d 684, 687 (Sur. Ct. 1990) ...........................................................10 Dean v. District of Columbia, 653 A.2d 307, 315 ([).C.App 1995)...................................................2, 10 DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)....10 Frances B. v. Mark B., 355 N.Y.S. 2d 712 (Sup. Ct. 1974....10 Jennings v. Jennings, 315 A.2d 816 (Md. Ct. Spec. App. 1974)......................................................10 Jones v. Hallahan, 501 S.W.2d 588 (Ky.Ct.App.1973).........10 In re Ladrach, 513 N.E.2d 828 (Ohio P. Ct. 1987)...........10 M.T. v. J.T., 355 A. 2d 204 (N.J. Super. Ct. Appi. Div.)...10 Singer v. Hara, 522 P2d 1187 (Wash. Ct. App. 1974).........10 Slayton v. Texas, 633 S.W.2d 934 (Tex. Ct. App. 1982)......10 -ii- iv. Constitutions and Statutoiy Authority Hawaii Constitution, Article 1, Sec. 5.....................7 Haw. Rev. Stats. Chapter 572-1.............................7 v. Law Review Articles J. Van Dyke, M. Chung and T. Kondo, "The Protection of Individual Rights Under Hawaii's Constitution," Univ. of Hawaii Law. Rev. 311, 316-18 (1992)........................4 L. Wardle, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," B.Y.U. Law Rev., Vol.1966, No.1, at 48 ...........................................................6 "For Better or For Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawaii," 16 Univ., of Hawaii L. Rev. 447, p.455-460.................2 vi. Other Authorities 1972 House Journal at 353 (statement of Rep. Saiki on S.B. No 1408-72............................................9 Black's Law Dictionary (6th ed. 1990)...................1, 2 Irving M. Copi Philosophy Professor, University of Hawaii) and Carl Cohen, Introduction to Logic(Eighth Edition), p.152......................................................3 Webster's Third New International Dictionary 1384 (1986)..................................................1, 2 -iii- STATEMENT OF THE QUESTIONS PRESENTED DID THEE PLURALITY OPINION IN BAEHR V. LEWIN ERR IN APPLYING ThE STRICT SCRUTINY STANDARD OF REVIEW, RATHERR THAN THE RATIONAL BASIS STANDARD, TO THE DIRECTOR'S DECISION TO DECLINE TO ISSUE MARRIAGE LICENSES TO APPELLEES? ARGUMENT I. THE BAEHR V. LEWIN PLURALITY OPINION ERRED IN REJECTING ANY DEFINITIONAL BASIS FOR INTERPRETING THE SCOPE OF THE "RIGHT TO MARRY". The Hawaii Supreme Court's plurality opinion in Baehr V. Lewin 74 Haw. 530, 852 P.2d 44 (1993) strenuously rejected the trial court's definitional approach to the issue of whether the scope of the "fundamental right to marry" could be construed to include same-sex unions. Id. at 570, 852 P.2d at 63. However, definitional analysis is not only frequently employed by the Court, it appears to be considered a necessary tool of civil rights jurisprudence. For example, in Ross v. Stouffer 72 Haw. 350, 816 P.d 302 (1991), the Court was called upon to determine whether an employer's rule against spouses co-working in the same departtnent constituted discrimination on the basis of "marital status".[fn1] The dispute in Ross is a close parallel to the issue in the instant case, in that the claimant contended he was termated because of his marital status, while the employer asserted he was terminated not because of his marital status, but because of whom he marrie4.[fn2] The Court looked to the definition of "nepotism" in Black's Law Dictionary and Webster's Third New International Dictionary as well as the etymological derivation of the word, to ascertain whether the public policy against nepotism informed the definition of "marital status."[fn3] In dissent, Justices Wakatsuki and Moon relied upon the "plain and ordinary meaning" of "marital status", as well as case law defining the term, to interpret the term.[fn4] Likewise, Hawaii State AFL-CIO v. Yoshino No.20267 (March24, 1997), construed the meaning of state constitutional provisions in light of the definitions of essential terms such as "ballots cast". In fact, the plurality's own analysis and application of the term "civil [fn1] 72 Haw. at 352, 816 P.2d at 303. [fn2] Id. [fn3] 72 Haw. at 352-53, 816 P.2d at 303. [fn4] 72 Haw. at 356, 816 P.2d at 305. liberties" in its equal protection analysis turned upon the definition of the term in Black's Law Dictionary, 74 Haw. at 563, 852 P2dat 60, citing Black's (6th ed. 1990) at 246. In view of the importance of definitional analysis, it should not engender surprise that virtually every decision that has considered claims to same-sex marriage has relied in whole or in part upon the definition of "marriage" in reaching its result. See Note, "For Better or For Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawaii," 16 Univ. of Hawaii L. Rev 447, at pp.455-460, discussing seven such definitionally-based same-sex marriage decisions between 1971 and 1992.