Date: Wed, 04 Jun 1997 11:29:39 -1000 From: lambda@aloha.net (Martin Rice) Subject: Baehr v. Miike, AmCuBr 13: MADISON SOCIETY OF HAWAI`I Aloha awakea kakou. Following is the final installment of the briefs that I currently have in my possession. I expect to receive about 12 more before the weekend, but will not be able to post them until Saturday, at the earliest. I'm glad that the final brief for today argues our side. No. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAI'I NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PRECIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS OF ) FACT AND CONCLUSIONS OF LAW Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT vs. ) ) LAWRENCE H. MIIKE, in his ) official capacity as Director ) THE HONORABLE KEVIN S.C. CHANG of the Department of Health, ) State of Hawai'i, ) ) Defendant-Appellant. ) __________________________________) AMICUS CURIAE BRIEF OF THE MADISON SOCIETY OF HAWAI'I IN SUPPORT OF PLAINTIFFS-APPELLEES CERTIFICATE OF SERVICE KAREN A. ESSENE 4512 2133 Alaloa Place Honolulu, Hawai'i 96821 Telephone (808) 732-2192 Attorney for Amicus Curiae THE MADISON SOCIETY OF HAWAI'I TABLE OF CONTENTS page TABLE OF AUTHORITIES...........................................iii I. QUESTIONS PRESENTED.........................................1 II. ARGUMENT....................................................1 A. Under the "law of the case," determinations of law made on the first appeal cannot be reopened on the second appeal..........................................1 B. Although the first appeal resulted in a landmark decision, this is not otherwise an exceptional case that would justify deviating from the law of the case...............................................2 1. Appellant's argument that the marriage law discriminates on the basis of sexual orientation, not sex, does not justify a departure from the law of the case, particularly when appellant declined to offer any evidence about the matter at trial............2 2. Appellant's argument that the framers of the equal protection provision in 1950 never envisioned same-sex marriages does not justify a departure from the law of the case, especially given changes in the constitution, laws, and society since then......................3 C. Appellant utterly fails to articulate, much less prove, how or why the nonrecognition of same-sex marriages furthers any compelling state interest.......3 1. Appellant's argument that the State has the "absolute right" to set marriage requirements and thus to require conformity with the "moral values" of the community is contrary to law............................................3 2. Appellant's argument that the State's refusal to recognize same-sex marriages cannot be distinguished from its prohibition against polygamous marriages is incorrect.................5 3. Despite appellant's claims about traditional marriage being "essential" to propagation, there is no evidence that recognition of same-sex marriages in Hawai'i will have any effect on propagation.............................6 ii 4. Appellant says that favoring "intact" families is an "undeniably" compelling objec- tive, but it is contrary to the undisputed findings of fact..................................7 5. Appellant's assertion of a compelling interest in comity must be stricken for failure to properly attack the underlying finding of fact...................................8 III. CONCLUSION...................................................9 TABLE OP AUTRORITIES Cases page Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993) ("Baehr I"), clarified bv 74 Haw. 645, 852 P.2d 74 (1993) ("Baehr II").......................1-3, 5, 6 Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996)..............................6 Cain v. Cain, 59 Haw. 32, 575 P.2d 468 (1978)................................2 City and County of Honolulu v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979)................................3 Loving v. Virginia, 388 U.S. 1 (1967)...............................................4 Maynard v. Hill, 125 U.S. 190 (1888).............................................5 O'Brien v. Walker, 35 Haw. 104 (1939), aff'd 115 F.2d 956 (9th Cir. 1940)..............................8 Orso v. City and County of Honolulu, 55 Haw. 37, 514 P.2d 859 (1976).................................4 Parke v. Parke, 25 Haw. 397 (1920)..............................................5 Pennoyer v. Neff, 95. U.S. (5 Otto) 714 (1877) ...................................4 Skinner V. Oklahotna ex rel. Williamson, 616 U.S. 535 (1942).............................................6 iii Wisdom v. Pflueger. 