Date: Tue, 03 Jun 1997 18:14:53 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 11: Agudath Isreal of America Aloha auwinala kakou. Alright, alright, ALRIGHT, already. One more, but that's it. I've got to go cook my husband dinner . . . . No. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO.91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF LAW Plaintiffs-Appellees, ) ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his official ) capacity as Director of the Department of ) THE HONORABLE Health, State of Hawaii, ) KEVIN S.C. CHANG ) Defendant-Appellant. ) _________________________________________________) BRIEF OF AMICUS CURIAE AGUDATH ISRAEL OF AMERICA CERTIFICATE OF SERVICE AGUDATH ISRAEL OF AMERICA DAVID ZWIEBEL,* ASHFORD & WRISTON MORTON M. AVIGDOR ROBERT BRUCE GRAHAM, JR #1305 AGUDATH ISRAEL OF AMERICA 1099 Alakea Street, 14th Floor 84 WIlliam Street Honolulu, Hawaii 96813 New York, NY 10038 Telephone: (808) 539-0400 Telephone: (212) 797-9000 ABBA COHEN AGUDATH ISRAEL OF AMERICA 1730 Rhode Island Avenue, N.W. Washigton,D.C. 20036 Telephone: (202) 835-0414 *Coutlsel of Record (Admitted pro hac vice) Attorneys for Amicus Curiae Agudath Israel of America TABLE OF CONTENTS Page TABLE OF CONTENTS...........................................i TABLE OF AUTHORITIES.......................................ii QUESTION PRESENTED..........................................1 INTEREST OF THE AMICUS CURIAE...............................1 ARGUMENT....................................................3 CONCLUSION..................................................6 TABLE OF AUTHORITIES Cases Page Baehr v Miike, 80 Haw. 341, 910 P.2d 112 (1996)............6 Barnes v. Glen Theatre, 501 U.S. 560 (1991)................4 Bowers v. Harawick, 478 U.S. 186 (1986)....................4 Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) ...........................................................5 Murphy v. Ramsey, 114 U.S. 15 (1885).......................3 Storrs V. Holcomb, 645 N.Y.S. 2d 286 (Sup. Ct. Tompkins Co. 1996)......................................................3 Statutes Defense of Marriage Act, I U.S.C. § 7, 28 U.S.C. § 1738c...3 Other Authorities National Commission on Children, Beyond Rhetoric: A New American Agenda for Children and Families, 253 (1992)......1 Deylin, The Enforcement of Morals (1965)...................5 McConnell, The Role of Democratic Politics in Transforming Moral Convictions Into Law, 98 Yale L.J. 1201 (1989).......5 Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality 77 Calif. L.Rev. 521 (1989)..................5 ii QUESTION PRESENTED Although this appeal raises several important questions, as have been identified by defendant-appellant and a number of amici, amicus curtae Agudath Israel of America will focus herein exclusively, and briefly, on what it considers to be the core question involved in this case: Does the broad social moral consensus reflected in Hawaii's marriage laws itself furnish a compelling interest that justifies Hawaii's refusal to recognize "same-sex marriages"? INTEREST OF TRE AMICUS CURIAE Agudath Israel of America is a national Orthodox Jewish organization with members all across the United States, including Hawaii. This case raises issues of profound moral concern that are of great interest to Agudath Israel and its constituents. Two points, in particular, deserve mention. First, this case could fundamentally, and adversely, affect the hallowed institution of marriage. It has become manifesdy and tragically clear in recent years that the decline of marriage has engendered enormous social costs -- and, more specifically, that failure to view marriage as the cornerstone of family life has had devastating impact on children. In its 1992 report to the nation, Beyond Rhetoric: A New American Agenda for Children and Families, the National Commission on Children noted (at page 253) as follows: 1 "When parents divorce or fail to marry, children are often the victims. Children who live with only one parent, usually their mothers, are six times as likely to be poor as children who live with both parents. They also suffer more emotional, behavioral, and intellectual problems. They are at greater risk of dropping out of school, alcohol and drug use, adolescent pregnancy and childbearing, juvenile delinquency, mental illness, and suicide." Agudath Israel submits that it is, or ought to be, an urgent objective of public policy not only to strengthen the institution of marriage, but to do so in a manner that promotes a sense of responsibility to children. The historical genius of marriage is not merely that it constitutes the legal union of man and woman, but that it furnishes the foundation of family. Legalizing same-sex marriages -- which, by biological definition, can never have anything to do with procreation -- would obscure further still the vital link between marriage and children. It would convey the message that childbearing, and childrearing, are matters entirely distinct from marriage. The message is subtle, but in Agudath Israel's view devastating. Second, there is the question of society's attitude toward homosexuality. As many jurisprudential scholars have noted, and as many parents and teachers instinctively recognize, government is not a neutral actor in the field of moral values; the laws by which a society chooses to govern itself have (among other things) an educational function. Conferring society's blessings upon same-sex unions by according them the legal and social status of "marriage" would convey an unmistakable imprimatur of acceptability and legitimacy upon the practice of homosexuality. The fact is indisputable that millions of Americans, of all faiths, reject the notion that homosexual conduct is merely an "alternative lifestyle", no more objectionable and no less 2 acceptable than the traditional heterosexual lifestyle. These Americans strive hard to raise their children to recognize that not all expressions of human sexuality are morally equivalent. Classifying same-sex unions as "marriages" would be government's way of telling those children that their parents are wrong, that their priests, ministers and rabbis are wrong, that civilized societies throughout the millennia have been wrong. Agudath Israelis of the view that government has no business conveying that message. ARGUMENT "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth... than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." So stated the United States Supreme Court more than 100 years ago in Murphy v. Ramsey, 114 U.S. 15, 45 (1885). This case, at its core, is about whether that dictum still holds true. There can be no question that "[t]he long tradition of marriage, understood as the union of male and female, testifies to political, cultural, religious