Date: Tue, 01 Jul 1997 08:06:10 -1000 From: lambda@aloha.net (Martin Rice) Subject: BM 035: Baehr v. Miike Appeal: Reply Brief Aloha kakahiaka kakou. I believe this is the last major document of the State's Appeal of Judge Chang's decision in Baehr v. Miike. You may find a complete list of the all the briefs at http://www.cs.unt.edu/home/hughes/index.htm. Most of the briefs, with some other related documents from the case can also be found at http://hawaiilawyer.com. As a reminder, the symbol represented here--> § <--means "section." Some email programs do not readily translate this symbol. NO.20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT filed on ) December ll, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT v. ) ) HONORABLE PATRICK YIM LAWRENCE MIIKE, in his official ) HONORABLE ROBERT KLEIN capacity as Director of the Department ) HONORABLE HERBERT SHIMABUKURO of Health, State of Hawaii, ) HONORABLE KEVIN CHANG ) Judges Defendant-Appellant. ) ____________________________________________) DEFENDANT-APPELLANT'S REPLY BRIEF CERTIFICATE OF SERVICE MARGERY S. BRONSTER, 4750 CHARLES J. COOPER Attorney General of Hawaii (Admitted pro hac vice) DOROTHY SELLERS, 4069 MICHAEL A. CARVIN Deputy Attorney General MICHAEL W. KIRK Department of the Attorney Cooper & Carvin, PLLC General, State of Hawaii 2OOO K Street, N.W. 425 Queen Street Suite 401 Honolulu,HI 96813 Washington, D.C. 20006 (818) 586-1387 (202) 822-8950 June 16, 1997 Counsel for Defendant-Appellant SUBJECT INDEX Page INTRODUCTION..........................................1 ARGUMENT..............................................2 I. HAWAII'S MARIAGE LAW DOES NOT CLASSIFY ON THE BASIS OF GENDER............................2 II. THE STATE'S INTERESTS IN RESTRICTING MARRIAGE TO TRADITIONAL COUPLES ARE ALL COMPELLING......7 III. PLAINTIFFS' PROCEDURAL COMPLAINTS ARE WITHOUT MERIT..................................8 CONCLUSION............................................9 REVISED STATEMENT OF RELATED CASES...................11 CERTIFICATE OF SERVICE...............................12 i TABLE OF AUTHORITIES Page Cases Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)..............9 Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).................2 Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995)..4, 9 Frontiero v. Richardson, 411 U.S. 677 (1973)....................2 Loving v. Virginia, 388 U.S. 1 (1967)...........................5 NLRB v. Fruit & Vegetable Packers and Warehousemen, 377 U.S. 58 (1964)..............................................6 Perez v. Lippold, 198 P.2d 17 (Cal. 1948).......................9 Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert. denied, 474 U.S. 849 (1985).............................................7 Shahar v. Bowers, 1997 WL 285973 (11th Cir. May 30, 1997)....3, 6 Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19 (1988)......6 Singer v. Hara, 522 P.2d 1187 (Wash. App.), review denied, 84 Wash. 2d 1008 (1974).........................................4 State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983).............4 States v. Walsh, 713 S.W.2d 508 (Mo. 1986)......................4 Zablocki v. Redhail, 434 U.S. 374 (1978)........................7 Legislative Materials 118 Cong. Rec. 9331 (Mar. 21, 1972).............................6 Haw. Rev. Stat. § 572-1....................................passim ii Other Haw. R. App. P. 28(b)(3).........................................8 Haw. R. App. P. 28 (b)(4)........................................9 S. Broder & B. Wee, Hawaii's Equal Rights Amendment: Its Impact on Athletic Opportunities and Competition for Women, 2 Haw. L. Rev. 97 (1979).........................................6 The Federalist No.78 (Alexander Hamilton) (Easton ed. 1979)..2, 10 The Federalist No.78 (Alexander Hamilton) (Mentor ed. 1961)......1 iii INTRODUCTION At the close of their brief, plaintiffs entreat this Court to remain "unswayed by those who urge[] it to 'connive at infractions' of constitutional guaranties directly bearing on a timely and squarely presented case." Plaintiffs-Appellees' Answering Brief ("P1. Br.") at 33 (quoting The Federalist No. 78, at 469-70 (Hamilton) (Mentor ed. 1961)). But it is plaintiffs, not the State, who ask the Court to "connive at infractions," for they would have the Court uphold the judgment of the Circuit Court transforming humanity's most important and venerable institution in a manner never before recognized by any organized civilization on the basis of a theory that is, at its