NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE
PREGIL, PAT LAGON, JOSEPH MELILIO, Plaintiffs-Appellants, v.
JOHN C. LEWIN, in his official capacity as Director of the
Department of Health, State of Hawaii, Defendant-Appellee
No. 15689
Supreme Court of Hawaii
74 Haw. 530; 852 P.2d 44; 1993 Haw. LEXIS 26; 93 Cal.
Daily Op. Service 3657
May 5, 1993
May 5, 1993, Filed
SUBSEQUENT HISTORY: Motion for Reconsideration Denied May 27, 1993,
Reported at: 1993 Haw. LEXIS 30.
PRIOR HISTORY: Appeal from the First Circuit Court; Civ. No. 91-1394.
DISPOSITION:
Vacated and remanded.
JUDGES:
Moon, Acting C.J., Levinson, J., Intermediate Court of Appeals Chief Judge
Burns, in place of Lum, C.J., Recused, Intermediate Court of Appeals Judge Heen,
in place of Klein, J., Recused, and Retired Justice Hayashi, * Assigned by
Reason of Vacancy. Opinion by Levinson, J., in which Moon, C.J., Joins; Burns,
J., concurring in the Result. Concurring Opinion by Burns, J. Dissenting
Opinion by Heen, J.
* Retired Associate Justice Hayashi, who was assigned by reason of vacancy to
sit with the justices of the supreme court pursuant to article VI, § 2 of the
Constitution of the State of Hawaii and HRS § 602-10 (1985), and whose temporary
assignment expired prior to the filing of this opinion, would have joined in the
dissent with Associate Judge Heen.
OPINIONBY:
LEVINSON
OPINION:
The plaintiffs-appellants Ninia Baehr (Baehr), Genora
Dancel (Dancel), Tammy Rodrigues (Rodrigues), Antoinette Pregil (Pregil), Pat
Lagon (Lagon), and Joseph Melilio (Melilio) (collectively "the plaintiffs")
appeal the circuit court's order (and judgment entered pursuant thereto)
granting the motion of the defendant-appellee [***12] [*536] John C. Lewin
(Lewin), in his official capacity as Director of the Department of Health (DOH),
State of Hawaii, for judgment on the pleadings, resulting in the dismissal of
the plaintiffs' action with prejudice for failure to state a claim against Lewin
upon which relief can be granted. Because, for purposes of Lewin's motion, it
is our duty to view the factual allegations of the plaintiffs' complaint in a
light most favorable to them (i.e., because we must deem such allegations as
true) and because it does not appear beyond doubt that the plaintiffs cannot
prove any set of facts in support of their claim that would entitle them to the
relief they seek, we hold that the circuit court erroneously dismissed the
plaintiffs' complaint. Accordingly, we vacate the circuit court's order and
judgment and remand this matter to the circuit court for further proceedings
consistent with this opinion.
I. BACKGROUND
On May 1, 1991, the plaintiffs filed a complaint for injunctive and
declaratory relief in the Circuit Court of the First Circuit, State of Hawaii,
seeking, inter alia: (1) a declaration that Hawaii Revised Statutes (HRS) §
572-1 (1985) n1 -- the section of [***13] the Hawaii Marriage Law enumerating
the [r]equisites of [a] valid marriage contract" -- [*537] is unconstitutional
insofar as it is [**49] construed and applied by the DOH to justify refusing
to issue a marriage license on the sole basis that the applicant couple is of
the same sex; and (2) preliminary and permanent injunctions prohibiting the
future withholding of marriage licenses on that sole basis.
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n1 HRS § 572-1 provides:
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 court 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 [relating to consent of parent or guardian];
(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
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.
HRS § 572-1 (1985) (emphasis added). In 1984, the legislature amended the
statute to delete the then existing prerequisite that "[n]either of the parties
is impotent or physically incapable of entering into the marriage state[.]" Act
119, § 1, 1984 Haw. Sess. Laws 238-39 (emphasis added). Correlatively, section
2 of Act 119 amended HRS § 580-21 (1985) to delete as a ground for annulment the
fact "that one of the parties was impotent or physically incapable of entering
into the marriage state" at the time of the marriage. Id. at 239 (emphasis
added). The legislature's own actions thus belie the dissent's wholly
unsupported declaration, at 594-95 n.8, that "the purpose of HRS § 572-1 is to
promote and protect propagation . . . ."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***14]
In addition to the necessary jurisdictional and venuerelated averments, the
plaintiffs' complaint alleges the [*538] following facts: (1) on or about
December 17, 1990, Baehr/Dancel, Rodrigues/Pregil, and Lagon/Melilio
(collectively "the applicant couples") filed applications for marriage licenses
with the DOH, pursuant to HRS § 572-6 (Supp. 1992); n2 (2) the DOH denied the
applicant couples' [*539] marriage license applications solely on the ground
that the applicant couples were of the same sex; n3 (3) the [**50] applicant
couples have complied with all marriage contract requirements and provisions
under HRS ch. 572, except that each applicant couple is of the same sex; (4) the
applicant couples are otherwise eligible to secure marriage licenses from the
DOH, absent the statutory prohibition or construction of HRS § 572-1 excluding
couples of the same sex from securing marriage licenses; and (5) in denying the
applicant couples' marriage license applications, the DOH was acting in its
official capacity and under color of state law.
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n2 HRS § 572-6 provides:
Application; license; limitations. To secure a license to marry,
the persons applying for the license shall appear personally before an
agent authorized to grant marriage licenses and shall file with the
agent an application in writing. The application shall be accompanied
by a statement signed and sworn to by each of the persons, setting
forth: the person's full name, date of birth, residence; their
relationship, if any; the full names of parents; and that all prior
marriages, if any, have been dissolved by death or dissolution. If
all prior marriages have been dissolved by death or dissolution, the
statement shall also set forth the date of death of the last prior
spouse or the date and jurisdiction in which the last decree of
dissolution was entered. Any other information consistent with the
standard marriage certificate as recommended by the Public Health
Service, National Center for Health Statistics, may be requested for
statistical or other purposes, subject to approval of and modification
by the department of health; provided that the information shall be
provided at the option of the applicant and no applicant shall be
denied a license for failure to provide the information. The agent
shall indorse on the application, over the agent's signature, the date
of the filing thereof and shall issue a license which shall bear on
its face the date of issuance. Every license shall be of full force
and effect for thirty days commencing from and including the date of
issuance. After the thirty-day period, the license shall become void
and no marriage ceremony shall be performed thereon.
It shall be the duty of every person, legally authorized to issue
licenses to marry, to immediately report the issuance of every
marriage license to the agent of the department of health in the
district in which the license is issued, setting forth all the facts
required to be stated in such manner and on such form as the
department may prescribe.
HRS § 572-6 (Supp. 1992).
HRS § 572-5(a) (Supp. 1992) provides in relevant part that "[t]he department
of health shall appoint . . . one or more suitable persons as agents authorized
to grant marriage licenses . . . in each judicial circuit." [***15]
n3 Exhibits "A," "C," and "D," attached to the plaintiffs' complaint, purport
to be identical letters dated April 12, 1991, addressed to the respective
applicant couples, from the DOH's Assistant Chief and State Registrar, Office of
Health Status Monitoring, which stated:
This will confirm our previous conversation in which we indicated
that the law of Hawaii does not treat a union between members of the
same sex as a valid marriage. We have been advised by our attorneys
that a valid marriage within the meaning of ch. 572, Hawaii Revised
Statutes, must be one in which the parties to the marriage contract
are of different sexes. In view of the foregoing, we decline to issue
a license for your marriage to one another since you are both of the
same sex and for this reason are not capable of forming a valid
marriage contract within the meaning of ch. 572. Even if we did issue
a marriage license to you, it would not be a valid marriage under
Hawaii law.
(Emphasis added.)
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Based on the foregoing factual allegations, the plaintiffs' complaint avers
that: (1) the DOH's interpretation [***16] and application of HRS § 572-1 to
deny same-sex couples access to marriage licenses violates the plaintiffs' right
to privacy, as guaranteed by article I, section 6 of the Hawaii [*540]
Constitution, n4 as well as to the equal protection of the laws and due process
of law, as guaranteed by article I, section 5 of the Hawaii Constitution; n5 (2)
the plaintiffs have no plain, adequate, or complete remedy at law to redress
their alleged injuries; and (3) the plaintiffs are presently suffering and will
continue to suffer irreparable injury from the DOH's acts, policies, and
practices in the absence of declaratory and injunctive relief.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Article I, section 6 of the Hawaii Constitution provides:
The right of the people to privacy is recognized and shall not be
infringed without the showing of a compelling state interest. The
legislature shall take affirmative steps to implement this right.
Haw. Const. art. I, § 6 (1978).
n5 Article I, section 5 of the Hawaii Constitution provides:
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.
Haw. Const. art. I, § 5 (1978).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***17]
On June 7, 1991, Lewin filed an amended answer to the plaintiffs' complaint.
In his amended answer, Lewin asserted the defenses of failure to state a claim
upon which relief can be granted, sovereign immunity, qualified immunity, and
abstention in favor of legislative action. n6 With regard to the plaintiffs'
factual allegations, Lewin admitted: (1) his residency and status as the
director of the DOH; (2) that on or about December 17, 1990, the applicant
couples personally appeared before an [*541] authorized agent of the DOH and
applied for marriage licenses; (3) that the applicant couples' marriage license
applications were denied on the ground that each couple was of the same sex; and
(4) that the DOH did not address the issue of the premarital examination
required by HRS § 572-7(a) (Supp. 1992) n7 "upon being advised" that the
applicant couples were of the same sex. Lewin denied all of the remaining
allegations of the complaint.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Lewin's motion for judgment on the pleadings relied exclusively on the
ground that the plaintiffs' complaint failed to state a claim upon which relief
could be granted, and the circuit court granted the motion and entered judgment
in Lewin's favor on that basis alone. Accordingly, the merits of Lewin's other
defenses are not at issue in this appeal, and we do not reach them. [***18]
n7 In substance, HRS § 572-7(a) (Supp. 1992) requires "the female" to
accompany a marriage license application with a signed physician's statement
verifying that she has been given a serological test for immunity against
rubella and has been informed of the adverse effects of rubella on fetuses. The
statute exempts from the examination requirement those females who provide proof
of live rubella virus immunization or laboratory evidence of rubella immunity,
"or who, by reason of age or other medically determined condition [are] not and
never will be physically able to conceive a child." Id.
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[**51] On July 9, 1991, Lewin filed his motion for judgment on the
pleadings, pursuant to Hawaii Rules of Civil Procedure (HRCP) 12(h)(2) (1990) n8
and 12(c) (1990), n9 and to dismiss the plaintiffs' complaint, pursuant to HRCP
[*542] 12(b)(6) (1990), n10 and memorandum in support thereof in [*543] the
circuit court. The memorandum was unsupported by and contained no references to
any affidavits, depositions, answers to interrogatories, or admissions on file.
Indeed, the record in this case suggests that [***19] the parties have not
conducted any formal discovery.
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n8 HRCP 12(h)(2) (1990) provides in relevant part that "[a] defense of
failure to state a claim upon which relief can be granted . . . may be made . .
