Date: Sun, 08 Jun 1997 03:17:32 -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 10: ACLU OF HAWAI`I FOUNDATION Aloha kakahiaka kakou. Will try to get two posted this morning and maybe three tomorrow. NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAI'I NINIA BAEHR, GENORA DANCEL, ) Civil No. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (InjunctionB) PREGIL, PAT LAGON, JOSEPH ) MELIllO, ) ) APPEAL FROM THE FINDINGS OF Plaintiffs-Appellees, ) FACT AND CONCLUSIONS OF LAW ) vs. ) ) FIRST CIRCUIT COURT LAWRENCE H. MIIKE, in his ) official capacity as Director ) of the Department of Health, ) State of Hawaii, ) HONORABLE KEVIN S.C. CHANG ) Defendant-Appellant. ) ____________________________________) BRIEF OF THE AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES OF HAWAII FOUNDATION; and CERTIFICATE OF SERVICE Of Counsel: KEMPER & WATTS EDWARD C. KEMPER #893 Grosvenor Center, Mauka Tower 737 Bishop Street, Suite 455 Honolulu, Hawaii 96813 Telephone No.: 524-0330 (Attorney for Amicus Curiae AMERICAN CIVIL LIBERTIES UNION OF HAWAII FOUNDATION) SUBJECT INDEX Page Subject Index.................................................i Table of Authorities.........................................ii I. STATEMENT OF THE CASE...................................1 II. QUESTION PRESENTED FOR DECISION.........................2 III. ARGUMENT................................................2 A. Since Both the Federal Courts and the Hawaii Supreme Court Have Taken a Very Restrictive View of the Compelling State Interest Reguirement, this Court Must Affirm the Lower Court.........................2 B. The Hawaii Supreme Court Has Not Only Followed the Federal Precedent In Examining Compelling State Interest, But Has Examined the State's Arguments With Even Stricter Standards........................4 IV. CONCLUSION..............................................7 i TABLE OF AUTHORITIES Page A. CASES Baehr v. Lewin, 74 Haw1 534, 852 P.2d 44 (1993).............1 Hollman v. Olim, 59 Haw., 346, 581 P.2d 1164 (1978).........5 McCloskev v. Honolulu Police Department, 71 Haw. 568, 799 P.2d 953 (1990)...............................5, 7 Meloon v. Helgemoe, 436 F.Supp. 528, 530 (D. N.H. 1977)............................................2 Mississippi University for Women V. Hogen, 458 U.S. 718, 102 SCt 3331, 73 LEd 2d 1090 (1982)..................3 Nachtwey v. Doi, 59 Haw. 430, 583 P.2d 955 (1978)........4, 6 Palmore v. Sidoti, 466 U.S. 429, 433, 104 SCt 1879, 80 LEd 2d 421 (1984)......................................3 Schneider v. Irvington, 308 U.S. 147, 161, 60 SCt 146, 84 LEd 155 (1939)....................................2 State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988)..............5 Trimble V. Gordon, 430 U.S. 762, 769, 97 SCt 1459, 52 LEd 2d 31 (1977).......................................3 B. STATUTES Hawaii Revised Statutes, Section 572-1......................1 Hawaii Revised Statutes, Section 572-6 (Supplement 1992).........................................1 C. SECONDARY AUTHORITIES Strasser, Domestic Relations Jurisprudence and the Great, slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests, 64 Fordham Law Review, 921, 940-941 (1995)...............................3 ii BRIEF OF THE AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION OF HAWAI`I FOUNDATION I. STATEMENT OF THE CASE In 1991, the Plaintiffs-Appellees brought a complaint for injunctive and declaratory relief in the Circuit Court of the First Circuit seeking a declaration that the Plaintiffs were denied an application for a marriage license under Hawaii Revised Statutes, Section 572-6 (Supplement 1992) because of their same sex status. Baehr V. Lewin, 74 Haw. 534, 852 P.2d 44 (1993). This Court held that the marriage statute may violate the Equal Protection Clause of the State Constitution because it facially discriminated on the basis of sex. (Id. Haw. at 580). This Court then remanded the case to the Circuit Court, placing the burden upon the State to "overcome the presumption that HRS Section 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgements of constitutional rights." (Id. Haw. at 583). Trial was held before the Circuit Court. On December 3, 1996, the Circuit Court entered Findings of Fact and Conclusions of Law which: specifically found "that Defendant [State of Hawaii] failed to sustain his burden to overcome the presumption that HRS § 572-1 is unconstitutional by demonstrating or proving that the