Date: Mon, 02 Jun 1997 11:03:54 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 04: Christian Legal Society Aloha kakahiaka kakou. Following represents an installment of the collaborative effort between bms@hawaiilawyer.com and myself at posting the Amicus Curiae Briefs of Baehr v. Miike. Note that the following symbol--> § <--represents the word "section." Some e-mail programs can not translate that symbol. Footnotes shall be designated as [fn1], [fn2], etc. No. 20371 IN THE SUPREME COURT STATE OF HAWAI`I NINIA BAEHR, GENORA DANCEL, ) Civ. 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, ) ) v. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his ) officia1 capacity as Director ) THE HONORABLE KEVIN S.C.CHANG of the Department of Health, ) State of Hawai`i, ) ) Defendant-Appellant. ) _______________________________) BRIEF OF THE CHRISTIAN LEGAL SOCIETY, LUTHERAN CHURCH-MISSOURI SYNOD, NATIONAL ASSOCIATION OF EVANGELICALS, THE INSTITUTE ON RELIGION AND DEMOCRACY, THE ASSOCIATION FOR CHURCH RENEWAL, LIBERTY COUNSEL, BIBLICAL WITNESS FELLOWSHIP1 EPISCOPALIANS UNITED, INC., THE PRESBYTERIAN LAY COMMITTEE1 FOCUS RENEWAL MINISTRIES IN THE UNITED CHURCH OF CHRIST, AND GOOD NEWS: A FORUM FOR SCRIPTURAL CHRISTIANITY WITHIN THE UNITED METHODIST CHURCH AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLANT STEFfEN N.JOHNSON SANDRA DUNN* #3893 Mayer, Brown & Flatt Peariridge Office Center 190 South LaSalle Street 98-211 Pali Momi, Suite 402 Chicago, IL 60603-3441 Aiea, HI 96701 (312) 701-7214 (808) 487-8464 KI~BERLEE W COLBY STEVEN T. McFARLAND SAMUEL B. CASEY Christian Legal Society 4208 Evergreen Lane, Suite 222 Annandale, VA 22003-3264 (703) 642-1070 *Counsel of Record TABLE OF CONTENTS INTEREST OF THE AMICI CURIAE 1 QUESTION PRESENTED 1 ARGUMENT 1 I. RECOGNITION OF SAME-SEX MARRIAGE WOULD GENERATE NUMEROUS LEGAL CONFLICTS BETWEEN HOMOSEXUAL MARRIAGE PARTNERS AND RELIGIOUS INDIVIDUALS AND ORGANIZATIONS, EACH OF WHICH WOULD JEOPARDIZE THE RELIGIOUS LIBERTY OF HAWAII CITIZENS 1 A. EMPLOYMENT.......................................2 B. HOUSING..........................................5 C. PROVISION OF GOVERNMENT SERVICES.................8 CONCLUSION......................................................10 -i- TABLE OF AUTHORITIES Cases Assernany v. Archdiocese of Detroit, 434 N.W.2d 233 (Mich. App. 1988)...............................................4 Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994)..........7 Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)................10 Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996)................5 Employment Div. v. Smith, 494 U.S. 872 (1990)...................6 Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. granted, 117 5. Ct. 293 (1996)..................................4 Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829 (1989) 9 Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987)........................8 Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987)......9 Lewis v. Buchanan, 21 Fair Empi. Prac. Cas. (BNA) 696 (Minn. Dist. Ct. Sept. 24, 1979) 4 Meyer v. Nebraska, 262 U.S. 390 (1923).........................10 Shahar v. Bowers, 70 F.3d 1218 (11th Cir.), reh'g en banc granted, 78 F.3d 499 (11th Cir. 1996) 3 Sherbert v. Verner, 374 U.S. 398 (1963)...................2, 5, 9 Skinner v. Oklahoma, 316 U.S. 535 (1942) 5 Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909 (Cal. 1996), petition for cert. filed, 65 U.S.L.W. 3034 (U.S. July 18, 1996) (No. 96-31)................................7 State v. French, 460 N.W.2d 2(Minn. 1990) 4, 7 State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990).............4 Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994), cert. denied, 115 S. Ct. 460 (1994) 7 Thomas v. Review Bd., 450 U.S. 707 (1981).......................9 -ii- Leviticus 18:22 ................................................6 Leviticus 20:13.................................................6 Proverbs 3 : 7..................................................6 Tuller, David, S.F. Board Protests B of A's Scout Policy, S.F. CHRON., Jan. 5, 1996, at A22..............................9 -iv- INTEREST OF THE AMICI CURIAE The statements of interest of the amici curiae have been lodged with the Clerk. QUESTION PRESENTED Whether the State of Hawaii's marriage statute, which defines marriage as a relationship between a man and a woman, is narrowly drawn to further compelling governmental interests that include protecting the religious liberty of Hawaii citizens. ARGUMENT