---[Important Notes]-------------------------------------------------------- * This file has been scanned from original documents and may still contain spelling errors, missing text, unintelligible words etc. Attempts have been made to check these files for accuracy. * This file has been typographically modified to keep pages in tact, but to improve readability by removing line breaks in text and adding indentation to paragraphs and sections where relevant. * This file may have had non-ASCII symbols for section and paragraph have been replaced in this version with [SEC] and [PAR]. * This file may still contain spelling mistakes due to use of OCR software. * Footnotes appear between broken dashed lines, and appear as thus [fn#]. ---------------------------------------------------------------------------- ---[Start page TOC-1]--- NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT FILED ON ) DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) HONORABLE PATRICK YIM LAWRENCE H. MIIKE, in his ) HONORABLE ROBERT KLEIN official capacity as Director ) HONORABLE HERBERT SHIMABUKURO of the Department of Health ) HONORABLE KEVIN CHANG State of Hawaii ) Judges ) Defendant-Appellant. ) ____________________________________) PLAINTIFFS-APPELLEES' ANSWERING BRIEF CERTIFICATE OF SERVICE PARTINGTON & FOLEY EVAN WOLFSON DANIEL R. FOLEY 3556 Lambda Legal Defense and Suite 2450 Pacific Tower Education Fund, Inc. 1001 Bishop Street 120 Wall Street, Suite 1500 Honolulu, Hawaii 96813 New York, New York 10005 Telephone: (808) 526-9500 Telephone: (212) 809-8585 KIRK H. CASHMERE 3928 201 Merchant Street 2300 City Financial Tower Attorneys for Honolulu, Hawaii 96813 Plaintiffs-Appellees Telephone: (808) 523-7600 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...........................................i-iv I. STATEMENT OF THE CASE..........................................1 II. STANDARDS OF REVIEW...........................................8 III. QUESTIONS PRESENTED..........................................9 IV. ARGUMENT......................................................9 A. THIS COURT SHOULD AFFIRM THE LOWER COURT BECAUSE OF THE DIRECTOR'S FAILURE TO COMPLY WITH RULE 28 OF THE HAWAII RULES OF APPELLATE PROCEDURE.........................9 B. THIS COURT SHOULD AFFIRM THE LOWER COURT BECAUSE OF THE DIRECTOR'S FAILURE TO CONTEST AND APPEAL FINDINGS OF FACT AND CONCLUSIONS OF LAW.............................10 C. THIS COURT SHOULD NOT RECONSIDER AND REVERSE ITS HOLDING THAT H.R.S. [SEC] 572-1 ESTABLISHES A SEX-BASED CLASSIFICATION...................................14 1. This court has ruled that H.R.S. [SEC] 572-1 establishes a sex-based classification..................14 2. This court's 1993 ruling is the law of the case and should not be reconsidered now......................15 D. THIS COURT WAS CORRECT IN ITS 1993 HOLDING THAT THE STATUTE DISCRIMINATES ON THE BASIS OF SEX, IN VIOLATION OF THE HAWAII CONSTITUTION.......................17 1. The statutory restriction on marriage discriminates on the basis of sex.....................................17 2. This court's Loving v. Virginia analogy in this case was correct........................................21 3. This court construes the words of the Hawaii Constitution as they are written........................24 4. Same-sex couples and different-sex couples are similarly situated with respect to their interest in having the freedom to marry..........................25 E. THE DIRECTOR DID NOT MEET HIS HEAVY BURDEN OF DEMONSTRATING THAT THE SEX-BASED CLASSIFICATION IN H.R.S. [SEC] 572-1 FURTHERS COMPELLING STATE INTERESTS..................................................27 - - - - - - - - - - - - - - - - - - ---[Start page TOC-2]--- 1. Moral values............................................27 2. Propagation of the human race...........................30 3. Comity..................................................32 F. THE DIRECTOR DID NOT MEET HIS HEAVY BURDEN IN DEMONSTRATING THAT SEX-BASED CLASSIFICATION IN H.R.S. [SEC] 572-1 IS NARROWLY DRAWN TO AVOID UNNECESSARY ABRIDGMENTS OF CONSTITUTION RIGHTS.............32 V. CONCLUSION....................................................33 APPENDIX Order Granting in Part Defendant-Appellee's A-1 Motion for Reconsideration or Clarification, filed May 27, 1993 (R 237-239) STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE - - - - - - - - - - - - - - - - - - ---[Start page i]--- TABLE OF AUTHORITIES page(s) CASES AMFAC, Inc. v. Waikiki Beachcomber Investment Co, 74 Haw. 85, 839 P.2d 10 (1992).....................8, 11, 12, 14 Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and certification granted in part, 74 Haw. 645, 852 P.2d 74: (1993) .....................1, 2, 12, 16, 17, 20-22, 24, 25, 28, 32, 34 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37 (1972)..................31 Bettencourt v. Bettencourt, 86 Haw. 225, 909 P.2d 553 (1995)........................................................10 Blair v. Cayetano, 73 Haw. 536, 836 P.2d 1066, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)......25 Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954)........................................................34 Cain v. Cain, 59 Haw. 32, 575 P.2d 468 (1978).................15 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249 (1985)........................................31 Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972)....................................................24, 31 Evans v. Romer, 882 P.2d 1335 (Colo. 1994), aff'd, 517 U.S. __, 116 S. Ct. 1620 (1996)...........................28 Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965)....................................................24, 31 Holdman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978)............25 Jones v. Hallahan, 501 S.W.2d 588 (Ky. App. 1973).............31 - - - - - - - - - - - - - - - - - - ---[Start page ii]--- Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967).........................................21-23, 27, 29, 34 McKinney v. Commonwealth, 71 Va. (30 Gratt.) 858 (1878).......28 McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283 (1964).....23 Mississipi Univ. for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331 (1982)........................................27 Orr. v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979)..............29 Pace v. Alabama, 106 U.S. (16 Otto) 583, 1 S. Ct. 637 (1883)........................................................22 Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879 (1984).......31 Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877).................28 Perez v. Lippold, 198 P.2d 17 (Cal. 1948)..........20, 28, 33-35 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878)........27 Roe v. Wade, 410 U.S. 113, 935 S. Ct. 705 (1973)..............24 Romer v. Evans, 517 U.S. ___, 116 S. Ct. 1620 (1996)................................................28, 30, 31 Shelley v. Kramer, 334 U.S. 1, 68 S. Ct. 836 (1948)...........23 Singer v. Hara, 522 P.2d 1187 (Wash. 1974)............16, 17, 31 Stanton v. Stanton, 421 U.S. 7, 95 S. Ct. 1373 (1975).........27 State v. Kahua Ranch, Ltd., 47 Haw. 466, 390 P.2d 737 (1964)........................................................10 State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988)................24 - - - - - - - - - - - - - - - - - - ---[Start page iii]--- State v. Toyomura, 80 Haw. 8, 905 P.2d 893 (1995)..............9 State v. Trainor, 83 Haw. 250, 925 P.2d 818 (1996).............9 State v. Walsh, 713 S.W.2d 508 (Mo. 1986).....................22 Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987).....27, 31 United States v. Virginia, 518 U.S. ___, 116 S. Ct. 2264 (1996)....................................................29, 34 Von Holt v. Izumo Taisha Kyo Mission of Hawaii, 44 Haw. 147, 355 P.2d 40 (1960)............................................15 Wisdom v. Pfluger, 4 Haw. App. 455, 667 P.2d 844 (1983).......11 Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673 (1978).......31 CONSTITUTIONAL PROVISIONS Hawaii Const. art. I, [SEC] 5.......................2, 8, 18, 24 Hawaii Const. art. I, [SEC] 6.................................24 Stand. Comm. Rep. No. 69, 1 proceedings of the Const. Convention of Hawaii of 1978, at 675 (1978)...................17 U.S. Const. art 4, [SEC] 1....................................13 STATUTES Haw. Rev. Stat. [SEC] 572-1 .......................1, 8, 9, 12-14, 16-20, 23, 25, 26, 31, 32 RULES Haw. R. App. P. 28.........................................9, 10 Haw. R. App. P. 28(b)(3).......................................9 Haw. R. App. P. 28(b)(4)......................................10 Haw. R. App. P. 28(b)(7)......................................10 - - - - - - - - - - - - - - - - - - ---[Start page iv]--- OTHER AUTHORITIES Andrew Koppelman, Why Discrimination Against Lesbian and Gay Men is Sex Discrimination, 69 N.Y.U.L. Rev. 197, 215-19, 234-73 (1994).....................................21, 22 David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447 (1996)..........................30 Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1 B.Y.U.L. Rev. 1 (1996)........24 Report of the Commission on Sexual Orientation and the Law (Dec. 8, 1995)............................................30 Rex E. Lee, A Lawyer Looks at the Equal Rights Amendment 65 (Brigham Young Univ. Press 1980).................24 Robert J. Morris, Configuring the Bounds of Marriage: The Implications of Hawaiian Culture and Values for the Debate About Homogamy, 8 Yale J.L. & Human. 