---[Important Notes]-------------------------------------------------------- * This file has been scanned from original documents and may still contain spelling errors, missing text, unintelligible words etc. Attempts have been made to check these files for accuracy. * This file has been typographically modified to keep pages in tact, but to improve readability by removing line breaks in text and adding indentation to paragraphs and sections where relevant. * This file may have had non-ASCII symbols for section and paragraph have been replaced in this version with [SEC] and [PAR]. * This file may still contain spelling mistakes due to use of OCR software. * Footnotes appear between broken dashed lines, and appear as thus [fn#]. ---------------------------------------------------------------------------- ---[Start page i]--- NO. 20371 IN THE SUPREME COURT OF THE STATE OF HAWAII NINIA BAEHR, GENORA DANCEL, ) CIVIL NO. 91-1394-05 TAMMY RODRIGUES, ANTOINETTE ) PREGIL, PAT LAGON, JOSEPH ) APPEAL FROM THE FINAL MELILLO, ) JUDGMENT filed on ) December 11, 1996 Plaintiffs-Appellees, ) ) FIRST CIRCUIT COURT v. ) ) HONORABLE PATRICK YIM LAWRENCE MIIKE, in his official ) HONORABLE ROBERT KLEIN capacity as Director of the Department) HONORABLE HERBERT SHIMABUKURO of Health, State of Hawaii, ) HONORABLE KEVIN CHANG ) Judges Defendant-Appellant. ) __________________________________________) DEFENDANT-APPELLANT'S OPENING BRIEF APPENDICES 1-3 CERTIFICATE OF SERVICE MARGERY S. BRONSTER, 4750 CHARLES J. COOPER Attorney General of Hawaii (Admitted pro hac vice) DOROTHY SELLERS, 4069 MICHAEL A. CARVIN Deputy, Attorney General MICHAEL W. KIRK Department of the Attorney Cooper & Carvin, PLLC General, State of Hawaii 2000 K Street, N.W. 425 Queen Street Suite 401 Honolulu, HI 96813 Washington, D.C. 20006 (818) 586-1387 (202) 822-8950 April 29, 1997 Counsel for Defendant-Appellant SUBJECT INDEX TABLE OF AUTHORITIES...............................................iii INTRODUCTION.........................................................1 STATEMENT OF THE CASE................................................3 STATEMENT OF POINTS ON APPEAL........................................6 STANDARD OF REVIEW...................................................8 STATEMENT OF QUESTIONS PRESENTED.....................................8 ARGUMENT.............................................................8 I. HAWAII'S MARRIAGE LAW DOES NOT INVIDIOUSLY DISCRIMINATE ON THE BASIS OF GENDER.........................................9 A. The Earlier Appeal in this Case Did Not Finally Resolve the Question Whether the Marriage Statute Creates a Gender-Based Classification.................................9 B. The Marriage Law Classifies on the Basis of Sexual Orientation, Not Gender....................................12 C. Same-Sex Couples And Opposite-Sex Couples Are Not "Similarly Situated" With Respect to Marriage..............20 D. The Framers of Article I, Section 5 Did Not Intend To Invalidate the Statutory Restriction of Marriage to Opposite-Sex Couples.......................................22 II. HAWAII HAS COMPELLING STATE INTERESTS IN MAINTAINING THE TRADITIONAL INSTITUTION OF MARRIAGE...........................25 A. The State Has A Compelling Interest in Ensuring that Its Marriage Laws Reflect the Moral Values of the People of Hawaii...........................................26 - - - - - - - - - - - - - - - - - - ---[Start page ii]--- B. The State Has a Compelling Interest in Sanctioning the Traditional Marital Relationship Because It is Essential to the Propagation of the Human Race.............29 C. Hawaii Has a Compelling Interest in Ensuring that Its Marriages Are Recognized by the Federal Government and by Hawaii's Sister States..................................33 CONCLUSION..........................................................34 STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE - - - - - - - - - - - - - - - - - - ---[Start page iii]--- TABLE OF AUTHORITIES Page(s) CASES Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal.1980), aff'd, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982).........................................29, 31 Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Ry. Co., 335 N.W.2d 148 (Iowa 1983)..............................10 Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44(1993), reconsideration granted in part, denied in part, 74 Haw. 645, 852 P.2d 74 (1993)..............................passim Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972)...................................31 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990).....................................17 Board of Supervisors of Sacramento County v. Local Agency Formation Comm'n of Sacramento County, 838 P.2d 1198 (Cal. 1992), cert. denied, 507 U.S. 988 (1993)...................10 Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)....19 Brown v. Board of Educ., 347 U.S. 483 (1954).................18, 19 Chadwick v. Public Serv. Co. of New Mexico, 731 P.2d 968 (N.M. App. 1986), cert. denied, 731 P.2d 1334 (N.M. 1987)........10 Churchill v. Pearl River Basin Dev. Dist., 619 So. 2d 900 (Miss. 1993).....................................................10 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)....16 Commonwealth v. Bracero, 473 A.2d 176 (Pa. Super. Ct. 1984), aff'd, 528 A.2d 936 (Pa. 1987)...................................10 Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995).....................................11, 13, 30, 31 Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984)...............28 - - - - - - - - - - - - - - - - - - ---[Start page iv]--- Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973)...................20 Geduldig v. Ajello, 417 U.S. 484 (1974)..........................19 Gielow v. Strickland, 363 S.E.2d 278 (Ga. App. 1987).............10 Holdman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978)...............................................20, 21, 26, 31 Humphreys v. State, 512 P.2d 197 (Okla. Crim. App. 1973).........10 Idaho v. United States, 912 P.2d 614 (Idaho 1995)................10 In the Interest of Jane Doe, 84 Haw. 41, 928 P.2d 883 (1996)......8 In the Matter of D.I.S., 494 A.2d 1316 (D.C. App. 1985)..........10 Langford v. State, 578 S.W.2d 737 (Tex. Crim. App. 1979).........10 Loving v. Virginia, 388 U.S.1 (1967).....................17, 18, 19 Mahiai v. Suwa, 69 Haw. 349, 742 P.2d 359 (1987).................20 Marks v. United States, 430 U.S. 188 (1977)......................10 Maynard v. Hill, 125 U.S. 190 (1888).............................26 Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981)...........................................................20 Murphy v. Ramsey, 114 U.S. 15 (1885).............................26 Nachtwey v. Doi, 59 Haw. 430, 583 P.2d 955 (1978)..............7, 8 Nagle v. Board of Educ., 63 Haw. 389, 629 P.2d 109 (1981).........9 Nevada v. Hall, 440 U.S. 410 (1979)..............................34 Opinion of the Justices, 129 N.H. 290, 530 A.2d 21 (N.H. 1987)......................................................17 Owens-Illinois Glass Co. v. Battle, 154 S.E.2d 854 (W. Va. 1967)....................................................10 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)..................17 Parke v. Parke, 25 Haw. 397 (1920)...............................28 Pennoyer v. Neff 95 U.S. (5 Otto) 714 (1877).....................27 - - - - - - - - - - - - - - - - - - ---[Start page v]--- Penman v. First Nat'l Bank, 331 N.E.2d 65 (Ill. 1975)............10 Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256 (1979)...........................................................19 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997)..................17 Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert. denied, 474 U.S. 849 (1985)......................................27 Rainsford v. McArthur Dairies, 114 So. 2d 617 (Fla. 1959)........10 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878)...........26 Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984)....17 Romer v. Evans, 116 S. Ct. 1620 (1996)...........................14 Rostker v. Goldberg, 453 U.S. 57 (1981)..........................20 Sherman v. Meyer, 312 N.W.2d 373 (S.D. 1981).....................10 Shibuya v. Architects Hawaii, Ltd., 65 Haw. 26, 647 P.2d 276 (1982)...........................................................20 Sosna v. Iowa, 419 U.S. 393 (1975)...............................33 Singer v. Hara, 522 P.2d 1187 (Wash. App.), review denied, 84 Wash. 2d 1008 (1974)..................................11, 13, 31 State v. Mohi, 901 P.2d 991 Utah (1995)..........................10 State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)..............34 State v. Rivera, 62 Haw. 120, 612 P.2d 526 (1980)........25, 26, 32 State v. Walker, 166 S.E.2d 209 (S.C. 1969)......................10 State v. Walsh, 713 S.W.2d 508 (Mo. 1986)....................11, 28 State v. Young, 538 N.W.2d 456 (Mich. App. 1995).................10 State v. Zakel, 812 P.2d 512 (Wash. App. 1991), aff'd, 834 P.2d 1046 (Wash. 1992).......................................10 - - - - - - - - - - - - - - - - - - ---[Start page vi]--- Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994), cert. denied, 1175. Ct. 358 (1996).............................................17 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)..................17 United States v. Virginia, 116 S. Ct. 2264 (1996)............14, 22 Williamson v. Cox, 844 S.W.2d 95 (Mo. App. 1992).................10 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990)...............................17 Zablocki v. Redhail, 434 U.S. 374 (1978)..................2, 26, 29 CONSTITUTIONS AND STATUTES 1 U.S.C. [SEC] 7.................................................33 Defense of Marriage Act, 28 U.S.C. [SEC] 1738C...................33 Alaska Stat. [SEC] 25.05.013 (Michie 1996).......................33 Ariz. Rev. Stat. [SEC] 25-101 (West 1996)........................33 1997 Ark. Adv. Legis. Serv. 144 (Michie).........................33 Del. Code Ann. tit. 13, [SEC] 101 (1996).........................33 Ga. Code Ann. [SEC] 19-3-3.1 (1996)..............................33 Haw. Constitutional Convention of 1950 Journal Documents.....23, 24 Haw. Constitutional Convention of 1978, Proposal No.662..........17 Haw. Const. art. I, [SEC] 5......................................11 Haw. Const. art. I, [SEC] 6......................................23 Haw. Rev. Stat. [SEC] 368-1......................................14 Haw. Rev. Stat. [SEC] 378-2......................................14 Haw. Rev. Stat. [SEC] 572-1..................................passim - - - - - - - - - - - - - - - - - - ---[Start page vii]--- Haw. Rev. Stat. [SEC] 768-71.....................................25 1972 Haw. Sess. Laws, act 9, [SEC] 1300(3)(a)(xliii).............25 1994 Haw. Sess. Laws, ch. 217, [SEC] 1........................6, 31 1994 Haw. Sess. Laws, ch. 217, [SEC] 3...........................33 Idaho Code [SEC] 32-209 (1996)...................................33 750 Ill. Comp. Stat. Arm. 5/212 (West 1996)......................33 750 I11. Comp. Stat. Arm. 5/213.1 (West 1996)....................33 Kan. Stat. Ann. [SEC] 23-115 (1996)..............................33 1997 Me. 1.1, L.D. 1017-I.B.1 - P.L. 65..........................33 Mich. Comp. Laws [SEC] 25.15 (1996)..............................33 Mich. Comp. Laws [SEC] 25.16 (1996)..............................33 1997 Miss. Laws 301..............................................33 Mo. Ann. Stat. [SEC] 451.022 (West l996).........................33 N.C. Gen. Stat. [SEC] 51-1.2 (1996)..............................33 1997 N.D. Senate Bill 223O.......................................33 Okla. Stat. tit. 43, [SEC] 3.1 (1996)............................33 1996 Pa. Laws l24................................................33 S.C. Code Ann. [SEC] 20-1-15 (Law Co-op. 1996)...................33 Tenn. Code Ann. [SEC] 36-3-113 (1996)............................33 U.S. Const., art IV, [SEC] 1.....................................34 Utah Code Ann. [SEC] 30-1-2 (1996)...............................33 1997 Va. Acts ch. 354............................................33 1997 Va. Acts ch. 365............................................33 - - - - - - - - - - - - - - - - - - ---[Start page 1]--- INTRODUCTION The judgment entered by the Circuit Court in this case fundamentally transforms the oldest institution in organized society in a manner that no civilization since the dawn of recorded history has accepted. The court was able to reach this extraordinary result only by striking down a law that has existed for as long as Hawaii has had written laws -- throughout its history as a State, as a territory of the United States, as a Republic, and as a Kingdom. Similar laws exist in every other State in the Union, and in every other country in the world. Prior to the Circuit Court's opinion in this case, no court has concluded that such laws are inconsistent with the constitutional commitment to equal protection of the laws. The framers of Hawaii's Constitution laid down this fundamental principle at the outset of Article I: "All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people." It will not do to conclude, as did the court below, that Article; I, section 5 -- a provision that has been part of this State's Constitution since statehood -- forbids the State from continuing to impose a limitation upon marriage that has stood for time immemorial. As we shall demonstrate, the language of this provision, its history, prior interpretations of it by this Court in other cases, interpretations of similar constitutional provisions by other courts, and perhaps most forcefully, common sense, all foreclose such an utterly implausible conclusion. Defendant is not suggesting that the institution of marriage may not be altered -- even in the manner sought by the plaintiffs, but embraced by no other society, past or present, in the world. But if such a radical change is to be made, the People of Hawaii, not a court of law, must bring it about. By arrogating to itself the decision to alter fundamentally our culture's traditional, and universal, understanding of what constitutes a marriage, the Circuit Court has skewed the process by which our democratic society evolves. Already, both houses of the State Legislature have responded to the Circuit Court's decision in this case by proposing an amendment to the State Constitution.