Date: Tue, 03 Jun 1997 15:23:15 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 07: Hawai`i Catholic Conference Aloha auwinala kakou. And not to be outdone by the Mormons . . . . Please note that some of the argument presented here is based on faulty logic. The Constitutional Amendment up for consideration in 1998 decides whether or not to grant the Legislature the right to define marriage in terms of one man and one woman. The "marriage law of 1994" cited here as grounds for argument is actually based on an illegal act of the Legislature. The Constitution of Hawai`i does not confer upon the Legislature that power, hence the call for the Constitutional Amendment. NO.20371 IN THE SUPREME COURT OF THE STATE OF HAWAI'l NINIA BAEHR, GENORA DANCEL, ) CIVIL NO.91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) 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 ) THE HON. KEVIN S.C. CHANG capacily as Director of the Department ) of Health, State of Hawai'i, ) ) Defendant-Appellant. ) ___________________________________________) BRIEF OF AMICUS CURIAE HAWAII CATHOLIC CONFERENCE CERTIFICATE OF SERVICE ASHFORD & WRISTON ROBERT BRUCE GRAHAM, JR. 1305-0 Ali`i Place, Suite 1400 1099 Alakea Street Honolulu, HI 96813 Telephone: (808) 5394)400 Attorney for Amicus Curiae HAWAII CATHOLIC CONFERENCE TABLE OF CONTENTS Page I. STATEMENT OF THE QUESTION PRESENTED...............................1 II. ARGUMENT.........................................................1 A. THE COURT USES TWO CONTRADICTORY DEFINITIONS OF MARRIAGE IN THE PLURALITY OPINION IN BAEHR V. LEWIN........2 1. IN THE FIRST HALF OF ITS OPINION, THE PLURALITY DEFINES MARRIAGE AS A MALE-FEMALE SOCIAL INSTITUTION INTO WHICH AN INDIVIDUAL PERSON HAS A "FUNDAMENTAL RIGHT" TO ENTER..................2 2. IN THE SECOND HALF OF ITS OPINION, THE PLURALITY DEFINES MARRIAGE AS A "STATE-CONFERRED LEGAL PARTNERSHIP STATUS," WHICH "COUPLES" ARE ENTITLED TO RECEIVE.................................3 3. THE CONTRADICTION BETWEEN THESE TWO DEFINITIONS MUST BE ADDRESSED IN ORDER FOR THE COURT TO RESOLVE THIS CASE..........................5 B. THE CONTRADICTION OF DEFINITIONS SHOULD BE RESOLVED IN FAVOR OF THE DEFINITlON OF MARRIAGE AS A UNIQUE SOCIAL INSTITUTION.........................................6 C. H.R.S. § 572-1 SHOULD BE UPHELD BECAUSE IT RATIONALLY FURTHERS THE LEGITIMATE STATE INTEREST IN THE INSTITUTION OF MARRIAGE....................................8 III. CONCLUSION......................................................9 TABLE OF AUTHORITIES Page U.S. Supreme Court Cases United States v. Virginia, 116 S.Ct 2264 (1996).................9 Zablocki v. Redhail, 434 U.S. 374 (1978)........................5 Other Federal Cases Adams v. Howerton, 486 F. Supp. 1119 (CD. Cal. 1980)............4 Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995).....4 Salisbury v. List, 501 F. Supp. 105 (1980)......................5 Hawai`i Cases Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)........1-6, 8, 10 Baehr v. Miike, No. 91-1394-05 (Haw. Cir. Ct., 1st Cir.) (1996).1 Cassiday v. Cassiday, 68 Haw. 383, 716 P.2d 1133 (1988).........4 Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484 (1992)..............4 Hawaii State AFL-CIO v. Yoshino, No.20267 (March 24, 1997).....10 Hoidman v. Ohm, 59 Haw. 346, 581 P.2d 1164 (1978)...............9 Myers v. Myers, 70 Haw. 143, 764 P.2d 1237 (1988)...............4 Parke v. Parke, 25 Haw. 397 (1920)........................3, 7, 9 Ross v. Stouffer Hotel Co. (Hawaii), 72 Haw. 350, 816 P.2d 302 (1991)..........................................................6 State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990).............7 Other State Cases Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)....................4 Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Sur. 0. (1990).........4 Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974).................4 Hawai'i Constitution Provisions Cited HAW CONST. art. I, § 3..........................................8 HAW CONST. art. l, § 5........................................1,7 HAW CONST. art. I, § 6........................................2,9 HAW CONST. art. I, § 12.........................................8 HAW CONST of 1950, art. I, §§ 4, 12.............................8 