. by motion for judgment on the pleadings . . . ."
n9 HRCP 12(c) provides:
Motion for Judgment on the Pleadings. After the pleadings are closed
but within such time as not to delay the trial, any party may move for
judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall
be given reasonable opportunity to present all material made pertinent
to such motion by Rule 56.
HRCP 12(c) (1990).
HRCP 56 provides in relevant part:
(b) For Defending Party. A party against whom a claim . . . is
asserted or a declaratory judgment is sought may, at any time, move
with or without supporting affidavits for a summary judgment in his
favor as to all or any part thereof.
(c) Motion and Proceedings thereon. The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse
party prior to the day of hearing may serve opposing affidavits. The
judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. . . .
. . . .
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in any affidavit shall be
attached thereto or served therewith. The court may permit affidavits
to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. . . .
HRCP 56 (1990). [***20]
n10 HRCP 12(b) provides in relevant part:
(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading . . . shall be asserted in the responsive
pleading thereto if one is required, except that the following
defenses may at the option of the pleader be made by motion: . . . (6)
failure to state a claim upon which relief can be granted . . . . A
motion making any of these defenses shall be made before pleading if a
further pleading is permitted. . . . If, on a motion asserting the
defense numbered (6) to dismiss for failure of the pleading to state a
claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
HRCP 12(b) (1990).
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In his memorandum, Lewin urged that the plaintiffs' complaint failed to state
a claim upon which relief could be granted for the following reasons: (1) the
state's [***21] marriage laws "contemplate marriage as a union between a man
and a woman"; (2) because the only legally recognized right to marry "is the
right to enter a heterosexual marriage, [the] plaintiffs do not have a
cognizable right, fundamental or otherwise, to enter into state-licensed
homosexual marriages"; n11 (3) the state's marriage laws do not "burden,
penalize, infringe, or interfere [**52] in any way with the [plaintiffs']
private relationships"; (4) the state is under no obligation "to take
affirmative steps to provide homosexual unions with its official approval"; (5)
the state's marriage laws "protect and foster and may help to perpetuate the
basic family unit, regarded as vital to society, that provides status and a
nurturing environment to [*544] children born to married persons" and, in
addition, "constitute a statement of the moral values of the community in a
manner that is not burdensome to [the] plaintiffs"; (6) assuming the plaintiffs
are homosexuals (a fact not pleaded in the plaintiffs' complaint), n12 they "are
neither a suspect nor a quasi-suspect class and do not require heightened
judicial solicitude"; and (7) even if heightened judicial solicitude is
warranted, the [***22] state's marriage laws "are so removed from penalizing,
burdening, harming, or otherwise interfering with [the] plaintiffs and their
relationships and perform such a critical function in society that they must be
sustained."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 "Homosexual" and "same-sex" marriages are not synonymous; by the same
token, a "heterosexual" same-sex marriage is, in theory, not oxymoronic. A
"homosexual" person is defined as "[o]ne sexually attracted to another of the
same sex." Taber's Cyclopedic Medical Dictionary 839 (16th ed. 1989).
"Homosexuality" is "sexual desire or behavior directed toward a person or
persons of one's own sex." Webster's Encyclopedic Unabridged Dictionary of the
English Language 680 (1989). Conversely, "heterosexuality" is "[s]exual
attraction for one of the opposite sex," Taber's Cyclopedic Medical Dictionary
at 827, or "sexual feeling or behavior directed toward a person or persons of
the opposite sex." Webster's Encyclopedic Unabridged Dictionary of the English
Language at 667. Parties to "a union between a man and a woman" may or may not
be homosexuals. Parties to a same-sex marriage could theoretically be either
homosexuals or heterosexuals. [***23]
n12 Lewin is correct that the plaintiffs' complaint does not allege that the
plaintiffs, or any of them, are homosexuals. Thus it is Lewin, who, by virtue of
his motion for judgment on the pleadings, has sought to place the question of
homosexuality in issue.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The plaintiffs filed a memorandum in opposition to Lewin's motion for
judgment on the pleadings on August 29, 1991. Citing Au v. Au, 63 Haw. 210,
626 P.2d 173 (1981), and Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d
887 (1962), they argued that, for purposes of Lewin's motion, the circuit court
was bound to accept all of the facts alleged in their complaint as true and that
the complaint therefore could not be dismissed for failure to state a claim
unless it appeared beyond doubt that they could prove no set of facts that would
entitle them to the relief sought. Proclaiming their homosexuality and
asserting a fundamental constitutional right to sexual orientation, the
plaintiffs reiterated their position that the DOH's refusal to [***24] issue
marriage licenses to the applicant couples violated their rights to privacy,
equal protection of the laws, and due process of law under article I, sections 5
and 6 of the Hawaii Constitution.
[*545] The circuit court heard Lewin's motion on September 3, 1991, and, on
October 1, 1991, filed its order granting Lewin's motion for judgment on the
pleadings on the basis that Lewin was "entitled to judgment in his favor as a
matter of law" and dismissing the plaintiffs' complaint with prejudice. n13 The
plaintiffs' timely appeal followed.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 A final and appealable judgment in Lewin's favor and against the
plaintiffs was filed contemporaneously with the order granting the motion for
judgment on the pleadings.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
II. JUDGMENT ON THE PLEADINGS WAS ERRONEOUSLY GRANTED.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his or her claim that would entitle him or her to relief. Ravelo v. County of
Hawaii, 66 Haw. 194, 198, 658 P.2d 883, 886 (1983) [***25] (quoting Midkiff,
45 Haw. at 414, 368 P.2d at 890); Marsland v. Pang, 5 Haw. App. 463, 474, 701
P.2d 175, 185-86, cert. denied, 67 Haw. 686, 744 P.2d 781 (1985). We must
therefore view a plaintiff's complaint in a light most favorable to him or her
in order to determine whether the allegations contained therein could warrant
relief under any alternative theory. Ravelo, 66 Haw. at 199, 658 P.2d at 886.
For this reason, in reviewing the circuit court's order dismissing the
plaintiffs' complaint in this case, our consideration is strictly limited to the
allegations of the complaint, and we must deem those allegations to be true.
Au, 63 Haw. at 214, 626 P.2d at 177 (1981).
An HRCP 12(c) motion serves much the same purpose as an HRCP 12(b)(6) motion,
except that it is made after [*546] the pleadings are closed. Marsland, 5
Haw. App. at 474, 701 P.2d at 186. "'A Rule 12(c) motion . . . for [***26] a
judgment on the pleadings only has utility when all material allegations of fact
are admitted in the pleadings and only questions of law remain.'" [**53] Id.
at 475, 701 P.2d at 186 (citing 5 Wright and Miller, Federal Practice and
Procedure: Civil § 1357 (1969)).
Based on the foregoing authority, it is apparent that an order granting an
HRCP 12(c) motion for judgment on the pleadings must be based solely on the
contents of the pleadings. A claim that is evidentiary in nature and requires
findings of fact to resolve cannot properly be disposed of under the rubric of
HRCP 12(c). Cf. Nawahie v. Goo Wan Hoy, 26 Haw. 111 (1921) ("Only such facts
as were properly before the court below at the time of the rendition of the
decree appealed from and which appear in the record . . . on appeal will be
considered. All other matters will be treated as surplusage and of course will
be disregarded.") We have recognized that consideration of matters outside the
pleadings transforms a motion seeking dismissal of a complaint into an HRCP 56
motion for summary judgment. See Au, 63 Haw. at 213, 626 P.2d at 176; [***27]
Del Rosario v. Kohanuinui, 52 Haw. 583, 483 P.2d 181 (1971); HRCP 12(b) (1990);
cf. HRCP 12(c) (1990). But resort to matters outside the record, by way of
"[u]nverified statements of fact in counsel's memorandum or representations made
in oral argument" or otherwise, cannot accomplish such a transformation. See Au
, 63 Haw. at 213, 626 P.2d at 177; cf. Asada v. Sunn, 66 Haw. 454, 455, 666
P.2d 584, 585 (1983); Mizoguchi v. State Farm Mut. Auto. Ins. Co., 66 Haw. 373,
381-82, 663 P.2d 1071, 1076-77 (1983); HRCP 56(e) (1990).
[*547] A. The Circuit Court Made Evidentiary Findings of Fact.
Notwithstanding the absence of any evidentiary record before it, the circuit
court's October 1, 1991 order granting Lewin's motion for judgment on the
pleadings contained a variety of findings of fact. For example, the circuit
court "found" that: (1) HRS § 572-1 "does not infringe upon a person's
individuality or lifestyle decisions, and none of the plaintiffs has provided
testimony to the [***28] contrary"; (2) HRS § 572-1 "does not . . . restrict
[or] burden . . . the exercise of the right to engage in a homosexual lifestyle
"; (3) Hawaii has exhibited a "history of tolerance for all peoples and their
cultures"; (4) "the plaintiffs have failed to show that they have been
ostracized or oppressed in Hawaii and have opted instead to rely on a general
statement of historic problems encountered by homosexuals which may not be
relevant to Hawaii"; (5) "homosexuals in Hawaii have not been relegated to a
position of 'political powerlessness.' . . . [T]here is no evidence that
homosexuals and the homosexual legislative agenda have failed to gain
legislative support in Hawaii"; (6) the "[p]laintiffs have failed to show that
homosexuals constitute a suspect class for equal protection analysis under
[a]rticle I, [s]ection 5 of the Hawaii State Constitution;" (7) "the issue of
whether homosexuality constitutes an immutable trait has generated much dispute
in the relevant scientific community"; n14 and (8) HRS § 572-1 "is obviously
[**54] designed to promote the general welfare interests of the [*548]
community by sanctioning traditional man-woman family units and procreation."
[***29] (Emphasis added.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 For the reasons stated, infra, in this opinion, it is irrelevant, for
purposes of the constitutional analysis germane to this case, whether
homosexuality constitutes "an immutable trait" because it is immaterial whether
the plaintiffs, or any of them, are homosexuals. Specifically, the issue is not
material to the equal protection analysis set forth in section II. C of this
opinion, infra at 557-580. Its resolution is unnecessary to our ruling that HRS
§ 572-1, both on its face as applied, denies same-sex couples access to the
marital status and its concomitant rights and benefits. Its resolution is also
unnecessary to our conclusion that it is the state's regulation of access to the
marital status, 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. See
infra at 558-571. And, in particular, it is immaterial to the exercise of
"strict scrutiny" review, see infra at 571-580, inasmuch as we are unable to
perceive any conceivable relevance of the issue to the ultimate conclusion of
law -- which, in the absence of further evidentiary proceedings, we cannot reach
at this time -- regarding whether HRS § 572-1 furthers compelling state
interests and is narrowly drawn to avoid unnecessary abridgments of
constitutional rights. See infra at 580-81.