[fn1] And the reaction to this case has not been limited to Hawaii: both Congress - - - - - - - - - - - - - - - - - - [fn1] A conference committee of the Legislature has favorably reported out a constitutional amendment, and a final vote is scheduled to take place in both houses on April 29, 1997. - - - - - - - - - - - - - - - - - - ---[Start page 2]--- and some 20 of Hawaii's sister States have enacted laws expressing their refusal to recognize the marriages ordered by the Circuit Court. The Circuit Court's judgment necessarily rests on the proposition that the People of Hawaii, by adopting Article I, section 5 of their Constitution, have already decided to alter their understanding of marriage as the union of one man and one woman. To state this proposition is to refute it. It simply cannot be credibly maintained that anyone even considered the possibility that inclusion of the equal protection provision in the State's Constitution manifested the people's acceptance of this revolutionary change in society's oldest institution. Hawaii's consistent adherence to the traditional understanding in the nearly half century that has followed the drafting of the Constitution confirms that its People, like those of all other societies throughout the world, have not yet elected to alter their conception of marriage. The Circuit Court's ruling, following the plurality opinion of two justices in the earlier appeal in this case, rests on the notion that traditional marriage discriminates on the basis of gender. But, as demonstrated below, the statute at issue in this case does not classify on the basis of sex; it classifies on the basis of sexual orientation. In either event, the law does not discriminate invidiously because men and women are simply not fungible with respect to marriage; a same-sex couple is not similarly situated to an opposite-sex couple in this context. Moreover, the law before the Court in this case furthers interests that are among the State's most compelling. The law's central purpose is to advance the widely held moral values of the People with regard to how society is to be organized and the human race continued. In so doing, Hawaii is simply upholding what the United States Supreme Court has described as "'the most important relation in life,' and as 'the foundation of the family and of society, without which there would be neither civilization nor progress.'" Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 205, 211 (1888)). Courts have always recognized that "the State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people." Zablocki, 434 U.S. at 399 (Powell, J., concurring in the judgment). Plaintiffs in this case seek society's imprimatur upon their relationships. That is something that neither the Circuit Court nor this Court may confer. Only the People, acting - - - - - - - - - - - - - - - - - - ---[Start page 3]--- directly or through their elected representatives, have the authority to accord the same status to plaintiffs that organized civilization has always conferred upon traditional married couples. STATEMENT OF THE CASE Plaintiffs brought this action on May 1, 1991, claiming that Hawaii's marriage law violated their rights to privacy, due process of law, and equal protection of the laws insofar as it limited marriage to couples consisting of one man and one woman. 1 Record on Appeal ("RA") at 1-15. It is undisputed that plaintiffs' applications for marriage licenses had been rejected, in accordance with Hawaii Rev. Stat. ("HRS") [SEC] 572-1, because the applicant couples were of the same sex. See 7 RA at 193, Appendix ("App.") 1 at 3. On October 1, 1991, the Circuit Court granted the State's motion for judgment on the pleadings, concluding that plaintiffs' claims failed as a matter of law. 1 RA at 146-52. On appeal, this Court rejected plaintiffs' claim that HRS [SEC] 572-1 violated their right to privacy under Article I, section 6, holding that "we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions." Baehr v. Lewin, 74 Haw. 530, 556-57, 852 P.2d 44, 57 (1993) plurality opinion); id. at 588, 852 P.2d at 70 (Heen, 3., dissenting) ("I agree with the plurality's holding that Appellants do not have a fundamental right to a same-sex marriage protected by article I, [SEC] 6 of the Hawaii State Constitution.").[fn2]. Plaintiffs predicated their equal protection claim in this Court (as they had in the Circuit Court) entirely upon the argument that HRS [SEC] 572-1 classifies on the basis of sexual orientation, and that homosexuals constitute a suspect class. Opening Brief, Baehr v. Lewin, No.15689 ("P1. Baehr I Br.") at 9-15. The Court, however, did not address this argument but rather took up a question that had not been briefed: whether the State's marriage statute classifies on the basis of - - - - - - - - - - - - - - - - - - [fn2] This ruling also encompassed plaintiffs' due process claim, as it too was based on the premise that a fundamental right to same-sex marriage exists. See Baehr, 74 Haw. at 550, 852 P.2d at 54-55 plurality opinion) (noting "derivative[]" nature of due process claim). - - - - - - - - - - - - - - - - - - ---[Start page 4]--- gender. The Court produced three different answers to this inquiry, none of which captured a majority. A plurality of two concluded that HRS [SEC] 572-1 imposes a sex-based classification on its face. Baehr, 74 Haw. at 561-71, 852 P.2d at 59-63 (plurality opinion). The plurality further stated that in light of Hawaii's Equal Rights Amendment, Article I, section 3, gender classifications are "suspect," and therefore must be subjected to "strict scrutiny." Id. at 571-80, 852 P.2d at 63-67 (plurality opinion).[fn3] Accordingly, the plurality concluded that the Circuit Court's judgment dismissing plaintiffs' equal protection claim must be vacated and the case remanded for a determination whether the State "can show that (a) the statute's sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgements of the applicant couples' constitutional rights." Id. at 580, 852 P.2d at 67 plurality opinion). Two members of the Court dissented, concluding that "HRS [SEC] 572-1 does not establish a 'suspect' classification based on gender because all males and females are treated alike." Id. at 591, 852 P.2d at 71 (Heen, J., dissenting).[fn4] The dissenters would have upheld the Circuit Court's judgment dismissing of the case. Id. at 587, 852 P.2d at 70 (Heen, J., dissenting). Chief Judge Burns disagreed with both the plurality and the dissent, concluding that the existence of genuine issues of material fact precluded a ruling on the question whether the prohibition against same-sex marriage constitutes a gender classification. Id. at 584, 852 P.2d at 68 (Burns, C.J., concurring in the result). Specifically, Chief Judge Burns believed that the issue turns on whether sexual orientation is"'biologically fated.'" Id. at 587, 852 P.2d at 70 (Burns, - - - - - - - - - - - - - - - - - - [fn3] As Chief Judge Burns agreed with the plurality that any classification based on "'sex' is subject to strict scrutiny," Baehr, 74 Haw. at 584-85, 852 P.2d at 69 (Burns, C.J., concurring in the result), the Court had a majority on this point. [fn4] The appointment of retired Associate Justice Hayashi as a substitute justice expired before the decision was handed down, but Judge Heen noted that Justice Hayashi concurred with the dissenting opinion. Baehr, 74 Haw. at 587 n.1, 852 P.2d at 70 n.1 (Heen, J., dissenting). - - - - - - - - - - - - - - - - - - ---[Start page 5]--- C.J., concurring in the result). Accordingly, he voted to vacate the judgment of dismissal and remand to the Circuit Court to resolve this question.[fn5] The State moved for reconsideration, or in the alternative, clarification of the mandate. In response, the Court issued an unsigned order providing that "for the reasons stated in the plurality opinion..., the circuit court's order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the 'strict scrutiny' standard, the burden will rest on [the State] to overcome the presumption that HRS [SEC] 572-1 is unconstitutional by demonstrating that it furthers a compelling interest and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Baehr v. Lewin, 74 Haw. at 645, 646, 852 P.2d at 74 (1993). Chief Judge Burns disagreed with "the decision by Justice Levinson and Chief Justice Moon" to the extent it purported to conform the Court's mandate to the plurality opinion, explaining that "[t]he only agreement by a majority of this court is that this case involves genuine issues of material fact. In my view, that is this court's mandate. Thus far, there is no majority agreement as to what these issues are or what side has the burden to prove them." Id. at 646-47, 852 P.2d at 75 (Burns, C.J., concurring).[fn6] Following this Court's decision, the Legislature amended HRS [SEC] 572-1 to explicitly provide that a valid marriage contract "shall be only between a man and woman." 1994 Session Laws, ch. 217, [SEC] 3 (amending HRS [SEC] 572-1). The Legislature also made a number of findings concerning the State's policy of limiting marriage to one man and one woman. In particular, - - - - - - - - - - - - - - - - - - [fn5] On remand, plaintiffs chose not to present evidence on whether sexual orientation is "biologically fated." See Defendants' Exhibit A (stipulation that question whether sexual orientation is an immutable characteristic not to be addressed in trial). Accordingly, to the extent Chief Judge Burns' view is the law, plaintiffs' equal protection claim must fail because, by failing to show that sexual orientation is biologically fated, they have not carried their burden of establishing that their claim falls within the scope of Article I, section 5. [fn6] It is not clear whether Chief Judge Burns' description of the unsigned order as "the decision by Justice Levinson and Chief Justice Moon" is accurate. Judge Heen specifically noted that "having filed a dissenting opinion in this matter, [he] does not concur" in the unsigned order. Baehr, 74 Haw. at 646, 852 P.2d at 75. As noted above, however, the appointment of retired Justice Hayashi (who had agreed with Judge Heen's dissent) had expired before the principal opinions were issued. In the interim, Justice Nakayama was appointed to the Court, and she is listed as participating in the consideration of the State's reconsideration motion. Id. at 645, 852 P.2 dat 74. - - - - - - - - - - - - - - - - - - ---[Start page 6]--- pointing out that "the legislature distinguishes between sex (in the sense of `gender') and sexual orientation," the Legislature found, contrary to the Baehr plurality, that "there is no sex- (i.e., gender-) based classification" in HRS [SEC] 572-1. 1994 Session Laws, ch. 217, [SEC] 1. The Legislature also found that Hawaii's marriage licensing laws "as originally enacted, were intended to foster and protect the propagation of the human race through male-female marriages." Id. Following a bench trial on remand, the Circuit Court rejected each of the compelling interests identified by the State, concluding that "[t]he sex-based classification in HRS [SEC] 572-1, on its face and as applied, is unconstitutional and in violation of the equal protection clause of Article I, section 5 of the Hawaii Constitution." 