statute furthers a compelling state interest." (Record Vol. 7, 234). This brief will concentrate its analysis on the compelling state interest standard as viewed both by federal courts and by this Court. II. OUESTION PRESENTED FOR DECISION Given the heavy burden upon the State to show a compelling state interest, was there sufficient evidence or arguments presented by the State satisfy this requirement? III. ARGUMENT A. Since Both the Federal Courts and the Hawaii Supreme Court Have Taken a Very Restrictive View of the Compelling State Interest Reguirement, this Court Must Affirm the Lower Court. For the state statutory scheme relating to marriage to pass constntutional muster under the strict scrutiny test, the statute must be necessary to accomplish a legitimate state objective by the least restrictive means possible. See, e.g., Meloon v. Helgemoe, 436 F.Supp. 528, 530 D. N.H. 1977). The United States Supreme Court in Schneider v. Irvington, 308 U.S. 147, 161, 60 SCt 146, 84 L.Ed 155 (1939), outlined the delicate task presented: In every case, therefore, where legislative abridgement of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights. The duty of this Court includes a determination as to whether the State's interest itself is legitimate. "The Constitution canno't control . . . prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law 2 cannot, directly or indirectly, give them affect." Palmore v. Sidoti, 466 U.S. 429, 433, 104 SCt 1879, 80 L.Ed 2d 421 (1984). If any bias is involved, the United States Supreme Court has said the result is more likely to reflect "prejudice than legitimate public concerns". (Id. at 466 U.S. at 432). This Court must also determine whether the compelling state interest is, in fact, promoted by the classification itself. The Court merely may not accept a rote or incantation of proper state purposes. See, Trimble v. Gordon, 430 U.S. 762, 769, 97 S.Ct 1459, 52 L.Ed 2d 31 (1977). The mere use of the rubric of the public welfare, which is clearly a legitimate purpose, simply cannot justify any statutory classification. To do so would make classifications unreviewable. The United States Supreme Court in Mississippi University for Women v. Hogen, 458 U.S. 718, 102 S.Ct 333l, 73 L.Ed 2d 1090 (1982), outlined the need to examine the link between the asserted interest and the methods selected to promote it as follows: The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through mechanical application of traditional, often inaccurate, assumptions about . . . proper roles. (Id. at 458 U.S. 725-726). See, Strasser, Domestic Relations Jurisprudence, and the Great, Slumbering Baehr: On Definitional preclusion, Equal protection, and Fundamental Interests, 64 Fordham Law Review, 921, 940-941 (1995). 3 The arguments and evidence of the State of Hawaii supporting its claim that a compelling State interest exists must, at a minimum, pass scrutiny based upon these standards. B. The Hawaii Supreme Court Has Not Only Followed the Federal Precedent In Examining Compelling State Interest, But Has Examined the State's Argumeuts With Even Stricter Standards. One of the first major decisions by the Hawaii Supreme Court in the equal protection arena was Nachtwey v. Doi, 59 Haw. 430, 583 P.2d 955 (1978). There, the plaintiff, who was an indigent, sought to file as a candidate for the United States House of Representatives, but he was denied his place on the ballot because he failed to submit a petition signed by at least one-half of one percent of the registered voters in his district. The issue before the court was whether the Equal Protection Clause was violated becausse of the discrimination between political candidates based upon the wealth of the candidate. In discussing the strict scrutiny review, the court made the following statement: In determining whether the state interest behind a law is a compelling one, a court will review that law with strict scrutiny. Compare Dunn v. Blumstein, 405 U.S. 330, 335-43 (1972) with San Antonio School District v. Rodriguez, supra at 16-17. The strict scrutiny standard of review means that the State [law] is not entitled to the usual presumption of validity, that the State rather than the (class of individuals) must carry a "heavy burden of justification," that the State must demonstrate that its [law] has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives and that is has selected the "less drastic means" for effectuating its objectives . . . . Id. at 16-17. (Id. Haw. at 435.) 