Date: Sat, 14 Jun 1997 09:44:38 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 19: JAPANESE CITIZEN'S LEAGUE OF HONOLULU Aloha kakahiaka kakou. As I read this, I felt completely shamed by what has been inflicted by our predecessors in the name of "Justice" upon our fellow citizens. I can not help but wonder, who may feel the same way years down the road, when we collectively look back this struggle and wonder what all the fuss was about. No. 20371 IN THE SUPREME COURT STATE OF HAWAII 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 Plaintiff-Appellees1 ) ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MlIKE, in his official ) capacity as Director of the Department ) THE HONORABLE KEVlN S.C. CHANG of Health, State of Hawaii, ) ) Defendant-Appellant. ) ________________________________________) JAPANESE AMERICAN CITIZENS LEAGUE OF HONOLULU'S AMICUS CURIAE BRIEF CERTIFICATE OF SERVICE ALSTON HUNT FLOYD & ING PAUL ALSTON 1126 WILLIAM M. KANEKO 6848 1001 Bishop Street Pacific Tower, Suite 1800 Honolulu, Hawaii 96813 Telephone: 524-1800 Attorneys for JAPANESE AMERICAN CITIZENS LEAGUE OF HONOLULU TABLE OF CONTENTS TABLE OF AUTHORITiES...............................................1 I. STATEMENT OF THE QUESTION PRESENTED...........................1 II. STATEMENT OF INTEREST.........................................2 III. ARGUMENT......................................................2 A. The State's Compelling Interest in Protecting Hawaiian Society From the Adverse Effects of Same-Sex Marriages are as Groundless as Arguments Against Interracial Marriages....................................3 The State's Claim That Same-Sex Marriages Have an Adverse Impact on a Child is Unsubstantiated and Similar to the Outmoded Arguments Against Interracial Marriages................................................7 IV. CONCLUSION...................................................10 TABLE OF AUTHORiTIES FEDERAL CASES U.S. Supreme Court Cases Cantwell v. State, 310 U.S. 296,60 S. Ct. 900 (1940)................9 Hirabayashi v. United States, 320 U.S. 81, 63 5. Ct. 1375 (1943)....2 Korematsu v. United States, 323 U.S. 214, 65 5. Ct. 193 (1944)......2 Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967).........1, 3, 5 Palmore v. Sidoti, 466 U.S. 429, 104 5. Ct. 1879 (1984).............9 Other Cases Korematsu v. United States, 584 F. Supp. 1406 (N. Dist. Cal. 1984)..6 State v. Tutty, 41 F. 753 (C.C.D. Ga. 1890).........................7 STATE CASES Hawaii Cases Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)...............3,4,5,6 Hoidman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978)..................3 Nachtwey v. Doi, 59 Haw. 430, 583 P.2d 955 (1978)................3, 4 Other Cases J.L.P. v. D.J.P., 643 S.W.2d 865 (Mo. Ct. App. 1982)................8 Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981).....................8 N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo. Ct. App. 1980)................8 Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955)...................3, 5 Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)............6, 8, 9 State v. Brown, 236 La. 562, 108 So. 2d 233 (1959)...............8, 9 DOCKETED CASES Baehr v. Miike, Civil No.91-1394-05 (1st Cir. Haw. Dec. 3, 1996)...4 -i- STATE STATUTES Haw. Const. art. I, § 5............................................3 Haw. Rev Stat. § 572-1..........................................4, 7 MISCELLANEOUS Joel Crohn, Ph.D., Mixed Matches 11 (Ballentine Books 1995......5, 6 Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 Harv. L. Rev. 617 (Jan. 1989)........8 Ronald Takaki, A Different Mirror: A History of Multicultural America 67 (Little, Brown & Co. 1993).................................4 James Trosino, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U. L Rev. 93 (1993) [hereinafter Trosino]................................3, 5, 6, 8 U.S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990's (1992)..........................2 University of Hawaii Center for Research on Ethnic Relations, Interracial Marriage and Offspring in Hawaii 1896-1989 (1995).............6 -ii- No.20371 IN THE SUPREME COURT STATE OF HAWAI'I NINIA BAEHR, GENORA DANCEL, ) Civ. No.91-1394-OS 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. IVIIIKE, in his official ) capacity as Director of the Department ) THE HONORABLE KEVIN S.C. CHANG of Health, State of Hawaii, ) ) Defendant-Appellant ) ________________________________________) JAPANESE AMERICAN CITIZENS LEAGUE'S AMICUS CURIAE BRIEF Amicus Curiae JAPANESE AMERICAN CiTIZENS LEAGUE OF HONOLULU (hereinafter "JACL"), by and through its attorneys, ALSTON HUNT FLOYD & ING, hereby files its brief pursuant to the Court's Order dated May 21, 1997.