105, 112-16 (1996).......25 Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 200, 218.......................21 The Federalist No. 78, at 469-70 (Alexander Hamilton) (Mentor 1961).................................................33 Tom C. Clark, Religion. Morality, and Abortion: A Constitutional Appraisal, 2 Loy. L.A.L. Rev. 1, 9 (1969)......31 William N. Eskridge, Jr., The Case for Same-Sex Marriage, 162-72 & 182 (1996)...........................................21 - - - - - - - - - - - - - - - - - - ---[Start page 1]--- NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT FILED ON ) DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) HONORABLE PATRICK YIM LAWRENCE H. MIIKE, in his ) HONORABLE ROBERT KLEIN official capacity as Director ) HONORABLE HERBERT SHIMABUKURO of the Department of Health ) HONORABLE KEVIN CHANG state of Hawaii, ) Judges ) Defendant-Appellant. ) ____________________________________) PLAINTIFFS-APPELLEES' ANSWERING BRIEF I. STATEMENT OF THE CASE On May 1, 1991, Plaintiffs-Appellees ("the Couples") filed a complaint for injunctive and declaratory relief in the Circuit Court of the First Circuit, State of Hawaii, seeking a declaration that Hawaii Revised Statutes ("H.R.S.") [SEC] 572-1 is unconstitutional insofar as it is construed and applied by the State Department of Health to justify refusing to issue a marriage license on the sole basis that the applicant couple is of the same sex, and an injunction prohibiting the withholding of marriage licenses on that sole basis. Baehr v. Lewin, 74 Haw. 530, 536-37, 852 P.2d 44, 48 (1993), reconsideration and clarification granted in part, 74 Haw. 645, 852 P.2d 74 (1993). On October 1, 1991, the lower court granted the motion for judgment on the pleadings of Defendant-Appellant Director of the Department of Health, State of Hawaii ("the Director") and dismissed the Couples' complaint with prejudice. Baehr, 74 Haw. at 545, 852 P.2d at 52 (1993). The Couples filed a timely appeal of the lower court's order. Id. On May 5, 1993, this court vacated the lower court's order and judgment in favor of the Director and remanded the case - - - - - - - - - - - - - - - - - - ---[Start page 2]--- to the lower court. Baehr, 74 Haw. at 583, 852 P.2d at 68. In pertinent part, this court directed the lower court: On remand, in accordance with the "strict scrutiny" standard, the burden will rest on [Defendant] to overcome the presumption that HRS [SEC] 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. Id. (citations omitted). On May 17, 1993, the Director filed a motion for reconsideration or clarification. The Director argued that the original plurality decision of this court was wrong in concluding that denying same-sex couples marriage licenses, and the rights and benefits of marriage, was sex discrimination under Article I, [SEC] 5, of the Hawaii Constitution. On May 27, 1993, this court, by a three-justice majority, granted the Director's motion for reconsideration or clarification in part, and clarified the mandate on remand as follows: Because, for the reasons stated in the plurality opinion filed in the above-captioned matter on May 5, 1993, the circuit court erroneously granted [Defendant's] motion for judgment on the pleadings and dismissed the plaintiffs' complaint, the circuit court's order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the "strict scrutiny" standard, the burden will rest on [Defendant) to overcome the presumption that HRS [SEC] 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. Baehr, 74 Haw. 645, 645-46, 852 P.2d 74, 74-75 (1993) (on reconsideration) (citations omitted). The Director's First Amended Pretrial Statement was filed on May 13, 1996. The Director asserted that the compelling state interests in denying same-sex couples marriage licenses were: protecting the health and welfare of children; fostering procreation within a marital setting; securing or assuring recognition of Hawaii marriages in other jurisdictions; - - - - - - - - - - - - - - - - - - ---[Start page 3]--- protecting the public fisc; and protecting civil liberties. V R 2-4; VII R 196-7. The Director presented testimony at trial from four expert witnesses. Dr. Kyle Pruett was qualified as an expert in the field of psychiatry, specializing in child development. VII R 198. Dr. Pruett asserted that same-sex relationships do not provide the same type of learning model or experience for children as does male-female parenting. VII R 199; 9/10/96 Tr 63. Nevertheless, Dr. Pruett confirmed that same-sex parents can, and do, produce children with a clear sense of gender identity. VII R 199; 9/10/96 Tr 106. Dr. Pruett testified that single parents, gay fathers, lesbian mothers and same-sex couples have the potential to, and often do, raise children that are happy, healthy and well-adjusted. VII R 200; 9/10/96 Tr 69. Dr. Pruett stated that gay parents' sexual orientation does not disqualify them from being good, fit, loving or successful parents. VII R 200; 9/10/96 Tr 72. In general, gay and lesbian parents are as fit and loving parents as non-gay persons and couples, VII R 200; 9/10/96 Tr 73, and have the same capability as different-sex couples to manifest the qualities conducive to good parenting, VII R 201; 9/20/96 Tr 75. He confirmed that same-sex couples should be allowed to adopt children, provide foster care, and take children in and raise and care for them. VII R 201; 9/10/96 Tr 73. The Director's second witness, Dr. David Eggebeen, was deemed an expert in the field of sociology with a special emphasis in demographics related to family and children. VII R 202. He testified that single parents, adoptive parents, lesbian mothers, gay fathers, and same-sex couples can create stable family environments and raise healthy and well-adjusted children. VII R 206; 9/11/96 Tr 82. Dr. Eggebeen confirmed that gay and lesbian couples can, and do, make excellent parents, are capable of raising healthy children, and should be allowed to adopt children and serve as foster parents. VII R 206; 9/11/96 Tr 83-85. - - - - - - - - - - - - - - - - - - ---[Start page 4]--- Dr. Eggebeen stated that children of same-sex couples would be helped if their families had access to or were able to receive the following benefits of marriage: (1) state income tax advantages; (2) public assistance; (3) enforcement of child support, alimony or other support orders; (4) inheritance rights; and (5) the ability to prosecute wrongful death actions. Dr. Eggebeen also testified that children of same-sex couples would be helped if their families received the social status derived from marriage. VII R 207; 9/11/96 Tr 89-92. The Director's third witness, Dr. Richard Williams, was deemed an expert in the field of psychology with special expertise in research and research methods, statistical analysis, and construction of research studies. VII R 207. He reviewed approximately twenty to thirty studies of children raised by gay and lesbian parents and eventually selected nine studies to critique. VII R 207. The lower court found that the testimony of Dr. Williams was not persuasive or believable because of his expressed bias against the social sciences, which include the fields of psychology and sociology. VII R 208. Dr. Williams doubted the ultimate value of psychology and other social sciences. VII R 208; 9/12/96 Tr 73. Dr. Williams admitted that his critique of studies regarding gay and lesbian parenting is a minority position. VII R 208; 9/12/96 Tr 74-75. Defendant's last witness was Thomas Merrill, Ph.D., an expert in the field of psychology including the areas of human development, gender development, and child development. VII R 208. His clinical experience with families involving one or two gay or lesbian parents is limited. VII R 209; 9/13/96 Tr 36. He testified that same-sex parents provide a learning experience for a child, although in his view there is insufficient information regarding the effects of being raised,by gay or lesbian parents on the development of a child. VII R 210; 9/13/96 Tr 22. As a result, he had no opinion regarding the development of children in a family with same-sex parents. VII R 210; 9/13/96 Tr 38. - - - - - - - - - - - - - - - - - - ---[Start page 5]--- Nevertheless, Dr. Merrill testified that the sexual orientation of a parent is not an indication of parental fitness. VII R 211; 9/13/96 Tr 46. He confirmed that gay and lesbian couples with children do have successful relationships. VII R 211; 9/13/96 Tr 46. Dr. Merrill testified as follows: Q. Now, doctor, do you think the children, regardless of whether they have a mother and a father, male-female parents, single parents, adoptive parents, gay and lesbian parents, same gender parents, should have the same opportunity in society to reach their optimum development, each child? A. Yes, I do. VII R 211; 9/13/96 Tr 45. He further stated that children should not be denied benefits, such as health care, education, and housing based on the status of their parents. Different-sex, same-sex, single, and adoptive parent status should not be a basis to deny benefits to children. VII R 211; 9/13/96 Tr 46. Although the Couples did not have the burden of proof in this case, they nevertheless presented testimony from four expert witnesses. Dr. Pepper Schwartz is an expert in sociology and interdisciplinary studies of sexuality with a special expertise in gender and human sexuality, marriage and the family, and same-sex relations in parenting and research. VII R 212. She stated that same-sex couples can, and do, have successful, loving and committed relationships. VII R 214; 9/16/96 Tr 129. Dr. Schwartz also identified practical, economic, legal, social and psychological benefits of marriage and reasons for people to marry. VII R 214; 9/16/96 Tr 59-65. She testified that the sexual orientation of parents is not an indicator of parental fitness (VII R 214; 9/16/96 Tr 128) and that gay and lesbian parents and same-sex couples are as fit and loving parents as non-gay persons and different-sex couples. VII R 214; 9/16/96 Tr 127. Dr. Schwartz expressed the following expert opinions: First, there is no reason related to the promotion of the optimal development of children why same-sex couples should not be - - - - - - - - - - - - - - - - - - ---[Start page 6]--- permitted to marry. VII R 214; 9/16/96 Tr 130. Second, allowing same-sex couples to marry would not have a negative impact on society or the institution of marriage. Dr. Schwartz testified that "there would be no dishonor and no ultimate fragility to the institution (of marriage] by including gays and lesbians." VII R 214-5; 9/16/96 Tr 130-131. Third, allowing same-sex couples to marry would have a positive impact on society and the institution of marriage. VII R 215; 9/16/96 Tr 131-132. The lower court found this testimony especially credible. VII R 212. The Couples' second witness, Dr. Charlotte Patterson, is an expert in the field of psychology of child development with a special expertise in lesbian and gay parenting and the development of children of lesbian and gay parents. VII R 215. Based on her studies and review of other research, Dr. Patterson testified as follows: A biological relationship between parent and child is not essential to raising a healthy child. The quality of parenting which a child receives is more important than a biological connection or the gender of a parent. VII R 217; 9/17/96 Tr 42-43. There are no data or research which establish that gay fathers and lesbian mothers are less capable of being good parents than non-gay people and which support denying gay people the ability to adopt and raise children. VII R 217-218; 9/17/96 Tr 52. Dr. Patterson testified that gay and lesbian people and same-sex couples are as fit and loving parents as non-gay people and different-sex couples, and that sexual orientation is not an indicator of parental fitness. VII R 218; 9/17/96 Tr 53-54. She testified that same-sex couples can, and do, have successful, loving and committed relationships. VII R 218; 9/17/96 Tr 54. In her expert opinion, there is no reason related to the promotion of the development of children why same-sex couples should not be permitted to marry. VII R 218; 9/17/96 Tr 55. The Couples' third witness, Dr. David Brodzinsky, is an expert in the fields of psychology and child development with a special expertise in adoption and other forms of nonbiological - - - - - - - - - - - - - - - - - - ---[Start page 7]--- parenting and the development of children raised by nonbiological parents.