4 Ultimately, in the Doi case, the court held that the strict scrutiny/compelling state interest test did not apply because the plaintiff was not in a protected class. In the same year as the Doi case was decided, this Court also decided Hollman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978). Although the court upheld the restrictions on women visitors to the all-male prison regarding certain clothing requirements, this Court emphasized the state interest in regulating activities within the prison walls. (Id. Haw. at 350.) This Court further concluded that it was making a decision on a rather limited record since a less drastic alternative means was not even suggested nor was there a suggestion that the directive was employed to attain an illegitimate objective. (Id. Haw. at 354). One of more recent pronouncements of this Court clearly has narrowed the State's ability to justify regulation of a protected right. In State v. Kam, 69 Haw. 483, 748 p.2d 372 (1988), the full court concluded that there was no compelling state interest which would justify the enforcement of the state's anti pornography law. The court found that since a person had a right to view pornographic items at home, there was a "correlative right to purchase such materials for this personal use, or the underlying privacy right becomes meaningless." (Id. Haw. at 495). Although this Court upheld the random drug testing program of the City and County of Honolulu of its Police Department in McCloskey v. Honolulu Police Department, 71 Haw. 568, 799 P.2d 953 (1990), the ruling clearly found that there was no other means of 5 carrying out a legitimate government concern over drug use by the police. In reaching this result, the court first quoted from Nachtwey v. Doi, supra, outlining the heavy burden placed on goverment to demonstrate that the means used is properly tailored. The court then found that the H.P.D.'s drug testing program served three compelling interests: (1) to insure that police officers were able to perform their duties safely; (2) to protect the safety of the public; and (3) to preserve the integrity and ability of the Police Department to perform its job effectively. In reaching its ultimate conclusion, it relied upon the determination that there was really no other means available to reach these ends. Although the evidence does not indicate a large Number of HPD officers take drugs, the testing program is the only effective way to deal with the problem. In the past, the traditional method of investigation by direct observation has proven to be ineffective. Also ineffective was the use of criminal investigations. The testing program is necessary and the least restrictive to meet the governmental interests. (Id. Haw. at 577) (emphasis added). * * * * Finally, HPD had no other practical and available means of responding to legitimate concerns over drug use in the police department. Criminally investigating officers suspected of using drugs proved ineffective. Also, it is extremely difficult, if not impossible, to detect drug use among police officers by mere observation. Both methods proved to be non-workable within the police force. (Id. Haw. at 579) (emphasis added). 6 A review of these federal and state decisions in analyzing state compelling interest leads to but one conclusion. First is that a superficial examination of the alleged compelling state interest is not permissible. The classification or justification must be a legitimate one. Secondly, there cannot be a rote or mechanical application of the justification based upon inaccurate and older assumptions. Finally, in this Court's view as stated in McCloskev, supra, there must be no other practical or available means of reaching what may be a legitimate state concern. IV. CONCLUSION It is submitted that the State's justifications as presented to the lower court for upholding the marriage statute as presently written cannot and will not meet the strict scrutiny required by the courts. This Court, upon examination of the test as announced by the federal courts and this Court, will itself be compelled to affirm the lower court's finding that the marriage statute as presently written is unconstitutional. DATED: Honolulu, Hawai`i, April 30, 1997 /s/ EDWARD C. KEMPER Attorney for Amicus Curiae AMERICAN CIVIL LIBERTIES UNION OF HAWAI`I FOUNDATION 7 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~