[fn1] I. STATEMENT OF THE QUESTION PRESENTED Does the State of Hawaii have a compelling interest to deny the right of marriage to persons of the same sex, when it has failed to present sufficient credible evidence [fn1] In Loving v. Virginia, William M. Marutani, by special leave of the U.S. Supreme Court, argued the cause for the Japanese American Citizens League, as amicus curiae, urging reversal of Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications. 388 U.S. 1, 87 5. Ct. 1817 (1967). Marutani, who later served on a Pennsylvania court, was JACL National Vice President, and a member of the U.S. Commission on Wartime Relocation and lntemrnent of Civilians. that same-sex marriages will have an adverse effect on Hawaiian society and its children? II. STATEMENT OF INTEREST Asian Pacific Americans, like many other ethnic and social minorities in this country, have long experienced varied forms of discrimination, prejudice, and exclusion.[fn2] During World War II, Japanese Americans suffered greatly from government-sponsored discrimination, when President Franklin D. Roosevelt issued Executive Order 9066 which interned 120,000 U.S. citizens and legal permanent resident aliens of Japanese ancestry solely based on race. Based on war-induced public hysteria1 this racially-based policy was sustained by the U.S. Supreme Court, despite the absence of evidence of disloyalty among the internees. See Hirabayashi v. United States, 320 U.S. 81, 63S. Ct. 1375 (1943); Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944). As the oldest and largest Asian Pacific American civil rights organization in the United States, the JACL has a vital interest in this matter. The JACL seeks to uphold the civil rights of all Americans, regardless of race, sex, religion, national origin, age, disability, and sexual orientation. III. ARGUMENT Beginning in early colonial times, anti-miscegenation laws prohibited Whites from marrying Asians, as well as American Indians, Blacks and other ethnic minorities. [fn2] The U.S. Commission on Civil Rights concluded that "Asian Americans share with American blacks the distinction of having been the targets of widespread legal discrimination that hindered their ability to participate fully in the American dream." U.S. Commission on Civil Rights, Civil Rights lssues Facing Asian Americans in the 1990's (1992), at 6-7. 2 James Trosino, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. Rev. 93, 97 (1993) [hereinafter "Trosino"]. Until 1967, sixteen states prohibited interracial marriages in order to" preserve the racial integrity of its citizens," and to prevent the "corruption of blood." Loving, 388 U.S. at 6, 87 5. Ct. at 1820; Naim v. Naim, 197 Va. 80, 90, 87 S.E.2d 749, 755 (1955). In this brief, JACL explains that the State's claim that there are "compelling interests" in protecting the community and its children from the alleged evils of same- sex marriages are as unfounded and misguided as the arguments advanced in earlier times against interracial marriages. A. The State's Compelling Interest in Protecting Hawaiian Society From the Adverse Effects of Same-Sex Marriages are as Groundless as Arguments Against Interracial Marriages Sex and race are "suspect categories" for purposes of equal protection analysis, and are subject to the "strict scrutiny test." Baehr v. Lewin, 74 Haw. 530, 576, 852 P.2d 44, 65 (1993) (sex); Nachtwey v. Doi, 59 Haw. 430, 435, 583 P.2d 955, 959 (1978) (race).[fn3] Consequently, any race- or sex-based discriminatory law is constitutionally suspect and presumed to be unconstitutional unless the law is justified by compelling state interests narrowly drawn to avoid unnecessary infringement of constitutional rights. Baehr, 74 Haw. at 571-2, 852 P.2d at 634; Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164,1167 (1978). The State has the burden of establishing both (1) its compelling interest and (2) that its policy is carefully tailored to serve that interest. [fn3] The Hawaii Constitution declares that no person shall be denied equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry." Haw. Const. art. l, § 5. 