[fn1] VII R 218. Dr. Brodzinsky noted that same-sex parent adoptions occur and, in his expert opinion, should be allowed. VII R 220; 9/18/96 Tr 49. Dr. Brodzinsky testified that the research shows that same-sex couples and different-sex couples can be highly competent care-givers. The sexual orientation of parents is not an indicator of parental fitness (VII R 220; 9/18/96 Tr 50), and the children adopted or raised by same-sex couples are not at any increased risk for behavioral or psychological problems. VII R 220; 9/18/96 Tr 50. It is Dr. Brodzinsky's expert opinion that there is no reason related to the promotion of the development of children why same-sex couples should not be permitted to marry. VII R 221; 9/18/96 Tr 63. Dr. Robert Bidwell, the last witness called by the Couples, is an expert in pediatrics with a subspecialty in adolescent medicine.[fn2] Dr. Bidwell testified that gay and lesbian parents and same-sex couples raise children who are just as healthy and well-adjusted as those raised by different-sex couples. VII R 222; 9/19/96 Tr 38. Dr. Bidwell believes that children of same-sex parents would benefit, with respect to their health, development, and adjustment if their parents were married. VII R 223; 9/19/96 Tr 38. - - - - - - - - - - - - - - - - - - [fn1] Dr. Brodzinsky counsels children and families in a clinical setting and also has an academic appointment at Rutgers University. There, he does research, teaches, directs a program on counseling foster children, and does clinical supervision. VII R 218. The lower court found his testimony especially credible. VII R 212. [fn2] Dr. Bidwell is the Director of Adolescent Medicine at Kapiolani Medical Center and is employed at the Univ. of Hawaii medical school Dept. of Pediatrics. He teaches medical students and pediatric residents, provides patient care, and practices adolescent medicine and general pediatrics at Kapiolani. VII R 221-222. In his clinical practice, he has had experience with children of same-sex parents. He has provided medical services to hundreds of children with families which included a single gay or lesbian parent or same-sex parents. VII R 222. - - - - - - - - - - - - - - - - - - ---[Start page 8]--- Based on the solid record at trial, the lower court found that gay and lesbian parents and same-sex couples are as good parents as non-gay men and women and different-sex couples; there was no evidence the well-being of children and families would be adversely affected by allowing same-sex couples to marry; and children and families would in fact benefit from an end to sex discrimination in marriage. VII R 224-228. The lower court also found people in Hawaii marry for reasons other than having and raising children. VII R 227-228. In addition, the lower court found the Director failed to prove that allowing same-sex couples to marry would have an adverse impact on the public fisc; that the failure of other jurisdictions to recognize same-sex couples' marriages would have an adverse impact on Hawaii or its citizens; or that there is relevant significance to, or actual need to protect, "traditional" marriage. VII R 224. The lower court then concluded the evidence presented by the Director did not prove that allowing same-sex couples to marry would harm an important public or governmental interest (including the well-being of children and families), the public fisc, recognition of Hawaii marriages in other states, or the institution of "traditional" marriage. VII R 234-235. The lower court also concluded the Director failed to establish that H.R.S. [SEC] 572-1 is narrowly tailored to avoid unnecessary abridgments of constitutional rights. VII R 235. Accordingly, the lower court declared the sex-based classification in H.R.S. [SEC] 572-1 unconstitutional and in violation of the equal protection clause of Article I, [SEC] 5, of the Hawaii Constitution, and enjoined the Director from denying an application for a marriage license solely because the applicants are of the same sex. VII R 235-36. II. STANDARDS OF REVIEW Conclusions of law that present mixed questions of fact and law are "reviewed under the clearly erroneous standard." AMFAC, Inc. v. Waikiki Beachcomber Investment Co., 74 Haw. 85, - - - - - - - - - - - - - - - - - - ---[Start page 9]--- 119, 839 P.2d 10, 29 (1992). This court answers questions of constitutional law by exercising its own independent judgment "based on the facts of the case." State v. Trainor, 83 Haw. 250, 255, 925 P.2d 818, 823 (1996). Questions of constitutional law are reviewed under the "right/wrong" standard. State v. Toyomura, 80 Haw. 8, 15, 905 P.2d 893, 900 (1995). III. QUESTIONS PRESENTED A. Whether this court should affirm the lower court because of the Director's failure to comply with Rule 28 of the Hawaii Rules of Appellate Procedure? B. Whether this court should affirm the lower court because of the Director's failure to contest and appeal findings of fact and conclusions of law? C. Whether this court should reconsider and reverse its holding that H.R.S. [SEC] 572-1 establishes a sex-based classification? D. Whether this court was correct in its 1993 holding that the statute discriminates on the basis of sex, in violation of the Hawaii Constitution? E. Whether the Director met his heavy burden of demonstrating that the sex-based classification in H.R.S. [SEC] 572-1 furthers compelling state interests? F. Whether the Director met his heavy burden of demonstrating that the sex-based classification in H.R.S. [SEC] 572-1 is narrowly drawn to avoid unnecessary abridgments of constitutional rights? IV. ARGUMENT A. THIS COURT SHOULD AFFIRM THE LOWER COURT BECAUSE OF THE DIRECTOR'S FAILURE TO COMPLY WITH RULE 28 OF THE HAWAII RULES OF APPELLATE PROCEDURE. Rule 28(b) (3) of the Hawaii Rules of Appellate Procedure (hereinafter "HRAP") requires an opening brief to contain: A concise statement of the case, containing facts material to consideration of the questions and points presented, with record references supporting each - - - - - - - - - - - - - - - - - - ---[Start page 10]--- statement of fact or mention of trial proceedings. In presenting those material facts, all supporting and contradictory evidence shall be presented in summary fashion and with appropriate record references. Failure to comply with Rule 28 is sufficient basis for affirming the trial court's judgment. Bettencourt v. Bettencourt, 80 Haw. 225, 228, 909 P.2d 553, 556 (1995). The Director's statement of the case does not contain facts material to consideration of the questions and points presented. Supporting and contradictory evidence is not presented in summary fashion. The Director, in fact, omits any and all facts established at trial in this case, engages in argument, and misrepresents the decisions of this court in Baehr in stating that this court's May 5, 1993, decision had two justices dissenting (there was one, Judge Heen) and that this court's May 27, 1993, order was unsigned (it was signed by Justices Moon, Levinson and Nakayama). The Director then raises as his "statement of Points on Appeal" conclusions of law which the lower court made based on facts left unaddressed in his statement of the case. This court should reject the Director's effort to ignore the facts established at trial, including the testimony of his own witnesses. Rule 28(b)(7) of HRAP requires the argument section of the opening brief to exhibit clearly "the points of fact and of law being presented." Because the Director's statement of the case does not contain any statement as to the facts established at trial, any points of error or argument related to the facts should be disregarded as inappropriate and in violation of Rule 28(b) (7) and should be disregarded. B. THIS COURT SHOULD AFFIRM THE LOWER COURT BECAUSE OF THE DIRECTOR'S FAILURE TO CONTEST AND APPEAL FINDINGS OF FACT AND CONCLUSIONS OF LAW. Rule 28(b)(4) of HRAP states that points of error not presented will be disregarded. As this court held in State v. Kahua Ranch, Ltd., 47 Haw. 466, 390 P.2d 737 (1964): It is elementary that all errors of the trial court which are not properly specified in the brief are deemed to have been abandoned - - - - - - - - - - - - - - - - - - ---[Start page 11]--- or waived and consequently outside the scope of appellate review and will not be considered on appeal. 47 Haw. at 469, 390 P.2d at 739 (citations omitted). This court has also held a conclusion of law made by the trial court which was not challenged on appeal is binding on this court. AMFAC, Inc. v. Waikiki Beachcomber Inc., Co., 74 Haw. 85,125, 839 P.2d 10, 31 (1992). Although they are central to the conclusions of law which the Director endeavors here to upset, the Director does not challenge any finding of fact of the lower court (including the specific findings of the lower court) in his points of error. Therefore, for purposes of this appeal, this court must accept the findings of fact of the lower court, including the specific Findings of Fact 117-139. Wisdom v. Pfluger, 4 Haw. App. 455, 459, 667 P.2d 844 (1983). The Director has omitted the lower court's Conclusions of Law 3-7, 9, 10, 13, 15, 16 and 21, and these conclusions are, for purposes of this appeal, binding on this court as well. AMFAC Inc. v. Waikiki Beachcomber Inc., Co. The Director's failure to contest, let alone refute, these findings of fact and conclusions of law requires affirmance of the lower court's judgment. The specific findings of fact create an undisputed record that ending sex discrimination in marriage will have no adverse impact on the public fisc, State of Hawaii or its citizens, the institution of marriage, or the general welfare of children or families. These specific findings of fact affirmatively and indisputably prove that ending sex discrimination in civil marriage will have only positive consequences for Hawaii and its citizens. There is not one fact in this record for review that would indicate there is any reason, must less a compelling one, to deny same-sex couples marriage licenses and the rights and benefits of marriage. Under the rules of this court, the conclusions of law omitted in the Director's points of error compel this court to - - - - - - - - - - - - - - - - - - ---[Start page 12]--- conclude: that the Director is required to "overcome the presumption that H.R.S. [SEC] 572-1 is unconstitutional by demonstrating it furthers a compelling state interest and is narrowly drawn to avoid unnecessary abridgments of constitutional rights"; that rights and benefits are being denied to same-sex couples; that the Director carries a heavy burden of justification; that same-sex couples' marriages would have no adverse impact on the public fisc, Family Court or Child