Hawai`i Statutes Cited H.R.S. § 572-1 (1996 Supp.).........................,...1, 4, 6-9 H.R.S. § 580-28.................................................8 H.R.S. Title 23.................................................4 H.R.S. Title 31.................................................4 Haw. L. ch. X (1842)............................................7 Haw. Civil Code, § 1321(1859)...................................8 Hawai`i Legislative Materials Haw. H. Jud. Standing Comm. Rep. No.145-84, at 868 (1984).......8 Haw. S. Jud. Standing Comm. Rep. No.570-84, at 1284 (1984)......8 1972 House journal at 353.......................................8 Federal Statute Cited I U.S.C.A. § 7 (1997 Supp.).....................................9 Other Authorities 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, 490-91(1996).....................5 WILLIAM N. ESKRIDGE, JR., CASE FOR SAME-SEX MARRIAGE (1996)....5 Jon Van Dyke, et al. The Protection of Individual Rights Under Hawai'i's Constitution, 14 U. HAW. L. REV. 311, 325 (1992).....8 BERNARD SCHWARTZ, A BOOK OF LEGAL LISTS: THE BEST AND WORST IN AMERICAN LAW (1997)............................................5 Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U. L. REV. 1...................5 Lori L. Yamaguchi, Note, Gussin V. Gussin: Appellate Courts Powerless to Mandate Uniform Starting Points in Divorce Proceedings, 15 U. HAW. L. REV. 423436, 436437, 441445, Appendix at 446-451 (1993).....................................4 U.S. Gen'l Acct'ing Off., DEFENSE OF MARRIAGE ACT, GAOIOGC-9716 (1an. 31, 1997)................................................9 ii BRIEF OF AMICUS CURIAE HAWii CATHOLIC CONFERENCE I. STATEMENT OF THE QUESTION PRESENTED The present case comes to the court on appeal from a judgment by the Honorable Kevin S.C. Chang in Baehr v. Miike, No. 91-1394-OS (Haw. Cir. Ct., lst Cir. Dec. 3, 1996), in which Judge Chang applied the test enunciated in a plurality opinion in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). This Brief in support of the position of Defendant-Appellant is filed pursuant to permission of this Court granted by Order entered herein on April 9, 1997. The question presented is: Does the Hawaii Supreme Court use two contradictory definitions of marriage in Baehr v. Lewin, and if so, which definition should the Court adopt to resolve the contradiction and coherently decide this case? II. ARGUMENT The plurality opinion in Baehr is a decision at war with itself. It simultaneously holds that Plaintiffs have no "fundamental constitutional right to same-sex marriage," and that, despite this conclusion, H.R.S. § 572-1, which requires a male and a female to obtain a marriage license, is subject to "strict scrutiny" under Art. I, Sec. 5 of the Hawai'i Constitution. Id. at 557, 583, 852 P.2d at 57, 74. The fact that the first conclusion comes under the label of "fundamental rights," whereas the second goes by the name of "equal protection, only serves to conceal the fact that two different definitions of marriage itself are found within the same opinion. With this appeal, the moment is ripe for the Supreme Court to resolve the contradiction in order to render a coherent decision. A. THE COURT USES TWO CONTRADICTORY DEFINITIONS OF MARRIAGE IN THE PLURALITY OPINION IN BAEHR V. LEWIN. 1. IN THE FIRST HALF OF ITS OPINION, THE PLURALITY DEFINES MARRIAGE AS A MALE-FEMALE SOCIAL INSTITUTION INTO WHICH AN INDIVIDUAL PERSON HAS A "FUNDAMENTAL RIGHT" TO ENTER. In the first half of its opinion, the plurality holds that there is no "fundamental constitutional right to same-sex marriage," Id. at 557, 852 P.2d. at 57. To arrive at its conclusion, the plurality reasons as follows: (1) the right of privacy is a fundamental right under Art. I, Sec. 6 of the Hawai'i Constitution; (2) the content of this right is to be supplied by relevant decisions of the United States Supreme Court; (3) those decisions treat the right to marry as a fundamental right, linked with fundamental rights of procreation, childbirth, abortion, and child rearing, and (4) in those cases, the U.S. Supreme Court "was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental." Id. at 551-556, 852 P.2d at 55-57. The plurality draws upon U.S. Supreme Court decisions and makes their logic