7 RA at 235, App. 1 at 45. Accordingly, the, Circuit Court enjoined the Department of Health from denying marriage licenses solely on the ground that the applicants are of the same sex. 7 RA at 235-36, App. 1 at 45-46. The Circuit Court subsequently stayed its injunction pending appeal, 7 RA 257-58 (Order Dec. 12, 1996), and this Court denied plaintiffs' motion to vacate the stay (Order Apr. 16, 1997). STATEMENT OF POINTS ON APPEAL The Circuit Court erred in reaching the following conclusions of law: 8. HRS [SEC] 572-1, on its face and as applied, regulates access to the status of marriage and its concomitant rights and benefits on the basis of the applicants' sex. As such, HRS [SEC] 572-1 establishes a sex-based classification. Baehr v. Lewin, 74 Haw. 530, 572, 852 P.2d 44, 64 (1993). [7 RA at 230] [App. 1 at 40] 9. * * * Consequently, HRS [SEC] 572-1 is subject to the "strict scrutiny" test. Baehr v. Lewin, 74 Haw. 530, 580, 852 P.2d 44, 67 (1993). [7 RA 230] [App. I at 40] 11. Specifically, HRS [SEC] 572-1 is presumed to be unconstitutional and the burden is on Defendant to show that the statute's sex-based classification is justified by compelling state interests and the statute is narrowly drawn to avoid unnecessary abridgments of constitutional rights. Baehr v. Lewin, 74 Haw. 530, 556-57, 852 P.2d 44, 57 (1993), reconsideration granted in part and clarification granted in part, 74 Haw. 645, 646, 852 P.2d 74(1993). [7 RA at 230-31] [App. 1 at 40-41] - - - - - - - - - - - - - - - - - - ---[Start page 7]--- 12. * * * However, except 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 at 231] [App. 1 at 41] 14. Defendant presented meager evidence with regard to the importance of traditional marriage, the benefits which that relationship provides to the community and, most importantly, the adverse effects, if any, which same-sex marriage would have on the institution of traditional marriage and how those adverse effects would impact on the community and society. The evidentiary record in this case is inadequate to thoughtfully examine and decide these significant issues. [7 RA at 232] [App. 1 at 42] 17. In this case, the evidence presented by Defendant does not establish or prove that same-sex marriage will result in prejudice or harm to an important public or governmental interest. [7 RA at 234] [App. 1 at 44] 18. Defendant has not demonstrated a basis for his claim of the existence of compelling state interests sufficient to justify withholding the legal status of marriage from Plaintiffs. As discussed hereinabove, Defendant has 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. Nor has Defendant demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of traditional marriage, or any other important public or governmental interest. The evidentiary record presented in this case does not justify the sex-based classification of HRS [SEC] 572-1. Therefore, the court specifically finds and concludes, as a matter of law, that Defendant has failed to sustain his burden to overcome the presumption that HRS [SEC] 572-1 is unconstitutional by demonstrating or proving that the statute furthers a compelling state interest. [7 RA at 234] [App. 1 at 44] 19. Further, even assuming arguendo that Defendant was able to demonstrate that the sex-based classification of HRS [SEC] 572-1 is justified because it furthers a compelling state interest, Defendant has failed to establish that HRS [SEC] 572-1 is narrowly tailored to avoid unnecessary abridgments of constitutional rights. Nachtwey v. Doi, 59 Haw. 430, 435, 583 P.2d 955, 958 (1978) (citations omitted) (quoting San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S. Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973)). [7 RA 235] [App. 1 at 45] - - - - - - - - - - - - - - - - - - ---[Start page 8]--- Conclusions of Law Nos. 8, 9, and 11, quoted above, are erroneous because the classification drawn by Hawaii's marriage statute does not distinguish on the basis of gender, but rather on the basis of sexual orientation. Moreover, to the extent the classification implicates gender at all, it does not discriminate invidiously on the basis of gender because it does not treat similarly situated couples differently. Simply put, same-sex couples are not similarly situated to opposite-sex couples. Conclusions of Law Nos. 12, 14, 17, 18, and 19, quoted above, are erroneous because the State has compelling interests in the moral values of the people with respect to the family structure believed best for society and in providing legal incentives to advance those interests. STANDARD OF REVIEW The Circuit Court's conclusion that HRS [SEC] 572-i violates the equal protection clause of Article I, section 5 of the Hawaii Constitution is freely reviewable, employing the right/wrong standard. See, e.g., In the Interest of Jane Doe, 84 Haw. 41,46, 928 P.2d 883, 888 (1996). STATEMENT OF QUESTIONS PRESENTED 1. Does HRS [SEC] 572-1 discriminate invidiously on the basis of sex? 2. Does Hawaii have a compelling state interest in maintaining the traditional institution of marriage? ARGUMENT Article I, section 5 of Hawaii's Constitution provides, in pertinent part, that "[n]o person shall . . . be denied the 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 . . . sex . . . ." Because all laws classify on some basis, this Court has long recognized that the level of judicial scrutiny to be accorded to the law under review depends in large part upon the character of the classification employed by the Legislature. See, e.g., Nachtwey v. Doi, 59 Haw. 430, 436-37, - - - - - - - - - - - - - - - - - - ---[Start page 9]--- 583 P.2d 955, 960 (1978). Where the Legislature has employed a "suspect" classification, strict scrutiny applies, and the Court will inquire "whether [the statute] furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgment of constitutional rights." Nagle v. Board of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981).[fn7] In the previous appeal in this case, a majority of this Court concluded that classifications based upon "sex" are suspect, and thus are subject to strict scrutiny. Baehr, 74 Haw. at 571-80, 852 P.2d at 63-67 plurality opinion); id. at 584-85, 852 P.2d at 69 (Burns, C.J., concurring in the result). However, as explained in Part I-A of the Argument, the question of the character of the classification employed by the Legislature in the marriage statute -- whether it is in fact a sex-based classification -- remains open both because it was not resolved by a majority of the Court and because the Legislature has subsequently clarified its intentions with regard to the character of the classification. The balance of Part I demonstrates that Hawaii's marriage statute does not discriminate invidiously on the basis of gender, and thus is subject to rational basis review, not strict scrutiny. Finally, Part II shows that Hawaii's traditional limitation of marriage to couples consisting of one man and one woman is justified by compelling interests and is narrowly tailored to the achievement of those objectives. I. HAWAII'S MARRIAGE LAW DOES NOT INVIDIOUSLY DISCRIMINATE ON THE BASIS OF GENDER. A. The Earlier Appeal in this Case Did Not Finally Resolve the Question Whether the Marriage Statute Creates a Gender-Based Classification. Neither the parties to this action nor the Court is bound by the plurality's conclusion that Hawaii's prohibition on same-sex marriage constitutes a sex-based classification. Although there - - - - - - - - - - - - - - - - - - [fn7] The Court will also apply strict scrutiny where the challenged statute impinges upon a "fundamental right." E.g., Nagle, 63 Haw. at 392, 629 P.2d at 111. Because a majority of this Court has already held in the earlier appeal that there is no "fundamental right" to enter into same-sex marriage, Baehr, 74 Haw. at 556-57, 852 P.2d at 57 plurality opinion); id. at 588, 852 P.2d at 70 (Heen, 3., dissenting), this branch of equal protection analysis is not implicated in this case. - - - - - - - - - - - - - - - - - - ---[Start page 10]--- appears to be no Hawaii authority with respect to the precedential value of plurality opinions, every other jurisdiction -- eighteen states, the District of Columbia, as well as the federal courts -- to consider the question has concluded that plurality opinions do not establish binding precedent.[fn8] Because only two of the five Justices who considered the first appeal in this case held that the classification was sex based, the issue has yet to be decided by a majority of this Court and, accordingly, may be addressed in this appeal. Nor is this conclusion altered by the subsequent opinions issued by the Court on the State's motion for reconsideration or clarification of the mandate. Even assuming that the unsigned order setting forth this Court's mandate on remand commanded a majority, but cf supra, at 5 & n.6, the question whether Hawaii's marriage law discriminates on the basis of sex should be given plenary consideration in this appeal in light of its overriding importance, the novelty of the conclusion reached by the plurality, and the circumstances under which it was considered in the first appeal. First, the issue was neither raised nor argued during the first appeal because plaintiffs did not claim that the prohibition against same-sex marriages was a gender-based classification. - - - - - - - - - - - - - - - - - - [fn8] The federal courts and those in the State of Washington accord precedential status to the opinion concurring on the narrowest grounds when no one opinion commands a majority of the court. Marks v. United States, 430 U.S. 188, 193 (1977); State v. Zakel, 812 P.2d 512, 514 (Wash. App. 1991), aff'd, 834 P.2d 1046 (Wash. 1992). The remaining seventeen states that have specifically considered the effect of plurality opinions, along with the District of Columbia, have simply indicated that they have no precedential value. Board of Supervisors of Sacramento County v. Local Agency Formation Comm'n of Sacramento County, 838 P.2d 1198, 1207 (Cal. 1992), cert. denied, 507 U.S. 988 (1993); In the Matter of D.I.S., 494 A.2d 1316, 1326 (D.C. App. 1985); Rainsford v. McArthur Dairies, 114 So. 2d 617, 618-19 (Fla. 1959); Gielow v. Strickland, 363 S.E.2d 278, 279 (Ga. App. 1987); Idaho v. United States, 912 P.2d 614, 628 (Idaho 1995); Penman v. First Nat'l Bank, 331 N.E.2d 65, 66 (111.1975); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Ry Co., 335 N.W.2d 148, 151 (Iowa 1983); State v. Young, 538 N.W.2d 456, 460 (Mich. App. 1995); Churchill v. Pearl River Basin Dev. Dist., 619 So. 2d 900, 904 (Miss. 1993); Williamson v. Cox, 844 S.W.2d 95, 99 (Mo. App. 1992); Chadwick v. Public Serv. Co. of New Mexico,731 P.2d 968, 970,(N.M. App. 1986), cert. denied, 731 P.2d 1334 N.M. 1987); Humphreys v. State, 512 P.2d 197, 199 (Okla. Crim. App. 1973); Commonwealth v. Bracero, 473 A.2d 176, 179 (Pa. Super. Ct. 1984), aff'd, 528 A.2d 936 (Pa. 1987); State v. Walker, 166 S.E.2d 209, 210 (S.C. 1969); Sherman v. Meyer, 312 N.W.2d 373, 374 n. 1 (S.D. 1981); Langford v. State, 578 S.W.2d 737, 738 (Tex. Crim. App. 1979); State v. Mohi, 901 P.2d 991, 996 n.3 Utah 1995); Owens-Illinois Glass Co. v. Battle, 154 S.E.2d 854, 859 (W. Va. 1967). - - - - - - - - - - - - - - - - - - ---[Start page 11]--- Instead, they staked their claim entirely upon the argument that HRS [SEC] 572-1 classifies on the basis of sexual orientation, and that homosexuals constitute a suspect class. P1. Baehr I Br. at 9-15. Second, every other court that has considered the issue has rejected the notion that the traditional, and universal, restriction of marriage to opposite-sex couples constitutes a gender-based classification. See, e.g., Singer v. Hara, 522 P.2d 1187, 1190-92 (Wash. App.), review denied, 84 Wash. 2d 1008 (1974); Dean v. District of Columbia, 653 A.2d 307, 363 & n.2 (D.C. App. 1995) (opinion of Steadman, J., joined by Terry, J.); see also State v. Walsh, 713 S.W.2d 508, 510 (Mo. 1986) (rejecting claim that statute prohibiting homosexual conduct, but not heterosexual conduct, classified on the basis of sex). In view of the paramount importance of this question of State constitutional law, this issue should be resolved by a majority of this Court following full briefing and argument. Quite apart from these considerations, the Legislature's response to the plurality's opinion provides an additional reason for the Court to consider anew whether the classification at issue is based on sex or on sexual orientation. In Act 217 of the 1994 Session, the Legislature found that "the plurality's subsequent interpretation of the word 'sex' in this context demonstrates that although the opinion purports to express the word 'sex' in terms of 'gender,' in reality the court misinterprets the word 'sex,' in the context of Article I, section 5, in terms of 'sexual orientation' or 'sexual preference.'"