In light of the above, we disagree with Chief Judge Burns's position that
"questions whether heterosexuality, homosexuality, bisexuality, and asexuality
are 'biologically fated' are relevant questions of fact[.]" Concurring opinion
at 587. This preoccupation seems simply to restate the immaterial question
whether sexual orientation is an "immutable trait."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***30]
Although not expressly denominated as such, the circuit court's order also
contained a number of conclusions of law. n15 These included: (1) "[t]he right
to enter into a homosexual marriage is not a fundamental right protected by
[a]rticle I, [s]ection 6 of the Hawaii State Constitution"; (2) the right to be
free from the denial of a person's [*549] civil rights or from discrimination
in the exercise thereof because of "sexual orientation [is] . . . covered under
[a]rticle I, [s]ection 5 of the State Constitution"; (3) HRS § 572-1 "permits
heterosexual marriages but not homosexual marriages" and "does not violate the
due process clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution
"; (4) HRS § 572-1 "represents a legislative decision to extend the benefits of
lawful marriage only to traditional family units which consist of male and
female partners"; (5) "[b]ecause [entering into a] homosexual marriage [is not]
a fundamental [constitutional] right . . ., the provisions of section 572-1 do
not violate the due process clause of [a]rticle I, [s]ection 5 of the Hawaii
State Constitution"; (6) "[h]omosexuals do not constitute a 'suspect class' for
purposes of equal protection [***31] analysis under [a]rticle I, [s]ection 5 of
the Hawaii State Constitution"; (7) "a group must have been subject to
purposeful, unequal treatment or have been relegated to a position of political
powerlessness in order to be considered a 'suspect class' for the purposes of
constitutional analysis"; (8) "[a] law which classifies on the basis of race
deserves the utmost judicial scrutiny because race clearly qualifies as a
suspect classification. The same cannot be convincingly said with respect to
homosexuals as a group"; (9) "the classification created by section 572-1 must
meet only the rational relationship test"; (10) "[t]he classification of section
572-1 meets the rational relationship test"; (11) "[s]ection 572-1 is clearly a
rational, legislative effort to advance the general welfare of the community by
permitting only heterosexual couples to legally marry"; and, finally, (12) Lewin
"is entitled to judgment in his favor as a matter of law[.]"
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n15 A "conclusion of law," for present purposes, is either: (1) a "[f]inding
by [the] court as determined through application of rules of law"; (2)
"[p]ropositions of law which [the] judge arrives at after, and as a result of,
finding certain facts in [the] case[;]" or (3) "[t]he final judgment or decree
required on [the] basis of facts found[.]" Black's Law Dictionary 290 (6th ed.
1990). The second category may constitute such "mixed questions of fact and law
" as "are dependent upon the facts and circumstances of each individual case[.]"
See Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***32]
In reviewing the circuit court's order on appeal, as noted above, we must
deem all of the factual allegations of [*550] the plaintiffs' complaint as
true or admitted, see Au, 63 Haw. at 214, 626 P.2d at 177; Marsland, 5 Haw.
App. at 475, 701 P.2d at 186, and, in the absence of an evidentiary record,
ignore all of the circuit court's findings of fact. See Au, 63 Haw. at 213, 626
P.2d at 177; Marsland, 5 Haw. App. at 475, 701 P.2d at 186; cf. Asada, 66 Haw.
at 455, 666 P.2d at 585; Mizoguchi, 66 Haw. at 381-82, 663 P.2d at 1076-77;
Nawahie, 26 Haw. at 111; HRCP 12(c) and 56(e). Ultimately, our task on appeal
is to determine whether the circuit court's order, stripped of its improper
factual findings, supports its conclusion that Lewin is entitled to judgment as
a matter of law and, by implication, that it appears beyond doubt that the
plaintiffs [***33] can prove no set of facts in support of their claim that
would entitle them to relief under any alternative theory. See Ravelo, 66 Haw.
at 198-99; Au, 63 Haw. at 214, 626 P.2d at 177; Marsland, 5 Haw. App. at
474-75.
We conclude that the circuit court's order runs aground on the shoals of the
Hawaii Constitution's equal protection clause and that, on the record before us,
unresolved factual questions preclude entry of judgment, as a matter of law, in
favor of Lewin and against the plaintiffs. Before we address the plaintiffs'
equal protection claim, however, it is necessary as a threshold matter to
consider their allegations regarding the right to privacy (and, derivatively,
[**55] due process of law) within the context of the record in its present
embryonic form.
B. The Right to Privacy Does Not Include a Fundamental Right to Same-Sex
Marriage.
It is now well established that "'a right to personal privacy, or a guarantee
of certain areas or zones of privacy,' is implicit in the United States
Constitution." State v. Mueller, 66 Haw. 616, 618, 671 P.2d 1351, 1353 [*551]
(1983) [***34] (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35
L. Ed. 2d 147 (1973)). And article I, section 6 of the Hawaii Constitution
expressly states that "[t]he right of the people to privacy is recognized and
shall not be infringed without the showing of a compelling state interest." Haw.
Const. art. I, § 6 (1978). The framers of the Hawaii Constitution declared that
the "privacy concept" embodied in article I, section 6 is to be "treated as a
fundamental right[.]" State v. Kam, 69 Haw. 483, 493, 748 P.2d 372, 378 (1988)
(citing Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional
Convention of Hawaii of 1978, at 1024 (1980)).
When article I, section 6 of the Hawaii Constitution was being adopted, the
1978 Hawaii Constitutional Convention, acting as a committee of the whole,
clearly articulated the rationale for its adoption:
By amending the Constitution to include a separate and distinct
privacy right, it is the intent of your Committee to insure that
privacy is treated as a fundamental right for purposes of
constitutional analysis. . . . This [***35] right is similar to the
privacy right discussed in cases such as Griswold v. Connecticut,
[381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)], Eisenstadt
v. Baird, [405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)], Roe
v. Wade, etc. It is a right that, though unstated in the federal
Constitution, emanates from the penumbra of several guarantees of the
Bill of Rights. Because of this, there has been some confusion as to
the source of the right and the importance of it. As such, it is
treated as a fundamental right subject to interference only when a
compelling state interest is demonstrated. By inserting clear and
specific language regarding [*552] this right into the Constitution,
your Committee intends to alleviate any possible confusion over the
source of the right and the existence of it.
Comm. Whole Rep. No. 15, 1 Proceedings, at 1024. This court cited the same
passage in Mueller, 66 Haw. at 625-26, 671 P.2d at 1357-58, in an attempt to
determine the "intended scope of privacy [***36] protected by the Hawaii
Constitution." Id. at 626, 671 P.2d at 1358. We ultimately concluded in Mueller
that the federal cases cited by the Convention's committee of the whole should
guide our construction of the intended scope of article I, section 6. Id.
Accordingly, there is no doubt that, at a minimum, article I, section 6 of
the Hawaii Constitution encompasses all of the fundamental rights expressly
recognized as being subsumed within the privacy protections of the United States
Constitution. In this connection, the United States Supreme Court has declared
that "the right to marry is part of the fundamental 'right of privacy' implicit
in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434
U.S. 374, 384, 98 S. Ct. 673, 680, 54 L. Ed. 2d 618 (1978). The issue in the
present case is, therefore, whether the "right to marry" protected by article I,
section 6 of the Hawaii Constitution extends to same-sex couples. Because
article I, section 6 was expressly derived from the general right to privacy
under the United States Constitution and because [***37] there are no Hawaii
cases that have delineated the fundamental right to marry, this court, as we did
in Mueller, looks to federal cases for guidance.
The United States Supreme Court first characterized the right of marriage as
fundamental in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S. Ct.
1110, 86 L. Ed. 1655 (1942). In Skinner, the right to marry [*553] was
inextricably linked to the right of procreation. The dispute before the court
arose out of an Oklahoma statute that allowed the state to sterilize "habitual
criminals" without their consent. In striking down the statute, the Skinner
court [**56] indicated that it was "dealing . . . with legislation which
involve[d] one of the basic civil rights of man. Marriage and procreation are
fundamental to the very existence and survival of the race." Id. at 541, 62 S.
Ct. at 1113 (emphasis added). Whether the 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 [***38] that
the right to marry was fundamental. This is hardly surprising inasmuch as none
of the United States sanctioned any other marriage configuration at the time.
The United States Supreme Court has set forth its most detailed discussion of
the fundamental right to marry in Zablocki, supra, which involved a Wisconsin
statute that prohibited any resident of the state with minor children "not in
his custody and which he is under obligation to support" from obtaining a
marriage license until the resident demonstrated to a court that he was in
compliance with his child support obligations. 434 U.S. at 376, 98 S. Ct. at
675. The Zablocki court held that the statute burdened the fundamental right to
marry; applying the "strict scrutiny" standard to the statute, the court
invalidated it as violative of the fourteenth amendment to the United States
Constitution. Id. at 390-91, 98 S. Ct. at 683. In so doing, the Zablocki court
delineated its view of the evolution of the federally recognized fundamental
right of marriage as follows:
Long ago, in Maynard v. Hill, 125 U.S. 190[, 8 S. Ct. 723, 31 L. Ed.
654] [***39] (1888), the Court characterized marriage as "the most
important relation [*554] in life," id., at 205, [8 S. Ct., at 726,]
and as "the foundation of the family and of society, without which
there would be neither civilization nor progress," id., at 211[, 8 S.
Ct., at 729]. In Meyer v. Nebraska, 262 U.S. 390[, 43 S. Ct. 625, 67
L. Ed. 1042] (1923), the Court recognized that the right "to marry,
establish a home and bring up children" is a central part of the
liberty protected by the Due Process Clause, id., at 399, [43 S. Ct.,
at 626,] and in Skinner v. Oklahoma ex rel. Williamson, supra,
marriage was described as "fundamental to the very existence and
survival of the race," 316 U.S., at 541[, 62 S. Ct., at 1113].
. . . .
It is not surprising that the decision to marry has been placed on
the same level of importance as [***40] decisions relating to
procreation, childbirth, child rearing, and family relationships. As
the facts of this case illustrate, it would make little sense to
recognize a right of privacy with respect to other matters of family
life and not with respect to the decision to enter the relationship
that is the foundation of the family in our society. The woman whom
appellee desired to marry had a fundamental right to seek an abortion
of their expected child, see Roe v. Wade, supra, or to bring the child
into life to suffer the myriad social, if not economic, disabilities
that the status of illegitimacy brings . . . . Surely, a decision to
marry and raise the child in a traditional family setting must receive
equivalent protection. And, if appellee's right to procreate means
anything at all, it must imply some right to enter the only [*555]
relationship in which the State of Wisconsin allows sexual relations
legally to take place.
Id. at 384-86, 98 S. Ct. at 680-81 (citations and footnote omitted). Implicit
in the Zablocki court's link between the right to marry, on the one hand, and
the fundamental rights of [***41] procreation, childbirth, abortion, and child
rearing, on the other, is the assumption that the one is simply the logical
predicate of the others.
The foregoing case law demonstrates that the federal construct of the
fundamental right to marry -- subsumed within the right to privacy implicitly
protected by the United States Constitution -- presently contemplates unions
between men and women. (Once again, this is hardly surprising inasmuch as such
unions are the only state-sanctioned marriages currently acknowledged in this
country.)
Therefore, the precise question facing this court is whether we will extend
the present boundaries of the fundamental right of marriage to include same-sex
couples, [**57] or, put another way, whether we will hold that same-sex
couples possess a fundamental right to marry. In effect, as the applicant
couples frankly admit, we are being asked to recognize a new fundamental right.
