Date: Mon, 21 Aug 1995 18:56:23 PST8PDT From: FWESTON@pwa.acusd.edu RICHARD FRANK ADAMS and ANTHONY CORBETT SULLIVAN, Plaintiffs-Appellants, vs. JOSEPH D. HOWERTON, Acting District Director of the Immigration and Naturalization Service of the United States Department of Justice, Defendant-Appellee. ADAMS v. HOWERTON No. 80-5209 UNITED STATES COURT OF APPEALS, NINTH CIRCUIT 673 F.2d 1036 October 7, 1981, Argued February 25, 1982, Decided PRIOR HISTORY: Appeal from the United States District Court for the Central District of California. COUNSEL: David M. Brown, Robert A. DePiano, Brown, Weston & Sarno, Beverly Hills, Cal., for plaintiffs-appellants. Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., argued, for defendant-appellee; Andrea Sheridan Ordin, U. S. Atty., Eva S. Halbreich, Asst. U. S. Atty., Los Angeles, Cal., on brief. JUDGES: Before WALLACE and TANG, Circuit Judges, and TURRENTINE, n* District Judge. * Honorable Howard B. Turrentine, United States District Judge, Southern District of California, sitting by designation. OPINIONBY: WALLACE OPINION: [*1038] Adams, a male American citizen, and Sullivan, a male alien, appeal from the district court's entry of summary judgment for Howerton, Acting District Director of the Immigration and Naturalization Service (INS). The district court held that their homosexual marriage did not qualify Sullivan as Adams's spouse pursuant to section 201(b) of the Immigration and Nationality Act of 1952, as amended (the Act), 8 U.S.C. @ 1151(b). We affirm. I Following the expiration of Sullivan's visitor's visa, Adams and Sullivan obtained a marriage license from the county clerk in Boulder, Colorado, and were "married" by a minister. Adams then peti tioned the INS for classification of Sullivan as an immediate relative of an American citizen, based upon Sullivan's alleged status as Adams's spouse. The petition was denied, and the denial was aff irmed on appeal by the Board of Immigration Appeals. Adams and Sullivan then filed an action in district court challenging this final administrative decision on both statutory and constitutional gro unds. The parties agreed that there was no genuine issue as to any material fact and that the only issues presented were issues of law. On cross-motions for summary judgment, the district court ent ered judgment for the INS. Adams v. Howerton, 486 F. Supp. 1119 (C.D.Cal.1980). This appeal followed. II Two questions are presented in this appeal: first, whether a citizen's spouse within the meaning of section 201(b) of the Act must be an individual of the opposite sex; and second, whether the sta tute, if so interpreted, is constitutional. Section 201(a) of the Act establishes immigration quotas and a system of preferential admissions based upon the existence of close family relationships. The section excludes immediate relatives of United States citizens from the quota limitations, which have been periodically revised by Congress. 8 U.S.C. @ 1151(a). Section 201(b) defines "immediate relatives" to include the spouses of Unit ed States citizens. 8 U.S.C. @ 1151(b). n1 Section 201(b) was added to the Act in its present form by the Immigration and Nationality Act Amendments of 1965, Pub.L. No. 89-236, @ 1, 79 Stat. 911. N either that section nor any subsequent amendments further define the term "spouse" directly. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. Section 201(b), 8 U.S.C. @ 1151(b), provides: The "immediate relatives' referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: Provided, That in the case of parents, such children must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission shall be admitted as such, without regard to the nu merical limitations in this chapter. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Cases interpreting the Act indicate that a two-step analysis is necessary to determine whether a marriage will be recognized for immigration purposes. The first is whether the marriage is valid u nder state law. The second is whether that state-approved marriage qualifies under the Act. Both steps are required. E.g., United States v. Sacco, 428 F.2d 264, 270 (9th Cir.) (construing 8 U.S.C. @@ 1302, 1306(a), 1451(a), (e)), cert. denied, 400 U.S. 903, 91 S. Ct. 141, 27 L. Ed. 2d 140 (1970). This same two-step analysis is appropriate under section 201(b). We first consider the validity o f the marriage under state law. In visa petition proceedings addressing this question, the Board of Immigration Appeals has held that the validity of a marriage is governed by the law of the [*1039] place of celebration. Se e In re Gamero, 14 I. & N. Dec. 674 (B.I.A.1974). See also Gee Chee On v. Brownell, 253 F.2d 814, 817 (5th Cir. 1958). Because a valid marriage is necessary for spouse status under the immigration la ws, In re P., 4 I. & N. Dec. 610, 613 (B.I.A.1952), we look to Colorado law to determine whether the Adams-Sullivan marriage is valid. Adams and Sullivan argue, in effect, that we need not reach this question because each is a putative spouse under Colorado law. They claim that they held a good faith belief that they were marrie d. The district judge rejected this claim as without merit, observing that Adams and Sullivan could not have been without doubts concerning the validity of their marriage. 