Date: Sat, 07 Jun 1997 16:39:11 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 09: State of Nebraska, et al. Aloha auwinala kakou. Will be posting several more briefs over the next few days. Please note that the symbol represented here--> § <--represents the word "section," and that the symbol represented here--> ¶ <--represents the word "paragraph." These symbols may not translate as such on some e-mail programs. Also a BIG MAHALO to Larry B. Honolulu and Bill Woods of the GLEA Foundation for their contributions to help make this project possible. No. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAI'I NINIA BAEHR, GENORA DANCEL, ) Civil No. 91-1394-OS TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREG1IL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF LAW Plaintiffs-Appellees, ) ) V. ) FIRST CIRCUIT COURT ) ) LAWRENCE H. MIIKE, in his ) THE HONORABLE KEVIN S.C. CHANG official capacity as Director ) of the Department of Health, ) State of Hawaii, ) ) Defendant-Appellant. ) _________________________________) BRIEF OF AMICI CURIAE STATES OF NEBRASKA ALABAMA, CALIFORNIA, COLORADO, GEORGIA, IDAHO, MICHIGAN, MISSISSIPPI, MISSOURI, SOUTH `CAROLINA and SOUTH DAKOTA IN SUPPORT OF DEFENDANT-APPELLANT CERTIFICATE OF SERVICE DON STENBERG Attorney General State of Nebraska L. STEVEN GRASZ* ASHFORI) & WRISTON Deputy Attorney General ROBERT BRUCE GRAHAM, JR. #1305 State of Nebraska 1099 Alakea Street, 14th Floor 2115 State Capitol Honolulu, Hawaii 96813 Lincoln, NE 68509 Telephone: 539-0400 Tel: (402) 471-2682 *Counsel of Record. (Admitted pro hac vice) Attorneys for Amici Curiae States. QAdditiona1 Counsel Listed on Next Page] William H. Pryor, Jr. Daniel E. Lungren Attorney General Attorney General State of Alabama State of California Gale A. Norton Michael J. Bowers Attorney General Attorney General State of Colorado State of Georgia Alan G. Lance Frank J. Kelley Attorney General Attorney General State of Idaho State of Michigan Mike Moore Jeremiah W. Nixon Attorney General Attorney General State of Mississippi State of Missouri Charles M. Condon Mark Barnett Attorney General Attorney General State of South Carolina State of South Dakota TABLE OF CONTENTS I. STATEMENT OF THE QUESTION PRESENTED.......................1 II. POINTS ON WHICH AMICI INTEND TO RELY.....................1 III. ARGUMENT.................................................2 A. The Court Below Failed to Adequately Consider and Decide Upon the State's Comity Arguments for HRS § 572-1.....................................2 B. The Threat of Forced Recognition of Hawaii Same-Sex Marriages Has Generated Strong Opposition in Many Sister States And In Congress............................................4 C. Hawaii Has a Compelling Comity Interest in Maintaining A Definition of Marriage That is Consistent With That Accepted in All Other 49 States...........................................6 D. Hawaii's Interest in Interjurisdictional Recognition of Its Marriages Justifies the Rejection of Same-Sex Marriage......................7 E. Hawaii Has An Interest In Avoiding a Constitutional Confrontation........................9 IV. CONCLUSION...............................................10 CERTIFICATE OF SERVICE.......................................11 i TABLE OF AUTHORITIES CASES Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908 (1986)..........................7 Metropo1itan Life Insurance Co. v. Chase, 294 F.2d 500 (3d Cir. 1961)....................................7 Parke v. Parke, 25 Haw. 397 (1920)..............................................6 Repub1ic v. Li Shee, 12 Haw. 329 (1900)..............................................7 Sogna v. Iowa, 419 U.S. 393 (1975)........................................3, 9 STATUTES 1 U.S.C.A. § 7 (1996)...........................................5 28 U.S.C.A. § 1738C (1996)......................................5 Haw. Rev. Stat. (HRS) § 572-1..................................1 104 Cong., 2d Sess., on H.R. 3396...............................9 104 Cong., 2d Sess., on S. 1740.................................9 104th Cong., 2d Sess. at 2 (July 9, 1996).......................5 13 DEL. CODE § 101 (1996).......................................4 1996 MICH. H.B. 5662 & 1996.....................................4 23 PA. C.S.A. § 1704 (1996)....................................5 43 OK. ST. § 3.1 (1996).........................................5 750 ILL. COMP. STAT. ANN §§ 5/212.213.1 (1996)..................4 ALASKA STAT. ANN. § 25.05.013 (1996)............................4 ARIZ. REV. STAT. § 25-101 (1996)................................4 D.S. CODE LAWS ANN. § 25-1-1 (1996).............................S GA. CODE ANN. § 19-3-30 (1996).................................4 HAW. REV. STAT. § 572-1 (1994)............................... 