Date: Sun, 08 Jun 1997 14:31:53 -1000 queerpolitics@abacus.oxy.edu, queerplanet@abacus.oxy.edu, submit@qrd.org, glb-news@listserv.aol.com From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 02: Representative Felipe Abinsay, Jr., et al, Aloha awakea kakou. This brief is of major interest on three accounts: 1) 4 Democrat and 3 Republican members of the Hawai`i House of Representatives have teamed up to bring the attorney for Pat Robertson's "700 Club", Jay Sekulow, on board for the defendant; 2) the inclusion of Marie A. Sheldon, who along with James Hochberg Jr., of Rutherford Institute fame, were the only "minority" members of The seven-member Governor's Commission on Sexual Orientation and the Law; and 3) the language is contradictory and arguments extremely short-sighted. NO.20371 IN THE SUPREME COURT OF THE STATE OF HAWAI'I NINIA BAEHR, et al, ) Civil No. 91-1394-05 ) Plaintiffs, ) BRIEF OF AMICI CURIAE ) REPRESENTATIVE FELIPE vs. ) ABINSAY, JR., REPRESENTATIVE ) MICHAEL KAHIKINA, LAWRENCE MIIKE, in his capacity as ) REPRESENTATIVE EZRA Director of the Department of Health, ) KANOHO, REPRESENTATIVE State of Hawai'i, ) COLLEEN MEYER, ) REPRESENTATIVE DAVID ) STEGMAIER, REPRESENTATIVE ) ROMY M. CACHOLA, AND ) REPRESENTATIVE GENE WARD; ) CERTIFICATE OF SERVICE ______________________________________) BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANT/DEFENDANT ROBERT K. MATSUMOTO #1330 JAY ALAN SEKULOW* 1441 Kapiolani Boulevard The American Center for Suite 9lO Law & Justice Honolulu, Hawai'i 96814 1000 Regent University Drive (808) 942-2281 Virginia Beach, Virginia 23464 (757) 579-2489 MARIE A. SHELDON #5964 * Admitted pro hac vice 1200 Pauahi Tower 1001 Bishop St. Honolulu, Hawai'i 96813 (808) 5.24-2466 Attorneys for Amici Curiae Table of Contents Table of Contents...............................................ii Table of Authorities...........................................iii STATEMENT OF QUESTION PRESENTED..................................1 ARGUMENT.........................................................1 I. THE STATE OF HAWAI'I HAS A COMPELLING INTEREST IN ENCOURAGING AND PRESERVING OPPOSITE-SEX MARRIAGES.................................................2 A. Unique Societal Contributions Of Opposite-sex Marriage Make It A Relationship That The State Of Hawai'i Has A Compelling Interest In Endorsing And Encouraging................2 B. The State of Hawai'i Has A Compelling Interest In Discouraging Same-sex Marriages Because Permitting Same-sex Marriages Will Undermine Conventional Marriage And Place Its Contributions To Society In Jeopardy.................6 C. Hawai'i Has a Compelling Interest in Discouraging Same-sex Marriages to Avoid the Endorsement of Homosexual Relationships.............................7 II. HRS § 572-1 IS NARROWLY DRAWN TO FURTHER THESE COMPELLING INTERESTS......................................9 CONCLUSION......................................................10 ii Table of Authorities Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)............passim Church of Lukumi Babalu Aye V. City of Hialeah, 113 S.Ct. 2217 (1993)..........................................................2 Griswold v. Connecticut, 381 U.S. 479 (1965)..................2,3 Loving v. Virginia, 388 U.S. 1 (1967).........................2,3 Maynard v. Hill, 125 U.S. 190 (1888)............................3 Nieto v. City of Los Angeles, 138 Cal. App.3d 464 (1982)........5 Reynolds v. United States, 98 U.S. 145 (1878)...............2,3,7 Zablocki v. Redhail, 434 U.S. 374 (1978)........................7 A.E. Hoebel, The Law of Primitive Man, 3-45 (1945)..............3 Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463 (1983)..........3 Craig M. Bradley, The Right Not To Endorse Gay Rights: A Reply to Sun stein, 70 Ind. L.J. 29 (1994)...............8 David P. McWhirter & Andrew M. Mattison, The Male Couple: How Relationships Develop 252-262 (1984)...................8 Dennis Altman, The Homosexualization of America The Americanization of Homosexuality 187 (1982)................8 Gary S. Becker, A Treatise on the Family 44 (1991)..............5 John M. Finnis, Law, Morality, and "Sexual Orientation", 9 Notre Dame L. Rev. 1049 (1994)...........................9 Marc A. Fajer, Can Two Real Men Eat Ouiche Together? Storytelling. Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511 (1992)....................8 Philip Heymann & Douglas Barzelay, The Forest and the Trees: Roe V. Wade anf its Critics, 53 B.U. L. Rev. 765 (1973)....4 Richard A. Posner, Sex and Reason 312 (1992)....................8 iii Robert P. George & Gerard V. Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995)...............9 The Ramsey Colloquium, The Homosexual Movement, 41 First Things 15 (1994)................................................4,6 iv Come now, AMICI CURIAE, REPRESENTATIVE FELIPE ABINSAY, JR., REPRESENTATIVE MICHAEL KAHIKINA, REPRESENTATIVE EZRA KANOHO, REPRESENTATWE COLLEEN MEYER, REPRESENTATIVE DAVID STEGMAIER, REPRESENTATIVE ROMY M. CACHOLA and REPRESENTATIVE GENE WARD (hereinafter "Amici"), and submit their brief in support of Appellany/defendant Lawrence Miike, pursuant to this Court's March 12, 1997 Order. STATEMENT OF QUESTION PRESENTED WHETHER THE CIRCUIT COURT WRONGLY CONCLUDED THAT THE STATE OF HAWAI'I DOES NOT HAVE NARROWLY TAILORED COMPELLING INTERESTS IN LIMITING MARRIAGE TO ONE MAN AND ONE WOMAN? ARGUMENT HRS § 572-1 survives strict scrutiny analysis because the facts indicate Hawai'i has a compelling interest in preserving the integrity of opposite-sex marriage and avoiding state endorsement of same-sex marriage. The Statute is narrowly tailored to further these compelling interests. Therefore, the Statute passes muster under strict scrutiny analysis and the Circuit Court wrongly failed to uphold its constitutionality. "Strict scrutiny" requires statutes to "further[] compelling state interests" and be "narrowly drawn to avoid unnecessary abridginents of constitutional rights." Baehr v. Lewin, 74 Haw. 530, 646, 852 P.2d 44, 74 (1993). Those Justices signing on to the plurality opinion in this Court's previous ruling in this case, Justice Levinson and Chief Justice Moon, have already conceded that there are compelling reasons for prohibiting certain marriages. They list without elaboration the following examples: "consanguinity (to prevent incest), ...immature age (to protect the welfare of children), ...presence of venereal disease (to foster public health), ...and to prevent bigamy...." 74 Haw. at 562 n.19, 852 P.2d at 59 n.19. Some of these same compelling reasons justify Hawai'i's prohibition of same-sex marriage. For instance, as with bigamy, Hawai'i has a compelling interest in protecting marriage between one man and one woman and preventing marriages that threaten the 1 esteetned status of this union. HRS § 572-1 furthers these compelling interests. It encourages and protects the development of opposite-sex marriages, which are the building blocks of democratic society, Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Loving v. Virginia, 388 U.S. 1, 12 (1967), and avoids the inevitable endorsement of homosexuality that will result from approving same-sex marriage. The evidence adduced at trial proves that the State of Hawai'i has a compelling interest in preserving opposite-sex marriage because of its unique contributions to society. The evidence also supports Hawai'i's compelling interest in avoiding the endorsement of homosexual relationships. The provisions of HRS § 572-1 making opposite-sex marriage the sole marital entity endorsed by the State are narrowly tailored to further these compelling interests. Therefore, the Circuit Court committed reversible error by failing to uphold the constitutionality of HRS § 572-1. I. THE STATE OF HAWAI'I HAS A COMPELLING INTEREST IN ENCOURAGING AND PRESERVING OPPOSITE-SEX MARRIAGES. "Strict scrutiny" was applied by the United States Supreme Court to a law prohibiting bigamy in Reynolds v. United States, 98 U.S. 145 (1878).[fn1] The Court found the statute constitutional because the legislature had a compelling interest in preserving conventional marriage consisting of one man and one woman, and in discouraging "actions which were in violation of social duties or subversive of good order." Id at 165. See Church of Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217, 2228 (1993) (where the Supreme Court cited Reynolds as an example of legislation meant to address "social harm"). These same compelling interests are the basis for the Hawai'i Legislature's enactment of HRS § 572-1. A. Unique Societal Contributions Of Opposite-sex Marriage Make It A Relationship That The State Of Hawai'i Has A Compelling Interest In Endorsing And Encouraging. [fn1] Strict scrutiny was applied in Reynolds in the context of a free exercise of religion challenge to a federal law banning bigamy in what was then the Territory of Utah. The strict scrutiny applied when evaluating most free exercise cases is the same strict scrutiny that a plurality of this Court has said must be applied to sex-based classifications. See Church of Lukumi Babalu Aye v. City of Hialeah, 113 S.Ct. 2217, 2227 (1993) (law whose purpose is to restrict religious practice "is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest"). 