[fn5] In the absence of consensus over the meaning of terms such as "marriage" and "right to marry", serious doubt exists whether further meaningfiil analysis can be conducted. The Bae[h]r v. Lewin plurality opinion attacks the argument from the definition of marriage as "circular" and "tautological," and therefore an "exercise in tortured and conclusory sophistry." 74 Haw. at 565, 569-70,571, 852 P.2d at 61,63. To the contrary, to assert that marriage should remain as society has always defined it, as the "legal union of one man and one woman as husband and wife," Black's Law Dictionary (6th ed. 1990) at 972[fn6], "the state of being united to a person of the opposite sex as husband or wife," Webster's Third New International Dictionary (1986) at 1384, "a special relationship between a man and a woman", Bae[h]r v. Lewin. supra, at 546, 852 P.2d at 61 (quoting Answering Brief of Director Lewin at p.7), or "a union of a man and a woman," Id. at 566, 852 P.2d at 61 (quoting Jones v. Hallahan 501 S.W.2d 588, 589-90 (Ky.Ct.App. 1973)) (emphases supplied in all), is to make an argument from the nature and essence of the institution being defined, not a circular argument. The [fn5] Significantly, these include the lower court's decision in Dean V. District of Columbia. 653 A.2d 307 (D.C.Ct.App.1995). The D.C. appellate court's affirmance of the Superior Court found that the D.C. Human Rights Act was not violated, despite an explicit prohibition against discrirnintion on the basis of sexual orientation: "The language and legislative history of the marriage statute demonstrate that neither Congress nor the Council of the District of Columbia has ever intended to define `marriage' to include same-sex unions." 653 A.2d at 3lO. [fn6] See Dean v. District of Columbia. supra, at 315 (relying upon Black's definition confirm the court's understanding of the marriage statute "by the ordinary sense and meaning traditionally attributed to the word `marriage' when used to indicate an intimate relationship"). 2 purpose of a definition is to explain the meaning that the thing being described already has;[fn7] it is explanatory, not normative, in that it states what a thing is regarded to be, not what some believe it ought to be regarded to be. For this reason, "Any definition of a word that ignores the way in which it is used by any sizeable group of speakers is not true to actual usage and is, therefore, not quite correet."[fn8] A circular definition, on the other hand, is a useless definition because it restates the thing being defined in its definition, e.g., "A compulsive gambler is one who gambles compulsively."[fn9] The definition of marriage employed by the accepted dictionary sources, the Director of Health and the courts of other jurisdictions to retain the traditional construct of marriage is therefore not circular because it explicates in descriptive terms what the essence and substance of a marriage has been regarded to be by the majority of society. In this regard, the contention that proponents of same-sex marriage seek to change the definition of marriage is literally correct. Nor is the admittedly circular reasoning condemned in Loving v. Virginia, 388 U.S. 1 (1967) similar to the State's position, as the plurality suggests. The Hawaii marriage statute is not a positive law, but a codification of a common law estate that is "older than the Bill of Rights." Griswold v. Connecticut. 381 U.S. 479, at 486 (1965). If the State of Hawaii were defending a positive statute creating a new right or restriction of the marital estate on the basis of the statute's definition, such an argument would certainly be tautological. Such was the case with the miscegnation statute in Loving v. Virginia, which was adopted in 1924 as "An Act to Preserve Racial Integrity" for the purpose of excluding African - Americans from marrying caucasians. 388 U.S. at 6, 7, 11 n. 11. This qualitative distinction between the Hawaii marriage statute and the statute motivated by racial aminus in Loving renders the Loving analogy inapposite. II. THE DECISION OF THE DIRECTOR NOT TO ISSUE MARRIAGE LICENSES [fn7] Irving M. Copi (Philosophy Professor, University of Hawaii) and Carl Cohen, Introduction to Logic (Eighth Edition), p. 152. [fn8] Id. at pp.133-34. [fn9] Id. at 152 (quoting Jay Livingston, Compulsive Gamblers New York: Harper & Row, Publishers, Inc., 1974) p.2). 