Support Enforcement Agency; that prostitution, incest and polygamy would not follow ending sex discrimination in marriage; and that if there is no "actual prejudice" to the majority demonstrated by "scientifically credible . . . evidence . . . at trial" . . . there can be no "sound basis for claiming a compelling, or even a substantial, state interest in withholding the marriage statute from same-sex couples." These unappealed conclusions of law, along with the uncontested specific findings of fact, alone are sufficient basis to affirm the lower court's judgment. Furthermore, the particular conclusions of law that are addressed in the Director's points of error should not be overturned because the conclusions are supported by the trial court's findings of facts and reflect an application of the correct rule of law. AMFAC. Inc. v. Waikiki Beachcomber Investment Co., 74 Haw. at 119, 839 P.2d at 29. The Director lists Conclusions of Law 8, 9, and 11 in his points because he argues, H.R.S. [SEC] 572-1 is not a sex-based classification and does not discriminate on the basis of sex. However, these conclusions of law are supported by the unappealed and unrefuted trial court's findings of fact and also reflect an application of the correct rule of law as stated in Baehr. They should not, therefore, be overturned now. The Director lists Conclusions of Law 12, 14, 17, 16, and 19 in his points because, he argues, "the State has compelling interests in the moral values of the people with respect to the family structure believed best for society and in providing the legal incentives to advance those interests." - - - - - - - - - - - - - - - - - - ---[Start page 13]--- Conclusion of Law 12 concludes the Director introduced little or no evidence with regard to comity and marriage, conflict-of-laws, and/or the effects, if any, of the Full Faith and Credit Clause of the United States Constitution. This conclusion of law is fully supported by the uncontested and unrefuted finding of fact 118, which finds there would be no adverse impact on Hawaii if same-sex couples' marriages are not recognized by other jurisdictions. The Director does not in his points of error, explain how the lower court erred in this conclusion. Conclusion of Law 14 states the Director failed to present evidence on "the importance of traditional marriage" and the adverse effects, if any, that ending sex discrimination in marriage would have on the institution of marriage, the community, and society. This conclusion of law is supported by the unchallenged findings of fact, and in particular Finding of Fact 119 which finds no adverse impact on "traditional" marriage. Conclusion of Law 17 states the Director did not present evidence to prove that allowing same-sex couples to marry will result in prejudice or harm to an important public or government interest. This conclusion of law is supported by the findings of fact, and Conclusion of Law 16 on the same. Conclusion of Law 18 states the Director failed to present sufficient credible evidence which demonstrates the well-being of children and families would be adversely affected by same-sex couples' marriages, or demonstrates how ending sex discrimination in marriage would adversely affect the public fisc, the state interest in comity, the institution of marriage, or any other interest. This conclusion of law is supported by the findings of fact on the same. Conclusion of Law 19 states the Director has failed to demonstrate H.R.S. [SEC] 572-1 is narrowly tailored to avoid unnecessary abridgments of constitutional rights. This conclusion of law is supported by the findings of fact. The - - - - - - - - - - - - - - - - - - ---[Start page 14]--- Director does not, in his points of error, explain how the lower court erred in this conclusion. Because each and every conclusion of law in the Director's points of error is supported by the trial court's findings of facts and reflects an application of the correct rule of law, and because no finding of fact is appealed, let alone refuted, the lower court's judgment should be affirmed. C. THIS COURT SHOULD NOT RECONSIDER AND REVERSE ITS HOLDING THAT H.R.S. [SEC] 572-1 ESTABLISHES A SEX-BASED CLASSIFICATION. 1. This court has ruled that H.R.S. [SEC] 572-1 establishes a sex-based classification. Unable to refute the record below, the Director ignores it and instead once again argues that H.R.S. [SEC] 572-1 does not establish a sex-based classification. He argues the lower court was in error in concluding there is a sex-based classification in H.R.S. [SEC] 572-1. However, the lower court followed the law of the case and mandate of this court and therefore should not be overturned in this conclusion. AMFAC. Inc. v. Waikiki Beachcomber Investment Co.. The Director argues that this court's May 27, 1993, order that granted the Director's motion for reconsideration or clarification was unsigned and of no effect. This is an inaccurate representation of the record. This court's May 27, 1993, order was signed by Justices Moon, Levinson and Nakayama and adopts the May 5, 1993, plurality opinion as the majority opinion of this court. This is consistently denied throughout the Director's opening Brief in this appeal (hereinafter "OB"). Furthermore, the Director failed to raise in his points of error the lower court's July 13, 1995, order denying the Director's Motion for Reservation of Questions to the supreme Court of Hawaii, which order requested this court to reconsider its May 27, 1993, order. VII R 195. The Director's argument that H.R.S. [SEC] 572-1 does not establish a sex-based classification is simply not an issue or point properly before this court. It - - - - - - - - - - - - - - - - - - ---[Start page 15]--- was decided and ruled upon by this court in this case on May 5, 1993, and again on May 27, 1993, and by the lower court on July 13, 1995 -- none of which are in the Director's points of error, and none of which are subject to reconsideration now. 2. This court's 1993 ruling is the law of the case and should not be reconsidered now. The Director argues that even if this court's "unsigned order" of May 27, 1993, "commanded a majority" (as it did), "the question whether Hawaii's marriage law discriminates on the basis of sex should be given plenary consideration in this appeal in light of its overriding importance, the novelty of the conclusion reached by the plurality, and the circumstances under which it was considered in the first appeal." OB at 10. The Director's appeal, however, should be limited by the doctrine of "the law of the case" as described by this court in Cain v. Cain, 59 Haw. 32, 36, 575 P.2d 468, 472-73 (1978): [The] law of the case is akin to res judicata but is more limited in its application. It relates solely to questions of law and is confined in its operation to subsequent proceedings in the same case. (Under the doctrine,] a determination of a question of law made by an appellate court in the course of an action becomes "the law of the case" and may not be disputed by a reopening of the question at a later stage of litigation. It normally commands adherence but is not subject to the inflexibility of res judicata. This court should not reconsider its May 27, 1993, order for reasons argued by the Director because the reasons do not justify deviation from the law of the case doctrine. See Von Holt v. Izumo Taisha Kyo Mission of Hawaii, 44 Haw. 147, 152, 355 P.2d 40, 44 (1960). The Director has failed to state any cogent or convincing reason, including lack of harmony with other decisions, why this court should reconsider its decision in this case. Nor has he shown that "no injustice or hardship would flow from a change" in the law of the case. Id. In fact, the contrary would be true. The Couples, and those similarly situated, would suffer an injustice and hardship if this court changed the law of the case. Furthermore, the Director has not - - - - - - - - - - - - - - - - - - ---[Start page 16]--- shown (because he cannot) that there was an inadvertent principle of law incorrectly declared, or a mistake of fact, or that there would be injustice to the rights of the parties by adhering to the law of the case. The Director argues that the issue of whether H.R.S. [SEC] 572-1 was a sex-based classification "was neither raised nor argued during the first appeal" because the Couples did not claim H.R.S. [SEC] 572-1 discriminated based on sex, but did so based on sexual orientation (OB at 10). This representation of the Couples' pleadings in this case is inaccurate. The Couples alleged in their complaint the Director "denied the . . . couples marriage license applications solely on the ground that the couples were of the same sex." Baehr, 74 Haw. at 538-39, 852 P.2d at 49-50; I R 1-15. Whether denial of marriage licenses was sex discrimination was in fact raised in the case of Singer v. Hara, 522 P.2d 1187 (Wash. 1974) (cited in the Director's Answering Brief at 9 and the Couples' Reply Brief at 3 in the first appeal in this case). Judge James S. Burns raised the issue at oral argument in an exchange with Deputy Attorney General Sonia Faust; the issue was thoroughly analyzed and discussed in this court's May 5, 1993, plurality decision, and briefed and argued in the Director's May 17, 1993, motion for reconsideration. To state that this issue was "neither raised nor argued during the first appeal" is simply false. The Director goes on to argue this court should reconsider its decision in Baehr because the legislature enacted Act 217 in its 1994 session, which act opined that this court had misinterpreted the word "sex" in Article I, [SEC] 5, of the Hawaii constitution to include "sexual orientation." OB at 11. However, it is this court, not the legislature, that has the final unreviewable authority to interpret and enforce the Hawaii Constitution. Baehr, 74 Haw. at 555, 852 P.2d at 57. "Legislative action, whatever its motivation, cannot sanitize constitutional violations." Baehr, 74 Haw. at 564 n.20, 852 P.2d at 60 n.20. - - - - - - - - - - - - - - - - - - ---[Start page 17]--- D. THIS COURT WAS CORRECT IN ITS 1993 HOLDING THAT THE STATUTE DISCRIMINATES ON TILE BASIS OF SEX, IN VIOLATION OF THE HAWAII CONSTITUTION. 1. The statutory restriction on marriage discriminates on the basis of sex. At the outset of his brief (OB at 3), the Director admits that "(i)t is undisputed that plaintiffs' applications for marriage licenses had been rejected, in accordance with [the statute], because the applicant couples were of the same sex." Indeed, the marriage statute, on its face, explicitly denies a person's freedom to marry someone of the same sex, limiting marriage to couples composed of "a man and a woman." H.R.S. [SEC] 572-1. Despite his own admission and the plain language of the statute at issue, however, the Director once again returns to a matter already decided by this court and again urges that there is no sex-based classification here to trigger strict scrutiny under the guarantee of equal protection.