core, disingenuous. No maffer how hard they try, plaintiffs cannot convert this lawsuit about gay marriage into a gender discrimination case Plaintiffs themselves recognize, as they have since the filing of their complaint, that this case is really about the exclusion of homosexuals from marriage. They simply disagree with the "assumption" made by the People of Hawaii, and every other culture in history, "that whatever marriage in fact means to individuals, gay men and lesbians as a class cannot participate and must not be allowed equal inclusion." P1. Br. at 29 (emphasis added). Regardless of whether the People of Hawaii ought to join plaintiffs in discarding this assumption, two points are clear. First, it would compromise "the institutional integrity" of this Court, see id. at 33, to implement plaintiffs' call to ordain the social revolution they seek under the guise of applying the Constitution's unquestioned command that the State not discriminate on the basis of gender. History does not consider cases decided by subterfuge as "pioneering" or as showing "leadership." Cf. P1. Br. at 33, 34. Second, by arguing that the Court should not forthrightly treat the statute at issue for what it is (i.e., a reflisal to recognize gay marriages, a distinction drawn on the basis of sexual orientation), plaintiffs implicitly admit that the result they desire would be foreclosed by a candid recognition that the law classifies on the basis of sexual orientation. Hawaii's constitutional prohibition against sex discrimination does not even address, let alone forbid the People from enacting, laws distinguishing on the basis of sexual orientation, including laws limiting marriage to heterosexual couples. In this regard, plaintiffs' quotation from Hamilton refutes their position. "'Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding....'" P1. Br. at 33 n.22 (quoting The Federalist No.78, at 469-70 (Hamilton) (Mentor ed. 1961)). In the earlier appeal in this -1- case, the plurality quoted from Justice Powell's concurring opinion in Frontiero v. Richardson, 411 U.S. 677 (1973), which made this point in a context that is identical to that before this Court: "The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily,... the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems... that this reaching out to preempt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes." Baehr v. Lewin, 74 Haw. 530, 579, 852 P.2d 44, 66-67 (1993) (plurality opinion) (quoting Frontiero, 411 U.S. at 727 (Powell, 3., concurring in judgment)) (emphasis added). Hawaii's Legislature has placed the question presented in this case before the People. Accordingly, "reaching out to preempt by judicial action a major political decision," Frontiero, 411 U.S. at 727 (Powell, 3., concurring in judgment), would necessarily constitute an "exercise of WILL instead of JUDGMENT." The Federalist No.78, at 524 (Hamilton) (Easton ed. 1979). This Court should refuse plaintiffs' invitation to usurp the People's right to decide for themselves whether they are to be the first society to embrace the cultural revolution advocated by plaintiffs, particularly under the false banner of vindicating the People's rejection of gender discrimination. ARGUMENT I. HAWAII'S MARRIAGE LAW DOES NOT CLASSIFY ON THE BASIS OF GENDER. Plaintiffs acknowledge the undeniable and substantial overlap between distinctions drawn on the basis of gender and those drawn on the basis of sexual orientation. See P1. Br. at 17-21. Indeed, it is not possible to distinguish on the basis of the sexual orientation of a couple without making reference to the gender of the individuals involved.[fn1] In view of this overlap, it is [fn1] For this reason, plaintiffs' assertion that the statute is framed in terms of gender simply begs the question. P1. Br. at 17 (observing that Hawaii Rev. Stat. ("HRS") § 572-1 refers to "couples composed of 'one man and one woman'"). As noted above, classifications on the basis of sexual orientation necessarily make reference to gender. In advancing this argument, it is plaintiffs, not the State, who "ignor[e] the overlap" between the two. See P1. Br. at 20. -2- incumbent upon the Court to ascertain which is the true basis for the statute's limitation of marriage to traditional opposite-sex couples. Plaintiffs' claim that gender is the basis for the classification rests entirely upon the facially specious argument that the statute applies not just to homosexual same-sex couples, but to heterosexual same-sex couples as well. "[I]t is sex, not