3 Nachtwey, 59 Haw. at 435, 583 P.2d at 959. The State asserts that Haw. Rev. Stat. § 572-1, which recognizes only unions between one man and one woman, furthers the "compelling state interest in protecting the public fisc from the reasonably foreseeable effects of approval of same-sex marriages," and that the legalization of same-sex marriages would have an "adverse effect" on the community and society. In particular, the State claims that "legalized prostitution, incest and polygamy will occur if same-sex marriage is allowed." Baehr v. Miike, Civil No.91-1394-OS, (1st Cir. Haw. Dec. 3,1996), at 232 [hereinafter Record on Appeal (RA) Vol. VII]. On remand, Judge Chang concluded that the State "presented insufficient evidence and failed to establish or prove any adverse impacts to the State of Hawaii or its citizens" resulting from same-sex marriages.[fn4] (RA Vol. VII at 224). The State's rhetoric against same-sex marriages is strikingly similar to the arguments made in a bygone era against interracial marriages. For centuries, ignorant and racist lawmakers and jurists alike decried mixed-race relationships. In 1691, for example, the Virginia Assembly passed a law prohibiting the "abominable mixture and spurious issue" of interracial unions. The law specified that a free White mother of a racially mixed child would be fined and that the child would be required to be in servitude for thirty years. Ronald Takaki, A Different Mirror: A History of Multicultural America 87 (Little, Brown & Co. 1993). Following the Civil War, whenever anyone in Congress proposed measures for the protection of Blacks, the cry "Do you want your [fn4] On remand, this Court in accordance with the "strict scrutiny standard" imposed upon the State the burden to overcome the presumption that same-sex marriages are unconstitutional by demonstrating that it furthers a compelling state interest. Baehr 74 Haw at 581 852 P.2d at 67. 4 daughter to marry a 'Negro' was raised." Trosino, supra, at 100. In Naim v. Naim1 197 Va. 80, 87 S.E.2d 749 (1955), the Supreme Court of Virginia refused to recognize the marriage between a Chinese man and White woman, saying the state had the power to regulate marriage relations to prevent the creation of a "mongrel breed of citizens." 197 Va. at 90, 87S.E.2dat755. In Loving, a Virginia trial court convicted a White man and a Black woman for marrying, and opined: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. 388 U.S. at 3, 87 S. Ct. at 1819. This Court has announced, however, that it does "not believe that trial judges are the ultimate authorities on the subject of Divine Will," and ultimately, "constitutional law may mandate, like it or not, that customs change with an evolving social order." Baehr, 74 Haw. at 569, 852 P.2d at 63. Today, the evil myths of interracial marriages have been dispelled, and mixed- race couples, through the enforcement and application of civil rights. laws and the equal protection clause, are more accepted in society. See Trosino, supra, at 1. A quiet revolution is occurring as millions defy ancient taboos to form intimate relationships with partners from other cultural, religious, and racial backgrounds. Joel Crohn, Ph.D., Mixed Matches 11 (Ballentine Books 1995). For example, by the mid-sixties, two-thirds of third-generation Polish Americans were marrying outside their own ethnic origins. By the 1970's intermarriage by those of 5 Greek ancestry had reached nearly 70 percent in New York. Id. In Hawaii, the "outmarriage" rate for Chinese, Filipino, and Japanese men during the years 1980 to 1989 was 67%, 50%, and 46%, respectively; compared to 72%, 62%, and 55%, respectively, for Chinese, Filipino, and Japanese women. During the same time period, approximately 45% of Hawaii's children were born of parents with different ethnic backgrounds. University of Hawaii Center for Research on Ethnic Relations, Interracial Marriage and Offspring in Hawaii 1896-1989 (1995). There are now so many persons in the United