3 TO SAME-SEX COUPLES DID NOT CONSTITUTE "INVIDIOUS DISCRIMINATION" AND ACCORDINGLY THE DIRECTOR'S DECISION IS NOT REVIEWABLE UNDE[R] THE STRICT SCRUTINY STANDARD. In the Hawaii Supreme Court's seminal equal protection decision, Hasegawa v. Maui Land and Pineapple Co.. the Court stated: The guarantee of the equal protection of the laws, found in both the Hawaii and Federal Constitutions, was not intended to interfere with the power of the State to prescribe regulations to promote the general welfare of the people'. Nor was it intended that the demand for equal protection require that all laws apply universally to all persons and that they never classify when imposing special burdens upon or granting special benefits to distinct groups. It has been recognized that a state cannot function without classifying its citizens for various purposes and treating some differently from others. 52 Haw. 327, 329, 475 P.2d 679, 681 (1970 (emphasis supplied). Cf Shibuva v. Architects Hawaii Ltd.. 65 Haw. 26, 647 P.2d 276 (1982), quoting Rinaldi V. Yeager. 384 U.S. 305, 309 (1966): "To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons." In crafting equal protection jurisprudence, the Hawaii appellate courts have followed the United States Supreme Court's approach of applying a heightened standard of scrutiny to governmental classi- fications only where such actions involve "suspect classifications" or "flindamental rights," and a lower "rational basis" standard where the actions do not. Nagle v. Board of Education 63 Haw. 389, 629 P.2d 109 (1981); see generally J. Van Dyke, M. Chung and T. Kondo, "The Protection of Individual Rights Under Hawaii's Constitution," 14 Univ. of Hawaii Law.Rev. 311, 316 - 18 (1992). Consequently, in equal protection analyses, the first consideration is whether a "fundamental right" or a "suspect classification" is implicated. "If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans U.S. Sup.Ct. No.94-1039, slip op., p.10 (1996). The United States Supreme Court elucidated this initial inquiry with particular precision and clarity in Massachusetts Board of Retirement v. Murgia: "[E]qual protection analysis requires strict scrutiny... when the classification impermissibly interferes with the exercise of a fundamental right or operates to the particular disadvantage of a suspect class." 427 U.S. 307, 312 (1976) (emphasis supplied). The Court's amicus argues herein that because the decision of the 4 Direetor to decline marriage licenses to the Appellees did not burden any cogziable~ "fundamental right" of Appellees, and did not operate to the disadvantage of a particular gender, the Baehr v. Lewin plurality should not have reached the application of heightened scrutiny. For this reason, the holding of Baehr v. Lewin should be expressly reversed by this Court.[fn10] A. The Director's Decision Not to Issue Marriage Licenses to Appellees Did Not Interfere With Any "Fundamental Civil Rights" of the Appellees Because, as the Bae[h]r v. Lewin Plurality Opinion Acknowledges, Appellees Have No Fundamental Right to Same-Sex Marriage. The Appellees claim they possess a fundamental right to choose whom they will marry, regardless of sex.[fn11] While the Baehr v. Lewin plurality opinion states that "it is immaterial whether the plaintiffs, or any ofthem, are homosexuals," 74 Haw. at 558, 852 P.2d at 58, any discussion of same-sex mariage as a purely platonic relationship voids the relationship of the meaning for which Appellees seek to secure marriage, since it denies the very foundation on which the right to same-sex marriage is purportedly based, that of the right to intimate association. But as the first part of the plurality opinion in Baehr v. Lewin amply demonstrates, the Appellees cannot be heard to argue for the possession of any fundamental right to that is deemed to arise out of their desire to enter into a same-sex marriage. "[T]he applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise." 74 Haw. at 557, 671 P.2d at 57. Nor, clearly, can they contend that a fundamental right exists to engage in homosexual relations or homosexual activity. Bowers V. Hardwiek 478 U.S. 186 (1986).