its own. Using Skinner v. Oklahoma, the plurality goes beyond mere statutory definitions to characterize marriage as "one of the basic rights of man" because "[m]arriage and procreation are fundamental to the very existence and survival of the race." Id. at 553, 852 P.2d at 56 (quoting Skinner, 316 U.S. 535, 541(1942)). Similarly, the plurality describes the right to marry as "the decision to enter the relationship that is the foundation of the family in our society." Id. at 544, 852 P.2d at 56 (quoting Zablocki v. Redhail, 434 U.S. 374, 384-386 (1978)). The definition of marriage utilized in this half of the opinion is not logically limited to a fundamental rights analysis. The typical method of this analysis, the plurality notes, is to look "to the traditions and [collective] conscience of our people to determine whether a principle is 2 so rooted [there] as to be ranked as fundamental." Id. at 556, 852 P.2d at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring)). The "principle" referred to here is the legal right to marry, rather than the social institution which is the object of that right. The Court's definition of marriage, in contrast, comes from beyond either statutory or constitutional law, from civil society itself. The Court's role is to discern whether there is also a tradition of ensuring the right of individuals to enter that social institution. The definition of marriage used in the first half of the plurality opinion can therefore be formulated as follows: Marriage is that unique union between a man and a woman which serves as the foundation of the family. Because marriage is crucially important to society, and has been legally recognized as such over time, the Constitution protects the right of individuals to enter into it. Here, as the plurality observes, the law is dealing with "a right ... older than the Bill of Rights." Id. at 556, 852 P.2d at 57 (quoting Griswold, 381 U.S. at 486).[fn1] 2. IN THE SECOND HALF OF ITS OPINION, THE PLURALITY DEFINES MARRIAGE AS A "STATE-CONFERED LEGAL PARTNERSHIP STATUS," WHICH "COUPLES" ARE ENTITLED TO RECEIVE. The plurality prefaces its equal protection analysis with a section which addresses the definition of marriage. Here marriage undergoes a startling conceptual transformation. First of all, the origin of marriage is attributed to the State, rather than civil society. Marriage, according to the plurality, is a "state conferred legal partnership status" which is the source of rights and benefits. Id. at 558, 852 P.2d at 58. The opinion speaks of "the state's role as the exclusive progenitor of the marital partnership," and "the state's monopoly on the business of marriage creation."[fn2] Id. at 559-560, 852 P.2d at 58. [fn1] Thus, the plurality notes that to "hold that same-sex couples possess a fundamental right to marry," would be to "recognize a new fundamental right." Baehr, 74 Haw. at 555, 852 P.2d at 57. Four of the five judges who heard the appeal agreed with this holding: Chief Justice Moon, Justice Levinson, Judge Heen and Retired Justice Hayashi. Id. at 587, 852 P.2d at 70. [fn2] Curiously, to justify its assertion that the state is "the exclusive progenitor of the marital relationship," the plurality cites Parke v. Parke, 25 Haw. 397, 404405 (1920). Baehr, 74 Haw. at 559, 852 P.2d at 58. All the Supreme Court did in Parke, however, was to abolish common-law marriage. That the state chooses a means by which it will recognize marriage in no way entails the plurality's conclusion that the state creates marriage. 3 Second, the object of marriage is now a "partnership" between a "couple," rather than a community founded upon male-female union.[fn3] Id. Now the question of rights becomes a comparison between the rights of "same-sex couples" as opposed to "male-female couples". The focus shifts from individual entrance to joint entitlement: It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws. Id. at 564, 852 P.2d at 60 (emphasis added). Once the issue is framed in these terms, it is easy to see how the plurality takes the unprecedented step of declaring that H.R.S. § 572-1 embodies a "sex-based classification" and concludes that the State must demonstrate how the statute is "narrowly drawn to avoid unnecessary abridgements of the applicant couples' constitutional rights." Id. at 564, 580, 852 P.2d at 60, 67 (emphasis added). Similarly, it follows that earlier case law, based on the male-female definition, can now be easily dismissed as an "exercise in tortured and conclusory sophistry." Id. at 571, 852 P.2d at 63.