486 F. Supp. at 1123. We need not reach the issue. Even if Adams and Sullivan held a good faith belief that they were legally married, it is clear that the provisions of Colorado law they cite were enacted not to confer val idity on the marriage of a putative spouse, but rather to protect property rights and insure support for children when the invalidity of such a marriage is discovered. See Colo.Rev.Stat. @ 14-2-111 (1973). It is not clear, however, whether Colorado would recognize a homosexual marriage. There are no reported Colorado cases on the subject. The Colorado Attorney General in an informal, unpublished o pinion addressed to a member of the Colorado legislature three days after the alleged marriage in question occurred, stated that purported marriages between persons of the same sex are of no legal ef fect in Colorado. Colorado statutory law, however, neither expressly permits nor prohibits homosexual marriages. Some statutes appear to contemplate marriage only as a relationship between a male a nd a female. See Colo.Rev.Stat. @ 14-2-104 (1973) ("Formalities. Marriage between a man and a woman, licensed, solemnized, and registered ... is valid in this state."). While we might well make an educated guess as to how the Colorado courts would decide this issue, it is unnecessary for us to do so. n2 We decide this case solely upon construction of section 201( b), the second step in our two-step analysis. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2. Because we do not reach the question of whether Colorado law permits homosexual marriages, we need not examine the constitutionality of the statute. We observe, however, that an appeal challen ging a Minnesota law which authorized heterosexual but not homosexual marriages was dismissed by the Supreme Court for want of a substantial federal question. See 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), a case decided after Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), but before Zab locki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978). "A summary dismissal by the Supreme Court of an appeal from a state court for want of a substantial federal question ... operat es as a decision on the merits." Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745, 747 (9th Cir. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1004 (1981). See Hicks v. Miran da, 422 U.S. 332, 334, 95 S. Ct. 2281, 2284, 45 L. Ed. 2d 223 (1975). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - III Even if the Adams-Sullivan marriage were valid under Colorado law, the marriage might still be insufficient to confer spouse status for purposes of federal immigration law. So long as Congress ac ts within constitutional constraints, it may determine the conditions under which immigration visas are issued. Therefore, the intent of Congress governs the conferral of spouse status under section 201(b), and a valid marriage is determinative only if Congress so intends. It is clear to us that Congress did not intend the mere validity of a marriage under state law to be controlling. Although the 1965 amendments do not define the term "spouse," the Act itself limi ts the persons who may be deemed spouses. Section 101(a)(35) of the Act specifically provides that the term "spouse" does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been co nsummated. [*1040] 8 U.S.C. @ 1101(a)(35). Furthermore, valid marriages entered into by parties not intending to live together as husband and wife are not recognized for immigration purposes. Garcia-Jaramil lo v. INS, 604 F.2d 1236, 1238 (9th Cir. 1979), cert. denied, 449 U.S. 828, 101 S. Ct. 94, 66 L. Ed. 2d 32 (1980); Volianitis v. INS, 352 F.2d 766 (9th Cir. 1965). See also Lutwak v. United States, 3 44 U.S. 604, 611, 73 S. Ct. 481, 486, 97 L. Ed. 593 (1953); United States v. Sacco, supra, 428 F.2d at 269-71. Therefore, even though two persons contract a marriage valid under state law and are rec ognized as spouses by that state, they are not necessarily spouses for purposes of section 201(b). We thus turn to the question of whether Congress intended that homosexual marriages confer spouse status under section 201(b). Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 2517, 37 L. Ed. 2d 688 (1973); Faulkner v. Watt, 661 F.2d 809, 812 (9th Cir. 1981); United States v. Standard Oil Co. of California, 618 F.2d 511, 518 (9th Cir. 1980). Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage. While we do accord this construction proper weight, we base our decision primarily on the Act itself. See Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S. Ct. 2361, 2369, 60 L. E d. 2d 980 (1979); Usery v. First Nat'l Bank of Arizona, 586 F.2d 107, 111 (9th Cir. 1978). Nothing in the Act, the 1965 amendments or the legislative history suggests that the reference to "spouse" i n section 201(b) was intended to include a person of the same sex as the citizen in question. It is "a fundamental canon of statutory construction" that, "unless otherwise defined, words will be int erpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314, 62 L. Ed. 2d 199 (1979). See Rhodes v. Republic Nat'l Life Ins. Co., 5 01 F.2d 1213, 1217 (9th Cir. 1974), cert. denied, 420 U.S. 928, 95 S. Ct. 1126, 43 L. Ed. 2d 398 (1975). The term "marriage" ordinarily contemplates a relationship between a man and a woman. See Web ster's Third New International Dictionary 1384 (1971); Black's Law Dictionary 876 (5th ed. 1979). The term "spouse" commonly refers to one of the parties in a marital relationship so defined. Congre ss has not indicated an intent to enlarge the ordinary meaning of those words. In the absence of such a congressional directive, it would be inappropriate for us to expand the meaning of the term "s pouse" for immigration purposes. Consumer Prods. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980). Our role is only to ascertain and apply the i ntent of Congress. See, e.g., Lavin v. Marsh, 644 F.2d 1378, 1381 (9th Cir. 1981); Hughes Air Corp. v. Public Utilities Comm'n of California, 644 F.2d 1334, 1337 (9th Cir. 1981). Our conclusion is supported by a further review of the 1965 amendments to the Act. These amendments not only added section 201(b) in its present form, but also amended the mandatory exclusion pro visions of section 212(a) of the Act, 8 U.S.C. @ 1182(a). Yet, both section 15(b) of the amendments, Pub.L. No. 89-236, @ 15(b), 79 Stat. 911, 919 (codified at 8 U.S.C. @ 1182(a)(4)), and the accomp anying Senate Report, S.Rep. No. 748, 89th Cong., 1st Sess., reprinted in, (1965) U.S.Code Cong. & Ad.News 3328, 3343, clearly express an intent to exclude homosexuals. See Boutilier v. INS, 387 U.S . 118, 121, 87 S. Ct. 1563, 1565, 18 L. Ed. 2d 661 (1967). As our duty is to ascertain and apply the intent of Congress, we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975). We think it unlikely that Congress intended to give homosexual spouses preferential [*1041] admission treatment under section 201(b) of the Act when, in the very same amendments adding that section, it mand ated their exclusion. Reading these provisions together, we can only conclude that Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b). IV We next consider the constitutionality of the section 201(b) so interpreted. Adams and Sullivan contend that the law violates the equal protection clause n3 because it discriminates against them o n the bases of sex and homosexuality. They also argue that review of this claimed violation must be pursuant to a strict standard because the federal law abridges their fundamental right to marry. n4 We need not and do not reach the question of the nature of the claimed right n5 or whether such a right is implicated in this case. Even if it were, we would not apply a strict scrutiny standard of review to the statute. Congress has almost plenary power to admit or exclude aliens, see Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 1478, 52 L. Ed. 2d 50 (1977); Kleindienst v. Mandel, 408 U .S. 753, 765-67, 92 S. Ct. 2576, 2583-84, 33 L. Ed. 2d 683 (1972), and the decisions of Congress are subject only to limited judicial review. Fiallo v. Bell, supra, 430 U.S. at 792, 97 S. Ct. at 147 8, quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21, 96 S. Ct. 1895, 1904 n.21, 48 L. Ed. 2d 495 (1976). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3. Technically, the challenge to this construction of section 201(b) is based upon the equal protection "component" of the fifth amendment's due process clause. See Bolling v. Sharpe, 347 U.S. 4 97, 74 S. Ct. 693, 98 L. Ed. 884 (1954). See also Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 257, 30 L. Ed. 2d 231 (1971). The equal protection clause itself, a portion of the fourteenth amendment, applies only to the states, not the federal government. n4. Adams and Sullivan contend that the right to marry is an intrinsic part of a constellation of personal rights variously described as rights of privacy and as components of substantive due proc ess. n5. In Zablocki v. Redhail, supra, a case involving a traditional heterosexual marriage, the Supreme Court stated that "the right to marry is of fundamental importance." 434 U.S. at 383, 98 S. Ct. at 679. See also Loving v. Virginia, supra, 388 U.S. at 12, 87 S. Ct. at 1824; Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655 (1942). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In Kleindienst v. Mandel, the Supreme Court refused to balance the government's interest in excluding certain aliens against the first amendment interests of American citizens who sought to commun icate with the excluded aliens. In reaching its decision, the Court stated: Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.S. 581, 609 (130 U.S. 581, 9 S. Ct. 623, 631, 32 L. Ed. 1068) (1889), and in Fong Yue Ting v. United States, 149 U.S. 698 (13 S. Ct. 1016, 37 L. Ed. 905) (1893), hel d broadly ... that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachment and dangers -a power to be exercised exclusively by the political branches of government ....' Since that time, the Court's general reaffirmations of this principle have been legion. The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.' Boutilier v. Immigration and Nat uralization Service, 387 U.S. 118, 123 (87 S. Ct. 1563, 1567, 18 L. Ed. 2d 661) (1967). "(O) ver no conceivable subject is the legislative power of Congress more complete than it is over' the admissi on of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (29 S. Ct. 671, 676, 53 L. Ed. 1013) (1909). 