There is no doubt that "[a]s the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawaii Constitution, we are
free to give broader privacy protection [under article I, section 6 of the
Hawaii Constitution] than that given by the federal [***42] constitution."
Kam, 69 Haw. at 491, 748 P.2d at 377 (citations omitted). However, we have also
held that the privacy right found in article I, section 6 is similar to the
federal right and that no "purpose to lend talismanic effect" to abstract
phrases such as "intimate decision" or "personal autonomy" can "be inferred from
[article I, section 6], any more than . . . from [*556] the federal decisions.
" Mueller, 66 Haw. at 630, 671 P.2d at 1360.
In Mueller, this court, in attempting to circumscribe the scope of article I,
section 6, found itself ultimately "led back to" the landmark United States
Supreme Court cases "in [its] search for guidance" on the issue. Id. at 626,
671 P.2d at 1358. In the case that first recognized a fundamental right to
privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965), the
court declared that it was "deal[ing] with a right . . . older than the Bill of
Rights[.]" Id. at 486, 85 S. Ct. at 1682. [***43] And in a concurring opinion,
Justice Goldberg observed that judges "determining which rights are fundamental"
must look not to "personal and private notions," but
to the "traditions and [collective] conscience of our people" to
determine whether a principle is "so rooted [there] . . . as to be
ranked as fundamental." . . . The inquiry is whether a right involved
"is of such a character that it cannot be denied without violating
those 'fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions' . . . ."
Id. at 493, 85 S. Ct. at 1686-87 (Goldberg, J., concurring) (citations
omitted). n16
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n16 In Mueller, this court cited Palko v. Connecticut, 302 U.S. 319, 58 S.
Ct. 149, 82 L. Ed. 288 (1937), for the proposition that only rights that are
implicit in the concept of ordered liberty can be deemed fundamental. Pursuant
to that standard, this court held that a prostitute did not have a fundamental
right under article I, section 6 of the Hawaii Constitution to conduct business
in her own home. 66 Haw. at 628, 630, 671 P.2d at 1359-60.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***44]
Applying the foregoing standards to the present case, we do not believe that
a right to same-sex marriage is so rooted in the traditions and collective
conscience of our [*557] 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. Neither do we believe that a right to
same-sex marriage is implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if it were sacrificed. 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.
Our holding, however, does not leave the applicant couples without a
potential remedy in this case. As we will discuss below, the applicant couples
are free to press their equal protection claim. If they are successful, the
State of Hawaii will no longer be permitted to refuse marriage licenses to
couples merely on the basis that they are of the same sex. But there is no
fundamental right to marriage for same-sex couples under article I, section 6 of
the Hawaii Constitution.
C. Inasmuch as the Applicant [***45] Couples Claim That the Express Terms
of HRS § 572-1, which Discriminates against Same-Sex Marriages, Violate Their
Rights under the Equal Protection Clause of the Hawaii Constitution, the
Applicant Couples Are Entitled to an Evidentiary Hearing to Determine Whether
Lewin Can Demonstrate that HRS § 572-1 Furthers Compelling State Interests and
Is Narrowly Drawn to Avoid Unnecessary Abridgments of Constitutional Rights.
In addition to the alleged violation of their constitutional rights to
privacy and [**58] due process of law, the applicant couples contend that they
have been denied the equal protection of the laws as guaranteed by article
section 5 [*558] of the Hawaii Constitution. On appeal, the plaintiffs urge
and, on the state of the bare record before us, we agree that the circuit court
erred when it concluded, as a matter of law, that: (1) homosexuals do not
constitute a "suspect class" for purposes of equal protection analysis under
article I, section 5 of the Hawaii Constitution; n17 (2) the classification
created by HRS § 572-1 is not subject to "strict scrutiny," but must satisfy
only the "rational relationship" test; and (3) HRS § 572-1 satisfies the
rational relationship [***46] test because the legislature "obviously designed
[it] to promote the general welfare interests of the community by sanctioning
traditional man-woman family units and procreation."
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n17 For the reasons stated, infra, in this opinion, it is irrelevant, for
purposes of the constitutional analysis germane to this case, whether
homosexuals constitute a "suspect class" because it is immaterial whether the
plaintiffs, or any of them, are homosexuals. See supra note 14.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
1. Marriage is a state-conferred legal partnership status, the existence of
which gives rise to a multiplicity of rights and benefits reserved exclusively
to that particular relation.
The power to regulate marriage is a sovereign function reserved exclusively
to the respective states. Salisbury v. List, 501 F. Supp. 105, 107 (D. Nev.
1980); see O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973). By its very
nature, the power to regulate the marriage relation includes the power [***47]
to determine the requisites of a valid marriage contract and to control the
qualifications of the contracting parties, the forms and procedures necessary to
solemnize the marriage, the duties and obligations it creates, its effect upon
property and other rights, and the [*559] grounds for marital dissolution.
Id.; see also Maynard v. Hill, supra.
In other words, marriage is a state-conferred legal status, the existence of
which gives rise to rights and benefits reserved exclusively to that particular
relationship. This court construes marriage as "'a partnership to which both
partners bring their financial resources as well as their individual energies
and efforts.'" Gussin v. Gussin, 73 Haw. 470, 483, 836 P.2d 484, 491 (1992)
(citation omitted); Myers v. Myers, 70 Haw. 143, 154, 764 P.2d 1237, 1244,
reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1988); Cassiday v. Cassiday
, 68 Haw. 383, 387, 716 P.2d 1133, 1136 (1986). [***48] So zealously has this
court guarded the state's role as the exclusive progenitor of the marital
partnership that it declared, over seventy years ago, that "common law"
marriages -- i.e., "marital" unions existing in the absence of a state-issued
license and not performed by a person or society possessing governmental
authority to solemnize marriages -- would no longer be recognized in the
Territory of Hawaii. Parke v. Parke, 25 Haw. 397, 404-05 (1920). n18
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n18 In Parke, a "common law" petitioner sought unsuccessfully to derive the
benefits of inheritance rights unique to a married spouse, apparently having
affirmatively chosen not to seek the state-conferred status of a lawful marriage
"partner." Id. at 398, 405. A "same sex spouse" suffered the identical fate in
De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984) (two persons of
same sex cannot contract common law marriage, notwithstanding state's
recognition of common law marriage between persons of different sex), a decision
on which Lewin relies in his answering brief. It is ironic that, in arguing
before the circuit court that Hawaii's marriage laws do not "burden, penalize,
infringe, or interfere in any way with the [plaintiffs'] private relationships"
and in urging before this court that their "relationships are not disturbed in
any manner by" HRS § 572-1, Lewin implicitly suggests that the applicant couples
should be content with a de facto status that the state declines to acknowledge
de jure and that lacks the statutory rights and benefits of marriage. See infra
at 560-62.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***49]
[*560] Indeed, the state's monopoly on the business of marriage creation
has been codified by statute for more than a century. HRS § 572-1(7), descended
from an 1872 statute of the Hawaiian Kingdom, conditions a valid marriage
contract on "[t]he marriage ceremony be[ing] performed in the State by a person
or society with a valid license to solemnize marriages[.]" HRS § 572-11 [**59]
(1985) accords the DOH sole authority to grant licenses to solemnize marriages,
and HRS § 572-12 (1985) restricts the issuance of such licenses to clergy,
representatives of religious societies (such as the Society of Friends) not
having clergy but providing solemnization by custom, and judicial officers.
Finally, HRS §§ 572-5 and 572-6 vest the DOH with exclusive authority to issue
licenses to marriage applicants and to ensure that the general requisites and
procedures prescribed by HRS chapter 572 are satisfied.
The applicant couples correctly contend that the DOH's refusal to allow them
to marry on the basis that they are members of the same sex deprives them of
access to a multiplicity of rights and benefits that are contingent upon that
status. Although it is unnecessary in this opinion to engage in [***50] an
encyclopedic recitation of all of them, a number of the most salient marital
rights and benefits are worthy of note. They include: (1) a variety of state
income tax advantages, including deductions, credits, rates, exemptions, and
estimates, under HRS chapter 235 (1985 and Supp. 1992); (2) public assistance
from and exemptions relating to the Department of Human Services under HRS
chapter 346 (1985 and Supp. 1992); (3) control, division, acquisition, and
disposition of community [*561] property under HRS chapter 510 (1985); (4)
rights relating to dower, curtesy, and inheritance under HRS chapter 533 (1985
and Supp. 1992); (5) rights to notice, protection, benefits, and inheritance
under the Uniform Probate Code, HRS chapter 560 (1985 and Supp. 1992); (6) award
of child custody and support payments in divorce proceedings under HRS chapter
571 (1985 and Supp. 1992); (7) the right to spousal support pursuant to HRS §
572-24 (1985); (8) the right to enter into premarital agreements under HRS
chapter 572D (Supp. 1992); (9) the right to change of name pursuant to HRS §
574-5(a)(3) (Supp. 1992); (10) the right to file a nonsupport action under HRS
chapter 575 (1985 and Supp. 1992); [***51] (11) post-divorce rights relating
to support and property division under HRS chapter 580 (1985 and Supp. 1992);
(12) the benefit of the spousal privilege and confidential marital
communications pursuant to Rule 505 of the Hawaii Rules of Evidence (1985); (13)
the benefit of the exemption of real property from attachment or execution under
HRS chapter 651 (1985); and (14) the right to bring a wrongful death action
under HRS chapter 663 (1985 and Supp. 1992). For present purposes, it is not
disputed that the applicant couples would be entitled to all of these marital
rights and benefits, but for the fact that they are denied access to the
state-conferred legal status of marriage.
2. HRS § 572-1, on its face, discriminates based on sex against the
applicant couples in the exercise of the civil right of marriage, thereby
implicating the equal protection clause of article I, section 5 of the Hawaii
Constitution.
Notwithstanding the state's acknowledged stewardship over the institution of
marriage, the extent of permissible [*562] state regulation of the right of
access to the marital relationship is subject to constitutional limitations or
constraints. See, e.g., Zablocki, 435 U.S. at 388-91, 98 S. Ct. at 682-83;
[***52] Loving v. Virginia, 388 U.S. 1, 7-12, 87 S. Ct. 1817, 1821-24, 18 L.
Ed. 2d 1010 (1967); Salisbury, 501 F. Supp. at 107 (citing Johnson v.
Rockefeller, 58 F.R.D. 42 (S.D.N.Y. 1972)). It has been held that a state may
deny the right to marry only for compelling reasons. Salisbury, 501 F. Supp.
at 107; Johnson, supra. n19
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n19 For example, states, including Hawaii, may and do prohibit marriage for
such "compelling" reasons as consanguinity (to prevent incest), see, e.g., HRS §
572-1(1), immature age (to protect the welfare of children), see, e.g., HRS §§
572-1(2) and 572-2 (1985), presence of venereal disease (to foster public
health), see, e.g., HRS § 572-1(5), and to prevent bigamy, see, e.g., HRS §
572-1(3). See also Zablocki, 434 U.S. at 392, 98 S. Ct. at 684 (concurring
opinion of Stewart, J.); Salisbury, 501 F. Supp. at 107.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***53]
The equal protection clauses of the United States and Hawaii Constitutions
are not mirror images of one another. The fourteenth amendment to the United
States Constitution somewhat concisely provides, in relevant part, that a state
may not "deny to any person within its jurisdiction the [**60] equal
protection of the laws." Hawaii's counterpart is more elaborate. Article I,
section 5 of the Hawaii Constitution provides in relevant 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 race, religion, sex, or ancestry." (Emphasis added.)
Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned
discrimination against any person in the exercise of his or her civil rights on
the basis of sex.
"The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly [*563] pursuit of happiness by free [people]."
Loving, 388 U.S. at 12, 87 S. Ct. at 1824. So "fundamental" does the United
States Supreme Court consider the [***54] institution of marriage that it has
deemed marriage to be "one of the 'basic civil rights of [men and women.]'" Id.
(quoting Skinner, 316 U.S. at 541, 62 S. Ct. at 1113).
Black's Law Dictionary (6th ed. 1990) defines "civil rights" as synonymous
with "civil liberties." Id. at 246. "Civil liberties" are defined, inter alia,
as "[p]ersonal, natural rights guaranteed and protected by Constitution; e.g., .
. . freedom from discrimination . . . . Body of law dealing with natural
liberties . . . which invade equal rights of others. Constitutionally, they are
restraints on government." Id. This court has held, in another context, that
such "privilege[s] of citizenship . . . cannot be taken away [on] any of the
prohibited bases of race, religion, sex or ancestry" enumerated in article I,
section 5 of the Hawaii Constitution and that to do so violates the right to
equal protection of the laws as guaranteed by that constitutional provision.
State v. Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-50 (1990) (exclusion of
female jurors solely because of [***55] their sex denies them equal protection
under Hawaii Constitution) (emphasis added).
Rudimentary principles of statutory construction render manifest the fact
that, by its plain language, HRS § 572-1 restricts the marital relation to a
male and a female. "'[T]he fundamental starting point for statutory
interpretation is the language of the statute itself. . . . [W]here the
statutory language is plain and unambiguous,'" we construe it according "'to its
plain and obvious meaning.'" Schmidt v. Board of Directors of Ass'n of
Apartment Owners of The Marco Polo Apartments, 73 Haw. 526, 531-32, 836 P.2d
479, 482 (1992); In re Tax Appeal of Lower Mapunapuna Tenants Ass'n, [*564]
73 Haw. 63, 68, 828 P.2d 263, 266 (1992). The non-consanguinity requisite
contained in HRS § 572-1(1) precludes marriages, inter alia, between "brother
and sister," "uncle and niece," and "aunt and nephew[.]" The anti-bigamy
requisite contained in HRS § 572-1(3) forbids a marriage between a "man" or a
"woman" as the case may be, who, at the time, has a living and "lawful wife . .
. [or] husband[.]" And the [***56] requisite, set forth in HRS § 572-1(7),
requiring marriage ceremonies to be performed by state-licensed persons or
entities expressly speaks in terms of "the man and woman to be married[.]" n20
Accordingly, on its face and (as Lewin admits) as applied, HRS § 572-1 denies
same-sex couples access to the 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n20 That the legislature, in enacting HRS ch. 572, obviously contemplated
marriages between persons of the opposite sex is not, however, outcome
dispositive of the plaintiffs' claim. Legislative action, whatever its
motivation, cannot sanitize constitutional violations. Cf. City of Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 448, 105 S. Ct. 3249, 3259, 87 L.
Ed. 2d 313 (1985) ("It is plain that the electorate as a whole, whether by
referendum or otherwise, could not order . . . action violative of the Equal
Protection Clause.")
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***57]
Relying primarily on four decisions construing the law of other
jurisdictions, n21 [**61] Lewin contends that "the fact that [*565]
homosexual [sic -- actually, same-sex] n22 partners cannot form a state-licensed
marriage is not the product of impermissible discrimination" implicating equal
protection considerations, but rather "a function of their biologic inability as
a couple to satisfy the definition of the status to which they aspire." Lewin's
answering brief at 21. Put differently, Lewin proposes that "the right of
persons of the same sex to marry one another does not exist because marriage, by
definition and usage, means a special relationship between a man and a woman."
Id. at 7. We believe Lewin's argument to be circular and unpersuasive.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n21 The four decisions are Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App.
1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed,
409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); De Santo v. Barnsley, supra;
and Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, review denied, 84 Wash.
2d 1008 (1974). [***58]
n22 See supra note 11.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Two of the decisions upon which Lewin relies are demonstrably inapposite to
the appellant couples' claim. In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d
185 (1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65
(1972), the questions for decision were whether a marriage of two persons of the
same sex was authorized by state statutes and, if not, whether state
authorization was compelled by various provisions of the United States
Constitution, including the fourteenth amendment. Regarding the first question,
the Baker court arrived at the same conclusion as have we with respect to HRS §
572-1: by their plain language, the Minnesota marriage statutes precluded
same-sex marriages. Regarding the second question, however, the court merely
held that the United States Constitution was not offended; apparently, no state
constitutional questions were raised and none were addressed.
De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984), [***59] is
also distinguishable. In De Santo, the court [*566] held only that common law
same-sex marriage did not exist in Pennsylvania, a result irrelevant to the
present case. The appellants sought to assert that denial of same-sex common
law marriages violated the state's equal rights amendment, but the appellate
court expressly declined to reach the issue because it had not been raised in
the trial court.
Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973), and Singer v. Hara,
11 Wash. App. 247, 522 P.2d 1187, review denied, 84 Wash. 2d 1008 (1974),
warrant more in-depth analysis. In Jones, the appellants, both females, sought
review of a judgment that held that they were not entitled to have a marriage
license issued to them, contending that refusal to issue the license deprived
them of the basic constitutional rights to marry, associate, and exercise
religion freely. In an opinion acknowledged to be "a case of first impression
in Kentucky," the Court of Appeals summarily affirmed, ruling as follows:
Marriage was a custom long before the state commenced [***60] to
issue licenses for that purpose. . . . [M]arriage has always been
considered as a union of a man and a woman . . . .
It appears to us that appellants are prevented from marrying, not
by the statutes of Kentucky or the refusal of the County Clerk . . .
to issue them a license, but rather by their own incapability of
entering into a marriage as that term is defined.
. . . .
In substance, the relationship proposed by the appellants does not
authorize the issuance of a marriage license because what they propose
is not a marriage.
501 S.W.2d at 589-90.
[*567] Significantly, the appellants' equal protection rights -- federal or
state -- were not asserted in Jones, and, accordingly, the appeals court was
relieved of the necessity of addressing and attempting to distinguish the
decision of the United States Supreme Court in Loving. Loving involved the
appeal of a black woman and a caucasian man (the Lovings) who were married in
the District of Columbia and thereafter returned to their home state of Virginia
to establish their marital abode. 388 U.S. at 2, 87 S. Ct. at 1819. The Lovings
[***61] were duly indicted [**62] for and convicted of violating Virginia's
miscegenation laws, n23 which banned interracial marriages. Id. n24 In his
sentencing decision, the trial judge stated, in substance, that Divine
Providence had not intended that the marriage state extend to interracial
unions:
"Almighty God created the races white, black, yellow, malay and
red, and he placed them on separate continents. And but for the
interference with his arrangement there would be no cause for such
marriages. The fact that he separated the races shows that he did not
intend for the races to mix."
Id. at 3, 87 S. Ct. at 1819 (quoting the trial judge) (emphasis added).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n23 Virginia's miscegenation laws "arose as an incident to slavery and [were]
common . . . since the colonial period." 388 U.S. at 6, 87 S. Ct. at 1820-21. It
is noteworthy that one of the "central provisions" of the statutory
miscegenation scheme automatically voided all marriages between "a white person
and a colored person" without the need for any judicial proceeding. Id. at 4,
87 S. Ct. at 1820. [***62]
n24 As of 1949, the following thirty of the forty-eight states banned
interracial marriages by statute: Alabama; Arizona; Arkansas; California;
Colorado; Delaware; Florida; Georgia; Idaho; Indiana; Kentucky; Louisiana;
Maryland; Mississippi; Missouri; Montana; Nebraska; Nevada; North Carolina;
North Dakota; Oklahoma; Oregon; South Carolina; South Dakota; Tennessee; Texas;
Utah; Virginia; West Virginia; and Wyoming. 388 U.S. at 6 n.5, 87 S. Ct. at
1820 n.5. When the Lovings commenced their lawsuit on October 28, 1964, sixteen
states still had miscegenation laws on the books. Id. at 3, 6 n.5, 87 S. Ct. at
1819, 1820 n.5. The first state court to recognize that miscegenation statutes
violated the right to the equal protection of the laws was the Supreme Court of
California in Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948). 388 U.S. at 6
n.5, 87 S. Ct. at 1820-21 n.5.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*568] [***63] The Lovings appealed the constitutionality of the state's
miscegenation laws to the Virginia Supreme Court of Appeals, which, inter alia,
upheld their constitutionality and affirmed the Lovings' convictions. Id. at
3-4, 388 S. Ct. at 1819. n25 The Lovings then pressed their appeal to the United
States Supreme Court. Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n25 See Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966). The
Virginia Supreme Court of Appeals, however, modified as "so unreasonable as to
render the sentences void" the trial court's twenty-five year suspension of the
Lovings' jail sentences "upon the condition that they leave the . . . state 'at
once and . . . not return together or at the same time to [the] . . . state for
a period of twenty-five years.'" Id. at 930, 147 S.E.2d at 82-83. The Virginia
high court deemed it sufficient that the Lovings be prohibited from "again
cohabit[ing] as man and wife in [the] state" in order to achieve the objectives
of "securing the rehabilitation of the offender[s and] enabling [them] to repent
and reform so that [they] may be restored to a useful place in society." Id. at
930, 147 S.E.2d at 83.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***64]
In a landmark decision, the United States Supreme Court, through Chief
Justice Warren, struck down the Virginia miscegenation laws on both equal
protection and due process grounds. The court's holding as to the former is
pertinent for present purposes:
[T]he Equal Protection Clause requires the consideration of whether
the classifications drawn by any statute constitute an arbitrary and
invidious discrimination. . . .
[*569] There can be no question but that Virginia's miscegenation
statutes rest solely upon distinctions drawn according to race. The
statutes proscribe generally accepted conduct if engaged in by members
of different races. . . . At the very least, the Equal Protection
Clause demands that racial classifications . . . be subjected to the
"most rigid scrutiny," . . . and, if they are ever to be upheld, they
must be shown to be necessary to the accomplishment of some
permissible state objective, independent of the racial discrimination
which it was the object of the Fourteenth Amendment to eliminate. . .
.
There is patently no legitimate overriding purpose independent of
invidious discrimination which justifies this classification. . . . We
have [***65] consistently denied the constitutionality of measures
which restrict the rights of citizens on account of race. There can
be no doubt that restricting the freedom to marry solely because of
racial classifications violates the central meaning of the Equal
Protection Clause.
