-----------------Begin HERMP------------------- TO: All Media CONTACTS: Dan Foley, Attorney: 526-9500 RE: Equal Rights Carl Varady, ACLU: 545-1722 DATE: June 3, 1993 GLCC Office: 951-7000 FOR IMMEDIATE RELEASE HAWAII SUPREME COURT TURNS DOWN REQUEST TO RECONSIDER HISTORIC SAME-SEX MARRIAGE RULING STANDS Reaffirming its commitment to equal rights, the Hawaii Supreme Court recently turned down the State Attorney General's request to reconsider its May 5, 1993, ruling that said that the State's refusal to issue marriage licenses to same-sex couples is unconstitutional. In answering the State's request for reconsideration Hawaii's highest court made clear that the State must prove a "compelling interest" or lift the ban on same-sex marriages. The court's most recent edict, which was supported by a majority of the court, means that other states will be able to use the May 5 ruling in efforts to legalize same-sex marriage elsewhere. Hawaii supporters of equal rights hailed the May 5 ruling as a victory for all people wishing to end gender-based discrimination. "We're overjoyed and we couldn't be more pleased, and we now expect to prevail ultimately on the issues of gay marriages," said Dan Foley, attorney for the three gay couples who filed the original law suit against the state as part of the Hawaii Equal Rights Marriage Project (HERMP). The HERMP project began in December of 1990 when three Oahu couples applied for and were denied marriage licenses. The couples then filed a law suit against the State of Hawaii in May of 1991, for denying them the right to marry someone of the same gender. After the suit was dismissed by the state circuit court in September of 1991, before reaching the trial stage, the three couples appealed to the state supreme court. In its divided opinion (2-1-1), the Hawaii Court stated that the state could no longer base its recognition of marriage on the gender of either person involved and that discrimination by government on the basis of gender will be subject to the same type of exacting scrutiny applied to racial, ethnic and religious discrimination. Discrimination of this type, said the Court, will be presumed invalid and will be declared unconstitutional unless the state can show a compelling public interest served by the regulation and that it has attempted to meet that interest by employing the least restrictive form of regulation. By applying the same heightened scrutiny to sex-based classifications that it had already applied to racial, ethnic and religious classifications, Hawaii's highest court made plain what many state courts and the U.S. Supreme Court have only implied under the state and federal constitutional guarantee to equal protection: gender discrimination by government will no longer be tolerated. Thus, Baehr v. Lewin also marks a huge victory for the women of Hawaii, as it says that the state court will now view gender-based distinctions with more skepticism that do our federal courts. "The burden now imposed by the Court on the state is identical to that used by court in the 1960s to overturn regulations that discriminated on the basis of race, including state laws in the South that prohibited interracial marriage," notes ACLU-Hawaii Legal Director, Carl Varady. "We believe the prohibition on same- gender marriage is based on the same prejudice, ignorance and faulty reasoning that previously were used to rationalize state laws banning interracial marriage. No thinking person would try to justify legal sanction against interracial marriage today, and we believe a similar dissipation of prejudice will occur if the courts across the nation strike down the ban on same gender-marriage." Hawaii's Attorney General, Robert Marks, immediately announced the State's opposition to the ruling. Marks said he will defend the state's marriage statute, "not out of homophobia," but because of "compelling state interests" such as the enormous cost the state would have to shoulder if forced to provide spousal benefits to same-sex partners living together. "What about how much it cost to pay for benefits of opposite- sex couples?" asks HERMP Plaintiff Joe Melillo, in response to the attorney general's position. "By pointing to the disparity in benefits, the state is only highlighting its own discrimination," Melillo notes. "Last I heard, equal rights were not for sale." Hawaii's Attorney General also asked that the state's arguments be reconsidered on the grounds that the May 5 decision was unprecedented and that it did not represent the opinion of the majority of the Court. The opinion, issued by Justice Steven Levinson, was also signed by Chief Justice Ronald Moon. A Substitute Associate Justice, James Burns, agreed with the prevailing opinion but suggested that a ban on same-sex marriages might be unconstitutional only if homosexuality was shown to be biologically fated. A new Associate Justice, Paula Nakayama, agreed with the High Court's refusal to reconsider the case. Nakayama, Levinson and Moon now form a majority of justices agreeing that the origin of one's sexual orientation is not relevant. The only decision left is whether the state can provide compelling reasons to justify its refusal to issue marriage licenses to same-sex couples. The case has been remanded to trial court. A final decision affirming equal rights is expected to be made by the Hawaii Supreme Court within the next two years. HERMP organizers, however, concede that finances may play a vital role in the ability to secure the over 100 legal rights associated with civil marriage. A $25,000 legal bill continues to mount and organizers anticipate the need for much more backing to help educate Hawaii citizens about the positive implications of same-sex marriage. "We hope everyone takes this opportunity to come out and support this equal rights movement," says Ninia Baehr, HERMP Co- Chair. All contributions will do a lot to keep us moving forward," Baehr notes. (HERMP tax-deductible contributions can be sent to: HERMP c/o GLCC, 1820 University Ave #8, Honolulu, HI 96822). -----------------End HERMP---------------------