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NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT
LAGON, JOSEPH MELILIO, Plaintiffs-Appellants, v. JOHN C. LEWIN, in his
official capacity as Director of the Department of Health, State of Hawaii,
Defendant-Appellee Supreme Court of 74 Haw. 530; 852 P.2d 44 Decided: JUDGES: Moon,
Acting C.J., Levinson, J., Intermediate Court of Appeals Chief Judge Burns,
in place of Lum, C.J., Recused, Intermediate Court of Appeals Judge Heen, in
place of Klein, J., Recused, and Retired Justice Hayashi, * Assigned by
Reason of Vacancy. Opinion by
Levinson, J., in which Moon, C.J., Joins; Burns, J., concurring in the
Result. Concurring Opinion by Burns, J. Dissenting Opinion by Heen, J. * Retired Associate Justice Hayashi, who was assigned by
reason of vacancy to sit with the justices of the supreme court pursuant to
article VI, § 2 of the Constitution of
the State of Hawaii and HRS § 602-10
(1985), and whose temporary assignment expired prior to the filing of this
opinion, would have joined in the dissent with Associate Judge Heen. [Levinson, J. delivered the opinion of the court]. The
plaintiffs-appellants Ninia Baehr (Baehr), Genora Dancel (Dancel), Tammy
Rodrigues (Rodrigues), Antoinette Pregil (Pregil), Pat Lagon (Lagon), and
Joseph Melilio (Melilio) (collectively "the plaintiffs") appeal the
circuit court's order (and judgment entered pursuant thereto) granting the
motion of the defendant-appellee John C. Lewin (Lewin), in his official
capacity as Director of the Department of Health (DOH), State of Hawaii, for
judgment on the pleadings, resulting in the dismissal of the plaintiffs'
action with prejudice for failure to state a claim against Lewin upon which
relief can be granted. Because, for
purposes of Lewin's motion, it is our duty to view the factual allegations of
the plaintiffs' complaint in a light most favorable to them (i.e., because we
must deem such allegations as true) and because it does not appear beyond
doubt that the plaintiffs cannot prove any set of facts in support of their
claim that would entitle them to the relief they seek, we hold that the
circuit court erroneously dismissed the plaintiffs' complaint. Accordingly, we vacate the circuit court's
order and judgment and remand this matter to the circuit court for further
proceedings consistent with this opinion. I. BACKGROUND On May 1, 1991, the plaintiffs filed a complaint for
injunctive and declaratory relief in the Circuit Court of the First Circuit, State
of Hawaii, seeking, inter alia: (1) a declaration that Hawaii Revised
Statutes (HRS) § 572-1 (1985) n1 --
the section of the Hawaii Marriage Law enumerating the [r]equisites of [a]
valid marriage contract" -- is
unconstitutional insofar as it is construed
and applied by the DOH to justify refusing to issue a marriage license on the
sole basis that the applicant couple is of the same sex; and (2) preliminary
and permanent injunctions prohibiting the future withholding of marriage
licenses on that sole basis. n1 HRS § 572-1 provides: Requisites of valid marriage
contract. In order to make valid the marriage contract, it shall be necessary
that: (1) The respective parties do not
stand in relation to each other of ancestor and descendant of any degree
whatsoever, brother and sister of the half as well as to the whole blood,
uncle and niece, aunt and nephew, whether the relationship is legitimate or
illegitimate; (2) Each of the parties at the
time of contracting the marriage is at least sixteen years of age; provided
that with the written approval of the family court of the circuit court
within which the minor resides, it shall be lawful for a person under the age
of sixteen years, but in no event under the age of fifteen years, to marry,
subject to section 572-2 [relating to consent of parent or guardian]; (3) The man does not at the time
have any lawful wife living and that the woman does not at the time have any
lawful husband living; (4) Consent of neither party to
the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a
person afflicted with any loathsome disease concealed from, and unknown to,
the other party; (6) It shall in no case be lawful
for any person to marry in the State without a license for that purpose duly
obtained from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be
performed in the State by a person or society with a valid license to
solemnize marriages and the man and woman to be married and the person performing
the marriage ceremony be all physically present at the same place and time
for the marriage ceremony. HRS § 572-1
(1985) (emphasis added). In 1984, the
legislature amended the statute to delete the then existing prerequisite that
"[n]either of the parties is impotent or physically incapable of
entering into the marriage state[.]" Act 119, § 1, 1984 Haw. Sess. Laws 238-39 (emphasis
added). Correlatively, section 2 of
Act 119 amended HRS § 580-21 (1985) to
delete as a ground for annulment the fact "that one of the parties was
impotent or physically incapable of entering into the marriage state" at
the time of the marriage. Id. at 239 (emphasis added). The legislature's own actions thus belie the
dissent's wholly unsupported declaration, at 594-95 n.8, that "the
purpose of HRS § 572-1 is to promote
and protect propagation . . . ." In addition to the necessary jurisdictional and
venuerelated averments, the plaintiffs' complaint alleges the following
facts: (1) on or about December 17, 1990, Baehr/Dancel, Rodrigues/Pregil, and
Lagon/Melilio (collectively "the applicant couples") filed
applications for marriage licenses with the DOH, pursuant to HRS § 572-6 (Supp. 1992); n2 (2) the DOH denied the
applicant couples' marriage license
applications solely on the ground that the applicant couples were of the same
sex; n3 (3) the applicant couples have complied with all marriage contract
requirements and provisions under HRS ch. 572, except that each applicant
couple is of the same sex; (4) the applicant couples are otherwise eligible
to secure marriage licenses from the DOH, absent the statutory prohibition or
construction of HRS § 572-1 excluding
couples of the same sex from securing marriage licenses; and (5) in denying
the applicant couples' marriage license applications, the DOH was acting in
its official capacity and under color of state law. n2
HRS § 572-6 provides: Application;
license; limitations. To
secure a license to marry, the persons applying for the license shall appear
personally before an agent authorized to grant marriage licenses and shall
file with the agent an application in writing. The application shall be accompanied by a
statement signed and sworn to by each of the persons, setting forth: the
person's full name, date of birth, residence; their relationship, if any; the
full names of parents; and that all prior marriages, if any, have been
dissolved by death or dissolution. If
all prior marriages have been dissolved by death or dissolution, the
statement shall also set forth the date of death of the last prior spouse or
the date and jurisdiction in which the last decree of dissolution was
entered. Any other information
consistent with the standard marriage certificate as recommended by the Public
Health Service, National Center for Health Statistics, may be requested for
statistical or other purposes, subject to approval of and modification by the
department of health; provided that the information shall be provided at the
option of the applicant and no applicant shall be denied a license for
failure to provide the information.
The agent shall indorse on the application, over the agent's
signature, the date of the filing thereof and shall issue a license which
shall bear on its face the date of issuance.
Every license shall be of full force and effect for thirty days
commencing from and including the date of issuance. After the thirty-day period, the license
shall become void and no marriage ceremony shall be performed thereon. It shall be the duty of every
person, legally authorized to issue licenses to marry, to immediately report
the issuance of every marriage license to the agent of the department of
health in the district in which the license is issued, setting forth all the
facts required to be stated in such manner and on such form as the department
may prescribe. HRS § 572-6 (Supp. 1992). HRS § 572-5(a) (Supp. 1992) provides in relevant
part that "[t]he department of health shall appoint . . . one or more
suitable persons as agents authorized to grant marriage licenses . . . in
each judicial circuit." n3 Exhibits "A,"
"C," and "D," attached to the plaintiffs' complaint,
purport to be identical letters dated April 12, 1991, addressed to the
respective applicant couples, from the DOH's Assistant Chief and State
Registrar, Office of Health Status Monitoring, which stated: This will confirm our previous
conversation in which we indicated that the law of Hawaii does not treat a
union between members of the same sex as a valid marriage. We have been advised by our attorneys that
a valid marriage within the meaning of ch. 572, Hawaii Revised Statutes, must
be one in which the parties to the marriage contract are of different sexes. In view of the foregoing, we decline to
issue a license for your marriage to one another since you are both of the
same sex and for this reason are not capable of forming a valid marriage
contract within the meaning of ch. 572.
Even if we did issue a marriage license to you, it would not be a
valid marriage under Hawaii law. Based on the foregoing factual allegations, the
plaintiffs' complaint avers that: (1) the DOH's interpretation and
application of HRS § 572-1 to deny
same-sex couples access to marriage licenses violates the plaintiffs' right
to privacy, as guaranteed by article I, section 6 of the Hawaii Constitution,
n4 as well as to the equal protection of the laws and due process of law, as
guaranteed by article I, section 5 of the Hawaii Constitution; n5 (2) the
plaintiffs have no plain, adequate, or complete remedy at law to redress
their alleged injuries; and (3) the plaintiffs are presently suffering and
will continue to suffer irreparable injury from the DOH's acts, policies, and
practices in the absence of declaratory and injunctive relief. n4 Article I, section 6 of the
Hawaii Constitution provides: The right of the people to
privacy is recognized and shall not be infringed without the showing of a
compelling state interest. The
legislature shall take affirmative steps to implement this right. Haw. Const. art. I, § 6 (1978). n5 Article I, section 5 of the
Hawaii Constitution provides: No person shall be deprived of
life, liberty or property without due process of law, nor 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 race,
religion, sex or ancestry. Haw. Const. art. I, § 5 (1978). On June 7, 1991, Lewin filed an amended answer to the
plaintiffs' complaint. In his amended
answer, Lewin asserted the defenses of failure to state a claim upon which
relief can be granted, sovereign immunity, qualified immunity, and abstention
in favor of legislative action. n6 With regard to the plaintiffs' factual
allegations, Lewin admitted: (1) his residency and status as the director of
the DOH; (2) that on or about December 17, 1990, the applicant couples
personally appeared before an
authorized agent of the DOH and applied for marriage licenses; (3)
that the applicant couples' marriage license applications were denied on the
ground that each couple was of the same sex; and (4) that the DOH did not
address the issue of the premarital examination required by HRS § 572-7(a) (Supp. 1992) n7 "upon being
advised" that the applicant couples were of the same sex. Lewin denied
all of the remaining allegations of the complaint. n6 Lewin's motion for judgment on
the pleadings relied exclusively on the ground that the plaintiffs' complaint
failed to state a claim upon which relief could be granted, and the circuit
court granted the motion and entered judgment in Lewin's favor on that basis
alone. Accordingly, the merits of
Lewin's other defenses are not at issue in this appeal, and we do not reach
them. n7 In substance, HRS § 572-7(a) (Supp. 1992) requires "the
female" to accompany a marriage license application with a signed
physician's statement verifying that she has been given a serological test
for immunity against rubella and has been informed of the adverse effects of
rubella on fetuses. The statute
exempts from the examination requirement those females who provide proof of
live rubella virus immunization or laboratory evidence of rubella immunity,
"or who, by reason of age or other medically determined condition [are]
not and never will be physically able to conceive a child." On July 9, 1991,
Lewin filed his motion for judgment on the pleadings, pursuant to Hawaii
Rules of Civil Procedure (HRCP) 12(h)(2) (1990) n8 and 12(c) (1990), n9 and to
dismiss the plaintiffs' complaint, pursuant to HRCP 12(b)(6) (1990), n10 and
memorandum in support thereof in the circuit court. The memorandum was unsupported by and
contained no references to any affidavits, depositions, answers to
interrogatories, or admissions on file.
Indeed, the record in this case suggests that the parties have not
conducted any formal discovery. n8 HRCP 12(h)(2) (1990) provides
in relevant part that "[a] defense of failure to state a claim upon
which relief can be granted . . . may be made . . . by motion for judgment on
the pleadings . . . ." n9 HRCP 12(c) provides: Motion
for Judgment on the Pleadings. After the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such motion by Rule 56.