[fn12] [fn10] The fact that the Bae[h]r v. Lewin Court directed the court below to employ strict scrutiny in its proceedings does not preclude the present Court from reversing its judgment. "It is the general rule that an appellate court should only reverse a judgment of a trial court on the legal theory presented by the appellant in the trial court.... However, we have also said that the rule is not inflexible and that an appellate court may deviate and hear new legal arguments when justice requires. We also stated that in the exercise of this discretion an appellate court should deterinine... [inter alia] whether the question is of great public import." Fujioka V. Kam, 55 Haw. 7, 9, 514 P.2d 568, 570 (1973) (emphasis supplied). [fn11] E.g., Amicus Curiae Brief of Lambda Defense and Fducation Fund, Inc. in Bae[h]r v. Lewin supra, at p.1 (Evan Wolfson, Counsel): Same-sex couples possess an "intimate and fundamental choice [in] exercising one's right to marry." [fn12] The Supreme Court's reasoning in Bowers is illuminating. After reviewing the Griswold v. Connecticut 381 U.S. 479 (1965) line of fundamental due process right to privacy eases, which the Court noted included Skinner v. Oklahoma 316 U.S. 535 (1942), the Court concluded: "No connection between family, Continued on next page... 5 "If the basic interactions that define a relationship fail to gain protection as intimate associations, the relationship itself cerinly cannot claim preferred constitutional status as a marriage under the aleady repudiated theory." L. Wardic, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," B.Y.U.Law Rev., Vol.1996, No.1, at 48. In the absence of an "impemissibl[e] interfere[nce] with the exercise of a fimdamental right,"[fn13] the Appellees' claim to a right to engage in same-sex marriage stands in the same position as the right claimed in State v. Mueller[fn14] to engage in consensual sexual intercourse for hire in the privacy of one's own home. Although claims to personal rights may be couched in terms of recognized values such as privacy and personal autonomy, governmental actions restricting or eliminating such personal interests are subjected to rational basis review if such rights are not "fundamental" or "implicit in the concept of ordered liberty." 66 Haw.at 628, 671 P.2d at 1359. An example is Romer v. Evans supra, which reviewed a Fourteenth Amendment equal protection claim brought by homosexual Colorado citizens under a rational basis standard of review. B. The Director's Decision Not to Issue Marriage Licenses to Appellees Was Not Based Upon Their Membership, in the Suspect Class of Sex. The plurality in Baehr v. Lewin erred in presuming that the State's restriction of the marital estate to heterosexual couples constituted discrirnination on the basis of their gender. In its opinion, the plurality reviewed the statutory construct of the Hawaii marriage statute, Flaw. Rev. Stats. Chapter 572-1 et. seq., and concluded that "[r]udimentary principles of statutory construction render manifest the fact that, by its plain language, HRS Sec. 572-1 restricts the marital relation to a male and a female."[fn15] The plurality then [continued from page 5] marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.... Moreover, any claim that these eases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable." 478 U.S. at 191. In spite of this, the plurality cites Skirnier v. Oklahoma in its equal protection analysis for the proposition that marriage is "one of the basic civil rights of [men and women].'" 74 Flaw. at 563, 852 P.2d at 60, quoting Slunner 316 U.S. 535, at 541. [fn13] Massachusetts Board of Retirement v. Murgia supra, at 312. [fn14] 66 Haw. 616, 671 P.2d 1351 (1983). [fn15] 74 Flaw. at 563, 852 P.2d at 60. 6 concludes, without explaining its reasoning, that this restriction is a sex-based restriction for purposes of equal protection analysis: "Accordingly, on its face and (as Lewin admits) as applied, HRS Sec. 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits. It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution."[fn16] The Court's amicus respectfiilly submits that the plurality's assumption, upon which is predicated the entire equal protection analysis that follows, is fundamentally flawed because neither the letter nor the spirit of conventional equal protection or Equal Rights Amendment jurisprudence mandate such a conclusion. The Hawaii Supreme Court has repeatedly noted that in order to be held to be in accord with equal protection, a legislative classification must afford "like treatrnent" to individuals who are "similarly circurnstanoed" or "similarly situated" Shibuva v. Architects Hawaii Ltd., 65 Haw. 26, 647 P.2d 276 (1982); Fujioka v. Kam. 55 Haw. 7, 514 P.2d 568 (1973); Mahiai v. Suwa 69 Haw. 349, 742 P.2d 359 (1987). Simply put, lawmakers must "treat like things in a like manner." State v. Bloss 62 Haw. 