4 Haw. App. 455, 667 P.2d 844 (1983).......................7, 9 Zablocki V. Redhail, 434 U.S. 374 (1978)............................................4 Constitutional provisions Haw. Const. art. I, § 3 (1972)...................................3 Haw. Const. art. I, § 5.......................................3, 6 U.S. Const. art. IV, § I (Full Faith and Credit Clause).................................8 Statutes Act 9, 1972 Hawai'i Session Laws.................................3 Haw. Rev. Stat. § 1-1............................................8 Other authorities Madison, James; Alexander Hamilton & John Jay, The Federalist Papers (Isaac Kramnick ed. 1987)...............1 iv AMICUS CURIAE BRIEF OF THE MADISON SOCIETY OF HAWAI`I[fn1] IN SUPPORT OF PLANTIFFS-APPELLEES I. QUESTIONS PRESENTED A. Has appellant shown exceptional circumstances to justify a departure from the "1aw of the case"? B. Has appellant failed to meet his burden of proof when he argues in support of traditional marriage but has failed to show how or why the nonrecognition of same-sex marriage furthers any compelling state interests? II. ARGUMERT A. Under the "law of the case," determinations of law made on the first appeal cannot be reopened on the second appeal. The landmark decision in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993) (Baehr I), clarified by 74 Haw. 645, 852 p.2d 74 (1993) (Baehr II), was initially a plurality opinion. Three weeks later, responding to a motion for reconsideration, a majority of the court restated the holding, clarified it slightly, and embraced "the reasons stated in the plurality opinion[.]" 74 Haw. at 646, 852 P.2d at 74. As a result, a majority held that the State's refusal to recognize same-sex marriages is sex-based discrimination, which is presumptively unconstitutional unless, upon remand, the Director of Health could show, first, that it furthers compelling state interests and, second, that the state interests are narrowly drawn to avoid unnecessary infringements of constitutional rights. [fn1] The Madison Society of Hawai'i, a multidenominational group of clergy and laity, is dedicated to promoting the views of the fourth president of the United States, James Madison, who took the firm view that preserving religious liberty requires constant vigilance against laws respecting an establishment of religion. James Madison, Alexander Hamilton & John Jay, The Federalist Papers 122-28, 168, 318-22 (Isaac Kramnick ed. 1987) Members of the Madison Society of Hawai'i promote equal treatment of all couples who wish to marry, whether same or opposite gender. Clergy members of the Madison Society are willing to marry same-gender couples and, where permitted by their denominations, they actually do so (although such marriages are not yet recognized by the State of Hawaii). Now on the second appeal, appellant Miike states that Baehr II was "an unsigned order" and that the plurality opinion in Baehr I lacks precedential value. OB at 5 & n.6 & 9-10. Miike is mistaken. Baehr II was signed by Justice Levinson, Chief Justice Moon, and then-newly appointed Justice Nakayatna, the three of whom constituted a majority. Miike contends that even if Baehr II is "treated as a majority holding," this court "is free to overrule it." OB at 9-11. Again, Miike is mistaken. Determinations of questions of law made by this court in a prior appeal in the same action are "the law of the case," and those determinations are not open to dispute at a later stage of litigation, absent exceptional circumstances. Cain v. Cain, 59 Haw. 32, 36, 575 P.2d 468, 472-73 (1978). B. Although the first appeal resulted in a landmark deci- sion, this is not otherwise an exceptional case that would justify deviating from the law of the case. 1. Appellant's argument that the marriage law discrim- inates on the basis of sexual orientation, not sex, does not justify a departure from the law of the case, particularly when appellant declined to offer any evidence about the matter at trial. Under the law of the case, it is now settled that Hawai'i's marriage law discriminates on the basis of sex (the only question being whether it is permissible discrimination). Baehr I, 74 Haw. at 580, 852 P.2d at 67. Nonetheless, in an attempt to prove that the marriage law discriminates on the basis of sexual orientation, not sex, OB at 12-20, appellant Miike claims to reveal "the true nature" of the law with the following "illustration": If a male plaintiff in this case somehow changed his gender, but retnained homosexual (i.e., [became] a lesbian), she would still be disadvantaged by the law's prohibition on same-sex marriage.... OB at is; similarly at 18. Actually, it seems far more likely that this person's sexual and romantic attraction to men would remain constant, the person thereby no longer being disadvantaged by the law, rather than (as speculated by Miike) suddenly becoming a lesbian for unknown reasons. In any event, Miike