[fn4] What may escape the plurality is that, by adopting this [fn3] Oddly, as evidence for its characterization of marriage as a "partnership," the Court cites divorce cases wherein the marital community is being dissolved and the focus usually is on the division of property. Baehr, 74 Haw. at 559, 852 P.2d at 58, (citing Gussin v. Gussin, 73 Haw. 470, 483, 836 P.2d 484, 491(1992), Myers v. Myers, 70 Haw. 143, 154, 764 P.2d 1237, 1244, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1988), Cassiday V. Cassiday, 68 Haw. 383, 387, 716 P.2d 1133, 1136 (1988)). In the cited cases, the Court used a "commercial" metaphor in order to facilitate the division of financial assets. Marriage, however, has other legal dimensions that are not captured by the term "partnership." Marriage law, after all, is not included with partnerships and corporations in Title 23 of the Hawai'i Revised Statutes. Section 572-1 is in Title 31, "Family." See Lori L. Yamaguchi, Note, Gussin v. Gussin: Appellate Courts Powerless to Mandate Uniform Starting Points in Divorce Proceedings, 15 U. HAW. L. REV. 423-436-437, 441-445, Appendix at 446-451 (1993). "One could say, then, that marriage is also a trust, with assets held for the benefit of the children and each spouse." Id. at 449. [fn4] This, despite the fact that every other previous court had considered the reasoning persuasive, rather than "tortured". See, e.g., Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980); Dean V. District of Columbia, 653 A.2d 307 (D.C. App. 1995); Baker V. Nelson, 191 N .W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972); Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Sur. Ct. 1990); Singer V. Hara, 522 P.2d 1187 Wash. App. 1974). 4 approach, it is ridiculing the logic of the first half of its own opinion. It also follows, notwithstanding the plurality's claim, that the door is open to other forms of marriage, including polygamy. In the first half of its opinion, the plurality claims that the State may legitimately ban bigamy. Id. at 562, 852 P.2d at 59, n. 19. However, it justifies the ban by citing cases which still define marriage as the union of one man and one woman.[fn5] If, however, marriage is merely a state-created status that offers benefits to "partnerships," it is not obvious how those in partnerships with three or more persons, which surely exist, can fairly be excluded. If a "committed" relationship of two people is worth encouraging, why not three? The State's limiting of marriage "partnerships" to two persons now appears wholly arbitrary.[fn6] 3. THE CONTRADICTION BETWEEN THESE TWO DEFINtIONS MUST BE ADDRESSED IN ORDER FOR THE COURT TO RESOLVE THIS CASE. Respected scholars have not failed to notice the gap between the first and second halves of the plurality opinion. They attack one or the other, depending upon their preferred definition. They agree that the decision is inconsistent and should be revised.[fn7] [fn5] The plurality cites Justice Stewart's concurring opinion in Zablocki, 434 U.S. at 392, and a case which quotes it, Salisbury v. List, 501 F. Supp. 105, 107 (1980). Both presuppose existing marriage law. [fn6] David L. Chambers, professor of law at the University of Michigan and a nationally prominent advocate of same-sex marriage, recently has written: "If the law of marriage can be seen as facilitating the opportunities of two people to live an emotional life that they find satisfactory -- rather than as imposing a view of proper relationships -- the law ought to be able to achieve the same for units of more than two." 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, 490-91(1996). [fn7] Compare Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U. L. REV. 1, 28, 39, 80-88 (arguing for the first half's definition), with WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE, 131-132, 162-164 (1996) (arguing for the second half's definition). A nationally-respected legal scholar recenfly has named Baehr v. Lewin one of the ten worst non-U.S. Supreme Court decisions in American legal history. See BERNARD SCHWARTZ, A BOOK OF LEGAL LISTS: THE BEST AND WORST IN AMERICAN LAW at 182-184 (1997) (the reasoning in the second half of the plurality opinion is "an affront to both law and language that well deserves its place on the list of worst decisions".) 