408 U.S. at 753 at 765-67, 92 S. Ct. 2576 ,33 L. Ed. 2d 683 (footnotes omitted). Thus, the Court has upheld the broad power of Congress to determine immigration policy in the face of challenges based upon the first amendment, id. (statutory [*1042] exclusion of individuals advocating world communism), the due process clause, Boutilier v. INS, supra (vague statutory language excluding homosexua ls), as well as the equal protection component of fifth amendment due process and constitutionally-implied fundamental rights, Fiallo v. Bell, supra, 430 U.S. at 794, 97 S. Ct. at 1479 (discriminatio n based on sex and illegitimacy and denial of fundamental constitutional interests in family relationships). In Fiallo v. Bell, the Court observed "that in the exercise of its broad power over immig ration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens.' " Id. at 792, 97 S. Ct. at 1478, quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S. Ct. 188 3, 1891, 48 L. Ed. 2d 478 (1976). Explaining the "special judicial deference to congressional policy choices in the immigration context," id. at 793, 97 S. Ct. at 1479 (footnotes omitted), the Court stated: Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Br anch of the Government must respect the procedural safeguards of due process.... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded i n the legislative and judicial tissues of our body politic as any aspect of our government. Id. at 792 n.4, 97 S. Ct. at 1478 n.4, quoting Galvan v. Press, 347 U.S. 522, 530-32, 74 S. Ct. 737, 743, 98 L. Ed. 911 (1954). The scope of this very limited judicial review has not been further defined; the Supreme Court has not determined what limitations, if any, the Constitution imposes on Congress. Faced with numero us challenges to laws governing the exclusion of aliens and the expulsion of resident and non-resident aliens, the Court has consistently reaffirmed the power of Congress to legislate in this area. We do know that where there is a rational basis for Congress's exercise of its power, whether articulated or not, the Court will uphold the immigration laws that Congress enacts. Hampton v. Mow S un Wong, supra, 426 U.S. at 103, 96 S. Ct. at 1905. See also Fiallo v. Bell, supra, 430 U.S. at 799, 97 S. Ct. at 1481. We do not know whether this test must be met to validate legislation such as se ction 201(b) of the Act because the Court teaches that we only have a limited judicial review. As observed earlier, in this area of the law, Congress has almost plenary power and may enact statutes which, if applied to citizens, would be unconstitutional. Thus, it is not clear what treatment a seemingly irrational statute should receive. It may well depend on the nature of the statute. The C ourt has suggested, in dicta, that a statute could be "so baseless as to be violative of due process and therefore beyond the power of Congress." Galvan v. Press, supra, 347 U.S. at 529, 74 S. Ct. at 742. On the other hand, the Court has not dismissed the possibility that "there may be actions of the Congress with respect to aliens that are so essentially political in character as to be nonjusti ciable." Fiallo v. Bell, supra, 430 U.S. at 793 n.5, 97 S. Ct. at 1478 n.5. We need not, however, delineate the exact outer boundaries of this limited judicial review. We hold that Congress's decision to confer spouse status under section 201(b) only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements. There is no occasion to consider in this case whether some lesse r standard of review should apply. Congress manifested its concern for family integrity when it passed laws facilitating the immigration of the spouses of some valid heterosexual marriages. This distinction is one of many drawn by Congress pursuant to its determination to provide some-but not all-close relationships with relief from immigration restrictions that might otherwise hinder reunification in this country. See Fiall o v. Bell, supra, 430 U.S. at 787, 97 S. Ct. at 1473, 52 L. Ed. 2d 50. In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps [*1043] this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing so cietal mores. In any event, having found that Congress rationally intended to deny preferential status to the spouses of such marriages, we need not further "probe and test the justifications for th e legislative decision." Id. at 799, 97 S. Ct. at 1481. We hold that section 201(b) of the Act is not unconstitutional because it denies spouses of homosexual marriages the preferences accorded to spouses of heterosexual marriages. AFFIRMED. CLIENT: FAW LIBRARY: LAWREV FILE: ALLREV YOUR SEARCH REQUEST IS: BROWN W/3 JENNIFER AND SOUTHERN CALIFORNIA NUMBER OF ITEMS FOUND WITH YOUR REQUEST THROUGH: LEVEL 1... 