concedes that he chose not to present -2- evidence on sexual orientation, OB at 5 n.5, and thus he cannot now create pseudo-facts, outside the record, about sexual orientation. See City and County of Honolulu v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979) (matters outside the record cannot be considered on appeal). Having no evidence to support the argument, there is clearly no justification for deviating from the law of the case. 2. Appellant's argument that the framers of the equal protection provision in 1950 never envisioned same- sex marriages does not justify a departure from the law of the case, especially given changes in the constitution, laws, and society since then. It is a settled matter, under the law of the case, that "sex is a `suspect category' for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution[.]" Baehr I, 74 Haw. at 580, 852 P.2d at 67. Unhappy with that determination, appellant Miike looks to 1950 to reconstrue this constitutional provision, see OB at 22-25, without even acknowledging that it was amended in 1978 and readopted by the voters in the same year. Haw. Const. art. I, § 5 (ren. and am. Const. Con. 1978; election Nov. 7, 1978). Nor does Miike acknowledge other changes in the constitution, laws, and society occurring since 1950, such as Act 9, 1972 Hawai'i Session Laws (adopting the Hawai'i penal Code and decriminalizing homosexual conduct and other non-marital sexual conduct) and the Equal Rights Amendment (Haw. Const. art. I, § 3 (1972)). Miike's argument, which relies on "original intent" and rigidly rejects all that has happened in the last fifty years, does not justify a departure from the law of the case, particularly when this court has already taken the complete history into account. C. Appellant utterly fails to articulate, much less prove, how or why the nonrecognition of same-sex marriages furthers any ccmpelling state interest. 1. Appellant's argument that the State has the "absolute right" to set marriage requirements and thus to require conformity with the "moral values" of the commnunity is contrary to law. To support his claim that states may encode "moral values" into their marriage laws, appellant Miike contends as follows: -3 - (The State) has the "absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created . . . ." It Pennover v. Neff, 95 U.S. (5 Otto) 714, 734-35 (1877). This principle is by no means a moribund artifact of Nineteenth Century morality. OB at 27 (emphasis added) As a matter of law, the principle Muke cites has long since been moribund: in a constitutional democracy, a state cannot trample the constitutional rights of its citizens. E.g., Loving v. Virginia, 388 U.S. 1 (1967) (states cannot forbid interracial marriages); Zablocki V. Redhail, 434 U.S. 374 (1978) (states cannot deny marriage merely because of outstanding child-support obligations). Miike claims there is a compelling state interest in "vindicating the moral values of the community," OB at 29 & sim. at 27, but he elected not to call any witnesses to testify at trial about the moral values of any of the various segments of today's community in Hawai'i. He thereby circumvented the fact-finding process, which normally includes cross-examination and the calling of rebuttal witnesses. Statements from two amici[fn2] on this point are no substitute for trial evidence. Orso v. City and County of Honolulu, 55 Haw. 371 514 P.2d 859 (1976) (evidence not in the record cannot be reviewed on appeal). Even if there were evidence on this point, Miike ignores the requirement that the compelling state interest be narrowly drawn to avoid unnecessary infringements of constitutional rights. Miike makes no showing of the necessity of vindicating moral values based, for example, on a passage of the Old Testament, rather than moral values that place a premium on equal rights and nondiscrimination. For these reasons, argument is unsound and the evidence is wholly lacking. [fn2] The Church of Jesus Christ of Latter-Day Saints (LDS) believes that "homosexual relationships are built upon conduct that is wrong, both morally and socially," and such relationships "should not be accorded the preferential status of marriage." LDS 4/14/97 Amicus Brf. at 9. Members of the Christian Legal Society (CLS) are "conscientiously opposed to sanctioning homosexual conduct and same-sex marriage" and "believe that homosexual conduct is sinful." CLS 4/2/97 Amicus Brf. at 1, 2. -4- Aside from the evidentiary failure of Miike's argument on this point, Miike is unable to muster any but the flimsiest support from case law.