5 The contradiction must be addressed, because it--rather than the difference between due process and equal protection analysis--will drive the outcome of this case. If one applies the definition of marriage in the second half of the opinion, marriage is a state-created legal status, and partnerships are the unit of analysis. Under this approach, H.R.S. § 572-1 allegedly discriminates on the basis of "sex" because male-female couples, but not same-sex couples, can marry. By this line of reasoning, the equal protection clause may entitle same-sex couples to marital status unless the State can meet the strict scrutiny test. Id. at 580, 852 P.2d at 67. If, on the other hand, one applies the definition of marriage in the first half of the opinion, marriage is a sexual community, regulated by the State, and individuals are the unit of analysis. Equal protection would constitutionally guarantee each person, male or female, the right to enter the social institution of marriage. Under this approach, H.R.S. § 572-1 contains no discrimination against any class of persons on the basis of "sex," and the State need only show that it "rationally furthers a legitimate state interest." Id., at 572, 852 P.2d at 64 (quoting Estate of Coates v. Pacific Engineering, 71 Haw. 358, 364, 791 P.2d 1257, 1260 (1990)). B. THE CONTRADICTION OF DEFITIONS SHOULD BE RESOLVED IN FAVOR OF THE DEFITION OF MARRIAGE AS A UNIQUE SOCIAL INSTITUTION. To resolve this case, the Court must decide which of the plurality opinion's definitions of marriage it will adopt. If the Court adopts the first defmition, that marriage is a unique sexual community and social institution, its approach to the issue will be more consistent with Hawai'i statutory and constitutional law. The first definition is more consistent with Hawai'i statutory law. The historic concept of "marital status" in Hawai'i law presupposes a definition of marriage as a pre-existing social institution, a unique and procreative sexual community entered into by the free consent of one man and one woman. H.R.S. § 572-1 merely undertakes to defme, license and document the legal existence of a marriage. Marital status preserves, protects and promotes the marital community relative to the other institutions that make up a diverse and pluralistic society. See, e.g., Ross V. Stouffer Hotel Co. (Hawaii), 72 Haw. 350, 3541 816 P.2d 302, 304 (1991) ("the public policy argument behind encouraging marital relationships ... seems to us persuasive"). 6 The history of the Hawai'i marriage statute reflects the salutary purpose of regulating this unique, pre-existing status. The first laws regarding marriage were promulgated by Queen Ka'ahumanu and later were incorporated in the Laws of 1842 by Kamehameha III. Haw. L. ch. X (1842). These laws required the licensing of marriage and recognized five basic characteristics of marriage, which have remained essentially constant under the Kingdom, Republic, Territory and State: Marriage (i) pertains to male-female couples, the law speaking alternately of "a man who has a wife living," and "a woman whose husband is living "; (ii) is intended for life (although provisions were made for separation and divorce in cases involving adultery and domestic violence); (iii) is monogamous; (iv) requires the free consent of both parties; and (v) is anticipated to be procreative, the law therefore banning marriage within certain degrees of consanguinity and allowing courts to decide child custody in cases of separation. Id. See also H.R.S. § 572-1 (1996 Supp.) The fIRst defmition of marriage is also more consistent with Hawai'i constitutional law. In Parke V. Parke, 25 Haw. 397 (1920), a case cited by the plurality, the Hawai'i Supreme Court reflected the view of marriage as a social institution. The marriage laws, it declared: clearly demonstrate an early determination on the part of the law-makers in these Islands to add vitality to the loose and doubtful marriage