[fn3] The Director argues that since H.R.S. [SEC] 572-1 harms gay and lesbian couples, it does not discriminate because of sex or gender, but only because of sexual orientation, and further that it therefore must satisfy only the rational basis test.[fn4] This - - - - - - - - - - - - - - - - - - [fn3] To support his reargument, the Director claims that H.R.S. [SEC] 572-1 is not a sex-based classification because "every other court that has considered the issue has rejected the notion." OB at 11, 13. However, the only other court that has considered a constitutional provision similar to Hawaii was the Washington Court of Appeals in Singer v. Hara. This court considered Singer fully in Baehr, 74 Haw. at 36-38, 852 P.2d at 63, and deemed Singer's conclusion that denying same-sex couples marriage licenses is not sex discrimination an "exercise in tortured and conclusory sophistry." Id. [fn4] The Director argues that if this court would reconsider and reverse its decisions of May 5 and 27, 1993, in this case, along with the lower court's decision, and conclude H.R.S. [SEC] 572-1 discriminates on the basis of sexual orientation and not sex, this court must then apply the rational basis test. OB at 15 and 17. That is not the law of this jurisdiction. This court has never so ruled. See Baehr, 74 Haw. at 547-8 n.141 558 n.17, 852 P.2d at 53 n.14, 58 n.17; see also Stand. Comm. Rep. No. 69, Committee on the Bill of Rights, Suffrage and Elections, [Footnotes continued next page...] - - - - - - - - - - - - - - - - - - ---[Start page 18]--- argument ignores the language and the most direct impact of H.R.S. [SEC] 572-1, which, while limiting marriage "to a man and a woman," says nothing about the sexual orientation of those who may marry. Every person is only authorized to marry someone of a different sex and is prohibited from marrying someone of the same sex. Of course, as a practical matter, the statute also discriminates against persons who seek to marry a person of their own sex because of their sexual orientation. But the limitation imposed by the statute is exclusively sex-based (all that is asked by the Director is the sex of the applicants), notwithstanding that this also has the effect of prohibiting marriages into which some people seek to enter because of their sexual orientation. The Director's argument presumes that a statute which has a discriminatory effect against lesbians and gay men is therefore not one which operates discriminatorily based on sex. This is contradicted, however, by the Director's own admission of the close relationship between sexual orientation and sex discrimination in cases concerning the choice of a partner. OB at 13-15. Of course a statute which distinguishes based on the sex of the person one wishes to marry will affect many whose sexual orientation motivates them to wish to marry a person of the same sex. This does not alter that it is the sex, not the sexual orientation, of the Couples that renders them ineligible to marry under H.R.S. [SEC] 572-1. The Director's "illustrations" on pages 15 and 18 of his brief highlight this fact and refute his argument that discrimination based on sex, such as exists here, is negated by the law's impact on those with a gay or lesbian sexual orientation. He argues: - - - - - - - - - - - - - - - - - - [Continuation of footnotes] proceedings of the Constitution Convention of Hawaii of 1978 at 675 (1978) (discrimination based on sexual orientation violates equal protection of the laws and due process under Article I, [SEC] 5, of the Hawaii Constitution). - - - - - - - - - - - - - - - - - - ---[Start page 19]--- If a male plaintiff in this case somehow changed his gender but remained homosexual (i.e., a lesbian), she would still be disadvantaged by the law's prohibition on same-sex marriage, for she would not be permitted to marry another women [sic]. But if the plaintiff somehow changed his homosexual orientation, he would be relieved of the disadvantage imposed by the marriage statute's same-sex prohibition. This "illustration" actually misstates the issue. First, the more apt illustration is that if a male plaintiff in this case somehow "changed" his sexual orientation, but "remained" male, he would still be prohibited from marrying another man. By the Director's own terms, this illustrates that it is sex, not sexual orientation, that is the barrier the law erects to the Couples' marriages. Two heterosexual people of the same sex are prohibited from marrying just as are two lesbians or two gay men. Even more tellingly, the Director's illustration highlights the way in which such discriminatory interference with the personal choice of a marriage partner degrades human dignity. Even if, as the Director hypothesizes, one of the women plaintiffs "changed" her sexual orientation to non-gay, under H.R.S. [SEC] 572-1 she still could not marry the person she loves and has built a life with.[fn5] While he repeatedly pronounces that men and women are not "fungible," OB at 20, 22, the Director's illustrations show that his defense of sex discrimination in marriage basely treats individuals as fungible when it comes to marriage. Each person seeking a license to marry someone of the "wrong" sex "finds himself barred by law from marrying the person - - - - - - - - - - - - - - - - - - [fn5] The Director likewise argues, OB at 18, that "If Mr. Loving somehow changed his race, he would be free to marry Mrs. Loving, and thus would be relieved of the disadvantage imposed by Virginia's prohibition on interracial marriages." Under the Director's argument, however, if a black man had somehow "changed" his race to white prior to, 1967, he likewise still could not have married someone of the "wrong" (i.e., a different) race. Of course, no American should have to change her sex, any more than her race or sexual orientation, in order to avoid the "disadvantage" imposed by the government on her freedom to marry the person she loves. - - - - - - - - - - - - - - - - - - ---[Start page 20]--- of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." Perez v. Lippold, 198 P.2d 17, 25 (Cal. 1948) (emphasis added). As if the statute's facial invocation of sex were not enough, the fact that the government interference with marital choice would continue, based on sex, whatever the sexual orientation of the man or woman seeking to marry, reveals as false the Director's assertion that because the statute discriminates against people based on sexual orientation, it is "wholly indifferent to gender." OB at 15. The fallacy of the Director's argument is not just in his effort to segregate sexual orientation discrimination from sex discrimination, ignoring the overlap. He relies on his further claim that as long as men and women are disadvantaged "equally" by the statutes' sex-restriction, equal protection is not violated. However, this, the Director's core challenge to Baehr, is virtually identical to the position taken by the defenders of race discrimination in marriage. See below at 21-24. Finally, the Director in essence concedes that the purpose of H.R.S. [SEC] 572-1 is precisely to discriminate based on sex because of his claim that unspecified (and, in the record below, unsubstantiated) differences between men and women in fact warrant codifying gender roles in law, including discrimination in who can marry whom. OB at 22. The baselessness of the Director's appeal to stereotypes and hoary generalizations aimed at constricting women and men is shown by the failure to challenge, let alone refute, the testimony of virtually every witness on both sides, rejecting such mandatory gender roles.[fn6] - - - - - - - - - - - - - - - - - - [fn6] See, e.g., Findings of Fact 24 (state witness says "unique or non-replicable" sex-linked parental contributions are "small" and not essential to healthy children or happy homes); 28 ("same-sex parents can, and do, produce children with a clear sense of gender identity"); 80 (people marry for a variety of reasons1 not just to have or raise children); 107 (the assertion or imposition of one family environmental structure as "the best" is "offensive [Footnotes continued next page...] - - - - - - - - - - - - - - - - - - ---[Start page 21]--- The Director's invocation of gender roles and stereotypes (about parenting, about women's role, about women and men needing each other for completion, and all that follows from such assertions) exposes both that it is sex discrimination for the state to dictate to women or men the sex of their marital partner and that the compulsory sex-restriction on marital choice itself serves to reinforce sexism, furthering sex discrimination.[fn7] Ultimately, whatever the contours of the overlap here between sex and sexual orientation discrimination (a question this court need not reach) and whether or not the statute's purpose or deeper effect is to subordinate women or perpetuate sex roles,[fn8] the plain language and effect of the statute classify and restrict each person's choice of whom to marry based on her or his sex and the sex of the person she or he loves. This court correctly determined in Baehr and its mandate to the lower court that such a facial sex-based classification discriminates based on sex. 2. This court's Loving v. Virginia analogy in this case was correct. The Director argues that this court was wrong in following the logic of the United States Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). OB at 18. - - - - - - - - - - - - - - - - - - [Continuation of footnotes] and a distortion of the research literature."); and Conclusion of Law 135 (no proof of "significant differences in the development of outcomes of children raised by gay or lesbian parents and same-sex couples, as compared to children raised by different-sex couples or their biological parents."). [fn7] See William N. Eskridge, Jr., The Case for Same-Sex Marriage (1996) at 162-72 & 182 ("[i]t is an unacceptable gender stereotype that women get married so that they can be baby producers."); see also Andrew Koppelman, Why Discrimination Against Lesbian and Gay Men is Sex Discrimination, 69 N.Y.U.L. Rev. 197, 215-19, 234-73 (1994); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 200, 218. [fn8] Again, this court need not determine that purpose here. It was the state's burden to show a sufficient purpose for the restriction based on sex; a burden it failed -- and continues to fail -- to meet. - - - - - - - - - - - - - - - - - - ---[Start page 22]--- Apparently, the Director would have this court embrace the logic of the Virginia Supreme Court. This court correctly rejected the Director's position when it stated: 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 [SEC] 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. Baehr, 74 Haw. at 56970, 852 P.2d at 63. In Pace v. Alabama, 106 U.S. (16 Otto) 583, 1 S. Ct. 637 (1883), the first United States supreme Court decision on race discrimination in marriage, the state argued that the statute treated both blacks and whites (substitute here: men and women) the same, but punished only the choice to marry someone of the "wrong" race (sex); the Court in 1883 agreed.