2 The social interest in marriage and family originates in the belief that the foundation for political society is in family organization. See A.E. Hoebel, The Law of Primitive Man, 3-45 (1945). That is, the state evolves out of and depends for its stability upon stable families. Both historically and structurally, marriage is literally the foundation of society. This truth has been recognized by the United States Supreme Court, which has observed that marriage is a relationship that is "older than the Bill of Rights - older than our political parties, older than our school system," Griswold v. Connecticut, 381 U.S. 479, 486 (1965), and "fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967). Indeed, "[m]arriage, as creating the most important relations in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature." Maynard v. Hill, 125 U.S. 190, 205 (1888). Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Reynolds, 98 U.S. at 165-66. Opposite-sex marriage is particularly important to democratic society because it is the seed-ground of democracy. See generally Bruce C. Hafen, The Constitutional Status of Marriage Kinship and Sexual Privacy - Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463, 472-484 (1983). It has proven to be the safest repository of democratic values including tolerance, respect for others, and the balanced values of responsible individualism and commitment to the community. Opposite-sex marriage is a mediating institution that nurtures the values of independence and liberty. [R]eflection on the heterosexual norm directs our attention to certain social necessities: the continuation of human life, the place of difference within community, the redirection of our tendency to place our own desires first. These necessities cannot be supported by rational calculations of self interest alone; they require commitments that go well beyond calculations of personal satisfaction. Having and rearing children is among the most difficult of human projects. Men and women need all the support they can get to maintain stable marriages in which the next generation can flourish. Even marriages that do not give rise to children exist in accord with, rather than in opposition to, this heterosexual norm. 3 The Ramsey Colloquium, The Homosexual Movement, 41 First Things 15, 17-18 (1994). Opposite-sex marriage fosters the values of democracy in both adults and children. Spouses learn to overcome their differences and live together in love, to compromise, to be patient, to sacrifice for each other, and to invest in the marriage and the family. For instance, Dr. Kyle D Pruett testified at trial that biological parents have "a predisposition to sacrifice and make one's self secondary...." Tr. 9/10/96, pages 58, 62, Circuit Court's Opinion at 9 (R.7 at 199) Children grow up in that environment, learning from the examples of their parents, as well as learning from daily living the same lessons. "ln democratic theory as well as practice, it is in the family that children are expected to learn the values and beliefs that democratic institutions later draw on to determine group directions." Philip Heymann & Douglas Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U. L. Rev. 765, 773(1973). Opposite-sex marriage is a uniquely beneficial arrangement providing equity and security for individuals, family and society. Testimony adduced at trial establishes that marriages between one man and one woman are more likely than other types of families to have limited amounts of strife, the maximum amount of nurturing, the maximum amount of support, guidance, and leadership, and a very strong intimate bond between parents and child. See Testimony of Dr. Thomas S. Merrill, Tr. 9/13/96, pages 32-33, Circuit Court's Opinion at 20 (R.7 at 210); Testimony of Dr. Kyle D. Prueff, Tr. 9/10/96, page 63. Circuit Court's Opinion at 10 (R.7 at 200). Based on this testimony, the Circuit Court found that "an intact family environment consisting of a child and his or her mother and father presents a less burdened environment for the development of a happy, healthy and well-adjusted child." Circuit Court's Opinion at 34-35 (R.7 at 224 and 225). Same-sex unions are not conducive to providing these benefits because they are less stable. Testimony of Prof. David Eggebeen, Tr. 9/11/96, pages 73-74, Circuit Court's Opinion at 16 (R.7 at 206).[fn2] In addition to valuable contributions to the welfare of our children and to democracy, [fn2] One of the Plaintiffs' witnesses, Pepper Schwartz, confirmed this conclusion. She admitted in her testimony that studies she had conducted in the past in American Couples indicate that homosexuals are less monogamous than opposite-sex couples. She attempted to characterize these studies as outdated, but could cite to no updated study supporting her belief. See Testimony of Pepper Schwartz, Tr. 9/16/96, pages 54-56, Circuit Court's Order at 23 (R.7 at 213). 