[fn9] The Legislature's views on this issue are entitled to respect and warrant this Court's plenary consideration of the character of the classification at issue in this appeal. Finally, even if the unsigned order is treated as a majority holding, this Court, as court of last resort, is free to overrule it. - - - - - - - - - - - - - - - - - - [fn9] While the legislative finding is couched in terms of responding to the plurality's interpretation of the term "sex" in Article I, section 5 of the Constitution, it is necessarily also directed toward the plurality's understanding of the character of the classification employed in the marriage statute. On its face, the plurality opinion did not interpret the word "sex" to include "sexual orientation," as the Legislature asserts; rather, the plurality concluded that the prohibition against same-sex marriage, which the Legislature clearly understands to be a classification based on sexual orientation, classified on the basis of gender. - - - - - - - - - - - - - - - - - - ---[Start page 12]--- B. The Marriage Law Classifies on the Basis of Sexual Orientation, Not Gender. At its core, the guaranty of equal protection found in both the federal Constitution and in Article I, section 5 of Hawaii's Constitution prohibits the State from discriminating -- from classifying -- on the basis of an irrelevant characteristic. Because one's gender is generally just such an irrelevant characteristic, laws classifying on that basis are viewed with judicial suspicion. Indeed, the irrelevance of sex to most State actions is undoubtedly the reason that it is expressly identified in Article I, section 5 as a forbidden basis for discrimination. Thus, the first question that must be resolved in addressing any equal protection challenge against a law said to be invidiously discriminatory is whether the law in fact classifies on the basis of the alleged criterion. In cases in which the distinction drawn in a statute may plausibly be understood to rest on either of two (or more) grounds, the court must first determine the genuine basis of the classification. In this case, the threshold question is whether Hawaii's marriage statute classifies on the basis of sex or on the basis of sexual orientation. Until issuance of the plurality's opinion in the first appeal, there was no dispute on this issue, even among the parties. From the filing of their complaint through the briefing in this Court on the first appeal, plaintiffs understood and alleged that they were challenging a law "which permits heterosexual marriages but not homosexual marriages." P1. Baehr I Br. at 15.10 In other words, plaintiffs' equal protection challenge was based on the claim that HRS [SEC] 572-1 discriminates against plaintiffs (and other homosexuals) on the basis of their sexual orientation. The Hawaii Legislature, as previously noted, has recently made clear that it too understands the law's classification to be based upon sexual orientation, not gender. Act 217, 1994 Session Laws, [SEC] 1. Judge Heen and Justice Hayashi flatly rejected the - - - - - - - - - - - - - - - - - - [fn10] As the plurality noted, see Baehr, 74 Haw. at 544 & n.12, 852 P.2d at 52 & n.12 (plurality opinion), plaintiffs did not expressly allege that they were homosexuals in their complaint. As the ensuing pleadings quickly established, however, their desire to marry individuals of the same sex inescapably reflected their sexual orientation, and plaintiffs themselves confirmed this obvious deduction by affirmatively representing that they were homosexuals. See id. at 544, 852 P.2d at 52 {plurality opinion). - - - - - - - - - - - - - - - - - - ---[Start page 13]--- notion that HRS [SEC] 572-1 classifies on the basis of gender. Finally, every other court that has considered an equal protection challenge to a state law restricting marriage to opposite-sex couples has viewed the classification at issue as based on sexual orientation, not gender." In concluding that Hawaii's marriage statute does not discriminate against plaintiffs "because of . . . sex" within the meaning of Article I, section 5, the dissenters in the first appeal focused on the law's treatment of the individuals comprising a marital couple, concluding that under the statute "all males and females are treated alike. A male cannot obtain a license to marry another male, and a female cannot obtain a license to marry another female." Baehr, 74 Haw. at 591, 852 P.2d at 71 (Heen, J., dissenting). In contrast, the plurality focused on the law's treatment of would-be marital couples as couples: [O]n its face and . . . as applied, HRS [SEC] 572-1 denies same-sex couples access to marital status and its concomitant rights and benefits. It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution. Id. at 564, 852 P.2d at 60 (emphasis added); see also Brief of Amicus Curiae Hawaii Catholic Conference at 2-6. Under the plurality's reasoning, if either member of a same-sex couple had been of a different sex -- that is, if the same-sex couple was an opposite-sex couple -- the State would have permitted them to marry. In other words, each plaintiff in this case would be permitted to marry his (or her) intended spouse but for the sex of his (or her) intended spouse. It follows, under this reasoning, that Hawaii's marriage law discriminates against each plaintiff on the basis of the sex of the plaintiff's intended spouse. The difficulty with this reasoning lies in the fact that it effectively obliterates the distinction between discrimination on the basis of sexual orientation and discrimination on the basis of sex. Sexual orientation is defined by the gender of the parties to a sexual relationship. And any classification based on sexual orientation necessarily takes cognizance of the gender of both parties to the sexual relationship -- otherwise it would be impossible to distinguish between - - - - - - - - - - - - - - - - - - [fn11] See, e.g., Singer, 522 P.2d at 1190-92; Dean, 653 A.2d at 363 & n.2 (opinion of Steadman, J., joined by Terry, J.). - - - - - - - - - - - - - - - - - - ---[Start page 14]--- homosexuals and heterosexuals. The defining characteristic of homosexuality, as the plurality noted, is "'sexual desire or behavior directed toward a person or persons of one's own sex.'" Id. at 543 n. 11, 852 P.2d at 51 n.1l (quoting Webster's Encyclopedic Unabridged Dictionary of the English Language, 680 (1989)). A homosexual relationship, therefore, is by definition a same-sex relationship. Thus, under the plurality's analysis any act of discrimination based on homosexual orientation will also support a claim of gender-based discrimination, for it will always be possible to say that the plaintiff would not have been discriminated against but for the gender of his (or her) sexual partner (or desired sexual partner). To determine in such a case whether a challenged classification is in fact drawn on the basis of gender or on the basis of sexual orientation, one need only ask this question: Does the challenged law discriminate against men because they are men and against women because they are women, or does it discriminate against both men and women because they are homosexuals? For example, if an employer discriminates against a male employee because he is having a sexual relationship with another man, the employer is obviously taking account of the gender of the employee's sexual partner. Indeed, if the male employee's sexual partner had been a female, the employer would not have discriminated against the employee. Notwithstanding this fact, however, it is clear that the discrimination at issue in this example is based not on the employee's gender, but rather on the employee's homosexual orientation. The employer obviously does not object to the gender, per se, of the employee; the employer objects to the employee's homosexual orientation. Put another way, it is not the employee's maleness, but rather his homosexuality, that forms the basis for the employer's discrimination. Yet under the plurality's analysis, the employer's classification based on the employee's homosexual orientation becomes a gender-based classification. At the same time, any prohibition against gender-based discrimination, according to the plurality's analysis, also encompasses a prohibition against homosexual orientation discrimination, despite the obvious and profound differences between the two types of classification. Compare United States v. Virginia, 116 S. Ct. 2264, 2274-76 (1996) (describing attributes of gender discrimination) with Romer v. Evans, 116 S. Ct. 1620, 1624-25 (1996) (describing provision classifying on the basis of sexual orientation). Hawaii civil rights law expressly recognizes this difference, separately prohibiting discrimination in certain circumstances on the basis of sex and on the basis of sexual orientation. See HRS [SEC][SEC] 368-1; 378-2. The - - - - - - - - - - - - - - - - - - ---[Start page 15]--- plurality's analysis, however, transforms all discrimination on the basis of sexual orientation into discrimination the basis of sex, and renders any prohibition of the former redundant to a prohibition of the latter. It is critical to maintain the distinction between gender discrimination and sexual orientation discrimination because the judicial scrutiny to which each is subjected is different: the former are subject to strict scrutiny while the latter are reviewed under the rational basis test. In the circumstances of this case, it is clear that HRS [SEC] 572-1 disadvantages plaintiffs because of their sexual orientation, not because of their genders. Restricting marriage to opposite-sex couples disadvantages only those individuals who desire to marry persons of the same sex -- that is, a class of homosexuals. The class disadvantaged by Hawaii's marriage law is made up of both males and females, just as the plaintiffs in this action are both males and females. Indeed, the burden created by the statute's prohibition on same-sex marriages is wholly indifferent to gender. Plaintiffs, whether male or female, are burdened by the law's prohibition on same-sex marriage because they are homosexuals. In contrast, heterosexuals, whether male or female, are not burdened by the law's prohibition on same-sex marriage. The personal trait, therefore, on which the marriage law distinguishes among Hawaii residents is not gender, but rather is sexual orientation. An illustration helps to bring the true nature of the statute's classification into sharper focus. If a male plaintiff in this case somehow changed his gender, but remained homosexual (i.e., a lesbian), she would still be disadvantaged by the law's prohibition on same-sex marriage, for she would not be permitted to marry another women. But if the plaintiff somehow changed his homosexual orientation, he would be relieved of the disadvantage imposed by the marriage statute's same-sex prohibition. It follows, then, that Hawaii's statutory prohibition on same-sex marriage classifies on the basis of sexual orientation, not gender. In short, HRS [SEC] 572-1 does not disadvantage men because they are men, nor women because they are women. It disadvantages homosexuals, both men and women, because they are homosexuals. The plurality took pains to suggest that plaintiffs' homosexual orientation has no bearing on the application of the statute's prohibition on same-sex marriage, arguing that "'[h]omosexual' and 'same-sex' marriages are not synonymous; by the same token, a 'heterosexual' same-sex marriage is, in theory, not oxymoronic. . . Parties to a same-sex - - - - - - - - - - - - - - - - - - ---[Start page 16]--- marriage could theoretically be either homosexuals or heterosexuals." Baehr, 74 Haw. at 543 n.1l, 852 P.2d at 51 n. 11 (Plurality opinion) (emphasis added). To be sure, Hawaii's prohibition on same-sex marriage bans "'heterosexual' same-sex marriages" just as surely as it bans homosexual same-sex marriages. But the simple and common sense reality is that heterosexuals do not wish to enter same-sex marriages.[fn12] The "'heterosexual' same-sex marriages'" theorized by the plurality are premised on wholly irrational behavior -- heterosexual couples seeking to enter the most intimate and permanent of human relationships, despite the fact that it is wholly contrary to their sexual and romantic orientation.