sexual orientation, that is the barrier the law erects to the Couples' marriages," plaintiffs assert, because "[t]wo heterosexual people of the same sex are prohibited from marrying just as are two lesbians or two gay men." P1. Br. at 19. This argument is utterly contrary to reality. The fact of the matter is that heterosexual people, by definition, do not wish to marry individuals of the same sex. See Shahar v. Bowers, l997 WL 285973, at *25 (11th Cir. May 30, 1997) (en banc) (Birch, J., dissenting) ("It is a matter of simple logic that only homosexuals would enter a homosexual marriage."). Three independent points establish conclusively that sexual orientation is the decisive trait. First, as previously explained, see Opening Brief ("OB") at 16, the fact that HRS § 572-1 as written has precisely the same operative effect as a statute that prohibits only homosexual same-sex marriages removes any doubt that the true basis for the classification is sexual orientation, not gender. Indeed, a ruling based on the theory that Hawaii's marriage statute discriminates on the basis of gender could not be the historical landmark envisioned by plaintiffs' soaring rhetoric if the Legislature could nulli~ any such ruling by simply rewording the statute to prohibit "homosexual" same-sex marriages while permitting hypothetical "heterosexual" same-sex marriages.[fn2] Second, the notion that Hawaii's marriage law classifies on the basis of gender (let alone the idea that it embodies the "stereotypes and hoary generalizations" that have characterized [fn2] Moreover, there are important reasons for not requiring the Legislature to revise the marriage statute to prohibit "only" "homosexual" same-sex marriages in order to render it "gender-neutral" under plaintiffs' strained theory. Although there is no real-world difference between a law proscribing same-sex marriages and one proscribing "homosexual" same-sex marriages, the State, to implement the latter law, would have to engage in an extraordinarily intrusive inquiry into the past and intended sexual practices of the applicant couple to confirm the pre-ordained conclusion that their same-sex marriage will be "homosexual." It is quite ironic that plaintffs insist on such an inquiry to render the statute "gender-neutral" and advance a constitutional rule under which a marriage statute satisfies Article I, § 5 only if the law explicitly excludes "gay men and lesbians" from marriage but simultaneously extends the benefit of marriage to similarly situated "heterosexual" same-sex couples. -3- gender discrimination, as plaintiffs would have this Court believe, see P1. Br. at 20) is foreclosed by common sense. Plaintiffs' own briefing, for example, in considering whether the statute is justified by a compelling State interest, is replete with references to the burdens imposed by the classification on "gay men and lesbians." See P1. Br. at 29-30 (five references). Likewise, the framers of Article I, § 5 could not possibly have imagined that their prohibition of gender discrimination could ever be understood to require the State to permit marriages between homosexuals both because the ability to procreate was then a pre-requisite to marriage and because sexual relations between homosexuals was a felony.[fn3] Moreover, the fact that no court has ever upheld any constitutional challenge to the traditional limitation of marriage to one man and one woman renders it highly unlikely that the constitutional prohibition against discrimination on the basis of sex applies to such statutes.[fn4] Third, the illustration set forth in our opening brief demonstrates that sexual orientation, not gender, is the operative trait. Just as a scientist attempting to ascertain which of two potential factors causes a particular result will hold one factor constant in order to observe the effect of the [fn3] Plaintiffs attempt to downplay the force of this point by arguing that the intent of the framers, as revealed by the history of the 1950 constitutional convention, is irrelevant where "'the words used in a constitutional provision are clear and unambiguous.'" P1. Br. at 25 (quoting Blair v. Cayetano, 73 Haw. 536, 543, 836 P.2d 1066, 1070, recons. denied, 74 Haw. 650, 843 P.2d 144 (1992)). This argument would have considerable force if the Constitution provided that "[n]o 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 of... sexual orientation." But in light of the actual language employed by the framers, it is obvious, at a bare minimum, that "the words used" in Article 1, § 5 do not "clear[ly] and unambiguous[ly]" prohibit the State from limiting marriage to traditional couples. Accordingly, the Court is free, indeed obliged, to consider history in fulfilling its "duty... 