HRCP 12(c) (1990). HRCP 56 provides in relevant
part: (b) For Defending Party. A party
against whom a claim . . . is asserted or a declaratory judgment is sought may,
at any time, move with or without supporting affidavits for a summary
judgment in his favor as to all or any part thereof. (c) Motion and Proceedings
thereon. The motion shall be served at least 10 days before the time fixed
for the hearing. The adverse party
prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. . .
. (e) Form of Affidavits; Further
Testimony; Defense Required. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to
in any affidavit shall be attached thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or
further affidavits. . . . HRCP 56
(1990). n10 HRCP 12(b) provides in
relevant part: (b) How Presented. Every defense,
in law or fact, to a claim for relief in any pleading . . . shall be asserted
in the responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by motion: . . .
(6) failure to state a claim upon which relief can be granted . . . . A motion making any of these defenses shall
be made before pleading if a further pleading is permitted. . . . If, on a motion asserting the defense
numbered (6) to dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall be
given reasonable opportunity to present all material made pertinent to such a
motion by Rule 56. HRCP 12(b) (1990). In his memorandum, Lewin urged that the plaintiffs'
complaint failed to state a claim upon which relief could be granted for the
following reasons: (1) the state's marriage laws "contemplate marriage
as a union between a man and a woman"; (2) because the only legally
recognized right to marry "is the right to enter a heterosexual
marriage, [the] plaintiffs do not have a cognizable right, fundamental or
otherwise, to enter into state-licensed homosexual marriages"; n11 (3)
the state's marriage laws do not "burden, penalize, infringe, or
interfere in any way with the [plaintiffs'] private relationships"; (4)
the state is under no obligation "to take affirmative steps to provide
homosexual unions with its official approval"; (5) the state's marriage
laws "protect and foster and may help to perpetuate the basic family
unit, regarded as vital to society, that provides status and a nurturing environment
to children born to married persons" and, in addition, "constitute
a statement of the moral values of the community in a manner that is not
burdensome to [the] plaintiffs"; (6) assuming the plaintiffs are
homosexuals (a fact not pleaded in the plaintiffs' complaint), n12 they
"are neither a suspect nor a quasi-suspect class and do not require
heightened judicial solicitude"; and (7) even if heightened judicial
solicitude is warranted, the state's marriage laws "are so removed from
penalizing, burdening, harming, or otherwise interfering with [the]
plaintiffs and their relationships and perform such a critical function in
society that they must be sustained." n11 "Homosexual" and
"same-sex" marriages are not synonymous; by the same token, a
"heterosexual" same-sex marriage is, in theory, not
oxymoronic. A "homosexual"
person is defined as "[o]ne sexually attracted to another of the same
sex." Taber's Cyclopedic Medical Dictionary 839 (16th ed. 1989). "Homosexuality" is "sexual
desire or behavior directed toward a person or persons of one's own
sex." Webster's Encyclopedic Unabridged Dictionary of the English
Language 680 (1989). Conversely,
"heterosexuality" is "[s]exual attraction for one of the opposite
sex," Taber's Cyclopedic Medical Dictionary at 827, or "sexual
feeling or behavior directed toward a person or persons of the opposite
sex." Webster's Encyclopedic Unabridged Dictionary of the English
Language at 667. Parties to "a
union between a man and a woman" may or may not be homosexuals. Parties
to a same-sex marriage could theoretically be either homosexuals or
heterosexuals. n12 Lewin is correct that the
plaintiffs' complaint does not allege that the plaintiffs, or any of them,
are homosexuals. Thus it is Lewin, who, by virtue of his motion for judgment
on the pleadings, has sought to place the question of homosexuality in issue. The plaintiffs filed a memorandum
in opposition to Lewin's motion for judgment on the pleadings on August 29,
1991. Citing Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981),
and Midkiff v. Castle & Cooke,
Inc., 45 Haw. 409, 368 P.2d 887 (1962), they argued that, for purposes of
Lewin's motion, the circuit court was bound to accept all of the facts
alleged in their complaint as true and that the complaint therefore could not
be dismissed for failure to state a claim unless it appeared beyond doubt
that they could prove no set of facts that would entitle them to the relief
sought. Proclaiming their
homosexuality and asserting a fundamental constitutional right to sexual
orientation, the plaintiffs reiterated their position that the DOH's refusal
to issue marriage licenses to the applicant couples violated their rights to
privacy, equal protection of the laws, and due process of law under article
I, sections 5 and 6 of the Hawaii Constitution. The circuit court heard Lewin's motion on
September 3, 1991, and, on October 1, 1991, filed its order granting Lewin's
motion for judgment on the pleadings on the basis that Lewin was
"entitled to judgment in his favor as a matter of law" and
dismissing the plaintiffs' complaint with prejudice. n13 The plaintiffs'
timely appeal followed. n13 A final and appealable
judgment in Lewin's favor and against the plaintiffs was filed
contemporaneously with the order granting the motion for judgment on the
pleadings. II. JUDGMENT ON THE PLEADINGS WAS ERRONEOUSLY GRANTED. A complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his or her claim that would entitle him or her to
relief. Ravelo v. County of Hawaii,
66 Haw. 194, 198, 658 P.2d 883, 886 (1983) (quoting Midkiff, 45 Haw. at 414, 368 P.2d at
890); Marsland v. Pang, 5 Haw. App.
463, 474, 701 P.2d 175, 185-86, cert. denied, 67 Haw. 686, 744 P.2d 781
(1985). We must therefore view a plaintiff's complaint in a light most
favorable to him or her in order to determine whether the allegations
contained therein could warrant relief under any alternative theory. Ravelo, 66 Haw. at 199, 658 P.2d at 886.
For this reason, in reviewing the circuit court's order dismissing the
plaintiffs' complaint in this case, our consideration is strictly limited to
the allegations of the complaint, and we must deem those allegations to be
true. Au, 63 Haw. at 214, 626 P.2d at
177 (1981). An HRCP 12(c) motion serves much the same purpose as an
HRCP 12(b)(6) motion, except that it is made after the pleadings are
closed. Marsland, 5 Haw. App. at 474,
701 P.2d at 186. "'A Rule 12(c) motion . . . for a judgment on the
pleadings only has utility when all material allegations of fact are admitted
in the pleadings and only questions of law remain.'" Id. at 475, 701
P.2d at 186 (citing 5 Wright and Miller, Federal Practice and Procedure:
Civil § 1357 (1969)). Based on the foregoing authority, it is apparent that an
order granting an HRCP 12(c) motion for judgment on the pleadings must be
based solely on the contents of the pleadings. A claim that is evidentiary in nature and
requires findings of fact to resolve cannot properly be disposed of under the
rubric of HRCP 12(c). Cf. Nawahie v. Goo Wan Hoy, 26 Haw. 111 (1921)
("Only such facts as were properly before the court below at the time of
the rendition of the decree appealed from and which appear in the record . .
. on appeal will be considered. All
other matters will be treated as surplusage and of course will be
disregarded.") We have recognized that consideration of matters outside
the pleadings transforms a motion seeking dismissal of a complaint into an
HRCP 56 motion for summary judgment.
See Au, 63 Haw. at 213, 626 P.2d at 176; Del Rosario v. Kohanuinui, 52
Haw. 583, 483 P.2d 181 (1971); HRCP 12(b) (1990); cf. HRCP 12(c) (1990). But resort to matters outside the record,
by way of "[u]nverified statements of fact in counsel's memorandum or
representations made in oral argument" or otherwise, cannot accomplish
such a transformation. See Au, 63 Haw.
at 213, 626 P.2d at 177; cf. Asada v.
Sunn, 66 Haw. 454, 455, 666 P.2d 584, 585 (1983); Mizoguchi v. State Farm Mut. Auto. Ins.
Co., 66 Haw. 373, 381-82, 663 P.2d 1071, 1076-77 (1983); HRCP 56(e) (1990). A. The Circuit Court Made Evidentiary Findings of Fact. Notwithstanding the absence of any evidentiary record
before it, the circuit court's October 1, 1991 order granting Lewin's motion
for judgment on the pleadings contained a variety of findings of fact. For example, the circuit court
"found" that: (1) HRS §
572-1 "does not infringe upon a person's individuality or lifestyle
decisions, and none of the plaintiffs has provided testimony to the
contrary"; (2) HRS § 572-1
"does not . . . restrict [or] burden . . . the exercise of the right to
engage in a homosexual lifestyle"; (3) Hawaii has exhibited a
"history of tolerance for all peoples and their cultures"; (4)
"the plaintiffs have failed to show that they have been ostracized or
oppressed in Hawaii and have opted instead to rely on a general statement of
historic problems encountered by homosexuals which may not be relevant to
Hawaii"; (5) "homosexuals in Hawaii have not been relegated to a
position of 'political powerlessness.' . . . [T]here is no evidence that
homosexuals and the homosexual legislative agenda have failed to gain
legislative support in Hawaii"; (6) the "[p]laintiffs have failed
to show that homosexuals constitute a suspect class for equal protection
analysis under [a]rticle I, [s]ection 5 of the Hawaii State
Constitution;" (7) "the issue of whether homosexuality constitutes
an immutable trait has generated much dispute in the relevant scientific
community"; n14 and (8) HRS §
572-1 "is obviously designed to promote the general welfare
interests of the community by sanctioning traditional man-woman family units
and procreation." (Emphasis
added.) n14 For the reasons stated,
infra, in this opinion, it is irrelevant, for purposes of the constitutional
analysis germane to this case, whether homosexuality constitutes "an
immutable trait" because it is immaterial whether the plaintiffs, or any
of them, are homosexuals. Specifically, the issue is not material to the
equal protection analysis set forth in section II. C of this opinion, infra
at 557-580. Its resolution is
unnecessary to our ruling that HRS §
572-1, both on its face as applied, denies same-sex couples access to
the marital status and its concomitant rights and benefits. Its resolution is also unnecessary to our
conclusion that it is the state's regulation of access to the marital status,
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. See infra at 558-571. And, in particular, it is immaterial to the
exercise of "strict scrutiny" review, see infra at 571-580,
inasmuch as we are unable to perceive any conceivable relevance of the issue
to the ultimate conclusion of law -- which, in the absence of further
evidentiary proceedings, we cannot reach at this time -- regarding whether
HRS § 572-1 furthers compelling state
interests and is narrowly drawn to avoid unnecessary abridgments of
constitutional rights. See infra at
580-81. In light of the above, we disagree with Chief Judge
Burns's position that "questions whether heterosexuality, homosexuality,
bisexuality, and asexuality are 'biologically fated' are relevant questions
of fact[.]" Concurring opinion at 587.
This preoccupation seems simply to restate the immaterial question
whether sexual orientation is an "immutable trait." Although not expressly denominated as such, the circuit
court's order also contained a number of conclusions of law. n15 These
included: (1) "[t]he right to enter into a homosexual marriage is not a
fundamental right protected by [a]rticle I, [s]ection 6 of the Hawaii State
Constitution"; (2) the right to be free from the denial of a person's
civil rights or from discrimination in the exercise thereof because of
"sexual orientation [is] . . . covered under [a]rticle I, [s]ection 5 of
the State Constitution"; (3) HRS §
572-1 "permits heterosexual marriages but not homosexual
marriages" and "does not violate the due process clause of
[a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (4) HRS § 572-1 "represents a legislative
decision to extend the benefits of lawful marriage only to traditional family
units which consist of male and female partners"; (5) "[b]ecause
[entering into a] homosexual marriage [is not] a fundamental [constitutional]
right . . ., the provisions of section 572-1 do not violate the due process
clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution";
(6) "[h]omosexuals do not constitute a 'suspect class' for purposes of
equal protection analysis under [a]rticle I, [s]ection 5 of the Hawaii State
Constitution"; (7) "a group must have been subject to purposeful,
unequal treatment or have been relegated to a position of political
powerlessness in order to be considered a 'suspect class' for the purposes of
constitutional analysis"; (8) "[a] law which classifies on the
basis of race deserves the utmost judicial scrutiny because race clearly
qualifies as a suspect classification. The same cannot be convincingly said
with respect to homosexuals as a group"; (9) "the classification
created by section 572-1 must meet only the rational relationship test";
(10) "[t]he classification of section 572-1 meets the rational
relationship test"; (11) "[s]ection 572-1 is clearly a rational,
legislative effort to advance the general welfare of the community by
permitting only heterosexual couples to legally marry"; and, finally,
(12) Lewin "is entitled to judgment in his favor as a matter of
law[.]" n15 A "conclusion of
law," for present purposes, is either: (1) a "[f]inding by [the]
court as determined through application of rules of law"; (2) "[p]ropositions
of law which [the] judge arrives at after, and as a result of, finding
certain facts in [the] case[;]" or (3) "[t]he final judgment or
decree required on [the] basis of facts found[.]" Black's Law Dictionary
290 (6th ed. 1990). The second category
may constitute such "mixed questions of fact and law" as "are
dependent upon the facts and circumstances of each individual case[.]"
See Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991). In reviewing the circuit court's order on appeal, as
noted above, we must deem all of the factual allegations of the plaintiffs'
complaint as true or admitted, see Au, 63 Haw. at 214, 626 P.2d at 177; Marsland, 5 Haw. App. at 475, 701 P.2d at
186, and, in the absence of an evidentiary record, ignore all of the circuit
court's findings of fact. See Au, 63
Haw. at 213, 626 P.2d at 177;
Marsland, 5 Haw. App. at 475, 701 P.2d at 186; cf. Asada, 66 Haw. at 455, 666 P.2d at
585; Mizoguchi, 66 Haw. at 381-82, 663
P.2d at 1076-77; Nawahie, 26 Haw. at
111; HRCP 12(c) and 56(e). Ultimately,
our task on appeal is to determine whether the circuit court's order,
stripped of its improper factual findings, supports its conclusion that Lewin
is entitled to judgment as a matter of law and, by implication, that it appears
beyond doubt that the plaintiffs can prove no set of facts in support of
their claim that would entitle them to relief under any alternative
theory. See Ravelo, 66 Haw. at 198-99; Au, 63 Haw. at 214, 626 P.2d at 177; Marsland, 5 Haw. App. at 474-75. We conclude that the circuit court's order runs aground
on the shoals of the Hawaii Constitution's equal protection clause and that,
on the record before us, unresolved factual questions preclude entry of
judgment, as a matter of law, in favor of Lewin and against the
plaintiffs. Before we address the
plaintiffs' equal protection claim, however, it is necessary as a threshold
matter to consider their allegations regarding the right to privacy (and,
derivatively, due process of law) within the context of the record in its
present embryonic form. B. The Right to Privacy Does Not Include a Fundamental
Right to Same-Sex Marriage. It is now well established that "'a right to
personal privacy, or a guarantee of certain areas or zones of privacy,' is
implicit in the United States Constitution." State v. Mueller, 66 Haw. 616, 618, 671
P.2d 1351, 1353 (1983) (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct.
705, 726, 35 L. Ed. 2d 147 (1973)). And article I, section 6 of the Hawaii
Constitution expressly states that "[t]he right of the people to privacy
is recognized and shall not be infringed without the showing of a compelling
state interest." Haw. Const. art. I, §
6 (1978). The framers of the
Hawaii Constitution declared that the "privacy concept" embodied in
article I, section 6 is to be "treated as a fundamental
right[.]" State v. Kam, 69 Haw.
483, 493, 748 P.2d 372, 378 (1988) (citing Comm. Whole Rep. No. 15, in 1
Proceedings of the Constitutional Convention of Hawaii of 1978, at 1024
(1980)). When article I, section 6 of the Hawaii Constitution was
being adopted, the 1978 Hawaii Constitutional Convention, acting as a
committee of the whole, clearly articulated the rationale for its adoption: By amending the Constitution to
include a separate and distinct privacy right, it is the intent of your
Committee to insure that privacy is treated as a fundamental right for
purposes of constitutional analysis. .
. . This right is similar to the privacy right discussed in cases such
as Griswold v. Connecticut, [381 U.S.
479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)], Eisenstadt v. Baird, [405 U.S. 438, 92 S.
Ct. 1029, 31 L. Ed. 2d 349 (1972)], Roe v. Wade, etc. It is a right that, though unstated in the
federal Constitution, emanates from the penumbra of several guarantees of the
Bill of Rights. Because of this, there
has been some confusion as to the source of the right and the importance of
it. As such, it is treated as a fundamental
right subject to interference only when a compelling state interest is
demonstrated. By inserting clear and
specific language regarding this right into the Constitution, your Committee
intends to alleviate any possible confusion over the source of the right and
the existence of it. Comm. Whole Rep. No. 15, 1 Proceedings, at 1024. This court cited the same passage in Mueller, 66 Haw. at 625-26, 671 P.2d at
1357-58, in an attempt to determine the "intended scope of privacy
protected by the Hawaii Constitution." Id. at 626, 671 P.2d at 1358. We
ultimately concluded in Mueller that the federal cases cited by the
Convention's committee of the whole should guide our construction of the
intended scope of article I, section 6.
Accordingly, there is no doubt that, at a minimum,
article I, section 6 of the Hawaii Constitution encompasses all of the
fundamental rights expressly recognized as being subsumed within the privacy
protections of the United States Constitution. In this connection, the United States
Supreme Court has declared that "the right to marry is part of the fundamental
'right of privacy' implicit in the Fourteenth Amendment's Due Process
Clause." Zablocki v. Redhail, 434
U.S. 374, 384, 98 S. Ct. 673, 680, 54 L. Ed. 2d 618 (1978). The issue in the
present case is, therefore, whether the "right to marry" protected
by article I, section 6 of the Hawaii Constitution extends to same-sex
couples. Because article I, section 6 was expressly derived from the general
right to privacy under the United States Constitution and because there are
no Hawaii cases that have delineated the fundamental right to marry, this
court, as we did in Mueller, looks to federal cases for guidance. The United States Supreme Court first characterized the
right of marriage as fundamental in Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). In Skinner, the right to
marry was inextricably linked to the right of procreation. The dispute before the court arose out of
an Oklahoma statute that allowed the state to sterilize "habitual
criminals" without their consent.
In striking down the statute, the Skinner court indicated that it was
"dealing . . . with legislation which involve[d] one of the basic civil
rights of man. Marriage and
procreation are fundamental to the very existence and survival of the race."
Id. at 541, 62 S. Ct. at 1113 (emphasis added). Whether the court viewed marriage and
procreation as a single indivisible right, the least that can be said is that
it was obviously contemplating unions between men and women when it ruled
that the right to marry was fundamental.
This is hardly surprising inasmuch as none of the United States
sanctioned any other marriage configuration at the time. The United States Supreme Court has set forth its most
detailed discussion of the fundamental right to marry in Zablocki, supra,
which involved a Wisconsin statute that prohibited any resident of the state
with minor children "not in his custody and which he is under obligation
to support" from obtaining a marriage license until the resident demonstrated
to a court that he was in compliance with his child support obligations. 434 U.S. at 376, 98 S. Ct. at 675. The
Zablocki court held that the statute burdened the fundamental right to marry;
applying the "strict scrutiny" standard to the statute, the court invalidated
it as violative of the fourteenth amendment to the United States
Constitution. Id. at 390-91, 98 S. Ct.
at 683. In so doing, the Zablocki court delineated its view of the evolution
of the federally recognized fundamental right of marriage as follows: Long ago, in
Maynard v. Hill, 125 U.S. 190[, 8 S. Ct. 723, 31 L. Ed. 654] (1888),
the Court characterized marriage as "the most important relation in
life," id., at 205, [8 S. Ct., at 726,] and as "the foundation of
the family and of society, without which there would be neither civilization
nor progress," id., at 211[, 8 S. Ct., at 729]. In Meyer v. Nebraska, 262 U.S. 390[, 43 S. Ct.
625, 67 L. Ed. 1042] (1923), the Court recognized that the right "to
marry, establish a home and bring up children" is a central part of the
liberty protected by the Due Process Clause, id., at 399, [43 S. Ct., at
626,] and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was
described as "fundamental to the very existence and survival of the race,"
316 U.S., at 541[, 62 S. Ct., at 1113]. It is not surprising that the decision to marry has been
placed on the same level of importance as decisions relating to procreation,
childbirth, child rearing, and family relationships. As the facts of this case illustrate, it
would make little sense to recognize a right of privacy with respect to other
matters of family life and not with respect to the decision to enter the
relationship that is the foundation of the family in our society. The woman whom appellee desired to marry
had a fundamental right to seek an abortion of their expected child, see Roe
v. Wade, supra, or to bring the child into life to suffer the myriad social,
if not economic, disabilities that the status of illegitimacy brings . . . . Surely, a decision to marry and raise the
child in a traditional family setting must receive equivalent
protection. And, if appellee's right
to procreate means anything at all, it must imply some right to enter the
only relationship in which the State of Wisconsin allows sexual relations
legally to take place. Id. at 384-86, 98 S. Ct. at 680-81 (citations and
footnote omitted). Implicit in the
Zablocki court's link between the right to marry, on the one hand, and the
fundamental rights of procreation, childbirth, abortion, and child rearing,
on the other, is the assumption that the one is simply the logical predicate
of the others. The foregoing case law demonstrates that the federal
construct of the fundamental right to marry -- subsumed within the right to
privacy implicitly protected by the United States Constitution -- presently
contemplates unions between men and women.
(Once again, this is hardly surprising inasmuch as such unions are the
only state-sanctioned marriages currently acknowledged in this country.) Therefore, the precise question facing this court is
whether we will extend the present boundaries of the fundamental right of
marriage to include same-sex couples, or, put another way, whether we will
hold that same-sex couples possess a fundamental right to marry. In effect,
as the applicant couples frankly admit, we are being asked to recognize a new
fundamental right. There is no doubt that "[a]s the ultimate judicial
tribunal with final, unreviewable authority to interpret and enforce the Hawaii
Constitution, we are free to give broader privacy protection [under article
I, section 6 of the Hawaii Constitution] than that given by the federal
constitution." Kam, 69 Haw. at
491, 748 P.2d at 377 (citations omitted).
However, we have also held that the privacy right found in article I,
section 6 is similar to the federal right and that no "purpose to lend
talismanic effect" to abstract phrases such as "intimate
decision" or "personal autonomy" can "be inferred from
[article I, section 6], any more than . . . from the federal
decisions." Mueller, 66 Haw. at
630, 671 P.2d at 1360. In Mueller, this court, in attempting to circumscribe
the scope of article I, section 6, found itself ultimately "led back
to" the landmark United States Supreme Court cases "in [its] search
for guidance" on the issue. Id.
at 626, 671 P.2d at 1358. In the case that first recognized a fundamental
right to privacy, Griswold v.
Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965), the court declared that it
was "deal[ing] with a right . . . older than the Bill of Rights[.]"
Id. at 486, 85 S. Ct. at 1682. And in
a concurring opinion, Justice Goldberg observed that judges "determining
which rights are fundamental" must look not to "personal and
private notions," but to the "traditions and [collective]
conscience of our people" to determine whether a principle is "so
rooted [there] . . . as to be ranked as fundamental." . . . The inquiry
is whether a right involved "is of such a character that it cannot be
denied without violating those 'fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions' . . .
." Id. at 493, 85 S.
Ct. at 1686-87 (Goldberg, J., concurring) (citations omitted). n16 n16 In Mueller, this court
cited Palko v. Connecticut, 302 U.S.