[fn9] Likewise, in Loving, Virginia argued 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 on race." Loving, 388 U.S. at 7, 87 S. Ct. at 1015 (emphasis added). Substituting "sex" for "race" and - - - - - - - - - - - - - - - - - - [fn9] In his opening brief at 11 and 28, the Director relies on State v. Walsh, 713 S.W.2d 508 (Mo. 1986) (en banc), the reasoning of which closely parallels the specious and repudiated analysis in Pace. See Koppelman, 69 N.Y.U.L. Rev. at 209-12. - - - - - - - - - - - - - - - - - - ---[Start page 23]--- "women and men" for "the white and the Negro," you have, of course, the identical argument made by the Director. Fortunately for those seeking the freedom to marry, the Supreme Court "reject[ed] the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications" from the guarantee of equal protection. Id. Indeed, in a precursor case, the Court explained that such a race-restriction "treats the interracial couple made up of a white person and a Negro differently than it does any other couple." McLaughlin v. Florida, 379 U.S. 184, 188, 85 S. Ct. 283, 286 (1964).[fn10] Such a sleight-of-hand effort to take a statute that specifically relies on race (or sex) to restrict marital choice and to claim that because people of all races (or both sexes) are "disadvantaged equally" there is no invidious discrimination was resoundingly repudiated by the Supreme Court during this nation's civil rights struggles of the l960's.[fn11] This court should decline the Director's invitation to turn back the clock. Mildred Loving was prohibited by Virginia law from marrying Richard Loving because of race. Ninia Baehr is prohibited by H.R.S. [SEC] 572-1 from marrying Genora Dancel because of sex. H.R.S. [SEC] 572-1 is as much a sex-based classification as Virginia's miscegenation law was a race-based classification. - - - - - - - - - - - - - - - - - - [fn10] The Director complains that this court in 1993 addressed the discrimination with regard to the Couples as "couples," rather than "individuals" (OB at 13). While this court correctly observed that each individual seeking to marry runs afoul of the statutory sex-restriction if she or he wishes to marry what the Director deems the "wrong" person, this court was also correct in holding, as did the Supreme Court in McLaughlin, that same-sex couples are treated differently than different-sex couples under the statute's sex-discriminatory regime. [fn11] Id. ("Pace represents a limited view of the Equal Protection Clause which has not withstood analysis . . ."). See also Shelley v. Kramer, 334 U.S. 1, 68 S. Ct. 836, 846 (1948) ("Equal protection of the laws is not achieved through indiscriminate imposition of inequalities."). - - - - - - - - - - - - - - - - - - ---[Start page 24]--- This fact was recognized by Rex E. Lee, the former U.S. Solicitor General, when he wrote: Laws prohibiting homosexual marriages are the classic case of discrimination based on sex. Again, they prohibit men, solely because they are men, from doing what women are permitted to do: marry other men, and the proposition that such laws are based on a characteristic unique to one sex is insupportable. Neither the Singer opinion nor . . . anyone else has ever attempted to support it with anything more solid than the bare fact of its assertion. Rex E. Lee, A Lawyer Looks at the Equal Rights Amendment, Brigham Young University Press at 65 (1980) (emphasis added). It is ironic that although Rex E. Lee served as president of Brigham Young University and Dean of the Law School, one of the very few law reviews critical of this court's decision in Baehr is by a BYU law professor. Lynn D. Wardle, A Critical Analysis of constitutional Claims for Same-Sex Marriage, 1 B.Y.U.L. Rev. 1 (1996). Professor Wardle's major complaint was that almost every law review, article, essay, note or comment surveyed was in agreement with this court's holding in Baehr. 3. This court construes the words of the Hawaii Constitution as they are written. The Director argues that Article I, [SEC] 5, of the Hawaii Constitution could not be interpreted as applying to sex discrimination in marriage because the matter was never discussed during the 1950 Hawaii constitutional Convention. This logic would of course mean that the United States Supreme Court was wrong in Griswold v. Connecticut, 381 U.S 479, 85 S. Ct. 1678 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972); and Roe v. Wade, 410 U.S. 113, 935 S Ct. 705 (1973), because contraception and abortion were not discussed when the United States Bill of Rights was written; or that this court was wrong in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), because pornography was not discussed at the 1978 Hawaii constitutional Convention. When the right to privacy of Article I, [SEC] 6, of the Hawaii Constitution was adopted in 1978, the law prohibited the commercial distribution of pornography, as did the law limiting - - - - - - - - - - - - - - - - - - ---[Start page 25]--- marriage to a man and a woman in 1950. Silence as to these matters did not and do not direct this court to uphold the statute. The general rule is that, "if the words used in a constitutional provision . . . are clear and unambiguous, they are to be construed as they are written." Blair v. Cayetano, 73 Haw. 536, 543, 836 P.2d 1066, 1070, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992).[fn12] 4. Same-sex couples and different-sex couples are similarly situated with respect to their interest in having the freedom to marry. The Director argues there is no sex discrimination by H.R.S. [SEC] 572-1 against same-sex couples because they are not "similarly situated" with different-sex couples with respect to marriage.[fn13] OB at 20-21. This argument, like the Director's other arguments, disregards the lower court evidence and record, which were not disputed or appealed in the Director's points of error. The evidence and record demonstrate that same-sex couples marry for the same mix of reasons as different-sex couples, including (but not limited to) the desire as couples to have and raise children. The fact that a same-sex couple does not procreate genetically from their union is irrelevant. The ability to procreate from a marital union was deleted from H.R.S. [SEC] 572-1 in 1984. Baehr, 74 Haw. at 536-37 n.l, 852 P.2d at 48-9 - - - - - - - - - - - - - - - - - - [fn12] The Director's same argument with reference to "sodomy" laws fails for the same reason. See Robert J. Morris, Configuring the Bounds of Marriage: The Implications of Hawaiian Culture and Values for the Debate About Homogamy, 8 Yale J.L. & Human. 105, 112-16 (1996), concerning the history of "sodomy" laws in Hawaii. [fn13] The Director incorrectly cites Holdman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978). Holdman concerned a sex-based classification based on different physical characteristics between male and female visitors to a prison, as H.R.S. [SEC] 572-1 is a sex-based classification based on the different physical characteristics of those choosing to marry. Holdman found that this was sex discrimination, but that there was a compelling state interest to justify the sex-based classification. Holdman is consistent with this court's ruling in Baehr, the difference being that there is no compelling state interest in this case. - - - - - - - - - - - - - - - - - - ---[Start page 26]--- n.1. It was not made a prerequisite or condition of marital status in 1994 by Act 217. It is not a prerequisite or condition of marital status now. The unrefuted fact, as demonstrated at trial, is that men vary, women vary, people's reasons for wanting to marry vary, and families vary. However, what makes various couples, whether different- or same-sex, similarly situated is, as Dr. Pepper Schwartz testified: [T]hat most Americans believe in marriage strongly. I believe that by taking other people into the fold and asking that they behave as responsible to their children to give them to their children, to give them support, to have both rituals to enter into their relationships and legal complications upon exiting them, that we shore up how important we think marriage is. I think it -- I think it in no way undermines it and I think it strengthens it by our insistence about how important it is and why we hope this will be available for all families.[fn14] Based on the undisputed and here-unrefuted evidence, the lower court found: In Hawaii, and elsewhere, people marry for a variety of reasons, including, but not limited to the following: (1) having or raising children; (2) stability and commitment; (3) emotional closeness; (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) recognition by society; (8) certain legal and economic protections, benefits and obligations. See Baehr [citation omitted] for a list of noteworthy marital rights and benefits. Finding of Fact 138. Despite variations among different-sex couples and same-sex couples, same-sex couples share the same mix - - - - - - - - - - - - - - - - - - [fn14] Finding of Fact 87. Dr. Schwartz also testified that "there would be no dishonor and no ultimate fragility to the institution [of marriage] by including gays and lesbians," and that "allowing same-sex couples to marry would have a positive impact on society and institution of marriage." Id. The lower court found this expert "to be especially credible." Finding of Fact 76. - - - - - - - - - - - - - - - - - - ---[Start page 27]--- of reasons for wanting the freedom to marry as different-sex couples.[fn15] Id. For this reason, men and women seeking to marry without discrimination based on sex are indeed "similarly situated" and similarly burdened by the sex-restriction on marriage. This court should reject the Director's effort to use the law to impose his, or even a transient majority's, "archaic and stereotypic notions"[fn16] as to whom men and women should want to shape their lives within civil marriage. E. THE DIRECTOR DID NOT MEET HIS HEAVY BURDEN OF DEMONSTRATING THAT THE SEX-BASED CLASSIFICATION IN H.R.S. [SEC] 572-1 FURTHERS COMPELLING STATE INTERESTS. 1. Moral values. The Director argues there is a compelling state interest in ensuring the marriage laws reflect the moral values of the people of Hawaii. There is nothing in the Director's statement of the case to support this position. Not one finding of fact of the lower court supports the Director's position. In fact, the findings of fact are to the contrary. For the proposition that there is a compelling state interest in ensuring the marriage laws reflect the moral values of the people of Hawaii, the Director cites Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878). However, the compelling state interest test was not employed in Reynolds. A more appropriate citation would be Loving v. Virginia, where the United States Supreme Court found the moral values of the people of Virginia as expressed by their legislature to be a very uncompelling state interest in prohibiting interracial marriage. - - - - - - - - - - - - - - - - - - [fn15] Even people who cannot partake of each and every attribute of marriage share an interest in having the freedom to marry. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987). [fn16] Mississipi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S. Ct. 3331, 3336 (1982). See also Stanton v. Stanton, 421 U.S. 7, 14-15, 95 5. Ct. 1373, 1377-78 (1975) (repudiating gender "roletyping"). - - - - - - - - - - - - - - - - - - ---[Start page 28]--- See also Evans v. Romer, 882 P.2d 1335, 1346-47 (Colo. 1994) (no authority to support the proposition that the promotion of public morality constitutes a compelling governmental interest), aff'd, 517 U.S. __, 116 S. Ct. 1620 (1996). The Director's attempt to equate a ban on polygamy with ending sex discrimination in marriage was previously rejected by this court in Baehr, 74 Haw. at 562 n.19, 852 P.2d 59 n.19, and by the lower court in conclusion of law 15, which was not appealed by the Director.[fn17] The Director, nevertheless, suggests that the compelling justification for sex discrimination in marriage lies in the conclusory invocation of unspecified "moral values." OB at 27. To support his position, the Director reaches back to 1877 to assert that the state has an "absolute right to prescribe the conditions upon which the marriage relationship between its own citizens shall be created," Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 734-35 (1877), an assertion that ignores Loving's rejection of such an attempted escape from equal protection. The Director cannot rely on a vague appeal to "morality" to shield sex discrimination from constitutional scrutiny. Nor can the Director expect this court to be impressed by such an incantation when the Director has completely failed to identify even a single piece of evidence or finding of fact below that would support this position. Defenders of race discrimination in marriage routinely made identical arguments. See, e.g., McKinney v. Commonwealth, 71 Va. (30 Gratt.) 858, 869 (1878) (citing "[t]he purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization, under which two distinct races are to work out and accomplish the destiny to which the Almighty has assigned them"). It took the California Supreme Court in Perez v. Lippold and - - - - - - - - - - - - - - - - - - [fn17] The United States Supreme Court in Romer v. Evans, 517 US. ___, 116 S. Ct. 1620, 1629 (1996), rejected such diversionary references to polygamy and morality offered up here by the Director, there in the dissent by Justice Scalia. - - - - - - - - - - - - - - - - - - ---[Start page 29]--- ultimately the U.S. Supreme Court in Loving v. Virginia to repudiate such abuse of the word "morality." The Director never fully explains just what he means by "morality" or how morality would be served by sex discrimination in the choice of whom to marry. What the Director seems to mean, however, is, first, a parochial vision of how women and men ought to live and partner and, second, an assumption that whatever marriage in fact means to individuals, gay men and lesbians as a class cannot participate and must not be allowed equal inclusion. These kinds of stereotypes are precisely the impermissible and illegitimate state purposes that equal protection scrutiny means to protect against. As to the Director's sexist presumptions about what women or men should do or want based on their sex, this court was right to join the increasing repudiation of such arguments.[fn18] As Justice Ginsberg wrote in United States v. Virginia, 518 U.S. ___, 116 S. Ct. 2264 (1996): State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on "fixed notions concerning the roles and abilities of males and females." Mississippi Univ. for Women, 458 U.S., at 725, 102 S.Ct., at 1427, n.11 (equal protection principles, as applied to gender classifications, mean state actors may not rely on "overbroad" generalizations to make "judgments about people that are likely to . . . perpetuate historical patterns of discrimination"). 116 S. Ct. at 2280 (emphasis added). As to the Director's implication that lesbians and gay men in Hawaii almost by definition cannot share in the "morality" of love, procreation, parenting, commitment, and family that he suggests is connoted by marriage, "[a] State cannot so deem a - - - - - - - - - - - - - - - - - - [fn18] United States v. Virginia, 518 U.S. ___, 116 S. Ct. 2264 (1996); Orr v. Orr, 440 U.S. 268, 283, 99 S. Ct. 1102, 1113-14 (1979) (Legislative classifications which distribute benefits and burdens "on the basis of gender carry the inherent risk of reinforcing stereotypes about the 'proper place' of women (and therefore) must be carefully tailored [to avoid] the baggage of sexual stereotypes."). - - - - - - - - - - - - - - - - - - ---[Start page 30]--- class of persons a stranger to its laws." Romer v. Evans, 116 S. Ct. at 1629. To imply that lesbians and gay men are somehow incompatible with, or incapable or unworthy of, marriage or morality is not morality; it is discrimination. Indeed, as the undisputed record below makes clear, the tangible and intangible protections and support that civil marriage brings are of enormous real-life importance to families and children, whether the married couple be same- or different-sex.[fn19] "[I)f same-sex marriage is allowed, the children being raised by gay or lesbian parents may be assisted," Finding of Fact 136, and "[i]f plaintiffs, and other same-sex couples were allowed the state-conferred legal status of marriage, they would be conferred with . . . marital rights and benefits," Conclusion of Law 7. The Director's own witness testified that same-sex couples and their families would benefit if they had access to the economic and legal incidents of marriage and would also be "helped if [they] received the social status derived from marriage" Finding of Fact 55. "In Hawaii, and elsewhere, gay men and lesbians share [the] same mix of reasons [as different-sex couples] for wanting to be able to marry." Finding of Fact 138. The Director never explains what is so "moral" about seeking to exclude and deprive children and couples of the protections, responsibilities, and support that come with civil marriage.[fn20] 2. Propagation of the human race. The Director argues there is a compelling interest in sanctioning the "traditional" marital relationship because it is - - - - - - - - - - - - - - - - - - [fn19] See Report of the Commission on Sexual Orientation and the Law (Dec. 8, 1995) (VI R 25-79). See also, David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447 (1996). [fn20] Even the Director's witnesses conceded that allowing same-sex couples to marry would help families and children, without identifiable harm to anyone. E.g., Finding of Fact 55. See also Report of the Commission on Sexual Orientation and the Law. - - - - - - - - - - - - - - - - - - ---[Start page 31]--- essential to the propagation of the human race. Not one finding of fact supports his implication that same-sex couples' marriages would in any way impede or interfere with the propagation of the human race. In fact, the findings of fact indisputably show allowing these couples to marry would be beneficial to children, families and society. The 1994 Hawaii legislature did not reinsert the ability and desire to procreate back into H.R.S. [SEC] 572-1 as a prerequisite to marriage. It could not have done so. Married couples have the right not to procreate, Griswold v. Connecticut, and unmarried couples have the right to procreate, Eisenstadt v. Baird. Cases that have found propagation of the human race to be a basis to deny marriage licenses to same-sex couples did so under the rational basis test, not the compelling state interest test.[fn21] The Director faults the lower court for making "no effort to address the State's traditional interest in encouraging - - - - - - - - - - - - - - - - - - [fn21] See Baker v. Nelson, 191 N.w.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky. App. 1973); Singer v. Hara, discussed in Baehr, 74 Haw. at 564-71, 852 P.2d at 60-63. These cases were decided prior to considerable evolution in legal doctrines regarding equal protection and the right to marry. See e.g., Turner v. Safley, 482 U.S. at 951 107 S. Ct. at 2265 (holding that' prisoners have a right to mar despite their inability to partake in some elements of marriage); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985) (even rational basis review has real teeth and prohibits discrimination based on animus); Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882 (1984) (holding that "private biases maybe outside the reach of the law, but the law cannot, directly or indirectly, give them effect"); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 679 (1978) ("[T]he right to marry is of fundamental importance for all individuals."); Romer v. Evans, (holding excluding gay and lesbian citizens from equal protection of the law had no rational and legitimate basis). See also Tom C. Clark, Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loy. L.A.L. Rev. 1, 9 (1969) (former Supreme Court Justice observes that "[p]rocreation is certainly no longer a legitimate or compelling State interest in these days of burgeoning populations."). - - - - - - - - - - - - - - - - - - ---[Start page 32]--- procreation through marriage," but the Director did not appeal in his points of error any of the lower court's findings regarding the same. OB at 32. Furthermore, it was the Director's (not the lower court's) burden to put forth evidence on this issue; a burden the Director failed to meet. 3. Comity. Finally, the Director argues that Hawaii has a compelling interest `in ensuring that its marriages are recognized by the federal government and by other states. OB at 33-34. The Director, however, did not contest the finding of fact that nonrecognition of same-sex couples' marriages would have no adverse impact on Hawaii. Furthermore, in his points of error, the Director fails to state how any conclusion of law by the lower court is in error on this point. There is nothing in the record in this case to support the Director's argument on this point. This court, in fact, noted in Baehr that most states of the Union refused to recognize interracial marriages when interracial marriages were legal in this state. Baehr, 74 Haw. at 567 n.24, 852 P.2d at 62 n.24. Certainly, the Director would not argue that Hawaii should have banned interracial marriage to avoid nonrecognition of such marriages by other states. F. THE DIRECTOR DID NOT MEET HIS HEAVY