THE "HAWAII'S FUTURE TODAY" BRIEF OPPOSING SAME-SEX MARRIAGES

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Hawaii's Future Today appears to be mainly a Christian religious organization composed primarily of members of the Roman Catholic Church and Church of Jesus Christ of Latter-day Saints. On about 1996-OCT-11, they filed an amicus curiae ("friend of the court") brief in the civil case #91-1394-05 before The Honorable Kevin S.C. Chang, Judge of the Circuit court of the First Circuit, State of Hawaii. Plaintiffs are a committed lesbian couple, Tammy Rodrigues and Antoinette Pregil and a committed gay couple Pat Lagon & Joseph Mellillo. Defendant is Lawrence H. Miike, in his official capacity as Director of the Department of Health of Hawaii. That department contains the office which issues marriage licenses. The brief was written by James E.T. Koshiba, the HFT lawyer.

The state Supreme Court had determined that the denial of a marriage license to gays and lesbians is a clear case of gender discrimination. A man and woman who otherwise qualified could obtain a license; two women or two men could not. Because of Hawaii's civil rights laws, this is clearly unconstitutional. The Court then asked a lower court to determine if there were overriding societal concerns why such discrimination should be allowed.

Excerpts of the brief follow:

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Hawaii's Future Today

"Hawaii's Future Today ('HFT') is a nonprofit organization made up of individuals who have demonstrated a long-standing commitment to community and public service. Members span a broad spectrum of ethnic, political and religious backgrounds, and include community volunteers, business leaders, professionals, church leaders and other members of the community. HFT's single purpose is to maintain the character of the Hawaiian community that parents, children and visitors from around the world hold dear.

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HFT Summary of Court Case

"...this case may be stated relatively simply: Given the Hawaii Supreme Court's mandate, should this Court order a radical reform in the basic institution of marriage, jettisoning long-recognized cultural values and drastically redefining the fundamental structure of our society?

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Homosexuality not a Protected Class

The HFT brief cites a number of court cases, including some before the United States Supreme Court, which "have squarely or implicitly held that homosexuality is not a suspect classification deserving of heightened protection under the Equal Protection Clause."

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Compelling State Interest

Because of the mandate given to the lower court by the Hawaiian Supreme Court, the HFT confined "its analysis before this Court to the question of compelling governmental interest....Indeed, there are numerous cases across the nation and in Hawaii in which strict scrutiny has been applied and the state has been vindicated because the courts have recognized significant and important societal interests founded upon the particular state law or regulation in question." They list several interests:

	the historical and time-honored protection of traditional marriage as the fundamental structure in Hawaiian society that advances basic societal goals and values;
	comity;
	the protection of children;
	procreation;
	others, not listed

Comity is a word with multiple meanings: courteous behavior; courts in one jurisdiction recognizing decisions by courts in other jurisdictions, etc. It is not clear which meaning is intended here.

They decided to concentrate solely on the "protection of traditional marriage" issue.

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Expert testimony relatively unimportant

"...the Court may well be aided in its constitutional analysis by the evidence presented by the parties at trial or by the opinions and studies of various experts. However, as in many other constitutional law cases of great societal importance, expert testimony and empirical studies need not be the determining factors.

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Previous court cases involving compelling societal interests

They cite analogous cases in which courts decided to overrule basic constitutional guarantees (freedom of speech, privacy, etc.) because of overriding societal concerns:

	anti-picketing ordinances in residential areas because of the historical and long-entrenched interests of privacy and safety in the home.
	nudity prohibitions based upon the historically recognized interest "of protecting societal order and morality"
	"no political speech zones" around election polls because of the "wide-spread and time-tested" traditions of eliminating intimidation and election fraud.
	discriminatory enforcement of felony motor vehicle statutes because of grave and long-recognized "societal values" in protecting individuals from harm;
	tax exemptions for religious entities based upon an unbroken historical practice that was "not something to be lightly cast aside"
	prayer in state legislatures because of its "unambiguous and unbroken history of more than 200 years" and because it has "become part of the fabric of our society."

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Societal interests in denying same-sex marriage

"Some societal institutions are so important, some basic structures so crucial, and some fundamental relationships so inherently intertwined in day-to-day living, that their protection is a compelling governmental interest in and of itself: We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."
"In this litigation, plaintiffs are not suing merely to gain benefits similar to those provided to married couples, nor are they simply asking to have their homosexual relationships recognized in some form or another by the State. Rather, they are seeking to alter the definition of marriage itself---to make marriage into something it has never been before, and to force the State to radically change the fundamental institution which historically has laid at the heart of all human, family, and social interaction."

"If plaintiffs' view were accepted, marriage in Hawaii would mean something that it has never meant before. The historic and time-honored institution which has been recognized as the foundation of our community would be fundamentally altered."
"In perpetuating the family as the basis of the Hawaiian community, marriage has been expressly or implicitly defined as a union between one man and one woman since at least 1846."

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Public opinion

"...in 1994 a full 68% of the Hawaiian population opposed the recognition of homosexual marriage." (1,2)

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Conclusions

"Traditional marriage lies at the very cornerstone of Hawaiian society. Its compelling nature is evident in all aspects of daily life. To be sure, the state may tolerate and even in some instances encourage other human relationships, but there can be no dispute that marriage between one man and one woman is special -- both in its definition and in the benefits it provides.
This Court should rule in favor of the State and find Hawaii's prohibition on homosexual marriage is supported by a compelling governmental interest.

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Author's comments

	Many of the statements in this brief could have been used without alteration a generation ago to condemn to mixed-race marriages.
	The report implies that that marriage in Hawaii has always meant one man and one woman. Yet the author must have been aware that Aikane, close male societal and sexual relationships, were an accepted part of ancient Hawaiian culture, before the arrival of the Christian missionaries in the 19th century.
	They seem to regard the concept of same-sex marriages as an attack on traditional, heterosexual marriages. They even imply that legalizing them might threaten the survival of the human race. This argument might have some merit if sexual orientation were easily changed or if the state only had a limited number of marriage licenses to dispense.
	They have not developed an argument which is related to the legal point under debate in this case: how a decision by the state to allow marriages by persons of all sexual orientations would somehow damage "traditional" heterosexual marriages or society itself.
	Their main argument seems to be that gays and lesbians should not be allowed to marry because the state has never allowed it in the past. i.e. any change to the institution of marriage must be inherently bad.
	We fail to see the importance of public opinion in this case. A poll taken in the 1950's concerning the preservation of racial segregation would have produced similar results. So would one conducted during the 1960's on confining marriage to same-race couples.
	Marriage is vitally important to most committed couples. It is a state so intimate that it effects all parts of their life, both as individuals and as a couple. The state must have overwhelming concerns before it denies two loving, committed adults the right to marry. No such concerns have been shown in this brief, or in the trial itself. We believe that no such concerns exist.