319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), for the proposition that only
rights that are implicit in the concept of ordered liberty can be deemed
fundamental. Pursuant to that
standard, this court held that a prostitute did not have a fundamental right
under article I, section 6 of the Hawaii Constitution to conduct business in
her own home. 66 Haw. at 628, 630, 671
P.2d at 1359-60. Applying the foregoing standards to the present case, we
do not believe that a right to same-sex marriage is so rooted in the
traditions and collective conscience of our people that failure to recognize
it would violate the fundamental principles of liberty and justice that lie
at the base of all our civil and political institutions. Neither do we believe that a right to
same-sex marriage is implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the applicant
couples do not have a fundamental constitutional right to same-sex marriage
arising out of the right to privacy or otherwise. Our holding, however, does not leave the applicant
couples without a potential remedy in this case. As we will discuss below, the applicant couples
are free to press their equal protection claim. If they are successful, the State of Hawaii
will no longer be permitted to refuse marriage licenses to couples merely on
the basis that they are of the same sex. But there is no fundamental right to
marriage for same-sex couples under article I, section 6 of the Hawaii
Constitution. C. Inasmuch as the Applicant Couples Claim That the Express Terms of HRS
§ 572-1, which Discriminates against
Same-Sex Marriages, Violate Their Rights under the Equal Protection Clause of
the Hawaii Constitution, the Applicant Couples Are Entitled to an Evidentiary
Hearing to Determine Whether Lewin Can Demonstrate that HRS § 572-1 Furthers Compelling State Interests
and Is Narrowly Drawn to Avoid Unnecessary Abridgments of Constitutional
Rights. In addition to the alleged violation of their
constitutional rights to privacy and due process of law, the applicant
couples contend that they have been denied the equal protection of the laws
as guaranteed by article section 5 of
the Hawaii Constitution. On appeal,
the plaintiffs urge and, on the state of the bare record before us, we agree
that the circuit court erred when it concluded, as a matter of law, that: (1)
homosexuals do not constitute a "suspect class" for purposes of
equal protection analysis under article I, section 5 of the Hawaii
Constitution; n17 (2) the classification created by HRS § 572-1 is not subject to "strict
scrutiny," but must satisfy only the "rational relationship"
test; and (3) HRS § 572-1 satisfies
the rational relationship test because the legislature "obviously
designed [it] to promote the general welfare interests of the community by
sanctioning traditional man-woman family units and procreation." n17 For the reasons stated,
infra, in this opinion, it is irrelevant, for purposes of the constitutional
analysis germane to this case, whether homosexuals constitute a "suspect
class" because it is immaterial whether the plaintiffs, or any of them,
are homosexuals. See supra note 14. 1. Marriage is a state-conferred legal partnership
status, the existence of which gives rise to a multiplicity of rights and
benefits reserved exclusively to that particular relation. The power to regulate marriage is a sovereign function
reserved exclusively to the respective states. Salisbury v. List, 501 F. Supp. 105, 107
(D. Nev. 1980); see O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973). By its
very nature, the power to regulate the marriage relation includes the power
to determine the requisites of a valid marriage contract and to control the
qualifications of the contracting parties, the forms and procedures necessary
to solemnize the marriage, the duties and obligations it creates, its effect
upon property and other rights, and the grounds for marital dissolution. Id.; see also Maynard v. Hill, supra. In other words, marriage is a state-conferred legal
status, the existence of which gives rise to rights and benefits reserved
exclusively to that particular relationship.
This court construes marriage as "'a partnership to which both
partners bring their financial resources as well as their individual energies
and efforts.'" Gussin v. Gussin,
73 Haw. 470, 483, 836 P.2d 484, 491 (1992) (citation omitted); Myers v. Myers, 70 Haw. 143, 154, 764 P.2d
1237, 1244, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1988); Cassiday v. Cassiday, 68 Haw. 383, 387, 716
P.2d 1133, 1136 (1986). So zealously
has this court guarded the state's role as the exclusive progenitor of the
marital partnership that it declared, over seventy years ago, that
"common law" marriages -- i.e., "marital" unions existing
in the absence of a state-issued license and not performed by a person or
society possessing governmental authority to solemnize marriages -- would no
longer be recognized in the Territory of Hawaii. Parke v. Parke, 25 Haw. 397, 404-05
(1920). n18 n18 In Parke, a
"common law" petitioner sought unsuccessfully to derive the
benefits of inheritance rights unique to a married spouse, apparently having
affirmatively chosen not to seek the state-conferred status of a lawful
marriage "partner." Id. at 398, 405. A "same sex spouse"
suffered the identical fate in De
Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984) (two persons of
same sex cannot contract common law marriage, notwithstanding state's
recognition of common law marriage between persons of different sex), a
decision on which Lewin relies in his answering brief. It is ironic that, in arguing before the
circuit court that Hawaii's marriage laws do not "burden, penalize,
infringe, or interfere in any way with the [plaintiffs'] private
relationships" and in urging before this court that their
"relationships are not disturbed in any manner by" HRS § 572-1, Lewin implicitly suggests that the
applicant couples should be content with a de facto status that the state
declines to acknowledge de jure and that lacks the statutory rights and
benefits of marriage. See infra at 560-62. Indeed, the state's monopoly on the business of marriage
creation has been codified by statute for more than a century. HRS §
572-1(7), descended from an 1872 statute of the Hawaiian Kingdom,
conditions a valid marriage contract on "[t]he marriage ceremony be[ing]
performed in the State by a person or society with a valid license to solemnize
marriages[.]" HRS § 572-11 (1985) accords the DOH sole authority to
grant licenses to solemnize marriages, and HRS § 572-12 (1985) restricts the issuance of
such licenses to clergy, representatives of religious societies (such as the
Society of Friends) not having clergy but providing solemnization by custom,
and judicial officers. Finally, HRS §
§ 572-5 and 572-6 vest the DOH with
exclusive authority to issue licenses to marriage applicants and to ensure
that the general requisites and procedures prescribed by HRS chapter 572 are
satisfied. The applicant couples correctly contend that the DOH's
refusal to allow them to marry on the basis that they are members of the same
sex deprives them of access to a multiplicity of rights and benefits that are
contingent upon that status. Although
it is unnecessary in this opinion to engage in an encyclopedic recitation of
all of them, a number of the most salient marital rights and benefits are
worthy of note. They include: (1) a
variety of state income tax advantages, including deductions, credits, rates,
exemptions, and estimates, under HRS chapter 235 (1985 and Supp. 1992); (2)
public assistance from and exemptions relating to the Department of Human
Services under HRS chapter 346 (1985 and Supp. 1992); (3) control, division,
acquisition, and disposition of community property under HRS chapter 510
(1985); (4) rights relating to dower, curtesy, and inheritance under HRS
chapter 533 (1985 and Supp. 1992); (5) rights to notice, protection,
benefits, and inheritance under the Uniform Probate Code, HRS chapter 560
(1985 and Supp. 1992); (6) award of child custody and support payments in
divorce proceedings under HRS chapter 571 (1985 and Supp. 1992); (7) the
right to spousal support pursuant to HRS §
572-24 (1985); (8) the right to enter into premarital agreements under
HRS chapter 572D (Supp. 1992); (9) the right to change of name pursuant to
HRS § 574-5(a)(3) (Supp. 1992); (10)
the right to file a nonsupport action under HRS chapter 575 (1985 and Supp.
1992); (11) post-divorce rights relating to support and property division
under HRS chapter 580 (1985 and Supp. 1992); (12) the benefit of the spousal
privilege and confidential marital communications pursuant to Rule 505 of the
Hawaii Rules of Evidence (1985); (13) the benefit of the exemption of real
property from attachment or execution under HRS chapter 651 (1985); and (14)
the right to bring a wrongful death action under HRS chapter 663 (1985 and
Supp. 1992). For present purposes, it
is not disputed that the applicant couples would be entitled to all of these
marital rights and benefits, but for the fact that they are denied access to
the state-conferred legal status of marriage. 2. HRS § 572-1, on its face, discriminates based on
sex against the applicant couples in the exercise of the civil right of
marriage, thereby implicating the equal protection clause of article I,
section 5 of the Hawaii Constitution. Notwithstanding the state's acknowledged stewardship over
the institution of marriage, the extent of permissible state regulation of
the right of access to the marital relationship is subject to constitutional
limitations or constraints. See, e.g.,
Zablocki, 435 U.S. at 388-91, 98 S. Ct. at 682-83; Loving v. Virginia, 388
U.S. 1, 7-12, 87 S. Ct. 1817, 1821-24, 18 L. Ed. 2d 1010 (1967); Salisbury, 501 F. Supp. at 107 (citing Johnson v. Rockefeller, 58 F.R.D. 42
(S.D.N.Y. 1972)). It has been held that a state may deny the right to marry
only for compelling reasons.
Salisbury, 501 F. Supp. at 107; Johnson, supra. n19 n19 For example, states,
including Hawaii, may and do prohibit marriage for such
"compelling" reasons as consanguinity (to prevent incest), see,
e.g., HRS § 572-1(1), immature age (to
protect the welfare of children), see, e.g., HRS § § 572-1(2) and 572-2 (1985), presence of
venereal disease (to foster public health), see, e.g., HRS § 572-1(5), and to prevent bigamy, see, e.g.,
HRS § 572-1(3). See also Zablocki, 434 U.S. at 392, 98 S.
Ct. at 684 (concurring opinion of Stewart, J.); Salisbury, 501 F. Supp. at 107. The equal protection clauses of the United States and
Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United
States Constitution somewhat concisely provides, in relevant part, that a
state may not "deny to any person within its jurisdiction the equal
protection of the laws." Hawaii's counterpart is more elaborate. Article I, section 5 of the Hawaii
Constitution provides in relevant part 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 race, religion, sex, or ancestry." (Emphasis added.) Thus, by
its plain language, the Hawaii Constitution prohibits state-sanctioned
discrimination against any person in the exercise of his or her civil rights
on the basis of sex. "The freedom to marry has long been recognized as
one of the vital personal rights essential to the orderly pursuit of
happiness by free [people]."
Loving, 388 U.S. at 12, 87 S. Ct. at 1824. So "fundamental"
does the United States Supreme Court consider the institution of marriage that
it has deemed marriage to be "one of the 'basic civil rights of [men and
women.]'" Id. (quoting Skinner,
316 U.S. at 541, 62 S. Ct. at 1113). Black's Law Dictionary (6th ed. 1990) defines
"civil rights" as synonymous with "civil liberties." Id.
at 246. "Civil liberties"
are defined, inter alia, as "[p]ersonal, natural rights guaranteed and
protected by Constitution; e.g., . . . freedom from discrimination . . .
. Body of law dealing with natural
liberties . . . which invade equal rights of others. Constitutionally, they are restraints on
government." Id. This court has held, in another context, that such
"privilege[s] of citizenship . . . cannot be taken away [on] any of the
prohibited bases of race, religion, sex or ancestry" enumerated in
article I, section 5 of the Hawaii Constitution and that to do so violates
the right to equal protection of the laws as guaranteed by that
constitutional provision. State v.
Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-50 (1990) (exclusion of female
jurors solely because of their sex denies them equal protection under Hawaii
Constitution) (emphasis added). Rudimentary principles of statutory construction render
manifest the fact that, by its plain language, HRS § 572-1 restricts the marital relation to a
male and a female. "'[T]he fundamental starting point for statutory
interpretation is the language of the statute itself. . . . [W]here the statutory language is
plain and unambiguous,'" we construe it according "'to its plain
and obvious meaning.'" Schmidt v.
Board of Directors of Ass'n of Apartment Owners of The Marco Polo Apartments,
73 Haw. 526, 531-32, 836 P.2d 479, 482 (1992); In re Tax Appeal of Lower Mapunapuna
Tenants Ass'n, 73 Haw. 63, 68, 828
P.2d 263, 266 (1992). The non-consanguinity requisite contained in HRS § 572-1(1) precludes marriages, inter alia,
between "brother and sister," "uncle and niece," and
"aunt and nephew[.]" The anti-bigamy requisite contained in HRS
§ 572-1(3) forbids a marriage between
a "man" or a "woman" as the case may be, who, at the
time, has a living and "lawful wife . . . [or] husband[.]" And the
requisite, set forth in HRS §
572-1(7), requiring marriage ceremonies to be performed by
state-licensed persons or entities expressly speaks in terms of "the man
and woman to be married[.]" n20 Accordingly, on its face and (as Lewin
admits) as applied, HRS § 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. n20 That the legislature, in
enacting HRS ch. 572, obviously contemplated marriages between persons of the
opposite sex is not, however, outcome dispositive of the plaintiffs'
claim. Legislative action, whatever
its motivation, cannot sanitize constitutional violations. Cf.