The question of whether the Hawaii Constitution compels recognition of same-sex marriages is one of tremendous importance to religious liberty. Recognition of same-sex marriages can be expected to increase the frequency of legal conflict between gay and lesbian individuals seeking state-enforced privileges of marital status and religious individuals and organizations who are conscientiously opposed to sanctioning homosexual conduct and same- sex marriages. Although amici disagree with this Court's determi- nation that the State's refusal to accord legal recognition to same-sex marriages violates the equal protection provision of the Hawaii Constitution (and therefore support the brief of the State of Hawaii), amici file this brief to demonstrate that the State's decision not to recognize same-sex marriages serves the compelling interest of protecting the religious liberty of Hawaii citizens. I. RECOGNITION OF SAME-SEX MARRIAGE WOULD GENERATE NUMEROUS LEGAL CONFLICTS BETWEEN HOMOSEXUAL MARRIAGE PARTNERS AND RELIGIOUS INDIVIDUALS AND ORGANIZATIONS, EACH OF WHICH WOULD JEOPARDIZE THE RELIGIOUS LIBERTY OF HAWAII CITIZENS. In his First Amended Pretrial statement (at 4), Defendant Miike stated that the State of Hawaii's denial of marriage licenses to same-sex couples serves "a compelling interest in protecting civil liberties, including the reasonably foreseeable effects of State approval of same-sex marriages, on its citizens." Judicial recognition of same-sex marriage would likely generate a myriad of legal conflicts between gay or lesbian individuals and religious individuals or institutions. These conflicts would arise in -1- various factual contexts, and many of them would implicate the civil liberties of Hawaii citizens - such as employers, landlords, and nonprofit corporations contracting to provide government services - who believe that homosexual conduct is sinful. The State plainly has a compelling interest in heading off such conflicts, simply and unequivocally, by declining to recognize same-sex marriages. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion"); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (noting that "only the gravest abuses, endangering paramount interest, give occasion for permissible limitation" of religious exercise). Analogous cases from several jurisdictions - decisions of which this Court may take judicial notice - illustrate the kinds of free exercise conflicts that would likely arise if this Court finds a right to same-sex marriages in the Hawaii Constitution. Amici have grouped these cases into three categories with parallels in Hawaii statutory law: employment, housing, and government services cases. Collectively, they demonstrate that the State's current statutory definition of marriage is narrowly drawn to ensure satisfactory protection of religious freedom. A. EMPLOYMENT The laws of several jurisdictions, including Hawaii, forbid employment discrimination on the basis of sexual orientation or marital status, see Haw. Rev. Stat. § 378-1, and such laws at times conflict with religious liberty, see, e.g., Walker v. First Orthodox Presbyterian Church, 22 Fair Empi. Prac. Cas. (BNA) 762 (Cal. Super. Ct. Apr. 3, 1980). State recognition of same-sex marriage would precipitate additional suits under such laws, by homosexuals who claim that they have been wrongly denied employment opportunities or benefits afforded to spouses of the opposite sex under company policy. These conflicts are frequently avoided under current law because there is no occasion to discuss prospective employees' sexual orientation. Newly hired employees, however, -2 - regularly fill out personnel forms that request disclosure of marital status or identification of any spouse. See Shahar v. Bowers, 70 F.3d 1218, 1220 (11th Cir. 1995), reh'g en banc granted, 78 F.3d 499 (11th Cir. 1996). In addition, Hawaii law defines "sexual orientation) to include persons "identified with" a preference for heterosexuality, homosexuality, or bisexuality." Haw. Rev. Stat. § 378-1 (emphasis added). Thus, one may safely predict that an employee's identification of a same-sex spouse would cause employers who are religiously opposed to recognizing same-sex marriages to decline to hire such persons or to extend benefits to their spouses - in turn precipitating claims of discrimination. The following scenario illustrates how such lawsuits would jeopardize religious liberty. Case A: St. Scholastica, an Episcopalian elementary school organized as a religious nonprofit corporation, was