[fn3] His argument fails for that reason as well. 2. Appellant's argument that the State's refusal to recognize same-sex marriages cannot be distin- guished from its prohibition against polygamous marriages is incorrect. Appellant Miike contends that the State's refusal to recognize same-sex marriage is supported by the same compelling interest as in prohibiting polygamy and that the two are legally indistinguishable. OB at 28. An amicus makes the same point.[fn4] iike is completely wrong. Under Baehr's right-to-privacy analysis (similar to due process under the United States Constitution), there is no `"fundamental" constitutional right for polygamists to marry, any more than for same-sex couples, because a union between a man and a woman is the sole form of marriage subsumed within the right to privacy. 74 Haw. at 556-57, 852 P.2d at 56. Under the equal-protection analysis, on the other hand, same- [fn3] Miike cites the following cases: (1) polygamy cases (OB at 26-27), which are analytically different, as set out in the next subsection, infra; (2) a statement (OB at 26) in a concurring opinion in Zablocki, supra, which upheld the right to marry despite moral values about divorce and child-support obligations (counter to Miike's argument); (3) Maynard v. Hill, 125 U.S. 190 (1888), which does not say moral values supersede constitutional rights (see OB at 26); (4) the obviously moribund "principle" (OB at 27) quoted from Pennover v. Qeff, supra, which is noted in the main text here (Pennoyer being a landmark case in jurisdictional doctrine, not marriage rights); (5) a District of Columbia Circuit case discussing "preservation of the environment," etc. (see OB at 27-28); and (6) Parke v. Parke, 25 Haw. 397 (1920), which held that common-law marriages would cease to be recognized in the Territory of Hawai`i (OB at 28), but which did not limit the right to marry. [fn4] Hawaii's Future Today (HFT) contends that if this case is decided in favor of appellees (the same-sex couples), then it will: be "very difficult to conceive of a compelling governmental interest [as a defense] against a challenge by polygamists." HFT 3/17/97 Amicus Brf. at 9 n.h. -5 - sex couples are protected from discrimination by the state constitution's equal protection clause, which forbids discrimination only on the basis of race1 sex, religion, and ancestry, Haw. Const. art. I, § 5, but not on the basis of having multiple spouses.[fn5] Consequently, the equal protection clause provides no protection for polygamists. Unless section 5 is amended to encompass "multiple spouses," Miike's argument is warrantless. The polygamy argument, therefore, does nothing to prove a compelling state interest in continuing the nonrecognition of same-sex marriage, much less to show how that alleged interest is narrowly drawn to avoid unnecessary infringements of constitutional rights. 3. Despite appellant's claims about traditional marriage being "essential" to propagation, there is no evidence that recognition of same-sex marriages in Hawai'i will have any effect on propagation. Miike misquotes Baehr I by saying the case acknowledges the traditional view that "marriage is 'inextricably linked to procreation,'" OB at 29 (misquoting Baehr I, 74 Haw. at 552-53, 852 P.2d at 55), and then asserts that the State's interest in procreation is "beyond compelling"; it is "vital." OB at 30. In fact, Justice Levinson said that the fundamental "right to marryi" is inextricably linked to the "right to procreation," for the two rights derive from the Fourteenth Amendment's Due Process Clause.[fn6] 74 Haw. at 552-53, 852 P.2d at 55 (emphasis added). As fundamental rights, the two may be linked, but that is not to say [fn5] A claim of denial of equal protection in marriage because of religion (e.g., a Muslim's polygamous marriage) would be unsuccessful unless the Department of Health denies licenses by religion (e.g., all Muslims, whatever type of marriage). A claim of denial of free exercise of religion (which is analytically a separate question) would also be unsuccessful for the reasons set out in Baehr v. Miike, 80 Haw. 341, 344-45, 910 P.2d 112 (1996). [fn6] ustice Levinson noted that, for example, the State of Oklahoma could no more deny the right to procreation (by sterilizing ithabitual criminals") than it could deny the right to marry. 74 Haw. at 552-53, 852 P.2d at 55-56 (citing Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). -6- that marriage itself is essential to procreation. For this reason, the logic of Miike's argument fails. Moreover, even if the State has a compelling interest in procreation, the record is lacking in any evidence to establish a nexus between the State's refusal to recognize same-sex marriage and the State's asserted interest in procreation. There is no reason to think that traditional couples will suddenly cease to have children once same-sex marriages are recognized, and, more to the point, there is not a shred of evidence in the record to that effect.