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448,
105 S. Ct. 3249, 3259, 87 L. Ed. 2d 313 (1985) ("It is plain that the
electorate as a whole, whether by referendum or otherwise, could not order .
. . action violative of the Equal Protection Clause.") Relying primarily on four decisions construing the law of
other jurisdictions, n21 Lewin contends that "the fact that homosexual [sic -- actually, same-sex] n22
partners cannot form a state-licensed marriage is not the product of
impermissible discrimination" implicating equal protection
considerations, but rather "a function of their biologic inability as a
couple to satisfy the definition of the status to which they aspire."
Lewin's answering brief at 21. Put
differently, Lewin proposes that "the right of persons of the same sex
to marry one another does not exist because marriage, by definition and
usage, means a special relationship between a man and a woman." Id. at
7. We believe Lewin's argument to be
circular and unpersuasive. n21 The four
decisions are Jones v. Hallahan, 501
S.W.2d 588 (Ky. Ct. App. 1973); Baker
v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S.
810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); De Santo v. Barnsley, supra;
and Singer v. Hara, 11 Wash. App. 247,
522 P.2d 1187, review denied, 84 Wash. 2d 1008 (1974). n22 See supra note
11. Two of the decisions upon which Lewin relies are
demonstrably inapposite to the appellant couples' claim. In
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), the questions for
decision were whether a marriage of two persons of the same sex was
authorized by state statutes and, if not, whether state authorization was
compelled by various provisions of the United States Constitution, including
the fourteenth amendment. Regarding
the first question, the Baker court arrived at the same conclusion as have we
with respect to HRS § 572-1: by their
plain language, the Minnesota marriage statutes precluded same-sex marriages.
Regarding the second question, however, the court merely held that the United
States Constitution was not offended; apparently, no state constitutional
questions were raised and none were addressed. De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952
(1984), is also distinguishable. In De
Santo, the court held only that common law same-sex marriage did not exist in
Pennsylvania, a result irrelevant to the present case. The appellants sought to assert that denial
of same-sex common law marriages violated the state's equal rights amendment,
but the appellate court expressly declined to reach the issue because it had
not been raised in the trial court. Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973),
and Singer v. Hara, 11 Wash. App. 247,
522 P.2d 1187, review denied, 84 Wash. 2d 1008 (1974), warrant more in-depth
analysis. In Jones, the appellants,
both females, sought review of a judgment that held that they were not
entitled to have a marriage license issued to them, contending that refusal
to issue the license deprived them of the basic constitutional rights to
marry, associate, and exercise religion freely. In an opinion acknowledged to be "a
case of first impression in Kentucky," the Court of Appeals summarily
affirmed, ruling as follows: Marriage was a custom long before
the state commenced to issue licenses for that purpose. . . . [M]arriage has always been considered
as a union of a man and a woman . . . . It appears to us that appellants
are prevented from marrying, not by the statutes of Kentucky or the refusal
of the County Clerk . . . to issue them a license, but rather by their own
incapability of entering into a marriage as that term is defined. . . . . In substance, the relationship
proposed by the appellants does not authorize the issuance of a marriage
license because what they propose is not a marriage. 501 S.W.2d at 589-90. Significantly, the appellants' equal protection rights
-- federal or state -- were not asserted in Jones, and, accordingly, the
appeals court was relieved of the necessity of addressing and attempting to
distinguish the decision of the United States Supreme Court in Loving. Loving involved the appeal of a black woman
and a caucasian man (the Lovings) who were married in the District of
Columbia and thereafter returned to their home state of Virginia to establish
their marital abode. 388 U.S. at 2, 87
S. Ct. at 1819. The Lovings were duly indicted for and convicted of violating
Virginia's miscegenation laws, n23 which banned interracial marriages. Id.
n24 In his sentencing decision, the trial judge stated, in substance, that
Divine Providence had not intended that the marriage state extend to
interracial unions: "Almighty God created the
races white, black, yellow, malay and red, and he placed them on separate
continents. And but for the
interference with his arrangement there would be no cause for such marriages.
The fact that he separated the races shows that he did not intend for the
races to mix." Id. at 3, 87 S. Ct. at 1819 (quoting the trial judge)
(emphasis added). n23 Virginia's miscegenation laws
"arose as an incident to slavery and [were] common . . . since the
colonial period." 388 U.S. at 6, 87 S. Ct. at 1820-21. It is noteworthy
that one of the "central provisions" of the statutory miscegenation
scheme automatically voided all marriages between "a white person and a
colored person" without the need for any judicial proceeding. Id. at 4, 87 S. Ct. at 1820. n24 As of 1949, the following
thirty of the forty-eight states banned interracial marriages by statute:
Alabama; Arizona; Arkansas; California; Colorado; Delaware; Florida; Georgia;
Idaho; Indiana; Kentucky; Louisiana; Maryland; Mississippi; Missouri;
Montana; Nebraska; Nevada; North Carolina; North Dakota; Oklahoma; Oregon;
South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West
Virginia; and Wyoming. 388 U.S. at 6
n.5, 87 S. Ct. at 1820 n.5. When the Lovings commenced their lawsuit on
October 28, 1964, sixteen states still had miscegenation laws on the
books. Id. at 3, 6 n.5, 87 S. Ct. at
1819, 1820 n.5. The first state court to recognize that miscegenation
statutes violated the right to the equal protection of the laws was the
Supreme Court of California in Perez
v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948). 388 U.S. at 6 n.5, 87 S. Ct. at
1820-21 n.5. The Lovings appealed the constitutionality of the
state's miscegenation laws to the Virginia Supreme Court of Appeals, which,
inter alia, upheld their constitutionality and affirmed the Lovings'
convictions. Id. at 3-4, 388 S. Ct. at
1819. n25 The Lovings then pressed their appeal to the United States Supreme
Court. n25 See Loving v. Commonwealth,
206 Va. 924, 147 S.E.2d 78 (1966). The Virginia Supreme Court of Appeals,
however, modified as "so unreasonable as to render the sentences
void" the trial court's twenty-five year suspension of the Lovings' jail
sentences "upon the condition that they leave the . . . state 'at once
and . . . not return together or at the same time to [the] . . . state for a
period of twenty-five years.'" Id. at 930, 147 S.E.2d at 82-83. The
Virginia high court deemed it sufficient that the Lovings be prohibited from
"again cohabit[ing] as man and wife in [the] state" in order to
achieve the objectives of "securing the rehabilitation of the offender[s
and] enabling [them] to repent and reform so that [they] may be restored to a
useful place in society." Id. at 930, 147 S.E.2d at 83. In a landmark decision, the United States Supreme Court,
through Chief Justice Warren, struck down the Virginia miscegenation laws on
both equal protection and due process grounds. The court's holding as to the former is
pertinent for present purposes: [T]he Equal Protection Clause
requires the consideration of whether the classifications drawn by any
statute constitute an arbitrary and invidious discrimination. . . . There can be no question but that
Virginia's miscegenation statutes rest solely upon distinctions drawn
according to race. The statutes
proscribe generally accepted conduct if engaged in by members of different
races. . . . At the very least, the
Equal Protection Clause demands that racial classifications . . . be
subjected to the "most rigid scrutiny," . . . and, if they are ever
to be upheld, they must be shown to be necessary to the accomplishment of
some permissible state objective, independent of the racial discrimination
which it was the object of the Fourteenth Amendment to eliminate. . . . There is patently no legitimate
overriding purpose independent of invidious discrimination which justifies
this classification. . . . We have consistently denied the constitutionality
of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the
freedom to marry solely because of racial classifications violates the
central meaning of the Equal Protection Clause. Id. at 10-12, 87 S. Ct. at
1823 (emphasis added and citation omitted). n26 n26 As we have noted in this
opinion, unlike the equal protection clause of the fourteenth amendment to
the United States Constitution, article I, section 5 of the Hawaii
Constitution, inter alia, expressly prohibits discrimination against persons
in the exercise of their civil rights on the basis of sex. The facts in Loving and the respective reasoning of the
Virginia courts, on the one hand, and the United States Supreme Court, on the
other, both discredit the reasoning of Jones and unmask the tautological and
circular nature of Lewin's argument that HRS § 572-1 does not implicate article I, section
5 of the Hawaii Constitution because same sex marriage is an innate
impossibility. Analogously to Lewin's
argument and the rationale of the Jones court, the Virginia courts declared
that interracial marriage simply could not exist because the Deity had deemed
such a union intrinsically unnatural, 388 U.S. at 3, 87 S. Ct. at 1819, and,
in effect, because it had theretofore never been the "custom" of
the state to recognize mixed marriages, marriage "always" having
been construed to presuppose a different configuration. With all due respect to the Virginia courts
of a bygone era, we do not believe that trial judges are the ultimate
authorities on the subject of Divine Will, and, as Loving amply demonstrates,
constitutional law may mandate, like it or not, that customs change with an
evolving social order. Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, review
denied, 84 Wash. 2d 1008 (1974), suffers the same fate as does Jones. In Singer, two males appealed from a trial
court's order denying their motion to show cause by which they sought to
compel the county auditor to issue them a marriage license. On appeal, the
unsuccessful applicants argued that: (1) the trial court erred in concluding
that the Washington state marriage laws prohibited same-sex marriages; (2)
the trial court's order violated the equal rights amendment to the state
constitution; and (3) the trial court's order violated various provisions of
the United States Constitution, including the fourteenth amendment. The Washington Court of Appeals affirmed the trial
court's order, rejecting all three of the appellants' contentions. Predictably, and for the same reasons that
we have reached the identical conclusion regarding HRS § 572-1, the Singer court determined that it
was "apparent from a plain reading of our marriage statutes that the
legislature has not authorized same-sex marriages." Id. at 249, 522 P.2d
at 1189. Regarding the appellants' federal and state claims, the court
specifically "[did] not take exception to the proposition that the Equal
Protection Clause of the Fourteenth Amendment requires strict judicial
scrutiny of legislative attempts at sexual discrimination." Id. at 261,
522 P.2d at 1196 (emphasis added). n27 Nevertheless, the Singer court found no
defect in the state's marriage laws, under either the United States
Constitution or the state constitution's equal rights amendment, based upon
the rationale of Jones: "[a]ppellants were not denied a marriage license
because of their sex; rather, they were denied a marriage license because of
the nature of marriage itself." Id. As in Jones, we reject this exercise
in tortured and conclusory sophistry. n27 Accordingly, but for the fact
that the Singer court was unable to discern sexual discrimination in the
state's marriage laws, it would have engaged in a "strict scrutiny"
analysis. See infra at 571-72. 3. Equal Protection Analysis under Article I, Section 5
of the Hawaii Constitution "Whenever a denial of equal protection of the laws
is alleged, as a rule our initial inquiry has been whether the legislation in
question should be subjected to 'strict scrutiny' or to a 'rational basis'
test." Nakano v. Matayoshi, 68
Haw. 140, 151, 706 P.2d 814, 821 (1985) (citing Nagle v. Board of Educ., 63 Haw. 389, 392,
629 P.2d 109, 111 (1981)). This court has applied "strict scrutiny"
analysis to "'laws classifying on the basis of suspect categories or
impinging upon fundamental rights expressly or impliedly granted by the
[c]onstitution,'" in which case the laws are "'presumed to be
unconstitutional n28 unless the state shows compelling state interests which
justify such classifications,'"
Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978) (citing Nelson v. Miwa, 56 Haw. 601, 605 n.4, 546
P.2d 1005, 1008 n.4 (1976)), and that the laws are "narrowly drawn to
avoid unnecessary abridgments of constitutional rights." Nagle, 63 Haw. at 392, 629 P.2d at 111
(citations omitted). n28 The presumption of statutory
constitutionality, to which Judge Heen refers at 595 of his dissenting
opinion, does not apply to laws, which, on their face, classify on the basis
of suspect categories. Washington v.