States of mixed ancestry, that the tensions upon them are diminishing and are bound to disappear with time. Perez v. Sharp, 32 Cal. 2d 711, 726,198 P.2d 17, 26 (1948). Only a few decades ago the idea that interracial marriages would be legally recognized -- much less beyond legal prohibition -- in all fifty states was absurd. Despite public outcry, interracial marriages are now recognized and accepted in modern society. Today, for many, the idea that couples of the same sex might legally marry is equally absurd. Trosino, supra, 120. However, public disapprova, should not bar this Honorable Court from equally enforcing the laws of this state, including the right to marry. Cf. Korematsu v. United States, 584 F. Supp. 1406, 1420 (N. Dist. Cal. 1984) (even in times of war, the government must be prepared to protect all citizens from the petty fears and prejudices that are so easily aroused). Again, in the words of this Court: "[C]onstitutional law may mandate, like it or not, that customs change with an evolving social order." Baehr, 74 Haw. at 570, 852 P.2d at 63. 6 B. The State's Claim That Same-Sex Marriages Have an Adverse Impact on a Child is Unsubstantiated and Similar to the Outmoded Arguments Against Interracial Marriages The State maintains that it has a compelling state interest to "promote optimal development of children.... It is the State of Hawaii's position that, all things being equal, it is best for a child that it be raised in a single home by its parents, or at least by a married male and female. . . ." (RA Vol. VII at 197) If this were truly the State's purpose, then its laws would be carefully tailored to limit marriages to unions between those who are (1) capable of child bearing and (2) capable of good child rearing. The State would likewise forbid unions between those unfit for or incapable of parenthood. Haw. Rev. Stat. § 572-1 provides for seven (7) requisites for a valid marriage contract, but makes no mention whatsoever of the requirement that the couple be screened for their ability to properly raise their children.[fn5] The State's arguments are reminiscent of the misguided belief that interracial marriages would have reprehensible impact on children. The Supreme Court of Georgia pronounced that [t]he amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full blood of either race. State v. Tutty, 41 F. 753 (C.C.D. Ga. 1890) (quoting Scott v. State, 39 Ga. 321, 324 (1869)). [fn5] The requisites for a valid marriage contract are: 1) Respective parties are not closely related; 2) Each of the parties are at least sixteen years old; 3) Each of the parties are not currently married; 4) Consent of neither of the parties to the marriage has been obtained by force, duress, or fraud; 5) Neither parties are inflicted with any loathsome disease; 6) The man and the woman have obtained a marriage license from the state; and 7) The marriage ceremony is performed in the presence of both parties by a person with a license to solemnize marriages. Haw. Rev. Stat. § 572-1. 7 Similarly, in Perez, the State of California argued that anti-miscegenation laws could be justified "as a means of diminishing race tension and preventing the birth of children who might become social problems." 32 Cal. 2d at 724,198 P.2d at 26. The government further argued that "Negroes are socially inferior and have so been judicially recognized, and that the progeny of marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of both races." Id. See State v. Brown, 236 La. 562, 565, 108 So. 2d 233, 234 (1959) (concluding that anti-miscegenation laws are designed to protect the state's interest in propagation of half-breed children). Opponents of same-sex marriage argue that gay couples present an unhealthy environment in which to raise children, and claim that children exposed to gay parents will be abused, or become homosexual. Trosino, supra, at 110. See, e.g., N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. Ct. App. 1980) (the child of a homosexual parent might be condemned to sexual disorientation, to social ostracism, contempt and unhappiness). Some courts fear that children raised in a same-sex relationship will be stigmatized or harassed by their parents' sexual orientation. Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 Harv. L. Rev. 617, 619 (Jan. 1989). See, e.g., Jacobson v. Jacobson, 314 N.W.2d 78, 81 (N.D. 1981) (finding that living in the same house with their mother and her lover may cause the children to suffer from the slings and arrows of a disapproving society). Not surunsingly, other courts have perceived links between homosexuality and the propensity to engage in criminal acts. See, e.g., J.L.P. V. D.J.P., 643 S.W.2d 865, 868 8 (Mo. Ct. App. 1982) (holding that molestation of minor boys is more prevalent for homosexual rather than heterosexual men). Likewise, history is full of comparable judicial pronouncements on the negative impact on children in a mixed-race marriage. In Brown, the Louisiana Supreme Court announced that there was "no doubt" that "half-breed" children are a burden on society. Brown, 236 La. at 565,108 So. 2d at 243. In Perez, the State of California argued that interracial marriage had an adverse effect not only upon the parties, but on their progeny. Those persons who wished to marry in contravention of race barriers were said to come from the "dregs of society" and their progeny were expected be a burden on the community. 32 Cal. 2d at 726,198 P.2d at 25.[fn6] At trial, the State ineffectively attempted to prove that children raised in a same- sex relationship would likewise be harmed.[fn7] The State's expert testified that children are most likely to reach their optimal development being raised by a mother and father, but also conceded that single parents, gay fathers, lesbian mothers and same-sex couples have the potential to, and often do, raise children who are happy, healthy, and well-adjusted. The State's witness also admitted that a parent's sexual orientation does not disqualify them from being good, fit, loving or successful parents. (RA VIl at 200). [fn6] Justice Traynor of the California Supreme Court rejected the State's argument, stating "There id no law forbidding marriage among the 'dregs of society,' assuming that this expression is capable of definition. If there were such a law, it could not be applied without a proper determination of the persons that fall within that category, a determination that could hardly be made on the basis of race alone." Perez, 32 Cal.2d at 726, i98 P.2d at 25. [fn7] While protecting children from the ills of society is a legitimate end, it cannot be accomplished by laws or ordinances that deny rights protected by the Hawaii and United States Constitution. See, Palmore v. Sidoti, 466 u.S. 429, 433, 104 S. Ct. 1579, 1882-3 (1984); Cantweil v. State, 310 U.S. 296, 304-5, 60 S. Ct. 900, 903 (1940); Perez, 32 Cal. 2d at 725,198 P.2d at 25. 9 In substance, the State's policy is based on crude stereotypes, not any meaningful effort to ensure that children are raised in supportive and loving homes. Accordingly, it was entirely proper for Judge Chang to conclude that the State "failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage." (RA Vol. VII at 234). IV. CONCLUSION Hawaii, in particular, has a rich tradition of racial acceptance. The diversity of our ethnic population enables Pacific Islanders, Indians, Caucasians, Asians, Hispanics, African Americans and others harmoniously to co-exist. It is apparent that interracial marriage -- once stigmatized and irrationally condemned -- has been replaced by a united social fabric of racial and ethnic accord. Notwithstanding the fact that our great state has dispelled the myth of interracial marriages, the State continues to hurl similar arguments that same-sex marriages would have deplorable effects on our community and its children. This Court should not turn back the clock on social justice by denying the right to marriage to persons based on sex, in the same way marriages were at one time denied to persons based on race. DATED: Honolulu, Hawaii, June 2, 1997 ALSTON HUNT FLOYD & ING /s/ PAUL ALSTON WILLIAM M. KANEKO Attorneys for JAPANESE AMERICAN CITIZENS LEAGUE OF HONOLULU 10 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "To imply that lesbians and gay men are somehow incompatible with, or incapable or unworthy of, marriage or morality is not morality; it is discrimination." --Dan Foley, Evan Wolfson and Kirk Cashmere Answering Brief, Baehr v. Miike ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~