4 opposite-sex marriage also provides an economic benefit to society that cannot be copied by same- sex marriage. The complementary differences between men and women underlie the unique contributions and strengths of opposite-sex marriage. Gary Becker, the Nobel-laureate in economics, has noted: The biological differences between men and women in the production and care of children, and the specialized investment in market and household skills that reinforce the biological differences, explain why the institution of marriage has been important in all societies. Gary S. Becker, A Treatise on the Family 44 (1991). The personal, social, productive and economic efficiencies of same-sex couples are not equivalent to those of conventional opposite-sex marriage. Households with only men or only women are less efficient because they are unable to profit from the sexual difference in comparative advantage. ...Since the biological natures of men and women differ, the assumption that the time of men and women are perfect substitutes even at a rate different from unity is not realistic. ...Complementarity implies that households with men and women are more efficient than households with only one sex.... Id. at 38-39. Opposite-sex marriage is a uniquely beneficial economic arrangement providing equity and security for individuals, family and society. Becker describes marriage as a "long-term contract" for the legal protection of women who have performed the gender-specialized, labor-intensive, personal- income-sacrificing work of bearing and rearing children, and thus for the protection of children. Id. at 30-38. Same-sex unions do not provide comparable complementarity or fuction as effectively as conventional marriages. These unique, invaluable contributions made to society by opposite-sex marriage necessitate and even compel the State of Hawai'i to take steps to preserve it. Spouses receive special consideration from the state, for marriage is a civil contract "of so solemn and binding a nature... that the consent of the parties alone will not constitute marriage...; but one to which the consent of the state is also required." (Mott v. Mott (1889) 82 Cal. 413, 416.) Marriage is accorded this degree of dignity in recognition that "[the] joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." (Marvin V. Marvin, supra, 18 Cal.3d 660, 684). Nieto v. City of Los Angeles, 138 Cal. App.3d 464, 471 (1982). 5 Support of families that require unselfishness from its members is an absolute necessity in a society where the focus on self is forever increasing. Same-sex couples simply do not perform the same functions or provide the same benefits for society as conventional opposite-sex marriages. In view of the unique contributions that opposite-sex marriage makes to society, the State of Hawai'i has a compelling interest in endorsing and preserving it to the exclusion of same-sex marriage which, as is demonstrated below, actually undermines opposite-sex marriage. B. The State of Hawai'i Has A Compelling Interest In Discouraging Same-sex Marriages Because They Will Undermine Convendonal Marriage And Place Its Contributions To Society In Jeopardy. If Hawai'i allows couples of the same sex to marry, it will denigrate opposite-sex marriage by casting it down from its esteemed position. The acceptance of a philosophy that marriage does not matter, that all "intimate" relationships are fungible, has not only distorted the perception of reality but has warped the reality of marriage and family life for millions of anguished adults and traumatized children. "To depict marriage as simply one of several altenative 'lifestyles' is seriously to undermine the normative vision required for social well-being. See The Ramsey Colloquium, The Homosexual Movement, 41 First Things 15, 18 (1994). This Court has held that it is irrelevant whether the Plaintiffs are homosexuals. 74 Haw. at 558 n.17, 852 P.2d at 58 n. 17.[fn3] Instead, this Court has focused on the benefits that same-sex couples would enjoy if permitted to marry and goes so far as to provide a non-comprehensive list of them. Id at 560-561, and at 59. Benefits that Hawai'i will obtain from allowing members of the same sex to marry are conspicuously absent in the plurality opinion. If the State of Hawai'i permits same-sex couples to marry, marriage will be reduced to an entity formed by persons wishing to exploit its tax advantages and other benefits. The concept of marriage being the building block of society and the seed-ground of democracy in Hawai'i will give way to a marital entity that is no more than a corporation, limited partnership, or other business organization formed for purely economic or liability reasons. Hawai'i has a compelling interest in preserving the integrity of the marital union by making opposite-sex marriage the exclusive form of family relationship endorsed by the State. Loss of this [fn3] Dissenting Justices Heen and Hayashi concurred with this position of the plurality. 74 Haw. at 591 n.3, 852 P.2d at 71 n.3. 6 exclusive endorsement will de-emphasize the importance of opposite-sex marriage to society, weakening the institution of opposite-sex marriage, and placing our entire democratic system in jeopardy by eroding its foundation. C. Hawai'i Has a Compelling Interest in Discouraging Same-sex Marriages to Avoid The Endorsement of Homosexual Relationships. In Reynolds, the United States Supreme Court found that "[p]olygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was alniost exclusively a feature of the life of Asiatic and of African people..., and from the earliest history of England polygamy has been treated as an offense against society. ...From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity." Reynolds, 98 U.S. at 165-66. The Court's holding that the law banning polygamy passed constitutional muster indicates that the legislature had a compelling interest in prohibiting polygamy because it was "in violation of social duties or subversive of good order." Id. Likewise, the State of Hawai'i has a compelling interest in prohibiting same-sex marriages because, like bigamy, to permit them will violate social duties and be subversive of good order. Issuing marriage licenses to same-sex couples will place the State of Hawai'i's imprimatur upon homosexuality. [M]arriage ...is believed by most people in our society to be not merely a license to reproduce but also a desirable, even a noble, condition in which to live. To permit persons of the same sex to marry is to declare, or more precisely to be understood by many people to be declaring, that homosexual marriage is a desirable, even a noble condition in which to live. This is not what most people in this society believe;[fn4] and for reasons stated earlier it would be misleading to suggest that homosexual marriages are likely to be as stable or rewarding as heterosexual marriages, even granting as one must that a sizable fraction of heterosexual marriages in our society are not stable and are not rewarding. ...[P]ermtting homosexual [fn4] "The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people. ...State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests." Zablocki v. Redhail, 434 U.S. 374, 398 (1978) (Powell, J., concurring). 7 marriage would place government in the dishonest position of propagating a false picture of the reality of homosexuals' lives. Richard A. Posner, Sex and Reason 312 (1992) (emphasis added).[fn5] Posner bases this conclusion on evidence demonstrating the homosexual lifestyle is not a desirable condition in which to live. [I]t is unlikely that when every legal disability of homosexuality has been dismantled and every heterosexual has been thoroughly schooled in tolerance, the homosexual life-style will cease to be a distinctive and, to a significant degree, an unhappy one. I conclude that even in a tolerant society the life prospects of a homosexual - not in every case, of course, but on average - are... grimmer than those of an otherwise identical heterosexual...." Id. at 303 & 307 (emphasis added). Unlike opposite-sex marriage, homosexual relationships have not been proven over time to inculcate and strengthen the values needed to maintain and perpetuate our democratic society. They have not even proven to be significantly stable and faithful . Marriage between one man and one woman is invaluable as a training school for democratic virtues because it is more permanent than other forms of intimate association. Homosexual relations are notoriously non-permanent. Testimony of Prof. David Eggebeen, Tr. 9/11/96, pages 73-74, Circuit Court's Opinion at 16 (R.7 at 206).