Fireman's Fund Ins. Cos., 68 Haw. 192, 199, 708 P.2d 129, 134 (1985), cert. denied,
476 U.S. 1169, 106 S. Ct. 2890, 90 L. Ed. 2d 977 (1986), on which the dissent
relies, is not authority to the contrary inasmuch as the statute in question
did not involve any suspect categories and was reviewed under the
"rational basis" standard. By contrast, "[w]here 'suspect' classifications or
fundamental rights are not at issue, this court has traditionally employed
the rational basis test." Id. at 393, 629 P.2d at 112. "Under the rational basis test, we
inquire as to whether a statute rationally furthers a legitimate state
interest." Estate of Coates v.
Pacific Engineering, 71 Haw. 358, 364, 791 P.2d 1257, 1260 (1990). "Our
inquiry seeks only to determine whether any reasonable justification can be
found for the legislative enactment." As we have indicated, HRS § 572-1, on its face and as applied,
regulates access to the marital status and its concomitant rights and
benefits on the basis of the applicants' sex. See supra at 563-64. As such, HRS § 572-1 establishes a sex-based
classification. HRS § 572-1 is not the first sex-based
classification with which this court has been confronted. In Holdman v. Olim, supra, a woman prison
visitor (Holdman) brought an action against prison officials seeking
injunctive, monetary, and declaratory relief arising from a prison matron's refusal
to admit Holdman entry when she was not wearing a brassiere. The matron's refusal derived from a
directive, promulgated by the Acting Prison Administrator, that
"visitors will be properly dressed.
Women visitors are asked to be fully clothed, including
undergarments. Provocative attire is
discouraged." 59 Haw. at 347-48, 581 P.2d at 1166 (emphasis added). Holdman proceeded to trial, and the circuit
court dismissed her action at the close of her case in chief. Id. at 347, 581 P.2d at 1165-66. On appeal, this court affirmed the dismissal of
Holdman's complaint. The significance
of Holdman for present purposes, however, is the rationale by which this
court reached its result: This court has not [heretofore]
dealt with a sex-based classification. In
Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d
583 (1973), a plurality of the United States Supreme Court favored the
inclusion of classifications based upon sex among those considered to be
suspect for the purposes of the compelling state interest test. However, subsequent cases have made it
clear that the current governing test under the Fourteenth Amendment [to the
United States Constitution] is a standard intermediate between rational basis
and strict scrutiny. "[C]lassifications by gender must serve important
governmental objectives and must be substantially related to achievement of
those objectives." Craig v.
Boren, 429 U.S. 190, 197[, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397] (1976). Also see Califano v. Goldfarb, 430 U.S. 199,
2[10 n.8, 97 S. Ct. 1021, 1028, n.8, 51 L. Ed. 2d 270] (1977) and Califano v. Webster, 430 U.S. 313, 316-17[,
97 S. Ct. 1192, 1194, 51 L. Ed. 2d 360] (1977). . . . . Dress standards are intimately
related to sexual attitudes. . . . The
dress restrictions imposed upon women visitors by the directive derived their
relation to prison security out of the assumption that these attitudes were
present among the residents. Whether
or not this assumption was correct, it is manifest that the directive was
substantially related to the achievement of the important governmental
objective of prison security and met the test under the Fourteenth Amendment. . . . . [Holdman's] challenge to the
directive under the state constitution requires separate consideration. Article I, Section 4 n29 of the Hawaii
Constitution declares that no person shall be "denied the equal
protection of the laws, nor be denied the enjoyment of [the person's] civil
rights or be discriminated against in the exercise thereof because of race,
religion, sex or ancestry." Article I, Section 21 n30 provides:
"Equality of rights under the law shall not be denied or abridged by the
State on account of sex." We are presented with two questions, either of
which might be dispositive of the present case. We must first inquire whether the treatment
[Holdman] received denied to her the equal protection of the laws guaranteed by the Hawaii Constitution under
a more stringent test than that applicable under the Fourteenth
Amendment. If the more general guarantee
of equal protection does not sustain [Holdman's] claims, we must then inquire
whether the specific guarantee of equality of rights under the law contained
in Article I, Section 21, has been infringed. It is open to this court, of
course, to apply the more stringent test of compelling state interest to
sex-based classifications in assessing their validity under the equal
protection clause of the state constitution.
State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974). [Holdman] urges that
we do so, arguing both from Frontiero v. Richardson, supra, and from the
presence of sex with race, religion and ancestry as a category specifically
named in Article I, Section 4. We need not deal finally with
that issue, and reserve it for future consideration, since we conclude that
the compelling state interest test would be satisfied in this case if it were
to be held applicable. . . . . . . . Survival under the strict
scrutiny test places the directive beyond [Holdman's] challenge under her
asserted . . . right to equal protection . . . . It does not necessarily place the directive
beyond challenge under the equal rights provision of Article I, Section 21.
Article I, Section 21, is substantially identical with the proposed Equal
Rights Amendment of the United States Constitution. . . . The standard of review to be applied
under an ERA has not been clearly formulated by judicial decision. . . .
Unless we are to attempt in this case to define the standard of review required
under Hawaii's ERA, no purpose will be served by analysis of the considerable
body of decisions which fall short of dealing with that question. . . . We have concluded that the treatment
of which [Holdman] complains withstands the test of strict scrutiny by reason
of a compelling State interest. We are
not prepared to hold in this case that . . . . a more stringent test should
be applied under Article I, Section 21 . . . . Id. at 349-54, 581 P.2d at
1167-69 (emphasis added and citations and footnote omitted). n29 In 1978, article I, section 4
was renumbered article I, section 5. n30 In 1978, article I, section
21 was renumbered article I, section 3. Our decision in Holdman is key to the present case in
several respects. First, we clearly
and unequivocally established, for purposes of equal protection analysis
under the Hawaii Constitution, that sex-based classifications are subject, as
a per se matter, to some form of "heightened" scrutiny, be it
"strict" or "intermediate," rather than mere "rational
basis" analysis. n31 Second, we assumed, arguendo, that such sex-based
classifications were subject to "strict scrutiny." Third, we
reaffirmed the longstanding principle that this court is free to accord
greater protections to Hawaii's citizens under the state constitution than
are recognized under the United States Constitution. n32 And fourth, we
looked to the then current case law of the United States Supreme Court for
guidance. n31 In subsequent decisions, we
have reaffirmed that sex-based classifications are subject, at the very least,
to "intermediate scrutiny" under the equal protection clause of the
Hawaii Constitution. State v. Tookes,
67 Haw. 608, 614, 699 P.2d 983, 988 (1985);
State v. Rivera, 62 Haw. 120, 123, 612 P.2d 526, 529 (1980). n32 See, e.g., State v. Texeira,
50 Haw. 138, 142 n.2, 433 P.2d 593, 597 n.2 (1967); State v. Grahovac, 52 Haw. 527, 531, 533,
480 P.2d 148, 151-52 (1971); State v.
Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971); State v. Kaluna, 55 Haw. 361, 367-69,
372-75, 520 P.2d 51, 57-58, 60-62 (1974);
State v. Manzo, 58 Haw. 440, 452, 573 P.2d 945, 953 (1977); State v. Miyasaki, 62 Haw. 269, 280-82, 614
P.2d 915, 921-23 (1980); Huihui v.
Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982); State v. Fields, 67 Haw. 268, 282, 686 P.2d
1379, 1390 (1984); State v. Wyatt, 67
Haw. 293, 304 n.9, 687 P.2d 544, 552 n.9 (1984); State v. Tanaka, 67 Haw. 658, 661-62, 701
P.2d 1274, 1276 (1985); State v. Kim,
68 Haw. 286, 289-90, 711 P.2d 1291, 1293-94 (1985); State v. Kam, 69 Haw. 483, 491, 748 P.2d
372, 377 (1988); State v. Quino, 74
Haw. 161, 164 n.2, 840 P.2d 358, 364 n.2 (1992), cert. denied, U.S.
, 113 S. Ct. 1849, 123 L. Ed. 2d 472 (1993) (Levinson, J.,
concurring). Of the decisions of the United States Supreme Court
cited in Holdman, Frontiero v. Richardson, supra, was by far the most
significant. In Frontiero, a married
woman air force officer and her husband (the Frontieros) filed suit against
the Secretary of Defense seeking declaratory and injunctive relief against
enforcement of federal statutes governing quarters allowances and medical
benefits for members of the uniformed services. The statutes provided, solely for
administrative convenience, that spouses of male members were unconditionally
considered dependents for purposes of obtaining such allowances and benefits,
but that spouses of female members were not considered dependents unless they
were in fact dependent for more than one-half of their support. The Frontieros' lawsuit was precipitated by
the husband's inability to satisfy the statutory dependency standard. A three-judge district court panel denied
the Frontieros' claim for relief, and they appealed. Noting that "[u]nder these statutes, a serviceman
may claim his wife as a 'dependent' without regard to whether she is in fact
dependent upon him for any part of her support[,]" but that "[a]
servicewoman. . . may not claim her husband as a 'dependent' . . . unless he
is in fact dependent upon her for over one-half of his support[,]" a
plurality of four, through Justice Brennan (the Brennan plurality), framed
the issue on appeal as "whether this difference in treatment constitutes
an unconstitutional discrimination against servicewomen . . . ." 411
U.S. at 678-79, 93 S. Ct. at 1766. By an eight-to-one majority, the court
concluded that the statutes established impermissibly differential treatment
between men and women and, accordingly, reversed the judgment of the district
court. The disagreement among the eight-justice majority lay in
the level of judicial scrutiny applicable to instances of statutory sex-based
discrimination. The Brennan plurality
agreed with the Frontieros' contention that "classifications based upon
sex, like classifications based upon race, alienage, and national origin, are
inherently suspect and must therefore be subjected to close judicial
scrutiny." Id. at 682, 93 S. Ct. at 1768 (footnotes omitted). Thus, the Brennan plurality applied the
"strict scrutiny" standard to its review of the illegal
statutes. Justice Stewart concurred in
the judgment, "agreeing that the statutes . . . work[ed] an invidious
discrimination in violation of the Constitution." Id. at 691, 93 S. Ct.
at 1772-73. Particularly noteworthy in Frontiero, however, was the
concurring opinion of Justice Powell, joined by the Chief Justice and Justice
Blackmun (the Powell group). The
Powell group agreed that "the challenged statutes constitute[d] an
unconstitutional discrimination against servicewomen," but deemed it
"unnecessary for the Court in this case to characterize sex as a suspect
classification, with all of the far-reaching implications of such a
holding." Id. at 691-92, 93 S. Ct. at 1773 (emphasis added and citation
omitted). Central to the Powell
group's thinking was the following explanation: There is another . . . reason for
deferring a general categorizing of sex classifications as invoking the
strictest test of judicial scrutiny.
The Equal Rights Amendment, which if adopted will resolve the
substance of this precise question, has been approved by the 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 pre-empt by judicial action a
major political decision which is currently in process of resolution does not
reflect appropriate respect for duly prescribed legislative processes. Id. at
692, 93 S. Ct. at 1773 (emphasis added). The Powell group's concurring opinion therefore permits
but one inference: had the Equal Rights Amendment been incorporated into the
United States Constitution, at least seven members (and probably eight) of
the Frontiero court would have subjected statutory sex-based classifications
to "strict" judicial scrutiny. In light of the interrelationship between the reasoning
of the Brennan plurality and the Powell group in Frontiero, on the one hand,
and the presence of article I, section 3 -- the Equal Rights Amendment -- in
the Hawaii Constitution, on the other, it is time to resolve once and for all
the question left dangling in Holdman.