system which had grown up under the common law and to make of marriage a homogenous, staple [sic] and certain institution. Id. at 404. The Court went beyond this description of marriage law, however, to characterize the institution of marriage itself: Marriage is more than a civil contract because "it creates a social status or relation between the contractINg parties in which not only they but the State as well are interested and involves a personal union of those particloating in it of a character unknown to any other human relation..." Id. (emphasis added). The first defINition of marriage is also fully consistent with the Hawai'i Equal Protection Clause. HAW. CONST. art. I, § 5. Except in the second half of the plurality opinion, the term "sex" has been used only to refer to legal classifications which disadvantage one sex over the other. See State V. Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-850 (1990) (exclusion of 7 female jurors).[fn8] C. H.R.S. § 572-1 SHOULD BE UPHELD BECAUSE IT RATIONALLY FURTHERS THE LEGITIMATE STATE INTEREST IN THE INSTITUTION OF MARRIAGE. The institution of marriage, which the Constitution guarantees the right to enter, is defined in the first half of the plurality opinion as closely connected, if not indivisible with, procreation, childbirth, child-rearing and family relationships. Baehr, 74 Haw. at 554, 852 P.2d at 56 (quoting Zablocki, 434 U.S. at 386).[fn9] The community of marriage is different from all [fn8] The word "sex" has been in the Hawai'i Constitution since 1950. The 1950 Hawai'i Constitution included it in two places: First, in the proposed equal protection clause, and second, in what became Art. I, Sec. 12, which stated that "No person shall be disqualified to serve as a juror because of sex." HAW. CONST. of 1950, art. I, §§ 4, 12. After the Equal Rights Amendment, HAW. CONST. art. I, § 3, ("ERA") was adopted, the provision concerning jurors was deleted. The Court has not given a different meaning to the use of the term sex in the ERA, as opposed to the Equal Protection Clause. See Jon Van Dyke, et al. The Protection of Individual Rights Under Hawai'i's Constitution, 14 U. HAW. L. REV. 311, 325 (1992) ("The court's view of the ERA remains unclear.") When the ERA came before the Hawai'i House for third reading, Representative Saiki characterized it as follows: "It will define our State's conviction to provide constitutional protection against laws and official practices which treat men and women differently." 1972 House Journal at 353 (statement of Rep. Saiki on S.B. No. 1408-72). [fn9] Contrary to the assertion of the plurality opinion in Baehr, the 1984 elimination of the impediment for physical incapacity did not remove the concept of procreation from the marriage law. Consanguinity provisions, primarily relevant in the context of procreation, still exist but the State will not invade the privacy of persons applying for a marriage license by inquiring about physical capacity. Rather than evidencing a change in the state's view of marriage, the amendment is an example of a law being tailored to balance legitimate state interests and constitutional liberties. The legislature specifically mentioned its concern that the law might otherwise violate the constitutional rights of disabled persons. Haw. H. Judiciary Standing Comm. Rep. No.145-84, at 868 (1984) and Haw. S. Judiciary Standing Comm. Rep. No. 570-84, at 1284 (1984). Moreover, the legislature did not repeal Section 580-28 concerning physical incapacity. That section, which has remained in the code since 1859, was merely amended and now provides: "An action to annul the marriage on the ground of the physical incapacity of one of the parties at the time of the marriage, shall only be maintained by the injured party, against the party whose incapacity is alleged; and shall in all cases be brought within two years from the solemnization of the marriage. Compare H.R.S. § 580-28 with Haw. Civil Code, § 1321 [continued on following page] 8 other communities and sexual relationships, including those communities that restrict themselves only to males or only to females. The uniqueness of the marital community grows out of physical characteristics that at once distinguish males and females and make it possible