established to provide "a quality education that is rooted in the Christian gospel, dedicated to preparing children for their confirmation, and committed to training up moral exemplars in the community." Accordingly, the school has a policy of hiring teachers who are themselves moral exemplars in the community and committed to the Christian gospel. Although St. Scholastica hires without regard to race or sex, its principal, Michael Gustafson, believes that homosexual behavior is contrary to those standards and that it would be sinful to hold out as a teacher and moral exemplar a person engaged in homosexual conduct. Upon learning of an opening for a first-grade position, Jason Hines, an Episcopalian with several years of experience teaching first grade, submits an application. Gustafson nearly offers Hines the position, but reconsiders when Hines discloses that he is married to another man. Hines sues, alleging discrimination based on marital status and sexual orientation. So long as same-sex marriages remain unsanctioned by the State, Hawaii law would appear to permit Gustafson's actions. Haw. Rev. Stat. § 378-3(5) permits religious and religiously affiliated organizations to discriminate on the basis of religious principles1 and St. Scholastica is such an organization. Of course, Hines might argue that, since he is an Episcopalian, Gustafson's stated reason for his actions is pretextual, in turn generating an intrusive inquiry into whether Gustafson's refusal to hire Hines is genuinely "calculated to promote the religious principles for which -3- the organization is established or maintained." Haw. Rev. Stat. § 378-3 (5). Even absent a statutory exemption1 however, Gustafson would have an affirmative defense under the Free Exercise Clause, the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb (1993), [fn1] or Art. I, § 4 of the Hawaii Constitution1 entitling him to a judicial exemption from the reach of § 378-1.[fn2] The existence of state-sanctioned same-sex marriages, however, substantially changes the playing field. Hines might then successfully challenge the application of § 378-3 (5) on the ground that judicial enforcement of a discriminatory statutory exemption constitutes state action violative of Art. I, § 5 of the Hawaii Constitution. Cf. State V. Levinson, 71 Haw. 492, 497, 795 P.2d 845, 849 (1990) (judicial enforcement of statutorily authorized but discriminatory peremptory challenge constitutes state action) Courts, moreover, may be quite reluctant to hold that religious objections are a valid basis for discrimination where the state has extended the legal benefits of marriage to same-sex couples. Cf. State v. French, 460 N.W.2d 2, 10 (Minn. 1990). Armed with a valid marriage license, Hines could argue that Hawaii's interest in preventing the dilution of one of the "basic civil rights of man" [fn1] The constitutionality of RFRA is presently before the Supreme Court. See Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. granted, 117 S. Ct. 293 (1996) See Joan Biskupic, Texas City Asserts Congress Is ‘Overreaching' on Religion: Church Clashes With Local Zoning Power, Wash. Post, Feb. 20, 1997, at A18 ("Taking up one of the most important religious freedom cases in recent years, Supreme Court justices yesterday expressed serious doubts about whether a 1993 federal law gives churches and their members too much liberty at the expense of local laws"). [fn2] The right of religious exclusivity may seem intolerant to outsiders, but such a right is indispensable to the preservation of religious autonomy and self-definition. The few courts that have addressed the issue under the Free Exercise Clause have so held, concluding that the state lacked a compelling interest in applying such employment laws to religious employers. See Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (Mich. App. 1988); Walker, 22 Fair Empl. Prac. Cas.(BNA) 762; Lewis v. Buchanan, 21 Fair Empi. Prac. Cas. (BNA) 696 (Minn. Dist. Ct. Sept. 24, 1979). There is no reason to expect another result under RFRA. -4 - - the right to marry - overrides St. Scholastica's free exercise defense. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). In light of the availability of alternative employment, amici believe the State's interest in applying its employment law to religious organizations that are conscientiously opposed to hiring (or granting spousal benefits to) parties to such marriages would still be less than compelling. See 42 U.S.C. § 2OOObb-1(b) ("Government may substantially burden a person's religious exercise only if it demonstrates that application of the burden to the person" furthers a compelling interest by the least restrictive means (emphasis added)); accord Yoder, 406 U.S. at 221; Sherbert, 374 U.S. at 406. Nonetheless, the state's interest would be much stronger - and the case therefore much closer - if this Court were to grant to Hines a right to same-sex marriage.