[fn13] In light of the reality that only homosexual couples seek to enter same-sex marriages, Hawaii's limitation upon marriage to couples consisting of one man and one woman adversely affects only homosexual same-sex couples. The fanciful nature of the attempted distinction between same-sex marriage and homosexual same-sex marriage is confirmed when one considers a statute that prohibits only "'homosexual same-sex marriages.'" Such a statute would not reach the plurality's theoretical "'heterosexual' same-sex marriage," but its real world application would be no different from the statute before the Court. Because, even under the plurality's reasoning, a statute prohibiting homosexual same-sex marriage classifies not on the basis of gender, but on the basis of sexual orientation, it is apparent that the functionally equivalent law at issue here should be understood the same way. - - - - - - - - - - - - - - - - - - [fn12] In any event, whether the marriage statute discriminates against heterosexual same-sex couples as well as homosexual couples does not affect the conclusion that the marriage statute is not gender-based discrimination. However the marriage statute classification is described, no person is being denied a marriage license on the basis of his or her gender, but on account of the person's association with a person of the same sex. As noted above, we believe it is specious to describe a same-sex association in the marriage context as anything other than a homosexual association, given that the central purpose of marriage is to sanction intimate, lasting, and monogamous sexual relations. But whatever label is affixed to a same-sex association, the relevant point is that the law denies a marriage license to such couples "because of" the association, not "because of" gender. [fn13] Particularly since legislative classifications are presumed to rest on rational grounds, purely theoretical possibilities premised on patently irrational behavior do not suffice to alter the true nature of the classification. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). - - - - - - - - - - - - - - - - - - ---[Start page 17]--- In sum, the Constitutional guaranty against discrimination on the basis of sex has no application to the traditional limitation of marriage to one man and one woman because the traditional rule is not a gender classification. Neither its purpose nor its effect is to treat the sexes differently. Rather, HRS [SEC] 572-1 classifies on the basis of sexual orientation. Accordingly, strict scrutiny does not apply, and the law should be evaluated under the rational basis test.[fn14] In arriving at its conclusion that HRS [SEC] 572-1 creates a gender-based classification, the plurality relied heavily upon the United States Supreme Court's decision in Loving v. Virginia, 388 U.S. 1 (1967), which struck down Virginia's miscegenation laws as racially discriminatory. Loving is not relevant here, however, because it was undisputed that the statute in that case classified on the basis of race, thereby triggering strict scrutiny (whereas Hawaii's marriage law classifies on the basis of sexual orientation, thereby triggering rational basis review). The language (emphasized below) of the passage relied upon by the plurality demonstrates that the Loving Court proceeded from the premise, not present in this case, that the classification at issue employed a suspect criterion: [T]he State contends that, because its miscegenation statutes punish equally both white and Negro participants in an interracial marriage, these statutes, despite - - - - - - - - - - - - - - - - - - [fn14] As previously explained, this Court did not pass upon plaintiffs' sole equal protection argument in the first appeal -- that homosexuals constituted a suspect class thereby triggering strict scrutiny. As the State pointed out in response, this argument has been repeatedly rejected. Answering Brief in Baehr v. Lewin, No.15689 at 25 (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.), reh'g denied, 909 F.2d 375 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984); Opinion of the Justices, 129 N.H. 290, 530 A.2d 21 (N.H. 1987)). Since then, numerous other courts have reached the same conclusion. See, e.g., Philips v. Perry, 106 F.3d 1420, 1425 (9th Cir. 1997); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc), cert. denied, 117 5. Ct. 358 (1996). Plaintiffs' argument that classifications based on sexual orientation merit strict scrutiny is particularly ill-founded in view of the fact that an amendment adding sexual orientation to Article I, section 5 was considered, but rejected, during the 1978 constitutional convention. Constitutional Convention of 1978, Proposal No.662; see also Answering Brief in Baehr v. Lewin, No. 15689 at 13. - - - - - - - - - - - - - - - - - - ---[Start page 18]--- their reliance on racial classifications, do not constitute an invidious discrimination based upon race. . . . [W]e reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscriptions of all invidious discriminations.... In the case at bar, . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. Baehr, 74 Haw. at 581-82, 852 P.2d at 68 (plurality opinion) (quoting Loving, 388 U.S. at 8) (emphasis added). In this passage Loving simply confirms the principle established in Brown v. Board of Educ., 347 U.S. 483 (1954), that race-based segregation is impermissible even though whites as well as blacks are adversely affected by the law mandating separation. Extending Loving to the context of gender establishes only that a statute that discriminates on the basis of a gender against both women and men (e.g., sex-segregated bathrooms or schools) is nonetheless subject to heightened scrutiny. This principle, however, does not answer the antecedent, threshold question of what personal trait forms the basis for the government classification. On that threshold question, it was undisputed in Loving that Mr. and Mrs. Loving, individually and as a couple, were denied the right to marry "solely" because of their skin color. Loving, 388 U.S. at 11. To demonstrate that the miscegenation law classified on the basis of race, and no other class-based personal trait, it is again helpfiil to use the illustration discussed previously in the context of Hawaii's marriage law. If Mr. Loving somehow changed his race, he would be free to marry Mrs. Loving, and thus would be relieved of the disadvantage imposed by Virginia's prohibition on interracial marriages. It is clear that, but for his race, Mr. Loving would not be affected by the miscegenation law. In contrast, a plaintiff in this case, as previously discussed, would have to change his (or her) sexual orientation to be relieved of the disadvantage imposed by Hawaii's prohibition on same-sex marriage; for if the plaintiff changed gender, but remained homosexual, the State's law would continue to prevent the plaintiff from marrying a person of the same gender. Thus, it is clear that but for the plaintiffs' sexual orientation (as opposed to their gender), they would not be affected by Hawaii's prohibition on same-sex marriage. - - - - - - - - - - - - - - - - - - ---[Start page 19]--- Finally, the conclusion that HRS [SEC] 572-1 does not clarify on the basis of gender is buttressed by the facts that the Legislature plainly did not intend to discriminate against women (or men) and that the law has no disparate impact on either women or men as a class. See, e.g., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 271 n.3 (1993) (classification is not "sex based" absent showing of intent to discriminate on the basis of sex); Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979); Geduldig v. Ajello, 417 U.S. 484, 496 n.20 (1974). As the Supreme Court has explained, before one may conclude that a law classifies on the basis of gender, there must be "at least a purpose that focuses upon women by reason of their sex. . . ." Bray, 506 U.S. at 270 (emphasis added). Where, as here, the law at issue is not "overtly or covertly designed to prefer males over females," or vice versa, Feeney, 442 U.S. at 273, it simply does not classify on the basis of gender. Hawaii's Constitution captures this principle by forbidding only "discrimination . . . because of . . . sex . . . ." Article I, section 5 (emphasis added). Hawaii's marriage law has neither the purpose nor the effect of discriminating against either women or men. To the contrary, its purpose and effect are to treat men and women as co-equal partners, each a necessary part of the union. Thus, this case is readily distinguishable from Loving on this basis as well. The Loving Court's conclusion that the miscegenation law classified by race was buttressed by the law's obvious racial animus. In light of its undisputed history as "an endorsement of the doctrine of White Supremacy," 388 U.S. at 7, there was no question that the miscegenation statute was designed to, and did, discriminate against blacks. This history has no analog in this case, for it is plain that HRS [SEC] 572-1 has neither the purpose nor the effect of discriminating against men or women, nor promoting male (or female) supremacy. Similarly, unlike the racial classification in Brown v. Bd. of Educ., which the Court found was rooted in notions of the inferiority of blacks, and thus was especially harmful to black school children, 347 U.S. at 494-95, the same-sex marriage ban is not based on notions of inferiority of females (or males), and does not harm females more than males (or vice versa). At bottom, the Supreme Court's ruling in Loving rested on the irrefutable proposition that an interracial marriage is functionally equivalent to a marriage between two people of the same race. "The [miscegenation] statutes proscribe generally accepted conduct if engaged in by members of different races." Loving, 388 U.S. at 10-11. In contrast, traditional and same-sex - - - - - - - - - - - - - - - - - - ---[Start page 20]--- marriages are simply not fungible. This brings us to our next point: the parties to a same-sex marriage, whether viewed individually or as a couple, are plainly not "similarly situated" to the parties to a traditional marriage. C. Same Sex Couples And Opposite-Sex Couples Are Not "Similarly Situated" With Respect To Marriage. The equal protection of law "does not mean that the physiological differences between men and women must be disregarded." Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 481 (1981) (Stewart, 3., concurring). To the contrary, "because the Equal Protection Clause does not . . . require 'things which are different in fact . . . to be treated in law as though they were the same,' . . . [the Supreme] Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." Michael M., 450 U.S. at 469 (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966) (quoting Tigner v. Texas, 310 U.S. 141, 147(1940))). See, e.g., id. at 478 ("[]In certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional.") (Stewart, J., concurring); Rostker v. Goldberg, 453 U.S. 57, 79-80 (1981) ("Men and women . .. are simply not similarly situated for purposes of a draft or registration for a draft. . . . The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality."). This Court has likewise consistently held that the Hawaii Constitution's equal protection guaranties require the Legislature to afford "like treatment" to individuals who are "similarly circumstanced" or "similarly situated." Mahiai v. Suwa, 69 Haw. 349, 360, 742 P.2d 359, 368 (1987); Shibuya v. Architects Hawaii, Ltd., 65 Haw. 26, 35, 647 P.2d 276, 283 (1982); Fujioka v. Kam, 55 Haw. 7, 16, 514 P.2d 568, 571 (1973). The Court applied this principle in Holdman v. Olim, 59 Haw. 346, 353, 581 P.2d 1164, 1169 (1978), which upheld a prison regulation requiring all women visitors to wear brassieres. As the Court noted, the principle of equal rights" 'does not preclude legislation (or other official action) which regulates, takes into account, or otherwise deals with a physical characteristic unique to one sex.'" Id. (quoting Brown, Emerson, Falk & - - - - - - - - - - - - - - - - - - ---[Start page 21]--- Freedman, The Equal Rights Amendment: Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 873 (1971)). Because the prison regulation took "into account a physical characteristic which is possessed uniquely by women visitors," and was otherwise justified by the prison's security concerns, this Court held that the regulation did not violate the Hawaii Constitution's protections against gender discrimination. Holdman, 59 Haw. at 354, 581 P.2d at 1170. Applying this principle to the circumstances of this case, it is clear that a same-sex couple is not "the same as" or "equal to" an opposite-sex couple with respect to the central and dominant purpose of marriage -- to legitimate the married couples' sexual union, and any offspring that are produced by it. See, e.g., Baehr, 74 Haw. at 553, 852 P.2d at 55 (plurality opinion) (citing Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)) (marriage is "inextricably linked to the right of procreation"). Put another way, a man is not "similarly situated" to a woman when it comes to marrying a man, and vice versa. A man simply cannot be a wife, nor a mother, and a woman cannot be a husband, nor a father. In the same way that begetting a child is defined by gender -- that is, it requires the sexual union of a male and a female -- the institution that society, in this State and everywhere else, has established to legitimate that union and its offspring is likewise defined by gender. In concluding that opposite-sex couples have a fundamental constitutional right to marry, while same-sex couples do not, a majority of the members of this Court effectively acknowledged that same-sex couples are not similarly situated to opposite-sex couples with respect to marriage. After surveying the analogous United States Supreme Court decisions establishing the right to marry as a fundamental element of the right to privacy protected under the Due Process Clause, the plurality, in an analysis joined by the dissenters, acknowledged that the Supreme Court had viewed the right to marry as "inextricably linked to the right of procreation." Baehr, 74 Haw. at 553, 852 P.2d at 55 (plurality opinion); see also id. at 588, 852 P.2d at 70 (Heen, J., dissenting). Thus, marriage is "the logical predicate of' such fundamental rights as "procreation, childbirth, abortion, and child rearing." Id. at 555, 852 P.2d at 56 (plurality opinion). As the plurality recognized, because marriage is necessary to legitimate the sexual union that precedes and gives rise to the fundamental rights of begetting and rearing children, the right to marry is likewise fundamental. Same-sex unions, in contrast, are not linked - - - - - - - - - - - - - - - - - - ---[Start page 22]--- to the enjoyment of the fundamental rights of begetting and rearing children, and are thus not within the scope of the fundamental right to marry.