'to give effect to the intentions of the framers and the people adopting' the provision" of Hawaii's Constitution at issue. State v. Mueller, 66 Haw. 616,629, 671 P.2d 1351, 1360(1983) (quoting HGEA v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978)). [fn4] Plaintiffs assert incorrectly that the only other court to consider their sex classification argument was Singer v. Hara, 522 P.2d 1187 (Wash. App.), review denied, 84 Wash. 2d 1008 (1974). See P1. Br. at 17 n.3. To the contrary, the argument was also rejected by the District of Columbia Court of Appeals in Dean v. District of Columbia, 653 A.2d 307, 363 & n.2 (D.C. App. 1995) (opinion of Steadman, J., joined by Terry, 3.). Similarly, the Missouri Supreme Court has rejected the analogous claim that a statute discriminating between homosexual and heterosexual conduct classifies on the basis of sex. State v. Walsh, 713 S.W.2d 508, 510 (Mo. 1986). -4- other, the effect of gender and sexual orientation in the operation of Hawaii's marriage statute may be determined by holding one constant and observing the influence of the other. Thus, if gender is altered while sexual orientation is held constant, the statute continues to have operative effect (the person remains homosexual, and the statute continues to prohibit him or her from marrying anyone within the class that homosexuals wish to marry persons of the same sex). In contrast, when sexual orientation is altered while gender is held constant, the statute ceases to have operative effect (the person remains the same gender, and the change in sexual orientation from homosexual to heterosexual removes the disability imposed by the statute by permitting the individual to marry anyone within the class that heterosexuals wish to marry - persons of the opposite sex).[fn5] Plaintiffs attempt to avoid the force of this illustration by arguing that if "one of the women plaintiffs 'changed' her sexual orientation to non-gay, under HRS § 572-1 she still could not marry the person she loves....', P1. Br. at 19 (emphasis in the original). The logical flaw in this response is that it disregards the real-life fact that a woman who somehow altered her sexual orientation from homosexual to heterosexual would by definition no longer wish to marry the person she currently loves because that person is the same sex she is. As a heterosexual, she would, again by definition, desire to marry only persons of the opposite sex. Finally, plaintiffs' repeated attempts to analogize HRS § 572-1 to the old anti- miscegenation laws fail to address the question presented in this case. As is plain from the plaintiffs' quotation from Loving v. Virginia, 388 U.S. 1(1967), it was undisputed (and indeed, undeniable) that the constitutional infirmity ihherent in the anti-miscegenation laws arose from "'their reliance upon racial classifications.'" P1. Br. at 22 (quoting Loving, 388 U.S. at 7) (emphasis added by plaintiffs). Unlike in this case, there was no difficulty in ascertaining the basis of the classification in Loving for it was obviously race -- no alternative trait was or could [fn5] Plaintiffs criticize our use of this illustration as degrading of "human dignity," apparently on the basis of their view that "no American should have to change her sex, any more than her... sexual orientation, in order to avoid the 'disadvantage' imposed" by the statute. P1. Br. at 19 & n.5. The illustration was hypothetical. Its purpose was not to suggest that anyone change gender or sexual orientation but rather to show precisely which of the two traits leads to imposition of the disability. Moreover, as demonstrated in the text, changing one's sex would not in fact remove the disability so long as one's sexual orientation continued to be homosexual. -5- be at work.