[**63] Id. at 10-12, 87 S. Ct. at 1823 (emphasis added and citation omitted).
n26
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n26 As we have noted in this opinion, unlike the equal protection clause of
the fourteenth amendment to the United States Constitution, article I, section 5
of the Hawaii Constitution, inter alia, expressly prohibits discrimination
against persons in the exercise of their civil rights on the basis of sex.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The facts in Loving and the respective reasoning of the Virginia courts, on
the one hand, and the United States Supreme Court, on the other, both discredit
the reasoning of Jones and unmask the tautological and [*570] circular nature
of Lewin's argument that HRS § 572-1 does not implicate article I, section 5 of
the Hawaii Constitution because same sex [***66] marriage is an innate
impossibility. Analogously to Lewin's argument and the rationale of the Jones
court, the Virginia courts declared that interracial marriage simply could not
exist because the Deity had deemed such a union intrinsically unnatural, 388
U.S. at 3, 87 S. Ct. at 1819, and, in effect, because it had theretofore never
been the "custom" of the state to recognize mixed marriages, marriage "always"
having been construed to presuppose a different configuration. With all due
respect to the Virginia courts of a bygone era, we do not believe that trial
judges are the ultimate authorities on the subject of Divine Will, and, as
Loving amply demonstrates, constitutional law may mandate, like it or not, that
customs change with an evolving social order.
Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, review denied, 84 Wash. 2d
1008 (1974), suffers the same fate as does Jones. In Singer, two males appealed
from a trial court's order denying their motion to show cause by which they
sought to compel the county auditor to issue [***67] them a marriage license.
On appeal, the unsuccessful applicants argued that: (1) the trial court erred in
concluding that the Washington state marriage laws prohibited same-sex
marriages; (2) the trial court's order violated the equal rights amendment to
the state constitution; and (3) the trial court's order violated various
provisions of the United States Constitution, including the fourteenth
amendment.
The Washington Court of Appeals affirmed the trial court's order, rejecting
all three of the appellants' contentions. Predictably, and for the same reasons
that we have reached the identical conclusion regarding HRS § 572-1, the Singer
court determined that it was "apparent from a [*571] plain reading of our
marriage statutes that the legislature has not authorized same-sex marriages."
Id. at 249, 522 P.2d at 1189. Regarding the appellants' federal and state
claims, the court specifically "[did] not take exception to the proposition that
the Equal Protection Clause of the Fourteenth Amendment requires strict judicial
scrutiny of legislative attempts at sexual discrimination." Id. at 261, 522 P.2d
at 1196 [***68] (emphasis added). n27 Nevertheless, the Singer court found no
defect in the state's marriage laws, under either the United States Constitution
or the state constitution's equal rights amendment, based upon the rationale of
Jones: "[a]ppellants were not denied a marriage license because of their sex;
rather, they were denied a marriage license because of the nature of marriage
itself." Id. As in Jones, we reject this exercise in tortured and conclusory
sophistry.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n27 Accordingly, but for the fact that the Singer court was unable to discern
sexual discrimination in the state's marriage laws, it would have engaged in a
"strict scrutiny" analysis. See infra at 571-72.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
3. Equal Protection Analysis under Article I, Section 5 of the Hawaii
Constitution
"Whenever a denial of equal protection of the laws is alleged, as a rule our
initial inquiry has been whether the legislation in question should be subjected
to 'strict scrutiny' or to a 'rational basis' test." Nakano v. Matayoshi, 68
Haw. 140, 151, 706 P.2d 814, 821 (1985) [***69] (citing Nagle v. Board of
Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981)). This court has applied
"strict scrutiny" analysis to "'laws classifying on the basis of suspect
categories or impinging upon fundamental rights expressly or impliedly granted
by the [c]onstitution,'" [**64] in which case [*572] the laws are "'presumed
to be unconstitutional n28 unless the state shows compelling state interests
which justify such classifications,'" Holdman v. Olim, 59 Haw. 346, 349, 581
P.2d 1164, 1167 (1978) (citing Nelson v. Miwa, 56 Haw. 601, 605 n.4, 546 P.2d
1005, 1008 n.4 (1976)), and that the laws are "narrowly drawn to avoid
unnecessary abridgments of constitutional rights." Nagle, 63 Haw. at 392, 629
P.2d at 111 (citations omitted).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n28 The presumption of statutory constitutionality, to which Judge Heen
refers at 595 of his dissenting opinion, does not apply to laws, which, on their
face, classify on the basis of suspect categories. Washington v. Fireman's
Fund Ins. Cos., 68 Haw. 192, 199, 708 P.2d 129, 134 (1985), cert. denied, 476
U.S. 1169, 106 S. Ct. 2890, 90 L. Ed. 2d 977 (1986), on which the dissent
relies, is not authority to the contrary inasmuch as the statute in question did
not involve any suspect categories and was reviewed under the "rational basis"
standard.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***70]
By contrast, "[w]here 'suspect' classifications or fundamental rights are not
at issue, this court has traditionally employed the rational basis test." Id. at
393, 629 P.2d at 112. "Under the rational basis test, we inquire as to whether
a statute rationally furthers a legitimate state interest." Estate of Coates v.
Pacific Engineering, 71 Haw. 358, 364, 791 P.2d 1257, 1260 (1990). "Our inquiry
seeks only to determine whether any reasonable justification can be found for
the legislative enactment." Id.
As we have indicated, HRS § 572-1, on its face and as applied, regulates
access to the marital status and its concomitant rights and benefits on the
basis of the applicants' sex. See supra at 563-64. As such, HRS § 572-1
establishes a sex-based classification.
HRS § 572-1 is not the first sex-based classification with which this court
has been confronted. In Holdman v. Olim, supra, a woman prison visitor
(Holdman) brought an action against prison officials seeking injunctive, [*573]
monetary, and declaratory relief arising from a prison matron's refusal to admit
Holdman [***71] entry when she was not wearing a brassiere. The matron's
refusal derived from a directive, promulgated by the Acting Prison
Administrator, that "visitors will be properly dressed. Women visitors are
asked to be fully clothed, including undergarments. Provocative attire is
discouraged." 59 Haw. at 347-48, 581 P.2d at 1166 (emphasis added). Holdman
proceeded to trial, and the circuit court dismissed her action at the close of
her case in chief. Id. at 347, 581 P.2d at 1165-66.
On appeal, this court affirmed the dismissal of Holdman's complaint. The
significance of Holdman for present purposes, however, is the rationale by which
this court reached its result:
This court has not [heretofore] dealt with a sex-based classification.
In Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed.
2d 583 (1973), a plurality of the United States Supreme Court favored
the inclusion of classifications based upon sex among those considered
to be suspect for the purposes of the compelling state interest test.
However, subsequent [***72] cases have made it clear that the current
governing test under the Fourteenth Amendment [to the United States
Constitution] is a standard intermediate between rational basis and
strict scrutiny. "[C]lassifications by gender must serve important
governmental objectives and must be substantially related to
achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197[,
97 S. Ct. 451, 457, 50 L. Ed. 2d 397] (1976). Also see Califano v.
Goldfarb, 430 U.S. 199, 2[10 n.8, 97 S. Ct. 1021, 1028, n.8, 51 L. Ed.
2d 270] (1977) and Califano [*574] v. Webster, 430 U.S. 313,
316-17[, 97 S. Ct. 1192, 1194, 51 L. Ed. 2d 360] (1977).
. . . .
Dress standards are intimately related to sexual attitudes. . . .
The dress restrictions imposed upon women visitors by the directive
derived their relation to prison security out of the assumption that
these attitudes were present among the residents. Whether or not this
assumption was correct, it is manifest that the directive was
substantially [***73] related to the achievement of the important
governmental objective of prison security and [**65] met the test
under the Fourteenth Amendment.
. . . .
[Holdman's] challenge to the directive under the state constitution
requires separate consideration. Article I, Section 4 n29 of the
Hawaii Constitution declares that no 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 race, religion, sex or ancestry." Article I, Section 21 n30
provides: "Equality of rights under the law shall not be denied or
abridged by the State on account of sex." We are presented with two
questions, either of which might be dispositive of the present case.
We must first inquire whether the treatment [Holdman] received denied
to her the equal protection of the laws [*575] guaranteed by the
Hawaii Constitution under a more stringent test than that applicable
under the Fourteenth Amendment. If the more general guarantee of
equal protection does not sustain [Holdman's] claims, we must then
inquire whether the specific guarantee of equality of rights under the
law contained in Article I, Section [***74] 21, has been infringed.
It is open to this court, of course, to apply the more stringent
test of compelling state interest to sex-based classifications in
assessing their validity under the equal protection clause of the
state constitution. State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974).
[Holdman] urges that we do so, arguing both from Frontiero v.
Richardson, supra, and from the presence of sex with race, religion
and ancestry as a category specifically named in Article I, Section 4.
We need not deal finally with that issue, and reserve it for future
consideration, since we conclude that the compelling state interest
test would be satisfied in this case if it were to be held applicable.
. . .
. . . .
Survival under the strict scrutiny test places the directive beyond
[Holdman's] challenge under her asserted . . . right to equal
protection . . . . It does not necessarily place the directive beyond
challenge under the equal rights provision of Article I, Section 21.
Article I, Section 21, is substantially identical with the proposed
Equal Rights Amendment of [***75] the United States Constitution. .
. . The standard [*576] of review to be applied under an ERA has not
been clearly formulated by judicial decision. . . .
. . . Unless we are to attempt in this case to define the standard
of review required under Hawaii's ERA, no purpose will be served by
analysis of the considerable body of decisions which fall short of
dealing with that question. . . . We have concluded that the
treatment of which [Holdman] complains withstands the test of strict
scrutiny by reason of a compelling State interest. We are not
prepared to hold in this case that . . . . a more stringent test
should be applied under Article I, Section 21 . . . .
Id. at 349-54, 581 P.2d at 1167-69 (emphasis added and citations and footnote
omitted).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n29 In 1978, article I, section 4 was renumbered article I, section 5.
n30 In 1978, article I, section 21 was renumbered article I, section 3.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Our decision in Holdman is key to the present case in several respects.
First, we clearly and unequivocally [***76] established, for purposes of equal
protection analysis under the Hawaii Constitution, that sex-based
classifications are subject, as a per se matter, to some form of "heightened"
scrutiny, be it "strict" or "intermediate," rather than mere "rational basis"
analysis. n31 Second, we assumed, arguendo, that such sex-based classifications
were subject to "strict scrutiny." Third, we reaffirmed the longstanding
principle that this court is free to accord greater protections to Hawaii's
citizens [**66] under the state constitution than are recognized under the
United States [*577] Constitution. n32 And fourth, we looked to the then
current case law of the United States Supreme Court for guidance.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n31 In subsequent decisions, we have reaffirmed that sex-based
classifications are subject, at the very least, to "intermediate scrutiny" under
the equal protection clause of the Hawaii Constitution. State v. Tookes, 67
Haw. 608, 614, 699 P.2d 983, 988 (1985); State v. Rivera, 62 Haw. 120, 123, 612
P.2d 526, 529 (1980). [***77]
n32 See, e.g., State v. Texeira, 50 Haw. 138, 142 n.2, 433 P.2d 593, 597 n.2
(1967); State v. Grahovac, 52 Haw. 527, 531, 533, 480 P.2d 148, 151-52 (1971);
State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971); State v.