Accordingly, we hold that sex is a "suspect category" for
purposes of equal protection analysis under article I, section 5 of the Hawaii
Constitution n33 and that HRS § 572-1
is subject to the "strict scrutiny" test. It therefore follows, and we so hold, that
(1) HRS § 572-1 is presumed to be
unconstitutional (2) unless Lewin, as an agent of the State of Hawaii, can
show that (a) the statute's sex-based classification is justified by
compelling state interests and (b) the statute is narrowly drawn to avoid
unnecessary abridgments of the applicant couples' constitutional rights. n33 Our holding in this regard is
not, as the dissent suggests, "[t]hat Appellants are a 'suspect
class.'" Dissenting opinion at 592. 4. The dissenting opinion misconstrues the holdings and
reasoning of the plurality. We would be remiss if we did not address certain
basic misconstructions of this opinion appearing in Judge Heen's
dissent. First, we have not held, as
Judge Heen seems to imply, that (1) the appellants "have a 'civil right'
to a same sex marriage[,]" (2) "the civil right to marriage must be
accorded to same sex couples[,]" and (3) the applicant couples
"have a right to a same sex marriage[.]" Dissenting opinion at
588-89. These conclusions would be
premature. We have, however, noted
that the United States Supreme Court has recognized for over fifty years that
marriage is a basic civil right. See
supra at 562-64. That proposition is
relevant to the prohibition set forth in article I, section 5 of the Hawaii
Constitution against discrimination in the exercise of a person's civil
rights, inter alia, on the basis of sex. See id. at 562. Second, we have not held, as Judge Heen also seems to
imply, that HRS § 572-1
"unconstitutionally discriminates against [the applicant couples] who
seek a license to enter into a same sex marriage[.]" Dissenting opinion
at 588. Such a holding would likewise
be premature at this time. What we
have held is that, on its face and as applied, HRS § 572-1 denies same-sex couples access to the
marital status and its concomitant rights and benefits, thus implicating the
equal protection clause of article I, section 5. See supra at 564. We understand that Judge Heen disagrees with our view in
this regard based on his belief that " HRS § 572-1 treats everyone alike and applies
equally to both sexes[,]" with the result that "[n]either sex is
being granted a right or benefit the other does not have, and neither sex is
being denied a right or benefit that the other has." Dissenting opinion
at 590-91 (emphasis in original). The
rationale underlying Judge Heen's belief, however, was expressly considered
and rejected in Loving: Thus, the State contends that,
because its miscegenation statutes punish equally both the white and the
Negro participants in an interracial marriage, these statutes, despite their
reliance on racial classifications do not constitute an invidious
discrimination based upon race. . . .
[W]e reject the notion that the mere "equal application" of a
statute containing racial classifications is enough to remove the
classifications from the Fourteenth Amendment's proscriptions of all
invidious discriminations . . . . In
the case at bar, . . . we deal with statutes containing racial
classifications, and the fact of equal application does not immunize the
statute from the very heavy burden of justification which the Fourteenth
Amendment has traditionally required of state statutes drawn according to
race. 388 U.S. at 8, 87
S. Ct. at 1821-22. Substitution of "sex" for "race" and
article I, section 5 for the fourteenth amendment yields the precise case
before us together with the conclusion that we have reached. As a final matter, we are compelled to respond to Judge
Heen's suggestion that denying the appellants access to the multitude of
statutory benefits "conferred upon spouses in a legal marriage . . . is
a matter for the legislature, which can express the will of the populace in
deciding whether such benefits should be extended to persons in [the
applicant couples'] circumstances." Dissenting opinion at 597. In effect, we are being accused of engaging
in judicial legislation. We are
not. The result we reach today is in
complete harmony with the Loving court's observation that any state's powers
to regulate marriage are subject to the constraints imposed by the
constitutional right to the equal protection of the laws. 388 U.S. at 7, 87 S. Ct. at 1821. If it
should ultimately be determined that the marriage laws of Hawaii
impermissibly discriminate against the appellants, based on the suspect
category of sex, then that would be the result of the interrelation of
existing legislation. [W]hether the legislation under review is wise or unwise
is a matter with which we have nothing to do.
Whether it . . . work[s] well or work[s] ill presents a question
entirely irrelevant to the issue. The
only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any,
cannot save it; if it is, its faults cannot be invoked to accomplish its
destruction. If the provisions of the
Constitution be not upheld when they pinch as well as when they comfort, they
may as well be abandoned. Home Bldg.
& Loan Ass'n v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 256, 78 L.
Ed. 413 (1934) (Sutherland, J., dissenting). III. CONCLUSION Because, for the reasons stated in this opinion, the
circuit court erroneously granted Lewin's motion for judgment on the
pleadings and dismissed the plaintiffs' complaint, we vacate the circuit
court's order and judgment and remand this matter for further proceedings
consistent with this opinion. 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 demonstrating
that it furthers compelling state interests and is narrowly drawn to avoid
unnecessary abridgments of constitutional rights. See Nagle, 63 Haw. at 392, 629 P.2d at
111; Holdman, 59 Haw. at 349, 581 P.2d
at 1167. VACATED AND REMANDED. [BURNS, J. CONCURRING IN THE OPINION] I concur that the
circuit court's October 1, 1991 order erroneously granted the State's motion for
judgment on the pleadings and erroneously dismissed the plaintiffs' complaint
with prejudice. My concurrence is
based on my conclusion that this case involves genuine issues of material
fact. "Constitutional and other
questions of a large public import should not be decided on an inadequate
factual basis." 6 J. Moore and J. Lucas, Moore's Federal Practice para.
56[10] (2d ed. 1982) (citation omitted). The marriage at issue in this case is the marriage
specifically authorized by Hawaii's statutes.
My label for this marriage is the "Hawaii Civil Law
Marriage." The issue is whether the Hawaii Constitution permits the
State to discriminate against same-sex couples by extending the right to
enter into a Hawaii Civil Law Marriage to opposite-sex couples and not to
same-sex couples. The Hawaii Constitution mandates, in article I, section
3, that "[e]quality of rights under the law shall not be denied or
abridged by the State on account of sex." It also mandates, in article
I, section 5, that "[n]o person shall be . . . denied the equal
protection of the laws, . . . or be discriminated against in the exercise
thereof because of . . . sex[.]" Thus, any State action that
discriminates against a person because of his or her "sex" is
subject to strict scrutiny. As used in the Hawaii Constitution, to what does the
word "sex" refer? In my
view, the Hawaii Constitution's reference to "sex" includes all
aspects of each person's "sex" that are "biologically
fated." The decision whether a person when born will be a male or a
female is "biologically fated." Thus, the word "sex"
includes the male-female difference.
Is there any other aspect of a person's "sex" that is
"biologically fated"? In March 1993, the Cox News Service reported in relevant
part as follows: The issue of whether people become homosexuals because
of "nature or nurture" is one of the most controversial subjects
scientists have confronted in recent years. Until the middle 1980s, the prevailing view among most
scientists was that homosexual "tendencies" were mostly the result
of upbringing. . . . Later, researchers at the Salk Institute in San Diego
found anatomical differences between homosexual and heterosexual men in parts
of the brain noted for differences between men and women. Theories gravitate to the role of male sex hormones. The Honolulu Advertiser, March 9, 1993, at A-8, col. 1. In March 1993, the Associated Press reported in relevant
part as follows: CHICAGO - Genes appear to play an important role in
determining whether women are lesbians, said a researcher who found similar
results among gay men. "I think we're dealing with something very complex,
perhaps the interaction between hormones, the environment and genetic
components," [Roger] Gorski [an expert in biological theories of homosexuality]
said yesterday. The Honolulu Advertiser, March 12, 1993, at A-24, col. 1. On the
other hand, columnist Charles Krauthammer reports as follows: It is natural, therefore, that just
as parents have the inclination and right to wish to influence the
development of a child's character, they have the inclination and right to
try to influence a child's sexual orientation. Gay advocates argue, however, that such
influence is an illusion. Sexual
orientation, they claim, is biologically fated and thus entirely impervious
to environmental influence. Unfortunately, as E. L. Pattullo, former director
of Harvard's Center for the Behavioral Sciences, recently pointed out in
Commentary magazine, the scientific evidence does not support such a
claim. . . . The Honolulu Advertiser,
May 2, 1993, at B-2, cols. 3, 4 and 5. If heterosexuality, homosexuality, bisexuality, and
asexuality are "biologically fated[,]" then the word
"sex" also includes those differences. Therefore, the questions whether
heterosexuality, homosexuality, bisexuality, and asexuality are
"biologically fated" are relevant questions of fact which must be
determined before the issue presented in this case can be answered. If the answers are yes, then each person's
"sex" includes both the "biologically fated" male-female
difference and the "biologically fated" sexual orientation
difference, and the Hawaii Constitution probably bars the State from
discriminating against the sexual orientation difference by permitting
opposite-sex Hawaii Civil Law Marriages and not permitting same-sex Hawaii
Civil Law Marriages. If the answers are no, then each person's
"sex" does not include the sexual orientation difference, and the Hawaii
Constitution may permit the State to encourage heterosexuality and discourage
homosexuality, bisexuality, and asexuality by permitting opposite-sex Hawaii
Civil Law Marriages and not permitting same-sex Hawaii Civil Law Marriages. DISSENTING
OPINION BY HEEN, J. I dissent. n1 Although the lower court judge may have
engaged in "verbal overkill" in arriving at his decision, the
result he reached was correct and should be affirmed. See State v. Taniguchi, 72 Haw. 235, 815
P.2d 24 (1991). n1 Retired Associate Justice
Yoshimi Hayashi, whose appointment as a substitute justice in this case
expired before this dissent was filed, concurs with this dissent. I agree with the plurality's holding that Appellants do
not have a fundamental right to a same sex marriage protected by article I,
§ 6 of the Hawaii State Constitution. However, I cannot agree with the plurality that (1)
Appellants have a "civil right" to a same sex marriage; (2) Hawaii
Revised Statutes (HRS) § 572-1
unconstitutionally discriminates against Appellants who seek a license to
enter into a same sex marriage; (3) Appellants are entitled to an evidentiary
hearing that applies a "strict scrutiny" standard of review to the
statute; and (4) HRS § 572-1 is
presumptively unconstitutional.
Moreover, in my view, Appellants' claim that they are being
discriminatorily denied statutory benefits accorded to spouses in a legalized
marriage should be addressed to the legislature. 1. Citing Loving
v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), the
plurality holds that Appellants have a civil right to marriage. I
disagree. "'It is axiomatic . . .
that a decision does not stand for a proposition not considered by the
court.'" People v. Superior
Court, 8 Cal. App. 4th 688, 703, 10 Cal. Rptr. 2d 873, 881 (1992)
(quoting People v. Harris, 47 Cal. 3d
1047, 1071, 255 Cal. Rtpr. 352, 767 P.2d 619 (1989)). Loving is simply not authority for the plurality's
proposition that the civil right to marriage must be accorded to same sex
couples. Loving points out that the right to marriage occupies an extremely
venerated position in our society. So
does every other case discussing marriage. However, the plaintiff in Loving
was not claiming a right to a same sex marriage. Loving involved a marriage
between a white male and a black female whose marriage, which took place in
Washington, D.C., was refused recognition in Virginia under that state's
miscegenation laws. n2 n2 Since race has historically
been considered a "suspect class," the Supreme Court applied the
strict scrutiny standard of review to Virginia's statute. See note 6, infra, for the definition of
suspect class. The plurality also cites
Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618
(1978), as establishing constitutional limits on the states' right to
regulate marriage. That is an undeniable principle. In Zablocki an application for a marriage
license by a male and a female was denied because the male was not able to
show, pursuant to a Wisconsin statute's requirement, that he was in
compliance with all existing obligations for child support. Loving and Zablocki neither establish the right to a
same sex marriage nor limit a state's power to prohibit any person from
entering into such a marriage. The plurality's conclusion here that
Appellants have a right to a same sex marriage and, therefore, an evidentiary
hearing is completely contrary to the clear import of Zablocki and Loving. Although appellants suggest an analogy between the
racial classification involved in Loving and Perez and the alleged sexual
classification involved in the case at bar, we do not find such an
analogy. The operative distinction
lies in the relationship which is described by the term "marriage"
itself, and that relationship is the legal union of one man and one woman.