and legal consensus. Storrs v. Holcomb, 645 N.Y.S. 2d 286, 287 (Sup. Ct. Tompkins Co. 1996). That consensus is reflected in the enactment last year, by landslide margins in both the U.S. House of Representatives and the U.S. Senate, of the Defense of Marriage Act (1 U.S.C. § 7; 28 U.S.C. § 1738c) (definig the terms "marriage" and "spouse" for purposes of federal law to 3 exclude same-sex unions, and allowing states not to recognize as marriages same sex-unions treated as marriages by sister jurisdictions). It is reflected in the growing movement in many states specifically to declare that "same-sex marriages" are offensive to their public policy. It is reflected in opinion poll upon opimon poll, in which Americans generally, and Hawai'i residents specifically, overwhelmingly oppose the recognition of "same-sex marriages" There can further be no question that when society arrives at such a clear consensus of right and wrong, of what is morally appropriate and what is not, government has an interest in the preservation of laws that reflect the social moral consensus. For example, in Bowers v. Hardwick, 478 U.S. 186, 196 (1986), the Supreme Court expressly found that "the law ... is constantly based on notions of morality", and that "majority sentiments about the morality of homosexuality" furnish a sufficient basis to uphold anti-sodomy laws against due process attack. In Banies v. Glen Theatre, 501 U.S. 560, 569 (1991), the Court concluded that a "public indecency statute furthers a substantial interest in protecting order and morality," thereby shielding it from free speech attack. Indeed, although the Supreme Court has not yet had occasion specifically to address the issue, there is ample jurisprudential basis to label the government's interest in preserving social morality "compelling". The point was articulated most forcefully, and most famously, by the English jurist Lord Patrick Devlin. Commenting generally on the role of morality in a society's laws, Devlin emphasized the enormous interests at stake: "If men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds 4 of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. . . . . "There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions." Devlin, The Enforcement of Morals (1965) at 10,13. See generalty McConnell, The Role of Democratic Politics in Transforming Moral Convictions Into Law, 98 Yale L.J. 1201(1989); Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Calif. L.Rev. 521(1989). The laws of marriage, too, are founded on notions of social morality. Judge Ferren's oft-cited concurring/dissenting opinion in Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995), makes the point well. Citing as an example the District of Columbia's law against "a man's marrying his son's wife or a woman's marrying her stepfather," Judge Ferren (in a section of his opinion joined by the two other members of the D.C. Court of Appeals panel) pinpointed social morality as a self-sufficient basis for consanguinity laws that prohibit marriages among certain relatives even though their unions pose no dangers of biological inbreeding. "The consanguinity provision... reflects taboos -- indeed moral judgments about improper marriage relationships -- that transcend genetic concerns." 653 A.2d at 313. If "taboos" and "moral judgments about improper marriage relationships" by 5 themselves furnish a sufficient state interest as to justify government's refusal to accept the "marriages" of certain non-blood related relatives, they also furnish a sufficient state interest as to justify government's refusal to accept the "marriages" of persons of the same gender. And, conversely, if a society's marriage laws are understood to embody distinctions between marital relationships that are morally acceptable and those that are not, any decision in this case that legalizes "same-sex marriages't will perforce send a message of profound moral revolution all across the globe. CONCLUSION The course of the proceedings in this case has proven quite frustrating to Agudath Israel and other groups that view the issue of "same-sex marriage" as, first and foremost, an issue of social morality. When this Court remanded the case to the circuit court to determine whether the governmental interests at stake were "compelling", several clergymembers sought to intervene in the case -- in part because of their concern "that the Attorney General... might not be willing to assert at the upcoming trial all of the known compelling state interests that are furthered by § 572-1 which have been determined, in other jurisdictions, to be legally sufficient to justify sitnilar legislation." The circuit court denied the intervention motion, and this Court affirmed. Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996). Looking back now, after the remand trial and ruling, it is painfully apparent that the proposed intervenors' concerns were well justified. As Judge Chang expressly found: "14. Defendant presented meager evidence with regard to the importance of the institution of traditional marriage, the benefits which that relationship 6 provides to the community and, most importantly, the adverse effects, if any, which same-sex marriage would have on the institution of traditional marriage and how those adverse effects would impact on the community and society. The evidentiary record in this case is inadequate to thoughttully examine and decide these significant issues." [Slip Opinion at 42.] Adequate exploration of these "significant issues" at the trial level inevitably would have focused the circuit court's attention on the question of social morality and its relevance in assessing the compelling nature of the state's interest. Yet even with the "meager evidence" presented, the issue is plainly before this Court, and deserves careful consideration. Amicus curiae Agudath Israel of America respectfully submits that the state's interest in having its marriage law reflect the prevailing social moral consensus on the subject of "same-sex marriages" is compelling; that the law restricting marriages to the union of a man and a woman is narrowly drawn to promote that objective; and that the decision below should accordingly be reversed. RESPECTFULLY SUBMITTED this 5th of May, 1997. /s/ Robert Bruce Gr, Jr. /s/ David Zwiebel Ashford & Wriston Agudath Israel of America 1099 Alakea Street, 14th Floor 84 William Street Honolulu, Hawaii 96813 New York, NY 10038 Attorneys for Amicus Curiae Agudath Israel of America 7 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "I personally do not intend to stay in a politics dominated by smearing and mudslinging--a politics which has all too often been characteristic of recent years in this country." --Newt Gingrich, 1983 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~