Kaluna, 55 Haw. 361, 367-69, 372-75, 520 P.2d 51, 57-58, 60-62 (1974); State v.
Manzo, 58 Haw. 440, 452, 573 P.2d 945, 953 (1977); State v. Miyasaki, 62 Haw.
269, 280-82, 614 P.2d 915, 921-23 (1980); Huihui v. Shimoda, 64 Haw. 527, 531,
644 P.2d 968, 971 (1982); State v. Fields, 67 Haw. 268, 282, 686 P.2d 1379,
1390 (1984); State v. Wyatt, 67 Haw. 293, 304 n.9, 687 P.2d 544, 552 n.9
(1984); State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985);
State v. Kim, 68 Haw. 286, 289-90, 711 P.2d 1291, 1293-94 (1985); State v. Kam,
69 Haw. 483, 491, 748 P.2d 372, 377 (1988); State v. Quino, 74 Haw. 161, 164
n.2, 840 P.2d 358, 364 n.2 (1992), cert. denied, U.S. , 113 S. Ct. 1849,
123 L. Ed. 2d 472 (1993) (Levinson, J., concurring).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***78]
Of the decisions of the United States Supreme Court cited in Holdman,
Frontiero v. Richardson, supra, was by far the most significant. In Frontiero,
a married woman air force officer and her husband (the Frontieros) filed suit
against the Secretary of Defense seeking declaratory and injunctive relief
against enforcement of federal statutes governing quarters allowances and
medical benefits for members of the uniformed services. The statutes provided,
solely for administrative convenience, that spouses of male members were
unconditionally considered dependents for purposes of obtaining such allowances
and benefits, but that spouses of female members were not considered dependents
unless they were in fact dependent for more than one-half of their support. The
Frontieros' lawsuit was precipitated by the husband's inability to satisfy the
statutory dependency standard. A three-judge district court panel denied the
Frontieros' claim for relief, and they appealed.
[*578] Noting that "[u]nder these statutes, a serviceman may claim his wife
as a 'dependent' without regard to whether she is in fact dependent upon him for
any part of her support[,]" but that "[a] servicewoman [***79] . . . may not
claim her husband as a 'dependent' . . . unless he is in fact dependent upon her
for over one-half of his support[,]" a plurality of four, through Justice
Brennan (the Brennan plurality), framed the issue on appeal as "whether this
difference in treatment constitutes an unconstitutional discrimination against
servicewomen . . . ." 411 U.S. at 678-79, 93 S. Ct. at 1766. By an eight-to-one
majority, the court concluded that the statutes established impermissibly
differential treatment between men and women and, accordingly, reversed the
judgment of the district court.
The disagreement among the eight-justice majority lay in the level of
judicial scrutiny applicable to instances of statutory sex-based discrimination.
The Brennan plurality agreed with the Frontieros' contention that
"classifications based upon sex, like classifications based upon race, alienage,
and national origin, are inherently suspect and must therefore be subjected to
close judicial scrutiny." Id. at 682, 93 S. Ct. at 1768 (footnotes omitted).
Thus, the Brennan plurality applied the [***80] "strict scrutiny" standard to
its review of the illegal statutes. Justice Stewart concurred in the judgment,
"agreeing that the statutes . . . work[ed] an invidious discrimination in
violation of the Constitution." Id. at 691, 93 S. Ct. at 1772-73.
Particularly noteworthy in Frontiero, however, was the concurring opinion of
Justice Powell, joined by the Chief Justice and Justice Blackmun (the Powell
group). The Powell group agreed that "the challenged statutes constitute[d] an
unconstitutional discrimination against servicewomen," but deemed it
"unnecessary for the Court [*579] in this case to characterize sex as a
suspect classification, with all of the far-reaching implications of such a
holding." Id. at 691-92, 93 S. Ct. at 1773 (emphasis added and citation
omitted). Central to the Powell group's thinking was the following explanation:
There is another . . . reason for deferring a general categorizing
of sex classifications as invoking the strictest test of judicial
scrutiny. The Equal Rights Amendment, which if adopted will resolve
the substance [***81] of this precise question, has been approved
by the Congress and [**67] submitted for ratification by the States.
If this Amendment is duly adopted, it will represent the will of the
people accomplished in the manner prescribed by the Constitution. By
acting prematurely and unnecessarily, . . . the Court has assumed a
decisional responsibility at the very time when state legislatures,
functioning within the traditional democratic process, are debating
the proposed Amendment. It seems . . . that this reaching out to
pre-empt by judicial action a major political decision which is
currently in process of resolution does not reflect appropriate
respect for duly prescribed legislative processes.
Id. at 692, 93 S. Ct. at 1773 (emphasis added).
The Powell group's concurring opinion therefore permits but one inference:
had the Equal Rights Amendment been incorporated into the United States
Constitution, at least seven members (and probably eight) of the Frontiero court
would have subjected statutory sex-based classifications to "strict" judicial
scrutiny.
In light of the interrelationship between the reasoning of the Brennan
[***82] plurality and the Powell group in [*580] Frontiero, on the one hand,
and the presence of article I, section 3 -- the Equal Rights Amendment -- in the
Hawaii Constitution, on the other, it is time to resolve once and for all the
question left dangling in Holdman. Accordingly, we hold that sex is a "suspect
category" for purposes of equal protection analysis under article I, section 5
of the Hawaii Constitution n33 and that HRS § 572-1 is subject to the "strict
scrutiny" test. It therefore follows, and we so hold, that (1) HRS § 572-1 is
presumed to be unconstitutional (2) unless Lewin, as an agent of the State of
Hawaii, 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 abridgments of the applicant couples' constitutional rights.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n33 Our holding in this regard is not, as the dissent suggests, "[t]hat
Appellants are a 'suspect class.'" Dissenting opinion at 592.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
4. The dissenting opinion misconstrues [***83] the holdings and reasoning
of the plurality.
We would be remiss if we did not address certain basic misconstructions of
this opinion appearing in Judge Heen's dissent. First, we have not held, as
Judge Heen seems to imply, that (1) the appellants "have a 'civil right' to a
same sex marriage[,]" (2) "the civil right to marriage must be accorded to same
sex couples[,]" and (3) the applicant couples "have a right to a same sex
marriage[.]" Dissenting opinion at 588-89. These conclusions would be
premature. We have, however, noted that the United States Supreme Court has
recognized for over fifty years that marriage is a basic civil right. See supra
at 562-64. That proposition is relevant to the prohibition set forth in article
I, section 5 of the Hawaii Constitution against [*581] discrimination in the
exercise of a person's civil rights, inter alia, on the basis of sex. See id. at
562.
Second, we have not held, as Judge Heen also seems to imply, that HRS § 572-1
"unconstitutionally discriminates against [the applicant couples] who seek a
license to enter into a same sex marriage[.]" Dissenting opinion at 588. Such a
holding would likewise be premature [***84] at this time. What we have held is
that, on its face and as applied, HRS § 572-1 denies same-sex couples access to
the marital status and its concomitant rights and benefits, thus implicating the
equal protection clause of article I, section 5. See supra at 564.
We understand that Judge Heen disagrees with our view in this regard based on
his belief that " HRS § 572-1 treats everyone alike and applies equally to both
sexes[,]" with the result that "[n]either sex is being granted a right or
benefit the other does not have, and neither sex is being denied a right or
benefit that the other has." Dissenting opinion at 590-91 (emphasis in
original). The rationale underlying Judge Heen's belief, however, was [**68]
expressly considered and rejected in Loving:
Thus, the State contends that, because its miscegenation statutes
punish equally both the white and the Negro participants in an
interracial marriage, these statutes, despite 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 [***85] 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 [*582] 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.
388 U.S. at 8, 87 S. Ct. at 1821-22. Substitution of "sex" for "race" and
article I, section 5 for the fourteenth amendment yields the precise case before
us together with the conclusion that we have reached.
As a final matter, we are compelled to respond to Judge Heen's suggestion
that denying the appellants access to the multitude of statutory benefits
"conferred upon spouses in a legal marriage . . . is a matter for the
legislature, which can express the will of the populace in deciding whether such
benefits should be extended to persons in [the applicant couples']
circumstances." Dissenting opinion at 597. In effect, we are being accused of
engaging in judicial legislation. We are not. The result we reach today is in
complete harmony [***86] with the Loving court's observation that any state's
powers to regulate marriage are subject to the constraints imposed by the
constitutional right to the equal protection of the laws. 388 U.S. at 7, 87 S.
Ct. at 1821. If it should ultimately be determined that the marriage laws of
Hawaii impermissibly discriminate against the appellants, based on the suspect
category of sex, then that would be the result of the interrelation of existing
legislation.
[W]hether the legislation under review is wise or unwise is a matter
with which we have nothing to do. Whether it . . . work[s] well or
work[s] ill presents a question entirely irrelevant to the issue. The
only legitimate inquiry we can make is whether it is constitutional.
If it is not, its virtues, if it have any, cannot save it; if it is,
its faults cannot be invoked to accomplish its [*583] destruction.
If the provisions of the Constitution be not upheld when they pinch as
well as when they comfort, they may as well be abandoned.
Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 256, 78
L. Ed. 413 (1934) [***87] (Sutherland, J., dissenting).
III. CONCLUSION
Because, for the reasons stated in this opinion, the circuit court
erroneously granted Lewin's motion for judgment on the pleadings and dismissed
the plaintiffs' complaint, we vacate the circuit court's order and judgment and
remand this matter for further proceedings consistent with this opinion. On
remand, in accordance with the "strict scrutiny" standard, the burden will rest
on Lewin to overcome the presumption that HRS § 572-1 is unconstitutional by
demonstrating that it furthers compelling state interests and is narrowly drawn
to avoid unnecessary abridgments of constitutional rights. See Nagle, 63 Haw.
at 392, 629 P.2d at 111; Holdman, 59 Haw. at 349, 581 P.2d at 1167.
Vacated and remanded.
CONCURBY:
BURNS
CONCUR:
[*584] CONCURRING OPINION BY BURNS, J.
I concur that the circuit court's October 1, 1991 order erroneously granted
the State's motion for judgment on the pleadings and erroneously dismissed the
plaintiffs' complaint with prejudice. My concurrence is based on my conclusion
that this case involves genuine issues of material fact. [***88]
"Constitutional and other questions of a large public import should not be
decided [**69] on an inadequate factual basis." 6 J. Moore and J. Lucas, Moore
's Federal Practice para. 56[10] (2d ed. 1982) (citation omitted).
The marriage at issue in this case is the marriage specifically authorized by
Hawaii's statutes. My label for this marriage is the "Hawaii Civil Law
Marriage." The issue is whether the Hawaii Constitution permits the State to
discriminate against same-sex couples by extending the right to enter into a
Hawaii Civil Law Marriage to opposite-sex couples and not to same-sex couples.
The Hawaii Constitution mandates, in article I, section 3, that "[e]quality
of rights under the law shall not be denied or abridged by the State on account
of sex." It also mandates, in article I, section 5, that "[n]o person shall be .
. . denied the equal protection of the laws, . . . or be discriminated against
in the exercise thereof because of . . . sex[.]" Thus, any State action that
discriminates [*585] against a person because of his or her "sex" is subject
to strict scrutiny.