5 ii KAN. STAT. ANN. § 23-101 (1996)................................4 MO. REV. STAT. § 451.022 (1996)................................4 N.C. GEN. STAT. § 51-1.2 (1996)................................S S.C. CODE ANN. § 20-1-10 (1996)...............................S TENN. CODE ANN. § 36-3-113 (1996).............................5 UTAH CODE ANN. S 30-1-4 (1995)................................4 MISCELLANEOUS Marrianne Hojgarrd Pedersen, Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce, 30 J. Fam. L. 289, 290 (1991-92)..............................8 16 Intl Leg. Mtrls 18 (1976)..................................8 Deborah M. Henson, Will Same Sex Marriages be Recognized in Sister States?: Full Faith and Credit and Due Process Limitation of States Choice of Law Regarding the Status and Incidents of Homosexual Marriage Following Hawaus Baehr V. Lewin, 32 U. LOUISVILLE J. FAM. L. 551, 584-590 (1993-1994)....................................................4 Restatement (Second) Conflict of Laws § 283....................7 iii I. STATEMENT OF THE QUESTION PRESENTED Whether the Circuit Court erred in rejecting the State's comity arguments in support of Haw. Rev. Stat. (HRS) § 572-1, which disallows same-sex marriage, and specifically in failing to recognize that Hawaii has a compelling interest in assuring recognition of its marriages in other states, and in harmonious relations with other states and Congress. II. POINTS ON WHICH AMICI INTEND TO RELY 1. In the Findings of Fact and Conclusions of Law (hereafter FF & CL) entered below, the trial court acknowledged that the State of Hawaii had asserted comity arguments in support of the constitutionality of HRS § 572-1. (7 R. 191 [FF & CL, Dec. 3, 1996] at 196 ¶18c, ¶12). 2. Nevertheless, the trial court erroneously found that the state had "presented insufficient evidence and failed to establish or prove any adverse impacts to the State of Hawaii or its citizens from the refusal of other jurisdictions to recognize Hawaii same- sex marriages or from application of the federal constitutional provision which requires other jurisdictions to give full faith and credit recognition to Hawaii same-sex marriages." (7 R. 191 at 224 ¶118). 3. In its Conclusions of Law, the trial court erroneously held that "except for asking the court to take judicial notice of the Defense of Marriage Act, P.L. 1-4-199 ("DOMA") Defendant introduced little or no other evidence with regard to this significant issue of comity and same-sex marriage, conflict-of- 1 laws, and/or the effects, if any, of the Full Faith and Credit Clause of the U.S. Constitution." (7 R. 191 [FF & CL] at 231 ¶12). 4. The court also erroneously concluded That "Defendant does not establish or prove that same-sex marriage will result in prejudice or harm to an important public or governmental interest." (7 R. 191 [FF & CL] at 234 ¶17). 5. Thus, the trial court erred in rejecting the state's compelling comity interest justification for HRS § 572-1 and held the statute unconstitutional. (7 R. 191 [FF & CL] at 234 ¶18). III ARGUMENT This case is not only about whether Hawaii will recognize same-sex marriages, but also about Hawaii's relationship with other states and the federal government. Any resolution of the same-sex marriage debate in Hawaii must take into account the effect that Hawaii's action will have on the other forty-nine states and the federal union. Hawaii has a compelling state interest in not redefining marriage in a way that imperils the interjurisdictional recognition of some Hawaii marriages, and that produces divisive, coercive pressures on the other states that may severely strain Hawaii's relations with sister states. The court below did not adequately consider those compelling state comity interests and erroneously held HRS § 572-1 unconstitutional. A. The Court Below Failed to Adequately CoQsider and Decide Upon the State's Comity Arguments for HRS § 572-1. In both written memoranda and oral argument, counsel for the State repeatedly and unequivocally raised comity arguments in support of HRS § 572-1, and cited both federal law (by statute) and 2 state laws (by state) to support them.