[fn6] In contrast, as even plaintiffs admit, the overlap between gender and sexual orientation raises the question of which characteristic gives rise to the distinction drawn by Hawaii's marriage statute. Loving provides no guidance for the resolution of this question. Moreover, plaintiffs have no answer to the fact that unlike the law challenged in Loving, which was rooted in notions of the inferiority of blacks, Hawaii's marriage law is not based upon any notion of the inferiority of females (or males). In short, while racism clearly motivated the anti-miscegenation laws, sexism indisputably does not underlie HRS § 572-1. Rather, the purpose of Hawaii's marriage law is to advance the community's moral judgment that homosexual unions are not to be accorded affirmative societal approval. Since the filing of our opening brief, the en banc United States Court of Appeals for the Eleventh Circuit, in a case involving homosexual "marriage," observed that the alleged analogy to the miscegenation cases (and Loving in particular) "is not helpful." Shahar, 1997 WL 285973, at *5 n.17; see also Shahar, 1997 WL 285973, at *25 n.2 (Birch, 3., dissenting) (discrimination against individual who entered a homosexual "marriage" is "classification on the basis of sexual orientation [just as] Loving was about classification on the basis of race") (emphasis added).[fn7] [fn6] Likewise, plaintiffs' substitution of words argument, see P1. Br. at 22-23, does not advance their position. Because sexual orientation necessarily makes reference to gender, the substitution of words argument begs the question of which trait is at work. [fn7] Plaintiffs' citation of the views of Rex Lee, see P1. Br. at 24, far from supporting their position, brings to light an additional point against plaintiffs' claim that constitutional provisions upholding equality on the basis of gender also bar laws prohibiting homosexual marriage. The argument articulated by Mr. Lee and quoted in plaintiffs' brief was made repeatedly by opponents as part of their effort to defeat the Equal Rights Amendment throughout the lengthy debate over its passage and ratification. Proponents of the ERA unequivocally argued that "[t]he equal rights amendment would not prohibit a State from saying that the institution of marriage would be prohibited to men partners... [or] to women partners." 118 Cong. Rec. 9331 (March 21, 1972) (Sen. Bayh) (responding to argument of ERA opponents that amendment would outlaw prohibitions against homosexual marriage). Because "the fears and doubts of the opposition are no authoritative guide to the construction of legislation," Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 29 (1988) (internal quotations and citations omitted), "[i]t is sponsors that we look to when the meaning of the statutory words is in doubt." NLRB v. Fruit & Vegetable Packers and Warehousemen, 377 U.S. 58, 66 (1964). Thus, the history of the federal ERA (which Hawaii incorporated by reference, see S. Broder & B. Wee, Hawaii's Equal Rights Amendment: Its Impact on Athletic Opportunities and Competition for Women, 2 Haw. L. Rev. 97, 104 (1979)) supports the State's position, not that of the plaintiffs. -6- II. THE STATE'S INTERESTS IN RESTRICTING MARRIAGE TO TRADITIONAL COUPLES ARE ALL COMPELLING. Plaintiffs respond to the State's assertion of its "undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people," Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring in the judgment), by attempting to portray the People's moral conception of marriage as "parochial," "archaic," and a product of "stereotypes and hoary generalizations." See P1. Br. at 20, 27, 29. But of course, this is simply a pejorative way of saying that plaintiffs do not share the community's "collective expression of moral aspirations," Zablocki, 434 U.S. at 399 (Powell, J., concurring in the judgment), and it in no way diminishes the importance of the State's interest in this regard.[fn8] Plaintiffs justify their disparaging adjectives with the entirely erroneous implication that the State's compelling interest in furthering the People's moral vision of domestic relations finds support only in nineteenth century precedent. Even assuming arguendo that traditions (such as free speech) predating the Nineteenth Century are "archaic," rather than "venerable," modem courts have, without exception, endorsed the State's strong interest in this area. See OB at 26-28; Zablocki, 434 U.S. at 399 (Powell, J., concurring in the judgment); Potter v. Murray City, 760 F.2d 1065, 1070 (lOthCir.), cert. denied, 474 U.S. 849(1985). Plaintiffs' inability to refute the State's undeniable interest in fostering the moral values of the community is brought into sharp focus by their complete failure even to attempt to distinguish the State's interest in this case from the identical interest supporting Hawaii's laws prohibiting polygamy, incest, and prostitution. Because there is no distinction, plaintiffs attempt to camouflage the point by erroneously claiming the State somehow waived this argument by failing