[fn3] At a minimum, the uncertainty of the outcome suggests that Hawaii's marriage statute is narrowly drawn to further compelling interests that include protecting the religious citizens of Hawaii from protracted litigation over these matters, and the attendant threat~to religious freedom. B. HOUSING The laws of several jurisdictions, including Hawaii, forbid housing discrimination on the basis of sexual orientation or mari- tal status, see Haw. Rev. Stat. § 368-1, and such provisions at times conflict with the religious liberty of persons whose relig- ious beliefs forbid them to rent their property to persons who [fn3] The case would be closer still if RFRA were declared unconstitutional and Mr. Hines were forced to rely on Art. I, § 4 of the Hawaii Constitution for his defense. This Court invoked free exercise principles in ruling that the State could not force clergy to perform same-sex marriages, Baehr v. Miike, 80 Haw. 341, 344, 910 P.2d 112, 115 (1996), but it did not explain whether it was relying on RFRA or state law. Although we believe the principles of Art. I, § 4 outweigh the policies supporting recognition of same-sex marriage, a State court might conclude that the two rights were of equal constitutional dignity, or that the right to the legal incidents of marriage trumped the right to exercise one's religion, under state law. -5- would engage in acts of fornication or sodomy on the premises. The following hypothetical illustrates the threat to religious freedom. CASE B: Mrs. Davis, an elderly widow, supports herself on Social Security and income generated by renting the other unit in a duplex she owns, resides in, and manages. A devout Orthodox Jew, Mrs. Davis believes that homosexual behavior is sinful and that it would be sinful for her to facilitate such behavior by renting her extra unit to persons who intend to engage in such conduct.[fn4] Accordingly, she will rent her unit to married heterosexual couples, but not to same-sex married couples. When David and John Reed arrange to view the unit in Mrs. Davis's duplex, Mrs. Davis learns that they are a gay married couple and insists that she cannot in good conscience rent the unit to them. The Reeds sue Mrs. Davis, alleging that she unlawfully discriminated against them on the basis of their sexual orientation and marital status. Unless Mrs. Davis has a valid free exercise defense, her actions are unlawful under Haw. Rev. Stat. § 368-1. That section does not exempt landlords who are conscientiously opposed to renting property to persons who intend to engage in homosexual conduct on the premises, so Mrs. Davis must turn to the First Amendment, RFRA, or Art. I, § 4 of the Hawaii Constitution for a defense to an action by the Reeds.[fn5] Under current doctrine, neutral laws of general application do not generally violate the Free Exercise Clause simply because their application incidentally burdens religious exercise. Employment Div. v. Smith, 494 U.S. 872, 879 (1990). Accordingly, unless Mrs. Davis has a defense under RFRA or the Hawaii Constitution, she will be put to the cruel choice of removing her unit from the market or renting it in violation of her conscience. Absent state recognition of same-sex marriages, the above scenario is, in our judgment, an easy case under RFRA. Applied to [fn4] See Leviticus 18:22, 20:13; Proverbs 3:7. [fn5] For several reasons, the difficulty of obtaining statutory accommodations of religious exercise is quite substantial. Sometimes legislators are simply unfamiliar with the needs of religious individuals and groups, other times they are unsympathetic with requests for exemptions because of a singular focus on the benefits of legislation; still other times they are hostile towards religion. See generally Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. CT. REV. 1, 57. -6- Mrs. Davis, § 368-1 prescribes conduct - facilitating homosexual relations - that her religion proscribes, and the existence of alternative housing renders the state's interest in imposing an obligation to rent on a given landlord such as Mrs. Davis less than compelling. See 42 U.S.C. § 2OOObb-l(b); French, 