for them to unite in a conjugal bond. In no other community can two people physically unite themselves and their respective bloodlines to establish a common life which also creates and nurtures new life, thereby lirIng the wider human family across the generations. "`The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.'" United States v. Virginia, 116 S.Ct. 2264, 2276 (1996) (brackets in original; quoting Ballard v. United States, 329 U.S. 187, 193 (1946)). Believing that the marital community of man and woman offers unique, valuable and incomparable benefits to society--"having more to do with the morals and civilization of the people than any other institution," Parke, 25 Haw. at 404--lawmakers have accorded it a specific legal status, regulating access to it through H.R.S. § 572-1.[fn10] H.R. S. § 572-1 rationally furthers the goal of preserving, protecting and promoting the institution of marriage by requiring that the applicants for a marriage license be a male and female. If this is the nature of the community which is being regulated, it only makes sense that these be the criteria to obtain a license. The State is not required to conduct a specific inquiry into the circumstances of each individual. See Holdman v. Olim, 59 Haw. 346, 352, 581 P.2d 1164, 1168 (1978). Indeed, if it did, it would likely implicate these individuals' right to privacy. HAW. CONST. art. I, § 6. III. CONCLUSION Never, until this case, was it considered that the individual rights enshrined in the Hawai'i Equal Protection Clause might somehow conflict with the institution of marriage, which [fn9, continued from previous page] (1859). As amended, section 580-28 protects personal privacy while ensuring that an aggrieved person will have a reasonable opportunity to dissolve his or her marriage on grounds of physical incapacity. Again, personal privacy concern and legitimate state interests are fairly balanced. [fn10] This definition of marriage is also consistent with federal statutory law. I U.S.C.A. § 7 (1997 Supp.) The U.S. General Accounting Office recent released a report which identified 1,049 Federal laws based on marital status. See U.S. Gen'l Acct'ing Off., DEFENSE OF MARRIAGE ACT, GAO-OGC-9716 (Jan.31, 1997). 9 existed before either laws or constitutions. The Plaintiffs claim that it does; so does the second half of the plurality opinion, based on its new definition of marriage. The State claims that it does not; so does the first half of the plurality opinion, based on its definition of marriage. The people of Hawai'i agree with the defmition found in the first half of the plurality opinlon. They affirm that marriage is a unique social institution deserving special legal status, and that no person should suffer sex discrimination, and that one can hold both views without the slightest legal or logical contradiction. Their Constitution should not be used against them.[fn11] Confronted with a choice between these mutually exclusive definitions of marriage, the Court should side with the first definition. It was supported by a majority of the Court in 1993, it is consistent with Hawai'i statutory and constitutional law, and it respects the judgment of the people who adopted the Hawai'i Constitution. As Chief Justice Moon and Justice Levinson observe, in their plurality opinion: [W]hether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it.. .work[s] well or work[s] ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. Baehr, 74 Haw. at 582, 852 P.2d at 68 (quoting Home Bldg. and Loan Ass'n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting)). The Court should apply the rational basis test and find Section 572-1 of the Hawai'i Revised Statutes to be fully consistent with the Hawai'i Constitution. DATED: Honolulu, Hawai'i, April 18, 1997. /s/ROBERT BRUCE GRAHAM, JR. Attorney for Amicus Curiae HAWAII CATHOLIC CONFERENCE [fn11] "Because constitutions derive their power and authority from the people who draft and adopt them, [w]e have long recognized that the Hawai'i constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent." Hawaii State AFL-CIO v. Yoshino, No.20267 (March24, 1997) at 4, (quoting Hirono V. Peabody, 81 Haw. 230, 232, 915 P.2d 704, 706 (1996)). 10 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~