Date: Sun, 29 Jun 1997 21:30:59 -1000 From: lambda@aloha.net (Martin Rice) Subject: BM 027: Baehr v. Miike Appeal, AmCuBr 03: National Association for Research and Therapy of Homosexuality, Inc. Aloha ahi ahi kakou. It seems like an eternity has passed since the previous Amicus Briefs were posted. Have obtained the final three briefs (to my knowledge) and the reply brief and will post only one brief tonight. Will do my best to post the others within the next 24 hours. NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINA BAEHR, GENORA DANCEL, ) Civil No. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS ) OF FACT AND CONCLUSIONS Plaintiffs-Appellees, ) OF LAW ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his ) HONORABLE KEVIN S. C. CHANG official capacity as Director ) of the Department of Health, ) State of Hawaii, ) ) Defendant-Appellant.) _______________________________) NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, INC.'S BRIEF OF AMICUS CURIAE CERTIFICATE OF SERVICE BERTON T. KATO #1316 1014 Kapahulu Avenue Second Floor Honolulu, Hawaii 96816 Telephone: (808) 735-6000 Attorney for NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, INC. TABLE OF CONTENTS Page TABLE OF AUTHORITIES.................................................i I. STATEMENT OF THE QUESTION PRESENTED.............................1 II. ARGUMENT.........................................................1 A. The State Has a Compelling Interest in Establishing Traditional Marriage as the Ideal Family Structure.............2 B. Traditional Marriage Promotes the Well-Being of Children.......................................................2 1. The Mother-Father-Child Relationship is Necessary For the Development of Healthy Children....................2 2. The Psychological Well-Being of Children Demands A Stable Parental Relationship.............................5 III. CONCLUSION......................................................7 TABLE OF AUTRORITIES Stat;:e Statute H. R. S. s. 572-1....................................................2 Foreign Statutes Danish Registered Partnership Act, Act No. 372, June 7, 1989.........4 Ice1andic Law on Approved Cohabitation, June 12, 1996................4 Norwegian Act No. 40, April 30, 1993.................................4 Swedish Law Regarding Registered Partnership, June 23, 1994..........4 Cases Griswold v. Connecticut, 381 U.S. 479 (1965).........................7 i Secondary Materials Richard N. Atkins, Discovering Daddy: The Mother's Role, in Father and Child: Developmental and Clinical Perspectives (Stanley H. Cath et al. eds., 1982).................................3 David Blankenhorn, Fatherless America (1995)........................4 Andree Brooks, Experts Find Extramarital Affairs Have A Profound Impact on Children, N.Y. Times, March 9, 1989, at B16...............5 Don Feder, Gay Parenting at the Barricades, The Boston Herald, Sept. 27, 1993, at 21.......................................8 Linda Gunsberg, Selected Critical Review of Psychological Investigations of the Early Father-Infant Relationship, in Father and Child: Developmental and Clinical Perspectives (Stanley H. Cath et al. eds., 1982)...............................2,3 Abraham Lincoln, speeches and Writings 1859-1865 (1989).............7 David P. McWhirter and Andrew M. Mattison, The Male Couple: How Relationships Develop (1984)........................................6 John Munder Ross, Preface to Father and Child: Developmental and Clinical Perspectives (Stanley H. Cath et al. eds., 1982).......3 Marcel T. Saghir and Eli Robins, Male and Female Homosexuality: Natural History, Comprehensive Psychiatry, Vol. 12, No. 6 (November 1971).....................................................6 Andrew Sullivan, Virtually Normal: An Argument About Homosexuality (1995)................................................6 ii No. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) Civil No. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) (Injunctions) PREGIL, PAT LAGON, JOSEPH ) MELILLO, ) APPEAL FROM THE FINDINGS ) OF FACT AND CONCLUSIONS Plaintiffs-Appellees, ) OF LAW ) vs. ) FIRST CIRCUIT COURT ) LAWRENCE H. MIIKE, in his ) HONORABLE KEVIN S. C. CHANG official capacity as Director ) of the Department of Health, ) State of Hawaii, ) ) Defendant-Appellant. ) _______________________________) NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY'S BRIEF OF AMICUS CURIAE I. STATEMENT OF THE QUESTION PRESENTED The issue addressed by amicus in this brief is whether there is a "compelling state interest" in establishing traditional male-female marriage as the ideal foundation for the proper growth and psychological development of children. II. ARGUMENT The National Association for Research and Therapy of Homosexuality, Inc., (hereinafter "NARTH") is an association of over 650 psychiatrists, psychologists, certified social workers and therapists with years of experience in the therapy of homosexual patient/clients. This experience provides NARTH with a unique perspective on the comparative effects of male-female 1 and same-sex relationships on children. NARTH believes that traditional male-female parenting provides children with a superior psychological foundation, so superior as to justify society's establishing traditional marriage as the ideal family structure. A. The State Has a Compelling Interest in Establishing Traditional Marriage as the Ideal Family Structure. In defining marriage to encompass the union "only between a man and a woman," H.R.S. s. 572-1, Hawaiian law recognizes traditional male-female marriage as the ideal family structure. Broadening this definition does not merely create new opportunities for different types of relationships, but neces- sarily also nullifies the ideal status granted to traditional male-female marriage. Psychiatric and social science data, not considered by the trial court, demonstrate a compelling state interest in maintaining the ideal status of traditional marriage. B. Traditional Marriage Promotes the well-Being of Children. 