147, 157, 613 P.2d 354, 360 (1980). Cf Michael M. V. Superior Court 450 U.S. 464, 464 (1981) ("[T]his Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.") The State's denial of marriage licenses to Appeilces does not run afoul of this stricture, since an individual desiring to marry aperson of the same sex is not "similarly situated" with an individual desiring to marry a person of the opposite sex, and same-sex marriage is not a "like thing" with traditional heterosexual marriage. To conclude otherwise is to assume as true what the Baehr v. Lewin plurality found to be false; that society in general has, in times past or in the present, regarded same-sex unions or relationships as fimdamentally comparable to those of heterosexuals. [fn16] Id. at 564, 852 P.2d at 60 (emphasis supplied). 7 Further, Appellees' contention that they have suffered discrimination based upon their gender requires the Court to consider their claims as same-sex couples, rather than individuals. As individuals, no one Appellee has been denied a marriage license based upon his or her sex, but rather on his or her desire to enter into a same-sex union; thus, the individual with standing to claim the equal protection right has not suffred discritnination based upon his or her sex, which is the sine qua non of heightened scrutiny. Nor does the reasoning in Loving v. Virginia supra, require a different conclusion. The premise of Loving was the Court's recognition that race is an irrelevant consideration for legitimate marriage policy, and consequently interracial marriages and same-race marriages are functionally equal. Thus, "There is patently no legitimate overriding purpose independent of invidious race discrimination which justifies this classification." 388 U.S. at 11. "By comparison, the claim that same-sex relationships are equal to or fungible with conventional heterosexual marriage relationships is stained at best." Wardle, supra, at 80. Further, neither the rationale for heightened equal protection review nor the original intent behind the Hawaii Equal Rights Amendment apply to the Appellees' claims. Gender has been the basis for heightened scrutiny because legislative classifications on the basis of sex have served to perpetuate "archaic and overbroad" stereotypes of the role of women, Schlesinger v. Ballard. 419 U.S. 498 , 508 (1975); "old notions" of role typing, Stanton v. Stanton, 421 U.S. 7, 114-15 (1975); and "increasingly outdated misconceptions concerning' the role of females in the home rather than in the 'marketplace and world of ideas'." Craig v. Boren 429 U.S. 190, 198-99 (1976). Accord Ross v. Stouffer Hotel Company (Hawaii) Ltd Inc., 72 Haw. 350, at 358,816 P.2d 302, at 306 (civil rights statutes are intended to prevent offensive or demeahing stereotypes). Clearly, the restriction of the marital estate to heterosexual couples cannot be viewed as an example of such stereotyping on the basis of gender abilities. Similarly, the purpose and intent of the Hawaii Equal Rights Act cannot reasonably be viewed as requiring that a compelling state interest justify the restriction of the marital estate: Because constitutions derive their power and authority from the people who drafted and adopt them, [w]e have long recognized that the Hawai'i constitution must be construed with due 8 regard to the intent of the framers and the people adopting it, and the flindamental principle in interpreting a constitutional provision is to give effect to that intent. Hawaii State AFL-CIO v. Yoshino No.20267 March 24, 1997) at 4, quoting Hirono v. Peabodv. 81 Haw. 230, 232, 915 P.2d 704, 706 (1996). The Hawaii Equal Rights Amendment, passed in 1972, was adopted for the purpose of "defin[ingj our State's conviction to provide constitutional protection against laws and official practices which treat men and women differently." 1972 House 3ournal at 353 (statement of Rep. Saiki on S.B. No. 1408-72) (emphasis supplied). Certainly, neither the framers of the Hawaii ERA nor the citizens of the State intended or foresaw that the Amendment would be applied to require that the State prove a compelling interest to justify its adherence to traditional marriage. III. REVIEWED UNDER THE RATIONAL BASIS STANDARD THE DIRECTOR'S DECISION IS SUPPORTED BY MORE THAN ADEOUATE EVIDENCE IN THE TRIAL COURT. A rational basis review places the burden of proof upon the claimants to demonstrate that the classification is not rationally related to a legitimate governmental interest. Haasegawa V. Maui Land and Pineapple Co. 52 Haw. 327, 475 P.2d 679 (1970); In re Tax Appeal of Hawaiian Land Co. Ltd. 53 Haw. 45,487 P.2d 1070 (1971). A review of the trial court's findings of fact demonstrate that the claimants failed to overcome this burden, and the court had more than ample evidence on behalf of the State to sustain the marriage statute. Legitimate governmental interests sufficient to withstand rational basis review include public health, safety and welfare, Alfred L. Snapp & Son Inc. 458 U.S. 592 (1982) and public morality, Bowers v. Hardwick 478 U.S. 186, 196 (1986). These interests inform the State marriage statute, and consequently the Court should find in favor of Appellants. CONCLUSION To date, at least twelve courts of various state and federal jurisdictions have held that there is no statutory, common law or constitutional basis for same-sex marriage.[fn17] Hawaii now stands to become the [fn17] See McConnell v. Nooner 547 F.2d 54, 56 (8th Cir. 1976) (there is no "right to marry [someone of the same sex] under Minnesota law [or] under the United States Constitution'); Adams v. Howerton 486 F. Supp. 1119, 1122, 1123 (CD. Cal. 1980), affid 673 F.2d 1036 (9di Cir.), cert. denied 458 U.S. 1111 (1982) (upholding denial of petition for `immediate relative' status of Australian male who claimed to have Continued on next page... 9 only state to find constitutional implications in denying the marital estate to homosexuals. For the Court to so hold now would be to distort the doctrine of equal protection into an unrecognizeable and tenuously unpredictable form, and to disregard its duty "not 'to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.'" Craig v. Boren 429 U.S. 190, 216, quoting San Antonio School Dist. v. Rodriguez. 411 U.S. 1, 33 (1973) (C.J. Burger, dissenting). The Court's amicus respectfully requests that this Honorable Court overrule the plurality decision in Baehr v. Lewin and render a decision in favor of Defendant-Appellant State of Hawaii. DATED: Honolulu, Hawaii, April 11,1997. /s/ STEVEN H. ADEN, ESQ. Attorney for Amicus Curiae THE RUTHERFORD INSTITUTE [continued from page 9] married an American male in Colorado); Dean V. District of Columbia. 653 A.2d 307 (D.C. 1995) (see discussion at p.2, supra, nn. 5&6; Jones V. Hallahan 501 S.W.2d 588, 590 (Ky. 1973) (`the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not amarriage'); Baker v. Nelson 191 N.W.2d 185, 185-86, 187 (Minn. 1971), appeal diss'd, 409 U.S. 810 (1972) (interpreting marriage statute in light of `common usage" and concluding that marriage must involve persons of the opposite sex); Frances B. v.'Mark B., 355 N.Y.S.2d 712, 716 (Sup. Ct. 1974) (holding marriage ceremony between a woman and another female who fraudulently held herself out as a man a nullity; "marriage has always been considered as the union of a man and a woman1"); Anonymous v. Anonymous. 325 N.Y.S.2d 499, 500 (Sup. Ct. 1971) (declaring attempted marriage a nullity when a male plaintiff unwittingly went through marriage ceremony with another man posing as a woman: "'[t]he law makes no provision for a 'marriage' between persons of the same sex [and marriage is and always has been a contract between a man and a woman'); In re Ladrach, 513 N.E.2d 828, 832 (Ohio P. Ct. 1987) (rejecting marriage license claim of a transsexual male and another male; `there is not authority in Ohio for the issuance of a marriage license to consummate a marriage between a postoperative male-to-female transsexual person and a male person'); De Santo v. Bainsley 476 A.2d 952.954 (Pa. Super. Ct. 1984) (refusing, in a divorce action, to recognize attempted common law marriage between two men; 'common law marriage is limited to two persons of opposite sex'); Singer v. Hara, 522 P.2d 1187 1190 (Wash. Ct. App. 1974) (rejecting claims based on state Equal Rights Amendment and othe[r] constitutional claims); Burkett v. Zablocki. 54 F.R.D. 626 (E.D. Wis. 1972) (dismissing on procedural grounds claim of same-sex couple seeking a marriage license); Jennings v. Jennings, 315 A.2d 816, 820 n.7 (Md. Ct. Spec. App. 1974 (declaring in dicta that 'Maryland does not recognize a marriage between persons of the same sex'); In re Estate of Cooper. 564 N.Y.S.2d 684, 687 (Sur. Ct. 1990); Slayton V. Texas. 633 5 .W.2d 934, 937 (Tex. Ct. App. 1982); cf M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div.) (allowing marriage of transsexual after finding that the sexehange operation effected change of gender for marriage license purposes), certification denied, 364 A.2d 1076 (1976). 10 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~