460 N.W.2d at 9. The case would be much closer, however, if the State were affirmatively to grant to same-sex couples the legal status of marriage. Courts would be far more reluctant to hold that religious objections are a valid basis for discrimination where the state has legally endorsed same-sex marriages. Cf. French, 460 N.W.2d at 10 ("How can there be a compelling state interest in promoting fornication when there is a state statute on the books prohibiting it?"). Indeed, the courts are presently divided on the issue of whether a landlord's religious opposition to facilitating what she understands to be sexually immoral conduct is a valid defense to a claim of housing discrimination.[fn6]. In sum, the above scenario is not uncommon, and Hawaii's marriage statute is narrowly drawn to ensuring that all such disputes are resolved in a manner [fn6] Compare French, 460 N.W.2d at 8-1l (decided in favor of landlord on both statutory and compelling interest grounds), and Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for application of compelling interest test), with Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909, 925 (Cal. 1996) (requiring landlord to rent to cohabiting tenants does not burden her religion), petition for cert. filed, 65 U.S.L.W. 3034 (U.S. July 8, 1996) (No. 96-31), and Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994) (state's interest in ending discrimination outweighs landlord's free exercise rights), cert. denied, 115 S. Ct. 460 (1994); but cf. id. at 462 (Thomas, J., dissenting) ("The decision of the Alaska Supreme Court drains the word compelling of any serious meaning and seriously undermines the protection for exercise of religion that Congress so emphatically mandated in RFRA.") See generally STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 136-45 (1993); James C. Geoly & Kevin R. Gustafson, Religious Liberty & Fair Housing: Must a Landlord Rent Against His Conscience?, 29 J. MARSHALL L. REV. 455 (1996). -7- that properly respects the civil liberties of religious landlords.[fn7] C. PROVISION OF GOVERNMENT SERVICES Hawaii law conditions receipt of any State "grant, subsidy, or a purchase of service agreement" upon the recipient's agreement to "[c]omply with applicable * * * state laws prohibiting discrimina- tion against any person on the basis of * * * sexual orientation." Haw. Rev. Stat. § 42D-3(2). The following scenario shows how this provision could, if this Court recognizes same-sex marriage, implicate the religious liberty of social service organizations that are religiously opposed to accommodating same-sex partners. CASE C: House of Hope, Inc., a private adoption agency organized as a religious nonprofit corporation under Hawaii law, seeks to find stable homes for placement of children for adoption. House of Hope has successfully placed thousands of children in loving homes, in part through the support of a social-services grant from the State of Hawaii. Although the organization places children in homes of all religious faiths, it is opposed to placing children with same-sex couples, as the denomination with which it is affiliated professes that homosexual conduct is sinful and that it would be harmful to the development of a child to be raised by a same-sex couple. When Allison and Jamie Taylor attempt to adopt a child, House of Hope denies their application on the basis of [fn7] Individual landlords are not the only class of individuals that might be affected in their provision of housing by recognition of same-sex marriages. Religious universities frequently provide married faculty/student housing on terms that are inconsistent with statutes such as Haw. Rev. Stat. § 368-l. Such schools' doctrinal opposition to accommodating homosexual behavior should constitute a valid defense to a claim of discrimination, but the courts could potentially disagree. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 53G A.2d 1 (D.C. 1987) (en banc) (holding that city's compelling interest in eradicating discrimination on basis of sexual orientation overrides burden on private, religious university of granting tangible benefits to gay student group); cf. id. at 73-74 (Belson, J., concurring in part and dissenting in part) (university's "interest in not endorsing and subsidizing activities and an ideological message repugnant to its religious creed" overrides importance of "this application of the Human Rights Act"). -8- their same-sex marital status. Upon learning of these facts, the State threatens to cut House of Hope's funding.