1. The Mother-Father-Child Relationship is Necessary For the Development of Healthy Children. Numerous studies show that men and women parent differently and that these differences combine to promote optimal growth in children. According to Linda Gunsberg, Selected Critical Review of Psychological Investigations of the Early Father-Infant Relationship 65, 82, "[T]he father and the mother offer different and complementary cognitive and emotional 2 organizations of the world to the infant."[fn1] Psychological research reveals that identification with the same-sex parent and acceptance by the opposite-sex parent are crucial to the development of a child's identity. Clinical studies observe that the triad of mother-father-child is necessary and desirable for the growth of a healthy child. "'[E]arly triangulation' serves especially to consolidate both the self-representation and the parental representation." Richard N. Atkins, Discovering Daddy: The Mother's Role 139, 144.[fn2] "Our sensitivities and instruments have become honed, attuned to the role a man comes to play during the early years in modulating the intensity of the mother-child tie, inviting that child to become a separate individual in an ever-widening world.... Researchers have become more aware of the subtle exchanges of identity taking place and of the mother's and father's part in facilitating development... N John Munder Ross, Preface xvii, xviii.[fn3] Every child living with a same-sex couple is, by definition, deprived of either a same-sex or an opposite sex parent, and thus is deprived of the psychological benefits of having both of these [fn1] FATHER AND CHILD: DEVELOPMENTAL AND CLINICAL PERSPECTIVES (Stanley H. Cath et al. eds., 1982). FATHER AND CHILD is an award-winning collection of articles by the foremost experts in child psychology, psychiatry, and psychoanalysis. All of the articles in this book share directly or implicitly the conviction that the triad of father-mother-child is necessary for the healthy emotional development of the child. [fn2] Id. [fn3] Id. 3 parents. It is not surprising, therefore, that the trial court found that "an intact family environment consisting of a child and his or her mother and father presents a less burdened environment for the development of a happy, healthy and well- adjusted child," recognizing the "benefit to children which comes from being raised by their mother and father in an intact and relatively stress free home." (Finding para. 122.) Even plaintiffs' expert Dr. Charlotte Patterson acknowledged greater stress in children of lesbian mothers. (Finding para. 91.) A lesbian household presumes that fathers are not necessary, but fatherless families are associated with devastating social and personal problems, including youth violence, unsafe neighbor- hoods, domestic violence against women and child sexual abuse.[fn4] Perhaps for these reasons, the Scandinavian countries that have accepted marriage-like arrangements for same-sex couples have explicitly denied these couples access to adoption and/or artificial insemination. The Danish Registered Partnership Act, Act No. 372 of June 7, 1989; Act No. 40 of April 30, 1993 (Norway); Law Regarding Registered Partnership, June 23, 1994 (Sweden); Law on Approved Cohabitation, June 12, 1996 (Iceland). Of course, children of single-parent households suffer equally from the lack of either a same-sex or opposite-sex parent. However, there is a substantial difference (ignored by the plaintiffs and the court below) between a parent courageously [fn4] DAVID BLANKENHORN, FATHERLESS AMERICA (1995) at 25-48 and empirical sources cited at 240-51. 4 trying to create a stable environment for a child who has been the victim of the death of a parent, or of parental separation or divorce, on the one hand, and the biological parent and partner acquiring a child who is intentionally and permanently fatherless or motherless, on the other. The single-parent case, while often unavoidable, is universally acknowledged to be sub-optimal for the child. By contrast, were same-sex marriage established, fatherlessness or motherlessness (a sub-optimal arrangement likely to be damaging to the child at all levels of development) would be idealized. 