Washington statutes, specifically those relating to marriage . . . and
marital (community) property . . ., are clearly founded upon the presumption
that marriage, as a legal relationship, may exist only between one man and
one woman who are otherwise qualified to enter that relationship. [A]ppellants are not being denied entry into the
marriage relationship because of their sex; rather, they are being denied
entry into the marriage relationship because of the recognized definition of that
relationship as one which may be entered into only by two persons who are
members of the opposite sex. Singer v.
Hara, 11 Wash. App. 247, 253-55, 522 P.2d 1187, 1191-92, review denied, 84
Wash. 2d 1008 (1974) (footnotes omitted). The issue of a right to a same sex marriage has been
considered by the courts in four other states. Those courts arrive at the opposite
conclusion from the plurality here.
See Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d
185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65
(1972); De Santo v. Barnsley, 328 Pa.
Super. 181, 476 A.2d 952 (1984); Singer v. Hara, supra. I do not agree with
the plurality's contention that those cases are not precedent for this
case. The basic issue in each of those
four cases, as in this one, was whether any person has the right to legally
marry another person of the same sex. Neither do I agree with the plurality
that Loving refutes the reasoning of the courts in those four cases. 2. HRS § 572-1
treats everyone alike and applies equally to both sexes. The effect of the
statute is to prohibit same sex marriages on the part of professed or
non-professed heterosexuals, homosexuals, bisexuals, or asexuals, and does
not effect an invidious discrimination. n3 n3 Appellants' sexual preferences
or lifestyles are completely irrelevant.
Although the plurality appears to recognize the irrelevance, the real
thrust of the plurality opinion disregards the true import of the statute. The statute treats everyone alike and
applies equally to both sexes. The constitutional guarantee of equal protection of the
laws means that no person or class of persons shall be denied the same
privileges and benefits under the laws that are enjoyed by other persons or
other classes of persons in like circumstances. Mahiai v. Suwa, 69 Haw. 349, 742 P.2d 359
(1987). HRS § 572-1 does
not establish a "suspect" classification based on gender n4 because
all males and females are treated alike.
A male cannot obtain a license to marry another male, and a female
cannot obtain a license to marry another female. Neither sex is being granted
a right or benefit the other does not have, and neither sex is being denied a
right or benefit that the other has. n4 The plurality recognizes that
the U.S. Supreme Court does not recognize sex or gender as a
"suspect" classification, and thus gender has not historically been
afforded the elevated "strict scrutiny" standard of review. My thesis is well illustrated by the case of Phillips v. Wisconsin Personnel Comm'n, 167
Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992). In that case, the plaintiff, an
unmarried female, was denied medical benefits for her unmarried female
"dependent" lesbian companion because Phillips' state health plan
defined "dependent" as spouse or children. Phillips appealed the commission's
dismissal of her gender discrimination complaint and the Wisconsin Court of
Appeals, in striking down her claim, stated that dependent insurance coverage
is unavailable to unmarried companions of both male and female
employees. A statute is only subject
to a challenge for gender discrimination under the equal protection clause
when it discriminates on its face, or in effect, between males and females.
Id. 167 Wis. 2d at 227, 482 N.W.2d at 129 (emphasis in original and citations
omitted). Similarly, HRS §
572-1 does not discriminate on the basis of gender. The statute applies equally to all
unmarried persons, both male and female, who desire to enter into a legally
recognized marriage. n5 Thus, no evidentiary hearing is required. n5 Indeed, it may be said that
the statute establishes one classification: unmarried persons. The cases cited by the plurality to support its holding
that Appellants are a "suspect class" are inapposite. n6 Unlike the
instant case, the facts in both cases show government regulations preferring
one gender (class) over another.
In Holdman v. Olim, 59 Haw. 346,
581 P.2d 1164 (1978), the prison regulation requiring female visitors to wear
proper undergarments clearly affected only female visitors to the state
prison system. Male visitors to the
prison were not subject to such a regulation.
The supreme court explicitly referred to the regulation as being a
sex-based classification. While the reasoning in Holdman is very interesting,
it does not support the plurality's conclusion in this case that HRS § 572-1 creates a suspect class. n6 The plurality does not define
"suspect class." A suspect classification exists where the class of
individuals formed by a statute, on its face or as administered, has been
"saddled with such disabilities, or subjected to such a history of
purposeful unequal treatment or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian
political process." San Antonio
Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278,
1294, 36 L. Ed. 2d 16, 40, reh'g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L. Ed.
2d 418 (1973). Likewise, in
Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d
583 (1973), the federal statutes required that female members of the military
service, but not male members, prove that they provided over one-half of
their spouse's support in order to have the spouses classified as
"dependents." The statutes were clearly discriminatory, since male
members of the military were favored over female members. 3. Since HRS
§ 572-1 is not invidiously discriminatory
and Appellants are not members of a suspect class, this court should not
require an evidentiary hearing. n7 Neither should this court mandate that HRS
§ 572-1 be subjected to the
"strict scrutiny" test. If
anything, Appellants' challenge subjects the statute only to the
"rational basis" test.
Estate of Coates v. Pacific Engineering, 71 Haw. 358, 791 P.2d 1257
(1990). Thus, the issue is whether the statute rationally furthers a
legitimate state interest. Id. There is no question that such a rational
relationship exists; therefore, the statute is a constitutional exercise of
the legislature's authority. n7 The apparent
result of the plurality opinion is that Appellants do not have any burden of
proof on remand. According to the
plurality opinion, all Appellants need to do is appear in court and say,
"Here we are. The statute
discriminates against us on the basis of our sex (whether male or female) and
sex is a suspect class." Even in cases alleging racial discrimination (a
suspect class), "the invidious quality of a law claimed to be racially
discriminatory must ultimately be traced to a racially discriminatory
purpose[,]" and the burden is on the plaintiff to prove that
discriminatory purpose. Washington v.
Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597, 607-08
(1976); see State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). The plurality
opinion has eliminated the need for Appellants to prove purposeful
discrimination. In my
view, the purpose of HRS § 572-1 is
analogous to the purpose of Washington's marriage license statute as stated
in Singer, supra. In the instant case, it is apparent that the state's
refusal to grant a license allowing the appellants to marry one another is
not based upon appellants' status as males, but rather it is based upon the
state's recognition that our society as a whole views marriage as the
appropriate and desirable forum for procreation and the rearing of children. . . . [M]arriage exists as a protected legal institution
primarily because of societal values associated with the propagation of the
human race. Further, it is apparent
that no same-sex couple offers the possibility of the birth of children by
their union. Thus the refusal of the
state to authorize same sex marriage results from such impossibility of
reproduction rather than from an invidious discrimination "on account of
sex." Therefore, the definition of marriage as the legal union of one
man and one woman is permissible as applied to appellants, notwithstanding
the prohibition contained in the ERA, because it is founded upon the unique
physical characteristics of the sexes and appellants are not being
discriminated against because of their status as males per se. n8 Id. 11
Wash. App. at 259-60, 522 P.2d at 1195 (emphasis and footnote added). The court in Singer was considering the
case in the light of that state's Equal Rights Amendment (identical to
article I, § 3 of the Hawaii State
Constitution). The Washington court's
reasoning is pertinent, in my view, to Appellants' claim in the case at hand
and supports the constitutionality of the statute. n8 Since, in my view, the purpose
of HRS § 572-1 is to promote and
protect propagation, the concern expressed in Chief Judge Burns' concurring
opinion as to whether the statute discriminates against persons who may be
genetically impelled to homosexuality does not cause the statute to be
invidiously discriminatory. 4. Furthermore, I
cannot agree with the plurality that HRS §
572-1 is presumptively unconstitutional. The general rule is that
every statute is presumed to be constitutional, and the party challenging the
law on constitutional grounds has the heavy burden of overcoming this
presumption. Washington v. Fireman's
Fund Ins. Cos., 68 Haw. 192, 199, 708 P.2d 129, 134 (1985), cert. denied, 476
U.S. 1169, 106 S. Ct. 2890, 90 L. Ed. 2d 977 (1986). In Washington this
court, in considering a constitutional challenge to a statutory
classification, stated: To prevail, a
party challenging the constitutionality of a statutory classification on
equal protection ground has the burden of showing, "with convincing
clarity that the classification is not rationally related to the"
statutory purpose, State v. Bloss, 62
Haw. 147, 154, 613 P.2d 354, 359 (1980), or that "the challenged
classification does not 'rest upon some ground of difference having a fair
and substantial relation to the object of the legislation,'" Hasegawa v. Maui Pineapple Co., 52 Haw.
327, 330, 475 P.2d 679, 681 (1970), and is therefore "arbitrary and
capricious." State v. Freitas, 61
Haw. 262, 272, 602 P.2d 914, 922 (1979). See also, Schwab v. Ariyoshi, 58
Haw. 25, 31, 564 P.2d 135, 139 (1977). This
court has ruled that: [E]qual protection does not mandate that all laws apply
with universality to all persons; the State "cannot function without
classifying its citizens for various purposes and treating some differently
from others." The legislature may not, however, in exercising this right
to classify, do so arbitrarily. The
classification must be reasonably related to the purpose of the legislation. We set out in Hasegawa a two-step procedure for
determining whether the statute passed constitutional muster: First, we must ascertain the
purpose or objective that the State sought to achieve in enacting [the
challenged statute]. Second, we must
examine the means chosen to accomplish that purpose, to determine whether the
means bears a reasonable relationship to the purpose. Joshua, 65 Haw. at 629,
656 P.2d at 740 (quoting Hasegawa, 52
Haw. at 330, 475 P.2d at 681). Id. 68 Haw. at 199, 708 P.2d at 134. In my view, the statute's classification is clearly
designed to promote the legislative purpose of fostering and protecting the
propagation of the human race through heterosexual marriages and bears a reasonable
relationship to that purpose. n9 I find nothing unconstitutional in that. n9 In 1984, the state legislature
amended HRS § 572-1 by deleting the
requirement that marriage applicants show they are not impotent or that they
are not physically incapable of entering into a marriage. Act 119, § 1, 1984 Haw. Sess. Laws 238. The plurality contends that the amendment
refutes my assertion that the purpose of HRS § 572-1 is to foster and protect the
propagation of the human race. I
disagree. A careful reading of the senate committee report on the
amendment indicates that the amendment does not attenuate the fundamental
purpose of HRS § 572-1. The intent of the amendment was to remove
any impediment that may prevent persons who are "physically handicapped,
elderly, or have temporary physical limitations from entering into a valid
marriage relationship." Sen. Stand. Comm. Rep. No. 570-84, in 1984
Senate Journal, at 1284. The amendment
accommodates only persons with physical limitations on their productive
capacities. With respect to those
persons, the legislature stated that the view that the primary purpose of
marriage is to bear children is "narrow and outdated." That
characterization should not be expanded to include the applicants in this
case. 5. Appellants
complain that because they are not allowed to legalize their relationships,
they are denied a multitude of statutory benefits conferred upon spouses in a
legal marriage. However, redress for those deprivations is a matter for the
legislature, which can express the will of the populace in deciding whether
such benefits should be extended to persons in Appellants'
circumstances. Those benefits can be
conferred without rooting out the very essence of a legal marriage. n10 This
court should not manufacture a civil right which is unsupported by any
precedent, and whose legal incidents -- the entitlement to those statutory
benefits -- will reach beyond the right to enter into a legal marriage and
overturn long standing public policy encompassing other areas of public
concern. This decision will have
far-reaching and grave repercussions on the finances and policies of the
governments and industry of this state and all the other states in the
country. n10 I note that a number of
municipalities across the country have adopted domestic partnership
ordinances that confer such benefits on the domestic partners as the
municipalities have authority to grant.
Note: A More Perfect Union: A Legal And Social Analysis Of Domestic
Partnership Ordinances, 92 Colum. L. Rev. 1164 (1992). |
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