BURDEN IN DEMONSTRATING THAT SEX-BASED CLASSIFICATION IN H.R.S. [SEC] 572-1 IS NARROWLY DRAWN TO AVOID UNNECESSARY ABRIDGMENTS OF CONSTITUTION RIGHTS. The Director fails in his statement of the case, points of error, or statement of the issues to even address the mandate of this court as to whether the sex-based classification in H.R.S. [SEC] 572-1 is narrowly drawn to avoid unnecessary abridgments of constitutional rights. The Director similarly failed at trial. The Director has simply chosen to ignore the mandate of this court -- undoubtedly because he could not show that this harsh exclusion from civil marriage is in any way narrowly tailored. - - - - - - - - - - - - - - - - - - ---[Start page 33]--- V. CONCLUSION Nearly fifty years ago, a four-justice majority of the California Supreme Court had the commitment to the constitutional mandate of equality for all and the institutional integrity as judges not to be deterred from their constitutional role even in the face of tremendous political pressure, including many of the same arguments being pressed upon this court today. With its 1948 decision in Perez v. Lippold, that state supreme court entered history as an example of a court's willingness to stand up for justice in the case before it, without fear or favor, unswayed by those who urged it to "connive at infractions"[fn22] of constitutional guarantees directly bearing on a timely and squarely presented case. In striking down discrimination in marriage, in fulfillment of the constitutional guarantees of equality they were pioneering, Justice Traynor and his colleagues rejected the dissent's assertion that in such matters, courts - - - - - - - - - - - - - - - - - - [fn22] Federalist No. 78 in The Federalist Papers at 469-70 (Mentor 1961). Hamilton notes that notwithstanding the right of the people to "alter or abolish" the Constitution: [I]t is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of the majority of their constituents incompatible with the provisions in the existing Constitution would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body." Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding . . . and no presumption or even knowledge of their sentiments can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. [Emphasis added]. - - - - - - - - - - - - - - - - - - ---[Start page 34]--- should defer to transient majorities or even a long and sorry history of discrimination.[fn23] The decision in Perez v. Lippold, marking the beginning of the end of race discrimination in marriage, came before Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686 (1954), and before Loving v. Virginia. One state had to show leadership, and the court was properly asked to provide it through a direct and timely challenge to existing discrimination. The court did not flinch. History has upheld it.[fn24] Today, the Couples appear before this court to ask for enforcement of the Hawaii Constitution and an end to sex discrimination in marriage. They rely on the correct, binding, and still unrefuted holding in Baehr, and on the lower court's clear, persuasive, unrefuted, and unappealed findings of fact and conclusions of law. In Baehr, this court held that sex discrimination is strongly prohibited under Hawaii's Constitution and found such sex discrimination in the denial of marriage licenses to people because of their sex and the sex of the person they love. Based on the overwhelming and undisputed evidentiary - - - - - - - - - - - - - - - - - - [fn23] 198 P.2d at 22. In urging the court in Perez not to end race discrimination in marriage, both the government's attorney and the dissent cited the long history of such discrimination in the United States, the robust nature of the discrimination at that very moment, and the fact that numerous states would attempt to refuse recognition to the marriage petitioners sought to enter (arguments the Director repeats here). Id. at 37-40 (Shenk, J., dissenting). [fn24] Associate Justice Ginsberg recently wrote in United States v. Virginia of "the evolving social order" including women and barring sex discrimination: A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI's story continued as our comprehension of "We the People", expanded. . . . There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the "more perfect Union." 116 S.Ct. at 2287 (emphasis added). - - - - - - - - - - - - - - - - - - ---[Start page 35]--- record, the lower court found there is no compelling, indeed no valid, reason for this harsh discrimination. Against the binding and correct determination of this court in 1993, the persuasive and unrefuted findings and conclusions of the lower court, and the claim of the Couples to share in the "essence of the right to marry[,] the freedom to join in marriage with the person of one's choice"[fn23] free of discrimination based on sex, the Director offers nothing but an unconvincing attempt to once again ask this court to declare that it erred four years ago. But what this court held in 1993 was not wrong: denial of the rights and responsibilities of civil marriage to same-sex couples is sex discrimination. And as the lower court held last year, the Director has no good reason -- and certainly no compelling reason -- for the discrimination and inequality he asks the court to preserve. For the foregoing reasons, this court should affirm the judgment of the lower court. DATED: Honolulu, Hawaii, May 30, 1997. DANIEL R. FOLEY EVAN WOLFSON KIRK H. CASHMERE Attorneys for Plaintiffs-Appellees - - - - - - - - - - - - - - - - - - [fn25] Perez v. Lippold, 298 p.2d at 20. - - - - - - - - - - - - - - - - - - ---[Start page Appendix-1]--- APPENDIX IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO, Plaintiffs-Appellants, v. John C. LEWIN, in his official capacity as Director of the Department of Health, State of Hawaii, Defendant-Appellee NC. 15689 MOTION FOR RECONSIDERATION OR CLARIFICATION (CIV. NO. 91-1394) MAY 27, 1993 MOON, C.J., LEVINSON, J., NAKAYAMA, J.,[fn1] INTERMEDIATE COURT OF APPEALS CHIEF JUDGE BURNS, IN PLACE OF LUM, FORMER C.J., RECUSED,[fn2] INTERMEDIATE COURT OF APPEALS JUDGE HEEN, IN PLACE OF KLEIN, J., RECUSED Defendant-Appellee's motion for reconsideration, or, in the alternative, for clarification, and suggestion of the appropriateness of rebriefing and reargument having been filed in the above-captioned matter on May 17, 1993, the motion is hereby granted in part, and the mandate on remand is hereby clarified as follows: Because, for the reasons stated in the plurality opinion filed in the above-captioned matter on May 5, 1993) the circuit court erroneously granted Lewin's motion for judgment on the pleadings and dismissed - - - - - - - - - - - - - - - - - - [fn1] In place of Substitute Justice Hayashi, whose term of Substitution expired on October 30, 1992. See Yoshizaki v. Hilo Hosp., 50 Haw. 40, 429 P.2d 829 (1967). [fn2] Chief Justice Lum retired March 31, 1993. See Rolfing v. Akiona, 45 Haw. 440, 369 p.2d 114 (1962). - - - - - - - - - - - - - - - - - - ---[Start page Appendix-2]--- the plaintiffs' complaint, the circuit court's order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the "strict scrutiny" standard, the burden will rest on Lewin to overcome the presumption that HRS [SEC] 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 v. Board of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981); Holdman V. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978). Defendant-Appellee's motion is denied in all other respects. Intermediate Court of Appeals Judge Heen, having filed a dissenting opinion in this matter, does not concur. Robert A Marks, Attorney General, and Sonia Faust, Deputy Attorney General, for appellee John C. Lewin. /s/ C.J. Moon /s/ J. Steven H. Levinson /s/ J. Paula O. Nakayama - - - - - - - - - - - - - - - - - - ---[Start page Appendix-3]--- CONCURRING OPINION BY CHIEF JUDGE BURNS There are three opinions in this case: (1) Levinson-Moon; (2) Burns; and (3) Heen-Hayashi. Appellee Lewin disagrees with the Levinson-Moon and Burns opinions arid seeks reconsideration of both. With respect to the Levinson-Moon opinion, I concur with the decision by Justice Levinson and Chief Justice Moon to grant the motion in part. With respect to the Burns opinion, I deny the request. Alternatively, appellee Lewin seeks clarification of this court's mandate. The only agreement by a majority of this court is that this case involves genuine issues of material fact. In my view, that is this court's mandate. Thus far, there is no majority agreement as to what these issues are or which side has the burden to prove them. Presented with this chance to write more than I have already written in the Burns opinion about these issues and burdens, I choose to wait for the next appeal. At that time, hopefully, there will be: a complete record of a trial in which the parties have presented their evidence and arguments and the trial court has made its decisions of fact and law; and opening, answering and reply briefs fully discussing the issues and the applicable law. /s/ James S. Burns - - - - - - - - - - - - - - - - - - ---[Start page Statement of Related Cases]--- NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT FILED ON ) DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) HONORABLE PATRICK YIM LAWRENCE H. MIIKE, in his ) HONORABLE ROBERT KLEIN official capacity as Director ) HONORABLE HERBERT SHIMABUKURO of the Department of Health ) HONORABLE KEVIN CHANG State of Hawaii, ) Judges ) Defendant-Appellant. ) _________________________________) STATEMENT OF RELATED CASES Plaintiffs-Appellees are aware of one related case in the Hawaii courts or agencies: Ninia Baehr et al. v. Lawrence Miike and Representative Felipe Abinsay. Jr.. et al., Supreme Court No. 19765. DATED: Honolulu, Hawaii, May 30, 1997. /s/ DANIEL R. FOLEY EVAN WOLFSON KIRK H. CASHMERE Attorneys for Plaintiffs-Appellees - - - - - - - - - - - - - - - - - - ---[Start page Certificate of Service]--- NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT FILED ON ) DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) HONORABLE PATRICK YIM LAWRENCE H. MIIKE, in his ) HONORABLE ROBERT KLEIN official capacity as Director ) HONORABLE HERBERT SHIMABUKURO of the Department of Health ) HONORABLE KEVIN CHANG State of Hawaii, ) Judges ) Defendant-Appellant. ) _________________________________) CERTIFICATE OF SERVICE I hereby certify that I caused two (2) copies of Plaintiffs-Appellees' Answering Brief to be duly served as indicated below upon the following persons at the addresses below on May 30, 1997: FAX AND HAND MAIL DELIVERED DOROTHY SELLERS X Deputy Attorney General 425 Queen Street Honolulu, Hawaii 96813 CHARLES J. COOPER X Cooper & Carvin 2000 K Street, N.W., Suite 401 Washington, D.C. 20006 Attorneys for Defendant-Appellee /S/ DANIEL R. FOLEY Attorney for plaintiffs-Appellees - - - - - - - - - - - - - - - - - - ---[End of Brief]---