to appeal the trial court's conclusion of law that legalized polygamy, incest, and [fn8] Plaintiffs repeatedly profess not to know what moral values the community seeks to advance by limiting marriage to one man and one woman. P1. Br. at 29, 30. Quite simply, the People of Hawaii continue to refuse to affirmatively sanction and approve homosexual marriages, and thus to achieve an equal footing with the heterosexual marriages that have always been the bedrock of civilization. Moreover, contrary to plaintiffs' unsupported claim, the prohibition against same-sex marriages is narrowly tailored to -- indeed, co-extensive with -- the State's interest in advancing the community's determination that homosexual marriages are not deserving of such affirmative endorsement and support. -7- prostitution will not occur because state statutes forbid them and it is settled that the State has compelling interests to support these prohibitions. See 7 RA at 232, App. 1 at 42. Of course, the State did not appeal this conclusion of law because it agrees entirely with it - state law does prohibit polygamy, incest, and prostitution, and those laws are flilly supported by compelling state interests. The point for present purposes, which neither the trial court nor plaintiffs address, is that precisely the same is true for the State's marriage law. With respect to fostering the propagation of the human race, plaintiffs do not deny the compelling nature of the State's interest. Rather, they assert that permitting homosexuals to marry "would [not] in any way impede or interfere with the propagation of the human race." P1. Br. at 31 (emphasis added). Whether or not this is true,[fn9] it is irrelevant because the question here is whether the State's concededly compelling interest is advanced by sanctioning only those marriages in which procreation is possible.[fn10] Plainly, it is. III. PLAINTIFFS' PROCEDURAL COMPLAINTS ARE WITHOUT MERIT. Plaintiffs' primary procedural complaint appears to be that the State has chosen to challenge only certain of the trial court's legal conclusions, and has not called into question any of the findings of facts. See P1. Br. at 9-14. Of course, nothing in the Hawaii Rules of Appellate Procedure requires an appellant to challenge findings of fact that may be pertinent to the legal conclusions being appealed, and it is not unusual in a case primarily presenting a pure question of law, such as this, for a partyto limit its appeal to the trial court's legal rulings. Plaintiffs also argue that the Statement of the Case in the State's brief violated Haw. R. App. P. 28(b)(3) because it failed to set forth the facts material to consideration of the points raised in the appeal. [fn9] Contrary to plaintiffs' claim, the trial court's findings did not "indisputably show [that] allowing these couples to marry would be beneficial to children, families and society." P1. Br. at 31 (emphasis in original). As noted in the State's opening brief, the trial court specifically found that the "important" and "unique paternal and maternal contributions" that are only available in the context of a traditional marriage "certainly [provide] a benefit to children" that same-sex marriages cannot provide. 7 RA at 224-25, App. I at 34-35. [fn10] While plaintiffs point out that the ability to procreate is no longer a prerequisite to marriage, see P1. Br. at 31, they completely fail to address, let alone refute, the unbroken precedent rejecting this argument on the ground that privacy concerns make it impossible for the State to more narrowly tailor the statute by somehow policing the ability of heterosexual couples to procreate. See OB at 31-32 (citing cases). -8- P1. Br. at 9-10. But the Statement of the Case does set forth the few facts relevant to the State's purely legal challenge to the trial court's ruling.[fn11] Finally, plaintiffs claim that the State's failure to challenge Findings of Fact (FOF) 117- 39 and Conclusions of Law (COL) 3-7, 9, 10, 13, 15, 16, and 21 "requires affirmance of the lower court's judgment." P1. Br. at 11. The vast majority of the factual findings cited by plaintiffs concern the ability of homosexuals to serve as parents, a topic not at issue in this appeal.