2. The Psychological Well-Being of Children Demands A Stable, Faithful Parental Relationship. The importance of parental fidelity to the psychological well-being of children cannot be overestimated. Therapists and sociologists are finding that children suffer from their parents' extra-marital affairs, even when these affairs are successfully hidden from the children. While an affair is taking place children sense that the parent is expending emotional energy outside the family, the specialists say. As a result, the children may become anxious or frightened, or they may sense rejection and feel they have done something wrong. Moreover, experts found, such children are prone to have affairs themselves when they marry. The assumption has been that unless a marriage was in jeopardy, a discreet affair had little if any impact on a child. But increasing clinical evidence and a recent study suggest that subtle changes in an adulterous parent's behavior can unsettle children regardless of whether the truth leaks out and even if the children are too young to understand. Andree Brooks, Experts Find Extramarital Affairs Have a Profound Impact on Children, N.Y. TIMES, March 9, 1989, at B16. 5 While petitioners in this case argue that same-sex marriage would benefit children, the experience of same-sex couples does not inspire confidence. "Homosexual men are rarely faithful in their relationships..." Marcel T. Saghir and Eli Robins, Male and Female Homosexuality: Natural History, COMPREHENSIVE PSYCHIATRY, Vol. 12, No. 6 (November 1971). In a comprehensive study of 156 male couples: [o]nly seven couples have a totally exclusive sexual relationship, and these men all have been together for less than five years. Stated another way, all couples with a relationship lasting more than five years have incorporated some provision for outside sexual activity in their relationships. DAVID P. MCWHIRTER and ANDREW M. MATTISON, THE MALE COUPLE: HOW RELATIONSHIPS DEVELOP, 252-53 (1984). Advocates of same-sex marriage such as Andrew Sullivan do not see fidelity as an achievable or necessary condition of long- term homosexual relationships. Sullivan notes that "there is more likely to be greater understanding of the need for extra- marital outlets between two men than between a man and a woman." ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY 202 (1995). While homosexual couples may be able to incorporate infidelity into their relationships, the plaintiffs have presented no evidence that the children of such couples would be as flexible. Indeed, as Andrew Sullivan further notes, "the lack of children gives gay couples greater freedom. Their failures entail fewer consequences for others." Id. The establishment of same-sex marriage would create a class of children for whom these 6 failures would have direct consequences. NARTH unequivocally condemns all violence against and mistreatment of homosexual individuals and supports respect for homosexuals as persons. However it must be noted that if a move to create an entire class of permanently fatherless or motherless children were not attached to the issue of homosexual marriage, it is doubtful there would be a controversy, so overwhelming is the evidence of detrimental effect. III. CONCLU8ION Marriage predates government. Before there was government, there were couples of one man and one woman who made a lifelong commitment to live together and raise children.[fn5] The institution of marriage in its current form has been protected in Western law for centuries. It is a part of our social and legal inheritance we should be most hesitant to alter. In the words of Abraham Lincoln: (I)f we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand....[fn6] [fn5] "We deal with ... (something) older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any ..." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). 6 Abraham Lincoln, Address at Cooper Institute, ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1859-1865, 119 (1989). 7 Petitioners argue that their studies found no harm to children living in same-sex marriages. However, not only is their evidence far from being "clear" and "conclusive", their conclusion is not the same as finding that there is no harm and that no harm will be found in the future. As NARTH's Executive Director once observed, "[o]ne of the beautiful things about a democracy is that social scientists can ruin a generation, and then come back 20 years later with our objective measures to validate what common sense should have told us."[fn7] Indeed, the evidence presented above regarding the severe psychological strains on children of fatherless or motherless families or of unfaithful parents (coupled with the inherent fatherlessness or motherlessness of same-sex marriage and the well-documented infidelity of homosexual couples) is already both clear and conclusive. It is more than sufficient to justify the state's compelling interest in protecting the psychological development of its most vulnerable citizens--minor children. This is the basis upon which same-sex marriage must be denied and the ideal status granted throughout Western history to traditional male-female marriage must be preserved. [fb7] Don Feder, Gay parenting at the barricades, BOSTON HERALD, Sept. 27, 1993 at 21. 8 The undersigned counsel for NARTH wishes to note that the instant amicus curiae brief was prepared in collaboration with DWIGHT GERARD DUNCAN, Esquire, an attorney licensed to practice in the Commonwealth of Massachusetts and the District of Columbia. Mr. Duncan is the attorney for NARTH in the aforesaid jurisdictions. NARTH will be filing a motion for an order permitting the appearance of Mr. Duncan as co-counsel pro hac vice so that he may formally appear in this action relative to all matters pertaining to the filing of this brief. DATED: Honolulu, Hawaii, MAR 24, 1997 BERTON T. KATO Attorney for NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, INC. 9 ~~pau~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~