[fn8] On its face, Haw. Rev. Stat. § 42D-3(2) forbids House of Hope from discriminating against the Taylors. House of Hope receives state funding, § 42D-3(2) conditions receipt of such funding upon compliance with State discrimination law, and State law forbids discrimination on the basis of sexual orientation or marital status as to "access to services receiving State financial assistance." Id. § 368-1. Thus, absent a valid claim for an exemption from the requirements of § 368-1, House of Hope's denial of the Taylors' adoption application will cause it to forfeit State support. House of Hope may have an affirmative defense under the Free Exercise Clause or RFRA. Under a long line of Supreme Court cases, the State may not, absent compelling justification, condition the receipt of benefits to which House of Hope is otherwise entitled on the relinquishment of its right to the free exercise of religion. See Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829, 832 (1989); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144 (1987); Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981); Sherbert v. Verner, 374 U.S. 398, 404 (1963). Thus, the State may not, [fn8] For examples of instances where governments have conditioned funding on compliance with gay civil rights provisions, see Mark W. Davis, Catholic Church Resists San Francisco's Gay Agenda, WALL ST. J., Feb. 5, 1997, at A19 (San Francisco conditions receipt of $5.6 million in contracts with Catholic Charities on compliance with domestic-partnership ordinance); Catherine Bowman, S.F. Freezes Funds for Salvation Army, S.F. CHRON., Jan. 3, 1996, at A13 (San Francisco withholds $65,000 in federal grants from Salvation Army earmarked for emergency shelter services based on letter in local newspaper in which a Salvation Army captain expressed religiously based disapproval of homosexuality); Steven A. Chin, Shelter OK'd After No-Gay-Bias Pledge, S.F. EXAMINER, Jan. 17, 1996, at A3 (funds released after Salvation Army agrees to sensitivity training and to appoint two homosexuals to its advisory council). See also David Tuller, S.F. Board Protests B off A's Scout Policy, S.F. CHRON., Jan. 5, 1996, at A22 (San Francisco Board of Supervisors passes resolution (later vetoed by the mayor) urging city to boycott Bank of America - by withdrawing $6 inillion from city accounts - for making charitable gifts to the Boy Scouts, which excludes openly gay Scouts and Scoutmasters) -9- absent compelling justification, condition disbursement of its grants on House of Hope's compliance with nondiscrimination laws. So long as the Taylors may turn to other adoption agencies, there are other means of protecting the Taylors' adaption rights, and the State's interest in obligating a particular adoption agency such as House of Hope to grant the Taylors' application is, in our judgment, quite small. As shown by the foregoing illustrations, however, whether the State's interest is compelling would become a far more difficult question if the Taylors held a valid marriage license. If this Court recognizes same-sex marriages, it logically follows that it will have to protect same-sex parenting. Indeed, as this Court stated in Baehr V. Lewin, 74 Haw. 530, 544, 852 P.2d 44, 56 (1993), "the right to marry * * * is simply the logical predicate of the [fundamental rights of procreation, childbirth, abortion, and child rearing]." Accord Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Under a proper respect for the exercise of religion, and in light of the presence of other adoption agencies in the market, amici believe that House of Hope should still prevail. But the uncertainty surrounding the ultimate resolution of these issues by the courts suggests that the State of Hawaii's current definition of marriage is essential to service of a compelling interest: protecting the free exercise of religion. CONCLUSION The judgment of the Circuit Court should be reversed. Respectfully submitted. STEFFEN N. JOHNSON SANDRA DUNN* Mayer, Brown & Platt Peariridge QEEice Center 190 South LaSalle Street 98-211 Pali Momi, Suite 402 Chicago, IL 60603-3441 Aiea, HI 96701 (312) 701-7214 (808) 487-8464 KIMBERLEE W. COLBY Dated: Aiea, HI, April 2, 1997 STEVEN T. MCFARLAND SAMUEL B. CASEY Christian Legal Society /s/ SANDRA DUNN 4208 Evergreen Lane, Suite 222 Attorney ifor Christian Legal Annandale, VA 22003-3264 Society et al. (703) 642-1070 *Counsel of Record -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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~