[fn7] 41 Appellant says that favoring "intact" families is an "undeniably" compelling objective, but it is contrary to the undisputed findings of fact Relying on a portion of two findings of fact, appellant Miike contends that having children live with their father and mother provides "a benefit" to children; that "this [is] the ideal family structure"; and that "Hawaii's policy of sanctioning only traditional marriage does advance the undeniably compelling objective of favoring [such] familial relationships[.]" OB at 32-33. The argument is untenable. The only points of error he raises are certain conclusions of law. OB at 6-7. All of the findings of fact are, therefore, binding on this appeal. Wisdom v. Pflueger, 4 Haw. App. 455, 458, 667 P.2d 844 (1983) (a finding not properly attacked is binding). Relevant findings of fact on this point are that although children derive a benefit from being raised by their father and mother in an intact and relatively stress-free home, the nurturing relationship or quality of parenting is the "single most important factor" for the development and well-being of the child, and the evidence "failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children." 7 RA at 225-26, Muke App. I at 35-36 ¶¶ 122, 125, 134. [fn7] Miike blames the trial court for making "no effort to address the State's traditional interest in encouraging procreation through marriage," and for "limit[ing) its analysis to the evidence.. ." OB at 32. Herein lies Miike's difficulty. The evidence does not support his claims on this appeal. -7- The upshot of Miike's argument is that a family structure is "ideal" if it is "intact," regardless of whether it is a stress-filled home with poor parenting skills and lacking in a nurturing relationship between parent and child. Given the adverse findings of fact (and as a matter of common sense), Muke's argument fails. There is an independent reason that Muke's argument fails on this point. As a matter of Hawai'i law, adopted children are completely equal to biological children, for it has been held that by "ancient Hawaiian customs and usage," the adoptive relationship is "very sacred [and exists] without any trace of discrimination or prejudice toward the adopted children in favor of blood children." O'Brien v. Walker, 35 Haw. 104, 132, 116 (1939), aff'd, 115 F.2d 956 (9th Cir. 1940); accord HRS § 1-1. The supposedly compelling interest in promoting biological children and denigrating adoptive children is contrary to law and custom in Hawai'i. 5. Appellant's assertion of a compelling initerest in comity must be stricken for failure to properly attack the underlying finding of fact. Appellant Miike argues that "Hawaii plainly has a compelling interest in ensuring that its marriages are fully recognized throughout the United States." OB at 33. Among his assignments of error is Conclusion of Law 12: 12. [E]xcept for asking the court to take judicial notice of the Defense of Marriage Act P.L. 1-4-199 ("DOMA"), Defendant introduced little or no evidence with regard to this significant issue of comity and same-sex marriage, conflict-of-law; and/or the effects, if any, of the Full Faith and Credit Clause of the U.S. Constitution. [7 RA 231] [App. 1 at 41] OB at 7. Not assigned as error, however, is the following finding of fact: 118. Defendant [Miike) presented insufficient evidence and failed to establish ... any adverse impacts ... resulting from the refusal of other jurisdictions to recognize Hawaii same-sex marriages or from application of the federal constitutional provision which requires other jurisdictions to give full faith and credit recognition to Hawaii same-sex marriages. See Article -8- IV, Section 1 of the U.S. Constitution (The Full Faith and Credit Clause) 7 RA at 224, Muke App. 1 at 34. An appellant who "attack[s] only the conclusions and not the findings upon which the conclusions are based, [makes] a fatal error" because "[i]f a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid." Wisdom v. Pflueger, 4 Haw. App. 455, 458, 667 P.2d 844 (1983). Conclusion of Law 12 follows directly from Finding of Fact 118 and has no incorrect statements of law within it. Because Miike elected not to assign error to any findings of fact, he cannot attack Conclusion of Law 12 and his argument on this point must be stricken. III. CONCLUSION The trial court having meticulously set out its findings of fact (none being disputed by appellant), and carefully drawn its conclusions of law in accordance with the findings of fact and the law of the case, this court must affirm the decision below. DATED: Honolulu, Hawai'i, May 12, 1997. /s/ KAREN A. ESSENE Attorney for Amicus Curiae THE MADISON SOCIEIY OF HAWAI'I -9- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~