[fn15] The conclusion of both the plurality and the dissent that same-sex couples do not possess the same fundamental right to marry enjoyed by opposite-sex couples is premised upon the palpable, biological fact that same-sex couples are not similarly situated to opposite-sex couples with respect to the central purpose of the institution of marriage. In short, as the United States Supreme Court recognized just last term: "The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." United States v. Virginia, 116 S. Ct. 2264, 2276 (1996). With respect to the institution of marriage, perhaps more so than any other human relationship, "[t]he two sexes are not fungible; a [marriage] made up exclusively of one [sex] is different from a [marriage] composed of both." Neither the federal Constitution nor the Hawaii Constitution requires the State to close its eyes to this reality. Accordingly, HRS [SEC] 572-1 does not create an invidious gender classification, "but rather realistically reflects the fact that the sexes are not similarly situated in [this] circumstance. Michael M., 450 U.S. at 469. D. The Framers of Article I, Section 5 Did Not Intend To Invalidate the Statutory Restriction of Marriage to Opposite-Sex Couples. The history of Article I, section 5 of Hawaii's Constitution confirms that the prohibition against discrimination on the basis of sex was neither understood nor intended to reach, let alone prohibit, the requirement that marriage be restricted to one man and one woman. During the Convention of 1950, as part of its consideration of the State Constitutional Bill of Rights, the framers of Hawaii's Constitution considered a draft section providing that "[t]he right to marry - - - - - - - - - - - - - - - - - - [fn15] The plurality also refused to declare same-sex marriage as a new fundamental right under the right to privacy protected under Article I, section 6 of the Hawaii Constitution: "[W]e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. . . . Accordingly, we hold that the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise." Baehr, 74 Haw. at 556-57, 852 P.2d at 57. - - - - - - - - - - - - - - - - - - ---[Start page 23]--- shall not be denied or abridged because of race, nationality, creed or religion." See Volume I, Convention of 1950 Journal Documents ("1950 Cov. Doc.") at 304 (Committee of the Whole Report No.5) (reprinting proposed Article I, section 22). The debate on this provision in the Committee of the Whole establishes beyond all doubt that, while the framers believed that miscegenation laws constituted racial discrimination, the notion that the traditional understanding of marriage might be deemed gender discrimination never even occurred to them. When the Committee of the Whole took up the proposed marriage provision, there was no dispute among the delegates that Hawaii would not tolerate laws precluding interracial marriage. Indeed, as Delegate Kellerman pointed out in supporting proposed Section 22, the Act of Congress authorizing the convening of the Convention required that "'[t]he Constitution must be republican in form and make no distinction in civil or political rights on account of race, color or sex.'" Vol. 11, 1950 Conv. Doc. at 17 (Transcript of Committee of the Whole Meeting, Morning Session, June 1, 1950) (quoting House Bill 49). In view of this command, Delegate Kellerman asserted, without contradiction, that Hawaii's Constitution must provide "against any discrimination, racial discrimination which of course is the essence of the miscegenation statutes." Id. The opponents of Section 22, for the most part, did not disagree with the proposition that the Constitution must prohibit miscegenation statutes, but argued instead that they were already prohibited by Section 6 -- what is now Article I, section 5. Delegate Ashford described Section 6 as the provision "called for by [the authorizing Act of Congress] requiring that there shall be no distinction by reason of race, color, creed, and so forth in civil -- the enjoyment of civil rights, and marriage is certainly a civil right." Id.; see also id. at 18 (statements of Delegates Heen and Wirtz). Other opponents of Section 22 believed it to be unnecessary because "it seems to infer that our life in Hawaii has more or less been ruled by a sense of miscegenation, that the races and people here have been opposed to mixed marriage, and such is not a fact." Id. at 17 (statement of Delegate Trask). The opponents of Section 22 moved, successfully, to table discussion of the marriage provision until Section 6 (what is now Article I, section 5) was taken up. Four days later, when the Committee of the Whole turned to Section 6, the Committee voted to delete Section 22 on the understanding that marriage is among the civil rights protected under Section 6. Id. at 35, 39 - - - - - - - - - - - - - - - - - - ---[Start page 24]--- (Transcript of Committee of the Whole Meeting, Morning Session, June 5, 1950). In Committee of the Whole Report No.5, the following reasons are set forth for the deletion of the provision: First, there is not and never has been in this jurisdiction any problem as to the right of any race to many any other race, and is not likely to be. Second, while a provision of this type is included in the United Nations charter, this is done because many nations, and even some of the present States of the Union, have miscegenation statutes. Third, your Committee is firmly of the opinion that marriage is a civil right within the provisions of Section 6 of the Article here under consideration . . . ; and also that a denial of the right to marry on account of [race],[fn16] in light of conditions as they have existed and now exist in this jurisdiction, would be a violation of both Sections 3 and 4 of the same Article. . . .[fn17] The deletion of this section is therefore recommended because, under the circumstances, it is unnecessary. Volume I, Convention of 1950 Journal Documents at 304 (Committee of the Whole Report No. 5). This history establishes a number of points bearing directly upon the issue before the Court. First, the framers of Hawaii's Constitution took very seriously their duty to draft a constitution ensuring that the State could never invidiously discriminate on the basis of race or sex. Second, in fulfilling that obligation, they considered directly the issue of prohibitions against interracial marriage, and had no difficulty concluding -- some 17 years before the United State Supreme Court reached the same conclusion in Loving -- that "racial discrimination . . . of course is the essence" of such prohibitions. Vol. 11, Convention of 1950 at 17 (Transcript of - - - - - - - - - - - - - - - - - - [fn16] In the version of this Report published in Volume I of the Convention of 1950 Journal Documents, the word "sex" appears, rather than the bracketed "race." In light of the context, there can be no question that this was a typographical error, albeit an unfortunate one in view of the issue before the Court in this case. The provision under consideration in the quoted passage made no mention of abridgment of the right to marry on account of sex; during the debate that led to preparation of the quoted report, no mention was made of any concern over denial of the right on account of sex; and the sentence in which the error occurs, by referring to current and past conditions in Hawaii, confirms that the subject under discussion is race, not sex. [fn17] Section 3 guaranteed that no citizen is disenfranchised or denied the rights and privileges of other citizens; it is now Article 1, section 8 of the Constitution. Section 4 set forth the State's due process clause, which now appears in Article I, section 5, along with the equal protection clause. - - - - - - - - - - - - - - - - - - ---[Start page 25]--- Committee of the Whole Meeting, Morning Session, June 1, 1950) (statement of Delegate Kellerman). Third, the framers were fully aware of Hawaii's then-current and past practices with regard to marriage between the races. Fourth, no one at the 1950 Convention ever considered the possibility that Hawaii's traditional restriction of marriage to one man and one woman constituted sex discrimination. The unavoidable conclusion that necessarily follows from these facts, and indeed from common sense, is that the framers were fully aware of Hawaii's traditional limitation of marriage to one man and one woman, but did not consider it to be analogous either to a prohibition against interracial marriage or to discrimination on the basis of sex. If any further confirmation on this point were necessary, it is provided by the history of Hawaii's criminal prohibition against sodomy. At the time of the Convention of 1950, Section 11681 of the Revised Laws of Hawaii (1945) (subsequently codified at HRS [SEC] 768-71) provided that "sodomy, that is, the crime against nature, either with mankind or any beast, shall be punished by a fine not exceeding one thousand dollars, and by imprisonment at hard labor not more than twenty years." This provision was not repealed until 1972, nearly a quarter of a century after Article I, section 5 was drafted. 1972 Session Laws, Act 9, [SEC] 1300 (3)(a)(xliii). It is inconceivable that the framers of that provision intended to accord constitutional protection to marital relationships, the consummation of which was a felony subjecting the parties to criminal prosecution and imprisonment at hard labor for up to 20 years. See Dean, 653 A.2d at 363 n.5 (opinion of Steadman, J., joined by Terry, J.) ("If . . . the state could ban the commission of acts presumably to be expected in such a same-sex relationship, it is difficult to understand on what basis the state constitutionally could be forced to extend the recognition of marriage to that relationship, whatever view it might otherwise take of such acts."). II. HAWAII HAS COMPELLING STATE INTERESTS IN MAINTAINING THE TRADITIONAL INSTITUTION OF MARRIAGE. Hawaii's statutory restriction of marriage to couples consisting of one man and one woman, even if it is treated as a gender classification, is supported by interests that are among the State's most compelling. These interests have appealed to the people of every society, in every place, at every time in human history. This Court has recognized that neither the State's equal protection clause nor "even the ERA . . . forbids all classifications." State v. Rivera, 62 Haw. - - - - - - - - - - - - - - - - - - ---[Start page 26]--- 120, 125, 612 P.2d 526, 530 (1980). Gender classifications "will survive strict scrutiny if the state demonstrates a sufficiently important interest and employs means which are closely enough drawn." Holdman, 59 Haw. at 352, 581 P.2d at 1168 (sustaining requirement that women visiting state prison must wear brassieres); see also Rivera, 62 Haw. at 125-26, 612 P.2d at 530-31 (upholding rape statute that criminalized acts committed by males only). The State interests at stake in this case transcend those sustained by the Court in Holdman and Rivera. A. The State Has A Compelling Interest in Ensuring that Its Marriage Laws Reflect the Moral Values of the People of Hawaii. Courts have long recognized that "[t]he State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people." Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, 3., concurring in the judgment). Over a century ago, the United States Supreme Court recognized the State's paramount interest in vindicating the People's moral conception of society's basic organization: "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature." Maynard v. Hill, 125 U.S. 190, 205 (1888) (quoted in Zablocki, 434 U.S. at 399 (Powell, 3., concurring in the judgment)); see also Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (legislation denying political rights to polygamist upheld as "the best guaranty of that reverent morality which is the source of beneficent progress in social and political improvement"). Indeed, in rejecting a claim that criminal statutes prohibiting polygamy violate the First Amendment guaranty of religious freedom, the Supreme Court squarely held that "it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion." Reynolds v. United States, 98 U.S. (8 Otto) 145, 166 (1878). The Court's holding was based solely upon the People's right to ensure that the community's moral values are reflected in the manner in which society is organized. The Reynolds Court emphasized that the State's interest in this regard is particularly compelling when it reflects the unbroken tradition of many generations: - - - - - - - - - - - - - - - - - - ---[Start page 27]--- From that day [i.e., December 8, 1788, when Virginia enacted a law punishing polygamy with the death penalty] to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. Id. at 165; see also Maynard, 125 U.S. at 207 ("The continual exercise of the power [to grant legislative divorces], after the adoption of the constitution of 1790, cannot be accounted for except on the ground that all men, learned and unlearned, believed it to be a legitimate exercise of legislative power. This belief is further strengthened by the fact that no judicial decision has been made against it."). In short, the compelling nature of the State's interest in vindicating the moral values of the People in the area of marriage and the family gives it the "absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created. Pennoyer v. Neff 95 U.S. (5 Otto) 714, 734-35 (1877). This principle is by no means a moribund artifact of Nineteenth Century morality. To the contrary, modern courts, including this one, have consistently reaffirmed the State's overriding interest in this area. For example, at issue in Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert. denied, 474 U.S. 849 (1985), was a free exercise challenge to Utah's prohibition against polygamy. Noting that "'only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion,' "Id. at 1068-69 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)), the Tenth Circuit held: "Monogamy is inextricably woven into the fabric of our society. It is the bedrock upon which our culture is built. In light of these fundamental values, the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship." 760 F.2d at 1070. As the United States Court of Appeals for the District of Columbia Circuit has explained, in statutes governing "civil rights, worker safety, the preservation of the environment, and much more . . . , legislative majorities - - - - - - - - - - - - - - - - - - ---[Start page 28]--- have made moral choices contrary to the desires of minorities. It is to be doubted that very many laws exist whose ultimate justification does not rest upon society's morality." Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C. Cir. 1984); accord State v. Walsh, 713 S.W.2d 508, 511-12 (1986). This Court too has recognized and upheld the principle that the State has the authority to uphold the community's moral values. In Parke v. Parke, 25 Haw. 397 (1920), a case cited with approval by the plurality in the first appeal in this case, see Baehr, 74 Haw. at 559, 852 P.2d at 58 (plurality opinion), the Court explained that "[i]n the very earliest laws enacted in these islands there is plainly expressed a determined effort to protect morality and the social order . . . by requiring a marriage license as a prerequisite to the right to marry. . . ." Parke, 25 Haw. at 403. The Court expressly endorsed the State's interest in regulating the marital relationship in light of its "character unknown to any other human relation and having more to do with the morals and civilization of the people than any other institution." Id. at 404. Indeed, the plurality in the earlier appeal in this case recognized that Hawaii has "'compelling' reasons" for prohibiting both incestuous marriages and bigamous marriages. Baehr, 74 Haw. at 562 n. 19, 852 P.2d at 59 n. 19. Simply put, the State's overriding reason for outlawing bigamous and incestuous marriages is to vindicate the moral judgment of the People of Hawaii that such marriages are wrong. The prohibition on same-sex marriage set forth in HRS [SEC] 572-1 is supported by the same compelling interest and cannot be distinguished from these other traditional restrictions on marriages. Ironically, in rejecting the State's argument on this point, the Circuit Court highlighted the fundamental flaw in the judgment it has entered: "Defendant's argument that legalized prostitution, incest and polygamy will occur if same-sex marriage is allowed disregards existing statutes and established precedent and the [plurality's] acknowledgment of compelling reasons to prevent and prohibit marriage under circumstances such as incest." 7 RA at 232, App. 1 at 42 (citing Baehr, 74 Haw. at 562 n.19, 852 P.2d at 59 n.19). Judicial legalization of prostitution, incest, and polygamy plainly would "disregard[] existing statutes and established precedent"; but this is also true with respect to same-sex marriage, and if "existing statutes and established precedent" are to be overridden in approving same-sex marriage, no meaningful distinction would permit the Court to refuse to recognize the claim of an individual who asserted that - - - - - - - - - - - - - - - - - - ---[Start page 29]--- religious belief required him to commit polygamy. If the State's compelling interest in vindicating the moral values of the community is insufficient to justify the People's refusal to sanction same-sex marriage, then it is likewise insufficient to uphold their refusal to sanction polygamy. B. The State Has a Compelling Interest in Sanctioning the Traditional Marital Relationship Because It Is Essential to the Propagation of the Human Race. Courts have long recognized that "the societal values which underlie the recognition of marriage and the reasons that it has been a preferred and protected legal institution" are those "'associated with the propagation of the human race.'" Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (quoting Singer, 522 P.2d at 1195), aff'd, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982). The Supreme Court has many times emphasized that marriage is "'"fundamental to our very existence and survival."'" Zablocki, 434 U.S. at 383 (quoting Loving, 388 U.S. at 12 (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541(1942))). Indeed, the Court has repeatedly "characterized marriage as `the most important relation in life,' and as 'the foundation of the family without which there would be neither civilization nor progress.'" Zablocki, 434 U.S. at 384 (quoting Maynard, 125 U.S. at 205, 211). Accordingly, "it seems beyond dispute that the state has a compelling interest in encouraging and fostering procreation of the race and providing status and stability to the environment in which children are raised. This has always been one of society's paramount goals." Adams, 486 F. Supp. at 1124. This conclusion also follows inexorably from the plurality's analysis, adopted by a majority of the Court, of plaintiffs' claim under Article I, section 6 in the prior appeal in this case. As previously discussed, the plurality acknowledged the traditional view that marriage is "inextricably linked to procreation," Baehr, 74 Haw. at 553, 852 P.2d at 55 (plurality opinion) (citing Skinner, 316 U.S. at 541), and quoted extensively from many of the passages cited above from the Supreme Court's decisions in Zablocki, Skinner, and Maynard. See id. at 552-55, 852 - - - - - - - - - - - - - - - - - - ---[Start page 30]--- P.2d at 55-56 (plurality opinion).[fn18] In light of this precedent, the plurality concluded that regardless of"[w]hether the [Supreme] Court viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental." Id. at 553, 852 P.2d at 56 (plurality opinion). Accordingly, the Court held that although the right to enter a traditional marriage is fundamental under Hawaii's Constitution, there is no "fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise." Id. at 557, 852 P.2d at 57 (plurality opinion); id. at 588 n.1, 852 P.2d at 70 n.1 (Heen, J., dissenting) (same). Society's interest in procreation is beyond compelling. It is vital. The obvious distinction between traditional and same-sex marriage with respect to the State's vital interest in procreation is sufficient not only to render traditional marriage (but not same-sex marriage) a fundamental right, but also sufficient to sustain the unique legal status that the People of Hawaii, and of every other polity on Earth, accord to traditional opposite-sex marriage. As the Court of Appeals for the District of Columbia explained: [M]uch the same considerations that elevate opposite-sex marriage to the status of a fundamental right constitute the requisite substantial relationship to an important governmental interest of a statute designed to recognize and promote that fundamental right. Surely, if only opposite-sex marriage is a fundamental right, the state may give separate recognition solely to that institution through a marriage act as here. Dean, 653 A.2d at 364 (opinion of Steadman, J., joined by Terry, J.) (footnote omitted). The plurality in this case concluded that the Legislature's 1984 enactment eliminating impotence and physical incapacity to procreate as a basis for denying or annulling a marriage "belie the dissent's wholly unsupported declaration that 'the purpose of HRS [SEC] 572-1 is to promote and protect propagation. . . .' "Baehr, 74 Haw. at 537 n.l, 852 P.2d at 49 n.1 (plurality opinion) (quoting id. at 594 n.8, 852 P.2d 74 n.8 (Heen, J., dissenting)). Since that time, - - - - - - - - - - - - - - - - - - [fn18] The dissent likewise recognized that the purpose underlying HRS[SEC] 572-1 is "'the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children. . . . [M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.'" Baehr, at 594, 852 P.2d at 72-73 (Heen, J., dissenting) (quoting Singer, 522 P.2d at 1195). - - - - - - - - - - - - - - - - - - ---[Start page 31]--- however, the Legislature has specifically addressed the issue, declaring that the 1984 amendment to Hawaii's marriage licensing laws "does not detract from the original purpose of section 521-1," which "was to foster and protect the propagation of the human race through male-female marriages." 1994 Session Laws, ch. 217, [SEC] 1. Moreover, every court that has considered a claim of entitlement to same-sex marriage has rejected the argument that the State's compelling interest in fostering procreation is undercut by the fact that some traditional married couples may not be able to, or choose not to, have children. As the district court in Adams pointed out: There is no real alternative to some overbreadth in achieving this goal. The state has chosen to allow legal marriage as between all couples of opposite sex. The alternative would be to inquire of each couple, before issuing a marriage license, as to their plans for children, and to give sterility tests to all applicants, refusing licenses to those found sterile or unwilling to raise a family. Such tests and inquiries would themselves raise serious constitutional questions. See Griswold v. 381 U.S. 479, 485-86 (1965). Adams, 486 F. Supp. at 1124-25; accord Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971) (the fact that some opposite-sex couples cannot or will not have children, shows that "the classification is no more than theoretically imperfect. We are reminded, however, that 'abstract symmetry' is not demanded by the Fourteenth Amendment."), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972); Singer, 522 P.2d at 1195 (observing that regardless of "exceptional situations" involving opposite-sex couples who cannot or chose not to have children, "[t]he fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race [, and] it is apparent that no same-sex couple offers the possibility of the birth of children by their union"); Dean, 653 A.2d 363 n.5 (opinion of Steadman, j., joined by Terry, J.) (quoting Baker on this point). This Court too has recognized the fallacy inherent in this kind of overbreadth argument. In applying strict scrutiny to the requirement that all women visitors to the State's prison wear brassieres, the Court in Holdman acknowledged that "[h]ad the directive required conventional undergarments only in the cases of women visitors whose physical attributes without brassieres would create a reasonable risk that their attire would be regarded as sexually provocative by male - - - - - - - - - - - - - - - - - - ---[Start page 32]--- residents of the prison, it would have been more difficult to challenge on its face." 59 Haw. at 352, 581 P.2d at 1168. Nevertheless, because "the application of such a standard to prison visitors would . . . have created such intolerable difficulties in making subjective decisions at the prison door as to exclude its use as a less burdensome alternative," the Court held that the directive satisfies "the strict scrutiny test." Id., 581 P.2d at 1168. As noted earlier, an even more intrusive and burdensome individualized inquiry would have to be undertaken by the State's licensing officials in order to deny marriage licenses to opposite-sex couples who cannot or choose not to have children. The Circuit Court made no effort to address the State's traditional interest in encouraging procreation through marriage. Instead, the trial court limited its analysis to the evidence concerning the effect of traditional marriage upon the development of children. But the Circuit Court's findings in this regard, limited though they are, by themselves establish a compelling interest justifying the classification drawn by Hawaii's traditional marriage laws. The court found: 121. A father and mother can, and do, provide his or her child with unique paternal and maternal contributions which are important, though not essential, to the development of a happy, healthy and well-adjusted child. 