[fn6] Homosexual relationships are therefore clearly distinguished from opposite-sex marriage in [fn5] See also Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511, 577 (1992) (complaining that non-recognition of homosexual marriages "denies gay relationships public legitimacy"); Craig M. Bradley, The Right Not To Endorse Gav Rights: A Reply to Sunstein, 70 md. L.J. 29, 35 (1994) ("homosexual marriage applicants...are...asking for a legal imprimatur on homosexual relationships or activities"). [fn6] Homosexuals themselves recognize that "among gay men a long-lasting monogamous relationship is almost unknown. Indeed both gay women and gay men tend to be involved in what might be called multiple relationships." Dennis Altman, The Homosexualization of America, The Americanization of Homosexuality 187 (1982) (emphasis in original). A study conducted by two homosexual authors concludes that to be homosexual is to be non-monogamous. David P. McWhirter & Andrew M. Mattison, The Male Couple: How Relationships Develop 252-262 (1984). In their view, monogamy is an unnatural state that some homosexuals attempt because of their internalized homophobia; so when a homosexual finally grows to accept his homosexuality, he sheds monogamy. Id. 8 a way that invokes compelling reasons why opposite-sex marriage is constitutionally preferred and specially protected. Society...has a compelling interest in marriage (rightly understood) and stable family life. [This] ...mean[s]...that governments may, and should, decline to treat all sexual relationships as legally equal or confer the status of marriage on intrinsically nonmarital relationships. Robert P. George & Gerard V. Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301, 320 n.60 (1995). The State of Hawai'i therefore has a compelling interest in refusing to endorse homosexuality by allowing members of the same sex to obtain a marriage license. Endorsing homosexuality through same-sex marriage will only serve to further undermine the institution of marriage in our society. All who accept that homosexual acts can be a humanly appropriate use of sexual capacities must, if consistent, regard sexual capacities, organs and acts as instruments for gratifying the individual "selves" who have them. Such an acceptance is commonly (and in my opinion rightly) judged to be an active threat to the stability of existing and future marriages; it makes nonsense, for example, of the view that adultery is per se (and not merely because it may involve deception), and in an important way, inconsistent with conjugal love. A political community which judges that the stability and protective and educative generosity of family life is of fundamental importance to that community's present and future can rightly judge that it has a compelling interest in denying that homosexual conduct - a "gay lifestyle "--is a valid, humanly acceptable choice and form of life, and in doing whatever it properly can, as a community with uniquely wide but still subsidiary functions, to discourage such conduct. John M. Finnis, Law, Morality, and "Sexual Orientation", 9 Notre Dame L. Rev. 1049, 1070 (1994) (emphasis added). II. HRS § 572-1 IS NARROWLY DRAWN TO FURTHER THESE COMPELLING INTERESTS. The only way to preserve the unique benefits that opposite-sex marriage provides to society is to encourage opposite-sex marriage by giving it special privileges, and to discourage anything that would weaken this societal foundation. Allowing persons of the same sex to marry will automatically reduce marriage to just another grouping of people. It will also place the State's endorsement upon homosexuality which is an additional threat to the fliture of the institution of marriage. There is no narrower way to ensure the vitality of opposite-sex marriage and its unique 9 contributions than to limit state-recognized marriages to couples of the opposite sex. CONCLUSION HRS § 572-1 passes strict scrutiny because recognizing only opposite-sex marriages is narrowly tailored to further Hawai'i's compelling interest in protecting the public health and welfare by preserving the foundation of our society. The Circuit Court ignored the evidence supporting this interest and wrongly concluded that the State does not have a compelling interest. This Court should therefore reverse the Circuit Court's order holding HRS § 572-1 unconstitutional. This 24th day of March, 1997. Respectfiilly submitted, /s/ ROBERT K. MATSUMOTO #1330 /s/ JAY ALAN SEKULOW* Ala Moana Building, Suite 910 The American Center for Law & Justice 1441 Kapiolani Boulevard 1000 Regent University Drive Honolulu, Hawai'i 96814 Virginia Beach, Va. 23464 (808) 942-2281 (757) 579-2489 MARIE A. SHELDON #5964 * Admitted pro hac vice 1200 Pauahi Tower 1001 Bishop Street Honolulu, Hawai'i 96813 (808) 524-2466 Attorneys for Amici REPRESENTATIVE FELIPE ABINSAY, JR., REPRESENTATIVE MICHAEL KAHIKINA, REPRESENTATIVE EZRA KANOHO, REPRESENTATIVE COLLEEN MEYER, REPRESENTATIVE DAVID STEGMAIER, REPRESENTATIVE ROMY M. CACHOLA and REPRESENTATIVE GENE WARD 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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~