Same-sex marriage in Hawaii

Court activity: 1990 to 1996

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The court challenge to allow same-sex marriages:

In 1990, three same-sex couples (Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon and Joseph Melilio) applied for marriage licenses from the State of Hawaii. They were refused. This set in motion a chain of events:

	They challenged the state's decision in circuit court in 1991. They lost.
	The case was appealed to the Hawaii Supreme Court (Baehr v. Miike; action #15689) which ruled on 1993-MAY-27 that the state's refusal to grant marriage licenses was unconstitutional. It violated the Hawai'ian Constitution's equal protection guarantees (Article I, Section 5) against gender discrimination. The court remanded the case to the Circuit Court, stating that licenses should be issued to same-sex couples, unless the state can show a compelling interest in banning such marriages.
	The Hawai'ian Legislature passed a bill in 1994 stating that the state's policy is that marriage must only be permitted between a man and a woman. They also asserted that only the Legislature -- not the courts -- should make any change in this policy.
	A Commission on Sexual Orientation and the Law was established in 1995. They issued a report on 1995-DEC-9. 1 Attempts were made by conservative elements within the Legislature to suppress the report. The Commission recommended by a 5 to 2 vote that same-sex marriages be legalized, or (as a backup) there be a comprehensive domestic partnership law created to handle homosexual unions.
	The Roman Catholic and Mormon Churches formed the "Hawaii Future Today" group to resist same-sex marriages. A second religious group, the "Alliance for Traditional Marriage", was also organized by fundamentalist and other evangelical Christians.
	A resolution was proposed in the Hawai'ian Legislature that would allow same-sex "domestic partnerships" and give the couples most of the rights and privileges of marriage. The belief was that such a law might persuade the courts that full marriage rights for homosexuals were not needed. The bill was stalled and not voted upon.
	A proposal to amend the Hawaii Constitution to specifically prohibit same sex marriage was proposed in the legislature. It would have been voted upon in the 1996-FALL election. It was also stalled. Many politicians believe that the public lost confidence in the senate and legislature because of their inability to resolve this issue.
	Randall Terry of Operation Rescue (an activist pro-life abortion group) visited Hawaii to oppose "Godless" same sex marriages. He predicted that they would bring God's judgment upon the State of Hawaii and upon the rest of the United States. Some local groups who also oppose homosexual marriages rejected Terry's rhetoric, and "his message of homophobia and intolerance".
	The Mormon Church asked to be allowed to intervene in the trial. Their argument was that the state would be unable to represent properly the interests of the Church. They also are concerned that if same sex marriages are legalized, and the Mormon clergy refuse to conduct marriage ceremonies, that their state license could be revoked. The State Supreme Court rejected their request, and stated that their license argument was without merit; the state had never forced any minister to marry any couple.
	A researcher conservatively estimated that the first state government to legalize same-sex marriage would reap a $4 billion dollar windfall to the economy. The source would be the tourism dollars of large numbers of gay and lesbian couples from the United States and elsewhere who would like to have their relationships recognized in law. 2

The Circuit Court Trial -- 1996-SEP:

The following events occurred in Circuit Court:

	The trial started on 1996-SEP-10, and ended on the 20th. The state seemed to based its case on the following arguments: Gays or lesbians in committed relationships make inferior parents; the best way to assure that children get the best possible upbringing is to require spouses to be of different genders Raising a child in a home with gay or lesbian parents in effect punishes the child, presumably because they would be exposed to homophobia by the public. Because of monogamy, marriage is an institution. This is apparently a reference to the state's belief that homosexual couples cannot be monogamous. Marriage is for procreation. Children are better off when raised by their biological parents. In a same-sex marriage, at least one parent would be genetically unrelated to the child (as in the case of a step family). The "slippery slope" concept: that if same-sex marriages are legalized, then decriminalization of prostitution, polygamy (either polygyny or polyandry), and incest will follow. That all heterosexual couples can have children and no same-sex couples can have children. [We realize that this is totally irrational. A significant percentage of married couples are infertile and a growing number of lesbian couples are having their own children through artificial insemination. But apparently that is what the defense stated]. The government's defense was working under great difficulty, because there is no evidence to support any of their claims. Even their own witnesses, under cross examination, had to admit this. The plaintiffs argued that: The slippery slope argument is invalid because the Supreme court had removed them as issues in their directions to the lower court. The scope of the circuit court's mandate was restricted to one topic. All of the witnesses, both for the plaintiffs and the defense said that "Gay and Lesbian couples are as fit [as parents] and loving as opposite sex couples." Married heterosexual couples receive the full benefits of marriage, even if they decide to not raise children or are unable to raise children. Thus gay couples should not be prohibited from marrying just because they do not plan to have children, or cannot have children. None of the witnesses for the defense were able to demonstrate that harm would come to Hawaii if it recognized same-sex marriages. This was the only task that the Supreme Court assigned to the Circuit Court. "This case is about sex discrimination - discrimination against real people, good citizens....Thus, this case is about denying equal protection and opportunity under the law."
	On 1996-SEP-26, the Hawai`i Council of Churches issued a document called Interfaith Perspective on Same-Gender Marriage which supports same-sex marriage.
	1996-OCT-11 was the final date for amicus briefs. These are "friends of the court" statements by groups or individuals not directly involved in the trial, but who wished to contribute information. he Roman Catholic/Mormon group Hawaii's Future Today filed a brief. It discounted the importance of the evidence presented at the trial that gays and lesbians are quite capable of proper parenting. They look upon same-sex marriage as an attack on the "traditional" concept of marriage. However, they do not address the mandate of the court: to determine if there are any valid reasons why expanding the definition of marriage would have adverse effects on society.
	1996-OCT-28 was the date for the final briefs by the teams for the defense and plaintiffs.

References:

1. The State of Hawaii's "Report of the Commission on Sexual Orientation and the Law" is available at: http://www.state.hi.us/lrb/rpts95/sol/cpt4.html
2. Protect our Constitution is a coalition dedicated to defeating the proposed constitutional amendment. Their home page is at: http://www.poc-hawaii.org/
3. For copies of legal papers, findings, briefs, pleadings etc. on Hawaiian same-sex marriage, see: http://www.hawaiilawyer.com They have since removed this section from their web site.
4. Some of the media in Hawaii:

   Honolulu Star-Bulletin, Letters to the Editor, 605 Kapiolani Blvd., Honolulu, Hawaii 96813, Email: editor@starbulletin.com The Honolulu Advertiser, Letters to the Editor, Box 3110, Honolulu, Hawaii 96802, Email: 76322.2016@compuserve.com Island Lifestyles Magazine, Post Office Box 11840, Honolulu, Hawaii 96828. (A gay newspaper)

5. Hawaii's Future Today maintained an anti-same-sex marriage page at: http://www.hawaiis-future-today.org Their web site has since gone off line.
6. Jennifer Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage", Southern California Law Review, Volume 68, 1995-MAY, #4.

Copyright © 1996 to 1999 incl., 2001 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 1997-JUL-11
Latest update and review: 2009-FEB-08
Author: B.A. Robinson
Hyperlinks checked 2003-JUL-13

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