[fn1] The State repeatedly asked the trial court to take judicial notice of other states' marriage laws forbidding same-sex marriage and even identified the states. (7 R. 78 (Def. Post-Trial Br.] at 121-22. Yet the court's dismissive statement in the FF & CL indicates that the court failed to take judicial notice of the state laws, and totally failed to consider and analyze the effects of those laws and their related comity implications as a compelling justification for HRS § 572-1. [fn1] See Defendant State of Hawaii's September 6, 1996 Pre-Trial Memorandum (5 R. 341, 350-51) (noting legislation had already been enacted by other states to deny recognition to same-sex marriages, the potential impact on scrutinizing interstate child custody1 welfare, probate and tax matters from Hawaii, and the detrimental effects in Hawaii from the resulting permanent migration of same- sex couples); Defendant State of Hawaii's Post Trial Brief (7 R. 78, 119-122) (noting the rejection of same-sex marriage overwhelmingly in the United States; Hawaii's interest in avoiding the transportation of same-sex marriage from Hawaii to other states: avoiding "officious intermeddling" in other states' marriage laws and in "minimizing the susceptibility of its own [marriages] to collateral attack" [citing Sosna v. Iowa, 419 U.S. 393, 407 (1975)]; plans by same-sex advocates to "use Hawaii (same- sex] marriages to foment litigation in the other 49 states and against the federal government." The Defense of Marriage Act. P.L. 1-4-199 (DOMA) specifically enacted by Congress in response to the threat posed by this litigation; that "a serious constitutional confrontation" would result because advocates of same-sex marriage argue that DOMA is unconstitutional; identifying nearly thirty states that refuse to recognize same-sex marriages performed elsewhere or expressly prohibit same-sex marriage, and others that outlaw sodomy, and arguing that Hawaii's interest in fostering interstate harmony and avoiding conflict with other states justified the ban on same-sex marriage); (Tr. Sept. 101 1996) (opening argument by Deputy Attorney General Rick Eichor asking the court to take judicial notice of the marriage laws of all other 49 states disallowing same-sex marriage); Tr. Sept. 20, 1996) (closing argument of Deputy Attorney General Rick Eichor arguing that Hawaii's interest in interstate marriage recognition was compelling and again asking the court to take judicial notice of the marriage laws in other states) 3 (7 R. 191 (FF & CL] at 231 ¶12). See Haw. R. Evid. 201(b) (2), (d) and 202(b). B. The Threat of Forced Recognition of Hawaii Same-Sex Marriagee Has Generated Strong opposition in Many Sister States And In Congress. Advocates of same-sex marriage have openly declared their intention to force other states to recognize same-sex marriage if Hawaii legalizes same-sex marriage, as a matter of general comity or Full Faith and Credit.[fn2] The threat of being forced to recognize same-sex marriage is not a speculative or trifling concern. The other states have reacted with unusual alacrity to the situation. In the past two years nearly forty percent of all states have responded to the possibility of legalizing same-sex marriage in Hawaii with the clearest expression that such marriages violate their fundamental public policy and will not be recognized as marriages. Similar bills are pending in a dozen other states. All of those states have acted in direct, specific response to the threat to state autonomy and marriage integrity caused by this case.[fn3] The crisis- [fn2] See, e.g., Deborah M. Henson, Will Same Sex Qrriage9 be Recognized in Sister States?: Full Faith and Credit and Due Process Limitation of States' Choice off Law Regarding the Status and Incidents of Homosexual Marriage Following Hawaii's Baehr v. Lewin, 32 U. LOUISVILLE J. FAM. L. 551, 584-590 (1993-1994). [fn3] Recently Enacted Laws that prohibit Same-Sex Marriage (SSM) Recognition: State Legislation Banning Same-Sex Marriage or Marriage Recognition: 1995: UTAH CODE ANN. § 30-1-4 (1995); 1996: ALASKA STAT. ANN. § 25.05.013 (1996); ARIZ. REV. STAT. § 25-101 (1996); 13 DEL. CODE § 101 (1996); GA. CODE ANN. S 19-3-30 (1996); GA. CODE ANN. 5 19-3-3.1 (1996); IDAHO CODE § 32-209 (1996); 750 ILL. COMP. STAT. ANN §5 5/212.213.1 (1996); KAN. STAT. ANN. § 23- 101 (1996); 1996 MICH. H.B. 5662 & 1996; MICH. D.S. 937 (approved by the Governor June 25, 1996); MO. REV. STAT. § 451.022 (1996); [continued] 4 like reaction in the states over the threat of forced game-sex marriage recognition precipitated by this case is unprecedenQed in domestic relations law in this century. Congress also has responded with the clearest expreggion of its opposition to legalizing same-sex marriage. The Defense of Marriage Act (DOMA) was introduced in both the U.S. Senate and House of Representatives in May of 1996. H.R. 3396; §. 1740. Its two provisions explicitly declare that for purposes of federal law and programs "marriage" means only heterosexual unions, and that federal full faith and credit principles do not require any state to recognize same-sex marriage. DOMA passed the House of Representatives by an overwhelining vote of 342 to 67, passed the Senate by a landslide vote of 85 to 14; and was signed by President Clinton.[fn4] As the House Judiciary Committee Report notes, DOMA was enacted specifically and exclusively in "response to a very particular development in the State of Hawaii" -- that is, because of this case. H. Rep. 104-664, Defense of Marriage Act, 104th [continued from previous page] NC. GEN. STAT. § 51-1.2 (1996); 43 OK. ST. § 3.1 (1996); 23 PA. C.S.A. § 1704 (1996); S.C. CODE ANN. § 20-1-10 (1996); S.C. CODE ANN. § 20-1-15 (1996); S.D. CODE LAWS ANN. § 25-1-1 (1996); TENN. CODE ANN. S 36-3-113 (1996); 1997; ARKANSAS HOUSE BILL 1004 (passed House 22 Jan., and Senate 6 Feb. Governor signed 17 Feb. ); ARKANSAS SENATE BILL 5 (passed Senate 27 Jan., and House 7 Feb; Governor signed 17 Feb.); MAINE L.D. 1017, Pub. L. 67; MISSISSIPPI HOUSE CONCURRENT RESOLUTION 15). See also HAW. REV. STAT. § 572-1 (1994). Other State Legislative Action Against SSM Recognition: 1996: LOUISIANA HOUSE CONCURRENT RESOLUTION 124 (June 12, 1996). Executive Orders Against SSM Recognition: 1996: ALABAMA EXECUTIVE ORDER No. 24 (Aug. 30, 1996); MISSISSIPPI EXECUTIVE ORDER No. 770 (Aug. 22, 1996). [fn4] Pub.L. 104-199, S 1, Sept. 21, 1996, 110 Stat. 2419, codified at 1 U.S.C.A. § 7; 28 U.S.C.A. § 1738C 1996). 5 Cong., 2d Sess. at 2 (July 9, 1996). It is contrary to the compelling interests of Hawaii and our cooperative system of federalism for this Court to legalize same-sex marriage under these circumstances. C. Hawaii has a compelling Comity Interest in Maintaining A Definition of Marriage That is Consistent With That Accepted in All Other 49 States. Legalization of same-sex marriage in Hawaii would constitute a drastic change in the definition and the very concept of marriage. No state allows same-sex marriage. None ever has. Nor is there any indication that a consensus of the people of any state supports the legalization of same-sex marriage. If Hawaii were to legalize same-sex marriage1 it would create a major deviation from the concept and definition of marriage accepted in all forty-nine of the other states in the union. Marriage and marital status play a role in literally hundreds of government laws and programs in each separate jurisdiction -- both state and federal.[fn5] The government of Hawaii has a compelling interest in "mak[ing] of marriage a homogenous, stable and certain institution." Parke v. Parke, 25 Haw. 3971 404 (1920). So important was that interest in Parke that the court overturned its own unanimous precedent to harmonize and stabilize marriage regulation by outlawing common law marriage. [fn5] Report of the Commission on Sexual Orientation and the Law in Hawaii at 105-126, App. B (Dec. 8, 1995) (listing over 300 Hawaii statutory provisions containing references to marriage, husband, wife, spouse, and similar familial terms). Likewise, Congress identified more than 800 federal statutory provisions incorporating the term "marriage" and over 3000 using "husband," "wife," "spouse" and the like. H.Rep. 104-664, supra at 10. 6 The potential for conflict, inconsistency, confusion, and injustice if Hawaii legalizes same-sex marriage is enormous. The smooth functioning of interstate relations regarding marriage and family relations is one of the most compelling state interests shared by Hawaii and the other forty-nine states. It is contrary to this compelling state interest of Hawaii's to adopt a drastic redefinition of marriage that would put such stresses and strains on marriage recognition in the United States. D. Hawaii's Interest in interjuriadictional Recognition of Its Marriages justifies the Rejection of Same-Sex Marriage. Court decisions in which marriages were valid in the state where performed but denied recognition by another state when they are incompatible with a strong public policy of the second state are legion.[fn6] The legal principle underlying these cases was recognized in the early Hawaii case of Republic v. Li Shee in which the court stated, "The general rule is that marriages legal where entered into are legal everywhere unless odious by the common consent of civilized nations." 12 Haw. 329, 330 (1900). As the Virginia Court of Appeals noted, "no state is bound by comity to give effect in its courts to the marriage laws of another state, repugnant to its own laws and policy."[fn7] International as well as interstate nonrecognition is certain. No nation in the world recognizes same-sex marriage. Since 1989, [fn6] See, eege, Metropolitan Life Znsurance CO. V. Chage, 294 F.2d 500 (3d Cir. 1961); Restatement (Second) Conflict of Laws § 283, Reporter's Qote, comments j-k. [fn7] Hager V. Hager, 3 Va. App. 415, 349 S.E.2d 908, 909 (1986). 7 four Scandinavian countries have enacted laws that create another relationship in law known as same-sex "domestic partnership."[fn8] Each of those nations, however, very deliberately chose not to extend the status of marriage to same-sex unions. Furthermore, these nations do not expect their domestic partnerships to be recognized abroad.[fn9] It would be naive to believe that same-sex marriages would be recognized generally by other nations. Same-sex marriage would be found incompatible with public policy in most of the nations of the world.[fn10] Marriages that "are incompatible with the public policy" of a country will not be recognized in that country, even if the marriage is deemed valid under the law of the state where celebrated or by the law of the parties' nationality or domicile.[fn11] Thus, parties to Hawaii same-sex marriages would likely expect, but be denied rights based upon marital status in foreign nations, including property, succession, inheritance, insurance, employment [fn8] The countries are Denmark, Norway, Sweden, and just this year, Iceland. [fn9] Marrianne Hojgarrd pedersen, Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce, 30 J.Fam.L. 289, 290 (1991-92). [fn10] Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition: A Survey, Family Law Quarterly, Vol. 29, pp. 497-517 (Fall 1995). [fn11] See Lennart Paisson, Marriage in Comparative Conflict of Laws: Substantive Conditions 3 (Martinus Niijhoff publishers 1981); The Hague Convention on Celebration and Recognition of the Validity of Marriages, 16 Int'l Leg. Mtrls 18 (1976). (Article 14 provides that (a] Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy (`ordre public')."). 8 benefits, pensions, etc., in those nations. In some nations, other Hawaii marriages would be reviewed with suspicion as well, resulting in disadvantages for Hawaiians seeking benefits in other countries. Hawaii's compelling interest in "minimizing the susceptibility of its own" marriages to nonrecognition in other states provides ample justification for upholding HRS § 572-1. Sosna v. Iowa, 419 U.S. 393, 407 (1975). E. Hawaii Has An Interest In Avoiding a Constitutional Confrontation. Opponents of the Defense of Marriage Act argue that it is unconstitutional. They argue that under the Full Faith and Credit Clause of the Constitution all states are obligated to give "full faith and credit" to public acts and records of sister states, and that includes marriages.[fn12] On the other side, opponents of same- sex marriage and supporters of the DOMA argue that the Supreme Court of the United States has never held that marriages must be given full faith and credit, but rather the states have traditionally been permitted to decline to recognize marriages from other states that violate strong local public policy, and that DOMA is constitutional under the last sentence of the Full Faith and Credit clause which specifically provides that QCongress may by [fn12] See Hearing Before the Subcomm. On the Constitution of the Committee on the Judiciary, U.S. House of Representatives, 104 Cong., 2d Sess., on H.R. 3396, May I5, 1996 (Serial No. 69) at 202 (Rabbi David Sapperstein); Hearing Before the Committee on the Judiciary, United States Senate, 104 Cong., 2d Sess., on 5. 1740, July 11, 1996 (S. Hrg. 104-553) at 42-47 (Prof. Cass R. Sunstein) 9 general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." The important point here is not which position will ultimately be proven correct. Rather, the State of Hawaii's compelling interest stems from the fact that a serious constitutional confrontation involving Congress (which overwhelmingly passed the Defense of Marriage Act) and the American judiciary is inevitable if Hawaii legalizes same-sex marriage. In the confrontation, the judiciary will be asked to force Hawaii's sister states to recognize same-sex marriage over their own objections, and over the emphatic opposition of Congress. Hawaii has a compelling state interest in avoiding such nationwide confrontation and division. IV. CONCLUSION Legalizing same-sex marriage would be extremely divisive, impair interjurisdictional recognition of Hawaii marriages and related legal benefits, and severely strain Hawaii's relations with the other forty-nine states and the federal government. The State of Hawaii has a compelling interest in avoiding such consequences. Respectfully submitted this 23rd day of April, 1997. BY DON STENBERG Attorney General of Nebraska BY ROBERT BRUCE GRAHAM, JR. Steven Grasz, #l9O50 Deputy Attorney General State of Nebraska 2115 State Capitol Lincoln, NE 68509-8920 Tel: (402) 471-2682 Counsel for Amici States. 10 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "You can't put a cost . . . on something that is tantamount to civil rights." --Governor Ben Cayetano ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~