4 Copyright (c) Southern California Law Review 1995. University of Southern California May, 1995 68 S. Cal. L. Rev. 745 LENGTH: 49722 words ARTICLE: COMPETITIVE FEDERALISM AND THE LEGISLATIVE INCENTIVES TO RECOGNIZE SAME-SEX MARRIAGE Jennifer Gerarda Brown* * Associate Professor, Quinnipiac College School of Law. For helpful comments and conversations, I thank Akhil Amar, Ian Ayres, Tara Ayres, Richard Epstein, Janet Halley, Jon Hansen, Peter Hay, Jason Scott Johnston, Pamela Karlan, Al Klevoric, Andrew Koppelman, Larry Kramer, Alexander Meiklejohn, Robert Morris, Richard Posner, Roberta Romano, David Rosettenstein, Jamison Wilcox, Evan Wolfson, an d seminar participants at Harvard, Stanford, University of Toronto, and University of Virginia Law Schools. Jeanine DeBacker, Todd Cleary, and John Ryan provided excellent research assistance. TEXT: [*746] I. INTRODUCTION In Baehr v. Lewin, the Supreme Court of Hawaii held that Hawaii's marriage statute discriminates on the basis of gender and may therefore violate the state constitution's equal protection clause. n1 The statute allows marriage only between a man and a woman; same-sex couples are excluded. n2 The trial court in Baehr must now decide [*747] whether the law serves a compelling state interes t. n3 Some predict that the state will be unable to justify the law and that Hawaii will become the first state to solemnize marriages between people of the same sex. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1. 852 P.2d 44 (Haw. 1993). n2. Haw. Rev. Stat. 572-1 (1985). The statute does not explicitly prevent same-sex marriages; rather it contemplates only heterosexual marriages. Initially, the plaintiffs in Baehr did not allege that any of them were gay. Although the defendant's motion for judgment on the pleadings sought to raise the question of sexual orientation, the plaintiffs' initial complaint asserted rights to "same -sex" rather than specifically "homosexual," "bisexual," "gay," or "lesbian" marriage. Following the lead of the Baehr plaintiffs and Justice Levinson of the Hawaii Supreme Court, this Article will u se the terms "same-sex marriage" and "different-sex marriage" without making assumptions about the sexual orientation of those who engage in either. Sexual orientation and historic discrimination aga inst lesbians and gay men are certainly important elements of this Article's analysis; indeed, the estimates about the demand for same-sex marriage rest on certain assumptions about the number of les bians and gay men in the United States. Nonetheless, with occasional exceptions, this Article will use the phrases "same-sex marriage" and "different-sex marriage" to signal that sexual orientation i s often too fluid to define with precision, and that the current legality of marriage is determined by the sex of the partners, rather than their actual sexual or affectional orientations. n3. Baehr, 852 P.2d at 68 ("On remand, in accordance with the "strict scrutiny' standard, the burden will rest on Lewin to overcome the presumption that HRS 572-1 is unconstitutional by demonstrat ing that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgements of constitutional rights."). n4. However, state legislators have enacted legislation designed to avoid this result. 1994 Haw. Sess. Laws 217 (enacted June 1994) (marriage statute "intended to foster and protect the propagatio n of the human race through male-female marriages"). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While Baehr and cases like it allow state courts to legalize same-sex marriage on constitutional grounds, this Article argues that certain states may have independent legislative incentives to be the first to recognize same-sex marriage. n5 States might compete for a "first-mover" advantage; n6 the first state to solemnize same-sex marriages could draw visitors from every state in the union. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5. This thesis is at odds with other scholars' arguments that courts are much more likely than legislatures to move toward the legalization of same-sex marriage. See Michael L. Closen & Carol R. Heise, HIV-AIDS and the Non-Traditional Family: The Argument for State and Federal Judicial Recognition of Danish Same-Sex Marriages, 16 Nova L. Rev. 809, 824 (1992) (stating that legislatures take t he "politically safe and expedient course of action (or inaction)," but "judges cannot dodge issues quite so readily once they have been presented in the form of a litigation"). n6. In a certain class of games (such as chess), the first player to move has an advantage in producing a higher payoff. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The tourism revenue from same-sex marriages could exceed $ 4 billion. n7 This estimate is based on conservative assumptions about (1) the number of same-sex couples who would travel to a first-mo ver state for weddings and honeymoons, and (2) the spending that the average wedding would generate. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7. See infra parts II.A.2, II.A.3. These figures represent estimates of the present value of changing the law to allow same-sex marriage - that is, the present value of expected enhanced (but dec lining) tourism over a number of years. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -