Date: Mon, 30 Jun 1997 14:06:38 -1000 From: lambda@aloha.net (Martin Rice) Subject: BM 029: Baehr v. Miike Appeal, AmCuBr 18: ANDREW CHERLIN, PH. D., ET AL. Aloha awakea kakou. As confirmed with the Hawai`i State Supreme Court Clerk's Office this morning, all 19 of the Amicus Curiae Briefs have now been posted. I would like to take this time to publicly thank Larry, Bill and the GLEA Foundation, Christopher & Rod, Kathy & Sara and Joy & Joyce for the generous contributions toward making this "Document Project" a reality. I would also like to acknowledge Rod & Christopher and Ben for their work in posting the documents to their respective website (http://www.cs.unt.edu/home/hughes/index.html and http://hawaiilawyer.com). Please also note that the Opening and Answering Briefs are available on-line, and that the Reply Brief will be posted within the next day or so at the above listed websites. Again, Mahalo to those that have helped with this project, and Mahalo to all those who have posted words of encouragement and appreciation. And as a reminder, the symbol presented here--> § <--represents the word "section," as some email programs do not readily translate symbols. DAVID S. BRUSTEIN ATTORNEY AT LAW A LAW CORPORATION DAVID S. BRUSTEIN #4098 201 Merchant Street, Suite 2300 Honolulu, Hawaii 96813-2929 Telephone: (808) 526-1000 Of Counsel: GIBSON, DUNN & CRUTCHER LLP S. ELIZABETH FOSTER LAWSON M. SULLIVAN 200 Park Avenue New York, New York 10166-0193 Attorneys for Amici Curiae ANDREW E. CHERLIN, Ph.D., FRANK F. FURSTENBERG, JR., Ph.D., SARA S. McLANAHAN, Ph.D., GARY D SANDEFUR, Ph.D., and LAWRENCE L. WU, Ph.D. No.20371 IN THE SUPREME COURT OF TIlE STATE OF HAWAII Ninia Baehr, Genora Dancel ) CIVIL No.91-1394-05 Tammy Rodrigues, Antoinette ) Pregil, Pat Lagon & Joseph ) Melillo, ) APPEAL FROM THE FINAL JUDGMENT ) FILED DECEMBER 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT ) vs. ) HONORABLE PATRICK YIM ) HONORABLE ROBERT KLEIN Lawtence H. MIIke, in his Official ) HONORABLE HERBERT SHIMABUKURO Capacity as Director of the ) HONORABLE KEVIN CHANG Department of Health, ) Judges State of Hawaii, ) ) BRIEF OF AMICI CURIAE Defendant-Appellant. ) AND CERTIFICATE OF SERVICE ____________________________________) TABLE OF CONTENTS Page I. STATEMENT OF QUESTIONS PRESENTED.................................1 II. INTRODUCTION AND INTEREST OF AMICI CURIAE........................1 III. ARGUMENT.........................................................2 A. The Social Science Research Regarding Children of Never-Married, Divorced and Step-Parents Provides No Basis for Concluding that Children Would Be Harmed by Allowing Same-Sex Couples To Marry................2 B. The Social Science Research Does Provide a Basis for Suggesting That Allowing Same-Sex Couples To Marry Would Benefit Children and Families...................3 C. Children of Gay and Lesbian Parents Do Not Differ Significantly from Children of Heterosexual Parents.........5 D. The State Cannot Legitimately Claim that Child Outcomes Are Determined Primarily by Family Structure................6 E. The Social Science Research Suggests Numerous Direct Means by Which the State of Hawaii Could Promote Optimal Outcomes for Children...............................8 IV. CONCLUSION.......................................................8 TABLE OF AUTHORITIES CASES Page(s) Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993)..........................5 Baehr v. Lewin, 74 Haw. 530, 74 Haw. 645, 852 P.2d 44 (1993)............3 STATUTES Hawaii Revised Statutes § 572-1 (1995)..................................1 OTHER SOURCES Allison & Furstenberg, How Marital Dissolution Affects Children. Variations by Age and Sex, 25 Developmental Psychol. 540 (1989)................................................7 Astone & McLanahan, Family Structure and High School Completion: The Role of Parental Practices, 56 Am. Soc. Rev. 309 (1991)........................................7 i Page(s) Chetlin, Marriage, Divorce, Remarriage (rev. ed. 1992)..................4 Cherlin, Public and Private Families (1996).............................7 Cherlin et al., Longitudinal Studies of Effects of Divorce on Children in Great Britain and the United States, 252 Science 1386 (1991).............................................7 Confronting Poverty (danziger et al. eds., 1994).......................4,7 Furstenberg, Unplanned Parenthood: The Social Consequences of Teenage Childbearing (1994).......................4,7 Furstenbeug & Cherlin, Divided Families: What Happens to Children When Parents Part (1991)............................2,4,8 Furstenberg et al., Adolescent Mothers and Their Children in Later Life, l9 Family Plan. Persp. 142 (1987)....................4 Furstenberg et al., Paternal Participation and Children's Well-Being After Marital Dissolution, 52 Am. Soc. Rev. 695 (1987).....................................................7 Garfinkel & McLanahan, Single Mothers and Their Children (1986)........4,8 Golombok et al., Children in Lesbian and Single-Parent Households, 24 J. Child Psychol. & Psychiatry 551 (1983)..........................................................6 Hoffinan et al., Reevaluating the Costs of Teenage Childbearing, 30 Demography 1 (1993)................................4 McLanahan & Sandeftir, Growing Up With a Single Parent: What Hurts What Helps (1994)....................................2,4,8 Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025 (1992)...........................................6 Risking the Future: Adolescent Sexuality, Pregnancy, and Childbearing (Hayes ed., 1987)..................................4 Wu, Effects of Family Instability, Income, and Income Instability on the Risk of a Premarital Birth, 61 Am. Soc. Rev. 386 (1996).........................................7 Wu & Martinson, Family Structure and the Risk of a Premarital Birth, 58 Am. Soc. Rev. 210 (1993).......................2 ii BRIEF OF AMICI CURIAE The amici curiae identified below, by and through their undersigned counsel, hereby respectftllly submit their amici curiae brief pursuant to this Court's Order dated May 22, 1997. I. STATEMENT OF QUESTIONS PRESENTED 1. Did the Circuit Court correctly conclude that Hawaii Revised Statutes ("HRS") § 572- 1 (1995) furthers no compelling state interest in the "well-being of children and families, or the optimal development of children?" Findings of Fact and Conclusions of Law filed December 3, 1996("Order") p.44. 2. Did the Circuit Court correctly conclude that HRS § 572-1 is not "narrowly tailored to avoid unnecessary abridgments of constitutional rights?" Order p. 45. II. INTRODUCTION AND INTEREST OF AMICI CURIAE Amici rank among the nation's most distinguished researchers and scholars of marriage and the family in the field of sociology. Andrew J. Cherlin, Ph.D. is Benjamin H. Griswold III Professor of Public Policy in the Department of Sociology at Johns Hopkins University and has testified before Congress' Select Committee on Children, Youth, and Families. Frank F. Furstenberg, Jr., Ph.D. is Zellerbach Family Professor in the Department of Sociology at the University of Pennsylvania and Chair of the American Academy of Arts and Sciences' Committee on Indicators of Children's Well-Being. Sara S. McLanahan, Ph.D. is Professor of Sociology and Public Affairs in the Woodrow Wilson School of Public Policy at Princeton University and a member of the National Academy of Sciences' Board on Families and Children. Gary D. Sandelur, Ph.D. is Professor of Sociology at the University of Wisconsin-Madison and a former member of the Social Science and Population Study Section of the National Institutes of Health. Lawrence L. Wu, Ph.D. is Associate Professor of Sociology at the University of Wisconsin- 1 Madison and Chair of the American Sociological Association's Committee on the Status of Gays, Lesbians and Bisexuals in Sociology, Amici submit this brief to summarize and clarify for this Court the relevance of that body of scientific knowledge, compiled by amici and others, which concerns outcomes for children of never-married, divorced and step-parents and which was relied on by the State's experts at trial to support the assertion that children raised by same-sex parents fare worse than children raised by biological or opposite-sex parents. Amici seek to advise the Court that this body of research provides no scientifically valid basis for this assertion. Furthermore, amid agree with the Circuit Court's finding that "[c]ontrary to Defendantts assertions, if same-sex marriage is allowed, the children being raised by gay or lesbian parents and same-sex couples may be assisted, because they may obtain certain protections and benefits that come with or become available as a result of marriage." Order p. 37. III. ARGUMENT A The Social Science Research Regarding Children of Never-Married, Divorced and Step-Parents Provides No Basis for Concluding that Children Would Be Harmed by Allowing Same-Sex Couples To Marry Amici have been major contributors to the large body of empirical research, relied on by the State's experts at trial (Trial Transcript ("Tr.") Tr. 9/11/96 pp.43-49), that examines the consequences for children of being raised by never-married, divorced and step-parents.[fn1] Based [fn1] E.g., Furstenberg & Cherlin, Divided Families: What Happens to Children When Parents Part (1991); McLanahan & Sandeflir, Growing Up With a Single Parent: What Hurts, What Helps (1994); Wu & Martinson, Family Structure and the Risk of a Premarital Birth, 58 Am. Soc. Rev. 210 (1993). Such studies use statistical methods and nationally representative data to compare outcomes for children raised in such families with outcomes for children raised by two biological or opposite-sex parents. 2 largely on the premise that this research shows that two biological or opposite-sex parents comprise a so-called "optimal" child-rearing environment, the State argued at trial that the well- being of children would be harmed if same-sex couples were allowed to marry. Tr. 9/10/96 pp. 12-13. Amici would like to advise the Court that it was improper for the State to infer such a conclusion. Because none of the data sources from which this research derives permit identification of same-sex couples or of children residing in same-sex couple families, this research provides no scientifically valid basis for concluding - or even suggesting - that outcomes for children raised by same-sex parents differ from those raised by opposite-sex or biological parents. B. The Social Science Research Does Provide a Basis for Suggesting That Allowing Same-Sex Couples To Marry Would Benefit Children and Families The State's witnesses conceded at trial (Tr. 9/10/96 p.135, Tr. 9/11/96 pp.90-91), and amici agree, that same-sex couples and their children would benefit, as do opposite-sex couples and their children, from the status and benefits that accompany marriage.[fn2] Because the social science research shows that children raised in two-parent homes can, on average, expect better outcomes than children raised by single parents, amici agree with the Circuit Court's finding that children of same-sex couples "may be assisted" should their parents be permitted to marry. Order p.37. Indeed, amici expect that such children would be assisted. For example, one benefit that children of married same-sex couples can reasonably expect to receive is the increased financial resources of a second legally-committed parent. Chronic [fn2] As this Court has recognized, marriage offers immediate legal and social recognition for a couple's marital "status" and immediate access to "a multiplicity of rights and benefits that are contingent upon that status." Baehr v. Lewin, 74 Haw. 530, 560, 852 P.2d 44, 59 (1993). 3 poverty, which is a significant threat to children's well-being and a consistent determinative factor of child outcomes, is increasingly concentrated in single-parent households.[fn3] Because the potential for two incomes is known to substantially reduce the incidence of poverty,[fn4] children whose same-sex parents are allowed to marry will, on average, be less likely to reside in poverty than the average child raised by a single parent. Another benefit which children of same-sex couples who marry can expect to receive results from "selection" effects which suggest that same-sex couples who choose both to marry and to have children will, on average, differ behaviorally from heterosexual parents in ways that yield expectations of positive outcomes for their children. In contrast with the substantial fraction of the nation's children who are uninten~fd and/or unwanted,[fn5] children born to or adopted by same-sex couples are clearly both intended and wanted.[fn6] The actions such couples must take in order to become parents typically involve artificial insemination or adoption, either of which requires extensive effort and personal commitment. The fact that same-sex couples who choose [fn3] Cherlin, Marriage, Divorce, Remarriage (rev. ed. 1992); Furstenberg & Cherlin, supra note 1; Garfinkel & McLanahan, Single Mothers and Their Children (1986); McLanahan & Sandeflir, supra note 1. [fn4] Confronting Poverty (Danziger et al., eds., 1994). [fn5] Furstenberg, Unplanned Parenthood: The Social Consequences of Teenage Childbearing (1994); Risking the Future: Adolescent Sexuality, Pregnancy, and Childbearing (Hayes ed., 1987); Furstenberg et al., Adolescent Mothers and Their Children in Later Life, 19 Family Plan. Persp. 142 (1 987); Hoffinan et al., Reevaluating the Costs of Teenage Childbearing, 30 Demography 1(1993). [fn6] Amici dispute claims made by the State's witnesses at trial that children in same-sex families are, by definition, in step-families (Tr. 9/11/96 pp.48-49), and that children who are adopted or were born as a result of assisted reproduction live in a more burdened nurturing domain" (Tr. WIO/96 p.63). In amici's opinion, the situation of children born to or adopted by same- sex parents is, rather, most like that of children born to or adopted by opposite-sex parents. 4 to marry and have children are "self-selected" on these and other behavioral characteristics suggests that such couples will, on average, differ from opposite-sex parents in having greater commitment both to one another and to raising children, and that benefits will accrue to their children accordingly.[fn7] These examples of but a few of the expected benefits for children raised by married same- sex couples flirther undermine the validity of the Statets claim that "same-sex marriages are more likely to provide a more burdened nurturing domain." Tr. 9/10/96 p 63. To the contrary, amici not only agree with the Circuit Court's conclusion that such children "may be assisted" if marriage for same-sex couples is allowed (Order p.37), but suggest to this Court that optimal outcomes for children would befurtheredby allowing same-sex couples to marry and raise their children with State encouragement and support. C. Children of Gay and Lesbian Parents Do Not Differ Significantly from Children of Heterosexual Parents Drs. Cherlin, Furstenberg and Wu have reviewed the growing body of research and [fn7] Recent court decisions have recognized the increased potential for higher child outcomes that self-selection suggests. For example, in Adoption of Tammy, 619 N.E.2d 315, 317 Mass. 1993), the court allowed a woman to adopt the child conceived by her partner through artificial insemination and raised by the couple since birth, stating: 'The fact that this parent-child constellation came into being as a result of thoughtful planning and a strong desire on the part of these women to be parents to a child and to give that child the love1 the wisdom and the knowledge that they possess.... [needs to be taken into account] . . [T]heir seriousness of purpose stands in contrast to the caretaking environments of a vast number of children who are born to heterosexual parents but who are variously abused, neglected and otherwise deprived of security and happiness.' [fn8] Drs. McLanahan and Sandelur have not reviewed the research or literature referred to in this section and therefore do not express any opinion on its findings or conclusions. 5 literature, compiled by researchers other than amici and discussed by experts at trial, that specifically considers the consequences for children of being raised by gay and lesbian parents and by same-sex couples. As witnesses for plaintiffs as well as for the State testified (Tr. 9/10/96 p. 134, Tr. 9/17/96 pp. 23-24, Tr. 9/18/96 pp 49-50), and as the Circuit Court found (Order p.36), these studies consistently show that children raised by gay and lesbian parents and same-sex couples develop in a normal fashion and are not detrimentally affected by their parents sexual orientation.[fn9] In short, as the State acknowledged, "the kids are turning outjust fine." Order p.37. These studies further support the Circuit Court's finding that sexual orientation is irrelevant to parental fitness (Order p.35), and lead to the conclusion that there is no basis for prohibiting marriage for same-sex couples based on alleged differences in parental ability or child outcomes. D. The State Cannot Legitimately Claim that Child Outcomes Are Determined Primarily by Family Structure As indicated above, amid advise this Court that the social science research does not -- and cannot -- support the States assertion at trial that the presence of two biological or opposite- sex parents comprises an "optimal" child rearing environment. There is broad consensus among social scientists that child outcomes are affected by a large number of factors other than the number and types of parents present in a child's household. These factors include, inter alia, the overall quality of parenting as reflected in parental love, warmth, involvement and consistency; [fn9] E.g., Golombok et al., Children in Lesbian and Single-Parent Households, 24 3. Child Psychol. & Psychiatry 551(1983); Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025 (1992). These findings suggest no systematic differences between gay or lesbian and heterosexual parents in parenting ability, quality of parent-child relationships, stability of home environments or patterns of child rearing. 6 pre- and post-natal care; adequate nutrition and health care; whether the child was planned or wanted; the mother's age at conception; parental socioeconomic resources; quality of neighborhood and schools; influences of peers and siblings; and the child's own abilities, temperament, attitudes and psychological resources.[fn10] Moreover, research reflects wide variation in child outcomes even for siblings residing in the same family. As no one study can adequately control for all factors relevant to child outcomes, and because child outcomes vary so greatly, the State's assertion at trial that the presence or absence of the single variable of residing with two biological or opposite-sex parents provides a so-called "optimal" environment for children is simply not scientifically valid. Furthermore, as individual children possess different temperaments, traits and needs, which may change over time, what is optimal for one child may prove suboptimal for another and what is optimal for a child at one age may shift with age and changing family circumstances.[fn11] Therefore, as the relevant research provides no basis for restricting marriage to opposite- sex couples based on the single factor of family structure, the State clearly can have no compelling interest in preventing marriage for same-sex couples based on any alleged superseding importance [fn10] Confronting Poverty, supra note 4; Furstenberg, supra note 5; Astone & McLanahan, Family Structure and High School Completion. The Role of Parental Practices, 56 Am. Soc. Rev. 309 (1991); Cherlin et al., Longitudinal Studies of Effects of Divorce on Children in Great Britain and the United States, 252 Science 1386 (1991); Wu, Effects of Familv Instability, Income and Income Instability on the Risk of a Premarital Birth, 61 Am. Soc. Rev. 386 (1996). [fn11] Cherlin, Public and Private Families (1996); Mlison & Furstenberg How Marital Dissolution Affects Children. Variations by Age and Sex, 25 Developmental Psychol. 540 (1989); Furstenberg et al., Paternal Participation and Children's Well-Being After Marital Dissolution, 52 Am. Soc. Rev. 695 (1987). 7 to children of being raised by biological or opposite-sex parents. E. The Social Science Research Suggests Numerous Direct Means by Which the State of Hawaii Could Promote Optimal Outcomes for Children Social scientists, including amici, agree with the State of Hawaii that society has a compelling interest in protecting and promoting the well-being of children. Amici' S research has led to a number of policy recommendations, implemented on both state and federal levels, designed to flirther this interest directly. These policies include access to quality health care and universal health insurance, supplementation and stabilization of parental income, and provision of day care for working parents.[fn12] Such policies provide examples of direct means by which any state, including Hawaii, could promote optimal child otitcomes in all families without abridging the constitutional rights of same-sex couples or maintailling sex discrimination in marriage. IV. CONCLUSION For all of the above reasons, amici suggest that one of the most direct means to accomplish the State of Hawaii's goal of promoting the well-being of children is to allow same- sex couples to live together in marriage and to raise their children with the State's sanction, encouragement and support. [fn12] Furstenberg & Cherlin, supra note 1; Garfinkel & McLanahan, supra note 3; McLanahan & Sandeftir, supra note 1. 8 Therefore, amici urge the Court to affirm the ruling below and to end sex discrimination in marriage. DATFD: Honolulu, Hawaii, June 2, 1997. /s/ DAVID S. BRUSTEIN Attorney for Amici Curiae ANDREW J. CHERLIN, Ph.D FRANK F. FURSTENBERG, JR., Ph.D. SARA S. McLANAHAN, Ph.D. GARY D. SANDEFUR, Ph.D. LAWRENCE L. WU, Ph.D. 9 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "If it's don't ask, don't tell, don't pursue, then why did they paint Tripler Army Medical Center that shade of pink?" --buddy Ken Jopling (upon seeing it for the first time) ~~~~~ Fred and Martin 24 years, yet strangers before the law (still) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~