[fn12] COL 4-7, 9, 10, 13, and 15 are in no way inconsistent with the State's position on appeal. COL 3 is entirely repetitive of (albeit less specific than) COL 11, which the State noted in its Statement of Points on Appeal, and Rule 28(b)(4) does not require the appellant to burden this Court with repetitious statements of the points being challenged. COL 16 consists entirely of the trial court's summary of Judge Ferren's dissent in Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995), which the trial court found "useflil and informative," 7 RA at 233, 1 App. at 43, but did not adopt. In short, plaintiffs' strenuous efforts to avoid the merits are to no avail. CONCLUSION Plaintiffs conclude their argument with a ringing oration seeking to compare this case to Perez v. Lippold, 198 P.2d 17 (Cal. 1948). But they fail to recognize the dispositive difference between this case and Perez. Eighty years prior to the California Supreme Court's consideration of Perez, the People of the United States had enshrined into their Constitution the flindamental principle that the state may not draw distinctions among its citizens on the basis of the color of [fn11] In support of their argument on this point, plaintiffs accuse the State of "misrepresent[ing] the decisions of this court in Baehr" by referring to two dissenters and by noting that the reconsideration order was unsigned. P1. Br. at 1O. These accusations are unbecoming. First, the State flilly disclosed the circumstances of Retired Justice Hayashi's agreement with Judge Heen's dissent, see OB at 4 n.4. Second, the statement that the reconsideration order was "unsigned" obviously refers to the fact that the Justice (or Justices) who authored it was not identified. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 816 (1986) (referring to an "unsigned per curiam opinion" of the Alabama Supreme Court). [fn12] FOF 118 and 119 (the State "presented insufficient evidence" concerning, respectively, the legal effect that the trial court's decision would have upon other jurisdictions' recognition of Hawaii marriages and the legal significance of traditional marriage) likewise have no bearing on this appeal because both of those issues raise pure questions of law not requiring the presentation of evidence. -9- their skin. Thus, the anti-miscegenation laws that some of the states enacted during the years that followed truly were acts of a "transient majority," and the Perez court was quite right to reject them as contrary to the permanent law of the land. But to call Hawaii's marriage law the work of a "transient majority," as plaintiffs twice do, see P1. Br. at 27, 34, is nothing short of ludicrous. No organized society has ever adopted any other rule; it is the very antithesis of a law imposed by a 'transient majority." Such laws have always existed because no People have yet seen fit to enshrine into their permanent law the principle that the state may not classify on the basis of sexual orientation. Much as plaintiffs would like to see the People of Hawaii adopt such a principle, the People of Hawaii have not yet chosen to do so. In the absence of such a constitutional provision, the State's law limiting marriage to traditional couples continues to represent the will of the People expressed through their democratically elected representatives. Accordingly, this Court may not "substitute [its] own pleasure to the constitutional intentions of the legislature." The Federalist No.78, at 524 (Alexander Hainilton) (Easton ed. 1979). For the foregoing reasons, and those set forth in the State's opening brief, Hawaii's marriage statute does not classify on the basis of gender and it has a rational basis, or in the alternative, it is narrowly tailored to achieving compelling state interests. Accordingly, we respectfillly submit that the judginent of the Circuit Court must be reversed, and the case remanded with instructions to enter judginent in favor of defendant. June 16, 1997 Respectfiilly submitted, /s/ Charles J. Cooper (Admitted pro hac vice) Counsel for Defendant-Appellant - 10 - REVISED STATEMENT OF RELATED CASE The related case pending in this Court is Appeal No.19765, Baehr v. Miike & Abinsay, et al. Appellants, past and present members of the Hawaii Legislature, appeal the denial of their February 1996 motion to intervene on the side of defendant Miike in the circuit court proceedings in Haw. First Cir. No. 91-1394-05, the same case generating this Appeal No.20371. - 11 - ~~pau~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "If it's don't ask, don't tell, don't pursue, then why did they paint Tripler Army Medical Center that shade of pink?" --buddy Ken Jopling (upon seeing it for the first time) ~~~~~ Fred and Martin 24 years, yet strangers before the law (still) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~