122. Further, 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. There is certainly a benefit to children that comes from being raised by their mother and father in an intact and relatively stress free home. 7 RA at 224-25, App. I at 34-35 (emphasis added). These findings establish that the "important" and "unique paternal and maternal contributions" that are only available in the context of a traditional marriage "certainly [provide] a benefit to children" that same-sex marriages cannot provide. It matters not, as the Circuit Court seemed to believe, that this ideal family structure is not available to all of Hawaii's children, or that other factors (such as a nurturing relationship between parent and child) also play an important role in child development. It is settled that a legislature need not completely solve a social problem so long as the partial solution it has chosen advances a compelling state interest. See Rivera, 62 Haw. at 122-23, 612 P.2d at 529 (applying strict scrutiny to uphold rape law that - - - - - - - - - - - - - - - - - - ---[Start page 33]--- applies only to men because the Legislature may "selectively deal with the act of forced intercourse by men upon women as a more significant societal problem"). The findings set forth above demonstrate that Hawaii's policy of sanctioning only traditional marriage does advance the undeniably compelling objective of favoring familial relationships that "certainly" provide a "unique" benefit to children. See also Independent Women's Forum Amicus Curiae Brief at 4-6. C. Hawaii Has a Compelling Interest in Ensuring that Its Marriages Are Recognized by the Federal Government and by Hawaii's Sister States. Following this Court's decision in the first appeal in this case, both Congress and the legislatures of 20 states promptly enacted laws expressly refusing to recognize same-sex marriages sanctioned by Hawaii (or any other State). [fn19] In addition, in order to protect Hawaii's sister States from claims based on the Full Faith and Credit Clause of the United States Constitution, Congress enacted the Defense of Marriage Act ("DOMA") to expressly permit States, territories, and Indian tribes to refuse "to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship." 28 U.S.C. [SEC] 1738C. Hawaii plainly has a compelling interest in ensuring that its marriages are fully recognized throughout the United States. See Sosna v. Iowa, 419 U.S. 393, 407 (1975) (recognizing "the State's parallel interests both in avoiding officious intermeddling in matters in - - - - - - - - - - - - - - - - - - [fn19] U.S.C. [SEC] 7 (defining "marriage" for all federal purposes as "only a legal union between one man and one woman"). Most of these jurisdictions have explicitly refused to recognize or enforce same-sex marriages authorized in other jurisdictions. See Alaska Stat. [SEC] 25.05:013 (Michie 1996); Ariz. Rev. Stat. [SEC][SEC] 25-101,25-112 (West 1996); 1997 Ark. Adv. Legis. Serv. 144 (Michie); Del. Code Ann. tit. 13, [SEC] 101 (1996); Ga. Code Ann. [SEC] 19-3-3.1 (1996); Idaho Code [SEC] 32-209 (1996); Kan. Stat. Ann. [SEC] 23-i 15 (1996); Mich. Comp. Laws [SEC][SEC] 25.15425.16 (1996); 1997 Miss. Laws 301; N.C. Gen. Stat. [SEC] 51-1.2 (1996); 1997 N.D. Senate Bill 2230; Okla. Stat. tit. 43, [SEC] 3.1 (1996); 1996 Pa. Laws 124; Tenn. Code Ann. [SEC] 36-3-113 (1996); 1997 Va. Acts ch. 354 & ch. 365; 1997 Me. 1.1, L.D. 1017-I.B.1 - P.L. 65. Other states have taken similar action by declaring same-sex marriage to be void as against public policy. See 750 Ill. Comp. Stat. Ann. 5/212 & 5/213.1 (West 1996); Mo. Ann. Stat. [SEC] 451.022 (West 1996); S.C. Code Ann. [SEC] 20-1-15 (Law Co-op. 1996); Utah Code Ann. [SEC] 30-1-2 (1996). Similar legislation is currently pending in 20 other states. - - - - - - - - - - - - - - - - - - ---[Start page 34]--- which another State has a paramount interest, and in minimizing the susceptibility of its own divorce decrees to collateral attack"). The Circuit Court did not take issue with this point, but instead apparently concluded that the Full Faith and Credit Clause of the United States Constitution would preclude other States from refusing to recognize the marriages its judgment requires Hawaii to sanction. See 7 RA at 231, App. 1 at 41. This belief is mistaken.[fn20] It is settled that "the Full Faith and Credit Clause does not require a State to apply another State's, law in violation of its own legitimate public policy." Nevada v. Hall, 440 U.S. 410, 424 (1979). Accordingly, even in the absence of DOMA, the other 49 states would not be forced to recognize same-sex marriages entered in Hawaii "in violation of [their] own legitimate public policy" restricting marriage to traditional couples. In any event, the Full Faith and Credit Clause grants Congress the power to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof" U.S. Const., art. IV, section 1 (emphasis added). DOMA thus ensures that Hawaii's sister States will not be forced to recognize the marriages judicially sanctioned by the Circuit Court's order in this case. CONCLUSION This Court has always recognized that its "duty is 'to give effect to the intentions of the framers and the people adopting' the provision" of Hawaii's Constitution at issue. Mueller, 66 Haw. at 629, 671 P.2d at 1360 (quoting HGEA v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978)). The premise of the plaintiffs' constitutional claim in this case -- that the framers of Article I, section 5 of the Hawaii Constitution, and the People who adopted it, intended to abandon the venerable and universal restriction of the institution of marriage to one man and one woman -- is not open to serious debate. Accordingly, plaintiffs' argument that the - - - - - - - - - - - - - - - - - - [fn20] Moreover, even if the Circuit Court's understanding of the Full Faith and Credit Clause is correct, it does not change the fact that the federal government refuses to recognize same-sex marriages. In light of the myriad ways in which federal and Hawaii law interact in areas impacted by the existence vel non of a valid marriage -- e.g., the calculation of income taxes and the provision of welfare benefits -- discordant federal and State definitions of marriage would surely produce enormous confusion and litigation that the State has a compelling interest in avoiding. - - - - - - - - - - - - - - - - - - ---[Start page 35]--- time has come for the institution of marriage to be broadened to permit men to marry men and women to marry women should be addressed to the Legislature. In these circumstances, this Court's duty is plain: it must defer to the People's right to resolve this issue for themselves. Accordingly, the judgment of the Circuit Court must be reversed, and the case remanded with instructions to enter judgment in favor of defendant. April 29, 1997 Respectfully submitted, Margery S. Bronster, 4750 Charles J. Cooper Attorney General of Hawaii (Admitted pro hac vice) Dorothy Sellers, 4069 Michael A. Carvin Deputy Attorney General Michael W. Kirk Department of the Attorney Cooper & Carvin, PLLC General, State of Hawaii 2000 K Street, N.W. 425 Queen Street Suite 401 Honolulu, HI 96813 Washington, D.C. 20006 (818) 586-1387 (202) 822-8950 Counsel for Defendant-Appellant - - - - - - - - - - - - - - - - - - ---[Start page Statement of Related Cases]--- STATEMENT OF RELATED CASES Counsel for Defendant-Appellant are unaware of any related case. - - - - - - - - - - - - - - - - - - ---[Start page Appendix-1]--- APPENDIX 1 [Appendix 1 contains a copy of the previous ruling in the Court of Judge Kevin Chang, and has been omitted for brevity. Please select a copy of the ruling from the main menu if you would like this item in full.] - - - - - - - - - - - - - - - - - - ---[Start page Appendix-2]--- APPENDIX 2 HAWAII CONSTITUTION, ARTICLE I SECTION 5 STATE CONSTITUTION Art I-Sec. 5 DUE PROCESS AND EQUAL PROTECTION Section 5. No person shall be deprived of life, liberty or property without due process of law, nor be denied the 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. [Ren and am Const Con 1978 and election Nov 7, 1978] - - - - - - - - - - - - - - - - - - ---[Start page Appendix-3]--- APPENDIX 3 HAW. REV. STAT. [SEC] 572-1 (as of date of filing complaint) HAW. REV. STAT. [SEC] 572-1 (as of June 22, 1994) [SEC] 572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2; (3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party; (6) It shall in no case be lawful for any person to marry in the State without a license for that purpose duly obtained from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and the woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony. [L 1872, c 23, [SEC] 1; am L 1903, c 28, [SEC] 1; am L 1907, c 42, [SEC] 1; am L 1913, c 8, 11; RL 1925, [SEC] 2943; RL 1935, [SEC] 4630; am L 1935, c 185, [SEC] 1; am L 1937, c 59, [SEC] 1; am L 1939, c 122, [SEC] 1; RL 1945, [SEC] 12351; am L 1949, c 53, [SEC] 29; am L 1953, c 79, [SEC] 1; RL 1955, [SEC] 323-1; am L 1965, c 232, [SEC] 1; HRS [SEC] 572-1; am L 1969, c 152, [SEC] 1; am L 1970, c 9, [SEC] 1; am L 1972, c 182, [SEC] 1 and c 192, pt of [SEC] 1; am L 1978, c 74, [SEC] 1; am L 1981, c 202, [SEC] 1; am L 1984, c 119, [SEC] 1] [SEC] 572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, which shall be only between a man and a woman, it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years to marry, subject to section 572-2; (3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party; (6) The man and woman to be married in the State shall have duly obtained a license for that purpose from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and the woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony. [L 1872, c 23, [SEC] 1; am L 1903, c 28, [SEC] 1; am L 1907, c 42, [SEC] 1; am L 1913, c 8, [SEC] 1; RL 1925, [SEC] 2943; RL 1935, [SEC] 4630; am L 1935, c 185, [SEC] 1; am L 1937, c 59, [SEC] 1; am L 1939, c 122, [SEC] 1; RL 1945, [SEC] 12351; am L 1949, c 53, [SEC] 29; am L 1953, c 79, [SEC] 1; RL 1955, [SEC] 3231; am L 1965, c 232, [SEC] 1; HRS [SEC] 572-1; am L 1969, c 152, [SEC] 1; am L 1970, c 9, [SEC] 1; am L 1972, c 182, [SEC] 1 and c 192. Pt of [SEC] 1; am L 1978, c 74, [SEC] 1; am L 1981, c 202, [SEC] 1; am L 1984, c 119, [SEC] 1; am L 1994, c 217, [SEC] 3] - - - - - - - - - - - - - - - - - - ---[Start page Certificate of Service]--- CERTIFICATE OF SERVICE I hereby certify that on this 29th day of April, 1997, two copies of Defendant-Appellant's Opening Brief were served in the manner described on the following counsel of record: By Facsimile and U.S. Mail postage pre-paid: Daniel R. Foley Partington & Foley Suite 2450, Pacific Tower 1001 Bishop Street Honolulu, HI 96813 By U.S. Mail postage pre-paid: Kirk H. Cashmere 201 Merchant Street 2300 City Financial Tower Honolulu, HI 96813 Evan Wolfson Lambda Legal Defense and Education Fund, Inc 120 Wall Street Suite 1500 New York, NY 10005 /s/ Charles J. Cooper (Admitted pro hac vice) Counsel for Defendant-Appellant - - - - - - - - - - - - - - - - - - ---[End of Brief]---