As used in the Hawaii Constitution, to what does the word "sex" refer? In my
view, the Hawaii Constitution's [***89] reference to "sex" includes all
aspects of each person's "sex" that are "biologically fated." The decision
whether a person when born will be a male or a female is "biologically fated."
Thus, the word "sex" includes the male-female difference. Is there any other
aspect of a person's "sex" that is "biologically fated"?
In March 1993, the Cox News Service reported in relevant part as follows:
The issue of whether people become homosexuals because of "nature
or nurture" is one of the most controversial subjects scientists have
confronted in recent years.
* * *
Until the middle 1980s, the prevailing view among most scientists
was that homosexual "tendencies" were mostly the result of upbringing.
. . .
* * *
Later, researchers at the Salk Institute in San Diego found
anatomical differences between homosexual and heterosexual men in
parts of the brain noted for differences between men and women.
Theories gravitate to the role of male sex hormones.
* * *
The Honolulu Advertiser, March 9, 1993, at A-8, col. 1.
In March 1993, the Associated Press reported in relevant part as follows:
[*586] CHICAGO - Genes appear to play an important role in
determining whether women [***90] are lesbians, said a researcher who
found similar results among gay men.
* * *
"I think we're dealing with something very complex, perhaps the
interaction between hormones, the environment and genetic components,"
[Roger] Gorski [an expert in biological theories of homosexuality]
said yesterday.
* * *
The Honolulu Advertiser, March 12, 1993, at A-24, col. 1.
On the other hand, columnist Charles Krauthammer reports as follows:
It is natural, therefore, that just as parents have the inclination
and right to wish to influence the development of a child's character,
they have the inclination and right to try to influence a child's
sexual orientation. Gay advocates argue, however, that such influence
is an illusion. Sexual orientation, they claim, is biologically fated
and thus entirely impervious to environmental influence.
Unfortunately, as E. L. Pattullo, former director of Harvard's
Center for the Behavioral Sciences, recently pointed out in Commentary
magazine, the scientific evidence does not support such a claim. . .
.
* * *
The Honolulu Advertiser, May 2, 1993, at B-2, cols. 3, 4 and 5.
If heterosexuality, homosexuality, bisexuality, and asexuality are
"biologically fated[,]" then the word "sex" also includes those
differences. Therefore, the questions whether heterosexuality,
homosexuality, bisexuality, and asexuality are "biologically fated"
are relevant questions of fact which must be determined before the
issue presented in this case can be answered. If the answers are yes,
then each person's "sex" includes both the "biologically fated"
male-female difference and the "biologically fated" sexual orientation
difference, and the Hawaii Constitution probably bars the State from
discriminating against the sexual orientation difference by permitting
opposite-sex Hawaii Civil Law Marriages and not permitting same-sex
Hawaii Civil Law Marriages. If the answers are no, then each person's
"sex" does not include the sexual orientation difference, and the
Hawaii Constitution may permit the State to encourage heterosexuality
and discourage homosexuality, bisexuality, and asexuality by permitting
opposite-sex Hawaii Civil Law Marriages and not permitting same-sex
Hawaii Civil Law Marriages.
DISSENTBY:
HEEN
DISSENT:
DISSENTING OPINION BY HEEN, J.
I dissent. n1 Although the lower court judge may have engaged in "verbal
overkill" in arriving at his decision, the [***92] result he reached was
correct and should be affirmed. See State v. Taniguchi, 72 Haw. 235, 815 P.2d
24 (1991).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Retired Associate Justice Yoshimi Hayashi, whose appointment as a
substitute justice in this case expired before this dissent was filed, concurs
with this dissent.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*588] I agree with the plurality's holding that Appellants do not have a
fundamental right to a same sex marriage protected by article I, § 6 of the
Hawaii State Constitution.
However, I cannot agree with the plurality that (1) Appellants have a "civil
right" to a same sex marriage; (2) Hawaii Revised Statutes (HRS) § 572-1
unconstitutionally discriminates against Appellants who seek a license to enter
into a same sex marriage; (3) Appellants are entitled to an evidentiary hearing
that applies a "strict scrutiny" standard of review to the statute; and (4) HRS
§ 572-1 is presumptively unconstitutional. Moreover, in my view, Appellants'
claim that they are being discriminatorily denied statutory [***93] benefits
accorded to spouses in a legalized marriage should be addressed to the
legislature.
1.
Citing Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
(1967), the plurality holds that Appellants have a civil right to marriage. I
disagree. "'It is axiomatic . . . that a decision does not stand for a
proposition not considered by the court.'" People v. Superior Court, 8 Cal.
App. 4th 688, 703, 10 Cal. Rptr. 2d 873, 881 (1992) (quoting People v. Harris,
47 Cal. 3d 1047, 1071, 255 Cal. Rtpr. 352, 767 P.2d 619 (1989)).
Loving is simply not authority for the plurality's proposition that the civil
right to marriage must be accorded to same sex couples. Loving points out that
the right to marriage occupies an extremely venerated position in our society.
So does every other case discussing marriage. However, the plaintiff in Loving
was not claiming a right to a same sex marriage. Loving involved a marriage
between a white male and a black female whose marriage, which took place in
Washington, [***94] D.C., [*589] was refused recognition in Virginia under
that state's miscegenation laws. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Since race has historically been considered a "suspect class," the Supreme
Court applied the strict scrutiny standard of review to Virginia's statute. See
note 6, infra, for the definition of suspect class.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The plurality also cites Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673,
54 L. Ed. 2d 618 (1978), as establishing constitutional limits on the states'
right to regulate marriage. That is an undeniable principle. In Zablocki an
application for a marriage license by a male and a female was denied because the
male was not able to show, pursuant to a Wisconsin statute's requirement, that
he was in compliance with all existing obligations for child support.
Loving and Zablocki neither establish the right to a same sex marriage nor
limit a state's power to prohibit any person from [**71] entering into such a
marriage. The plurality's conclusion [***95] here that Appellants have a right
to a same sex marriage and, therefore, an evidentiary hearing is completely
contrary to the clear import of Zablocki and Loving.
Although appellants suggest an analogy between the racial
classification involved in Loving and Perez and the alleged sexual
classification involved in the case at bar, we do not find such an
analogy. The operative distinction lies in the relationship which is
described by the term "marriage" itself, and that relationship is the
legal union of one man and one woman. Washington statutes,
specifically those relating to marriage . . . and marital (community)
property . . ., are clearly founded upon the presumption that
marriage, as a legal relationship, may exist only [*590] between one
man and one woman who are otherwise qualified to enter that
relationship.
* * *
[A]ppellants are not being denied entry into the marriage relationship
because of their sex; rather, they are being denied entry into the
marriage relationship because of the recognized definition of that
relationship as one which may be entered into only by two persons who
are members of the opposite sex.
Singer v. Hara, 11 Wash. App. 247, 253-55, 522 P.2d 1187, 1191-92, [***96]
review denied, 84 Wash. 2d 1008 (1974) (footnotes omitted).
The issue of a right to a same sex marriage has been considered by the courts
in four other states. Those courts arrive at the opposite conclusion from the
plurality here. See Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973);
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409
U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); De Santo v. Barnsley, 328 Pa.
Super. 181, 476 A.2d 952 (1984); Singer v. Hara, supra. I do not agree with the
plurality's contention that those cases are not precedent for this case. The
basic issue in each of those four cases, as in this one, was whether any person
has the right to legally marry another person of the same sex. Neither do I
agree with the plurality that Loving refutes the reasoning of the courts in
those four cases.
2.
HRS § 572-1 treats everyone alike and applies equally to both [***97]
sexes. The effect of the statute is to prohibit same sex marriages on the part
of professed or non-professed heterosexuals, homosexuals, bisexuals, or [*591]
asexuals, and does not effect an invidious discrimination. n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Appellants' sexual preferences or lifestyles are completely irrelevant.
Although the plurality appears to recognize the irrelevance, the real thrust of
the plurality opinion disregards the true import of the statute. The statute
treats everyone alike and applies equally to both sexes.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The constitutional guarantee of equal protection of the laws means that no
person or class of persons shall be denied the same privileges and benefits
under the laws that are enjoyed by other persons or other classes of persons in
like circumstances. Mahiai v. Suwa, 69 Haw. 349, 742 P.2d 359 (1987).
HRS § 572-1 does not establish a "suspect" classification based on gender n4
because all males and females are treated alike. A male cannot obtain a license
to marry [***98] another male, and a female cannot obtain a license to marry
another female. Neither sex is being granted a right or benefit the other does
not have, and neither sex is being denied a right or benefit that the other has.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The plurality recognizes that the U.S. Supreme Court does not recognize
sex or gender as a "suspect" classification, and thus gender has not
historically been afforded the elevated "strict scrutiny" standard of review.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
My thesis is well illustrated by the case of Phillips v. Wisconsin Personnel
Comm'n, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992). In that case, the
plaintiff, an unmarried female, was denied medical benefits for her unmarried
female "dependent" lesbian companion because Phillips' state health plan defined
"dependent" as spouse or children. Phillips appealed the commission's dismissal
of her gender discrimination complaint and the Wisconsin [**72] Court of
Appeals, in striking down her claim, stated that
[*592] dependent [***99] insurance coverage is unavailable to
unmarried companions of both male and female employees. A statute is
only subject to a challenge for gender discrimination under the equal
protection clause when it discriminates on its face, or in effect,
between males and females.
Id. 167 Wis. 2d at 227, 482 N.W.2d at 129 (emphasis in original and citations
omitted).
Similarly, HRS § 572-1 does not discriminate on the basis of gender. The
statute applies equally to all unmarried persons, both male and female, who
desire to enter into a legally recognized marriage. n5 Thus, no evidentiary
hearing is required.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 Indeed, it may be said that the statute establishes one classification:
unmarried persons.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The cases cited by the plurality to support its holding that Appellants are a
"suspect class" are inapposite. n6 Unlike the instant case, the facts in both
cases show government regulations preferring one gender (class) over another.
In Holdman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978), [***100] the prison
regulation requiring female visitors to wear proper undergarments clearly
affected only female visitors to the state prison system. Male visitors to the
prison were not subject to such a regulation. The supreme court explicitly
referred to the regulation as [*593] being a sex-based classification. While
the reasoning in Holdman is very interesting, it does not support the plurality
's conclusion in this case that HRS § 572-1 creates a suspect class.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 The plurality does not define "suspect class." A suspect classification
exists where the class of individuals formed by a statute, on its face or as
administered, has been "saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment or relegated to such a position of
political powerlessness as to command extraordinary protection from the
majoritarian political process." San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 1294, 36 L. Ed. 2d 16, 40, reh'g
denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L. Ed. 2d 418 (1973).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***101]
Likewise, in Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L.
Ed. 2d 583 (1973), the federal statutes required that female members of the
military service, but not male members, prove that they provided over one-half
of their spouse's support in order to have the spouses classified as
"dependents." The statutes were clearly discriminatory, since male members of
the military were favored over female members.
3.
Since HRS § 572-1 is not invidiously discriminatory and Appellants are not
members of a suspect class, this court should not require an evidentiary
hearing. n7 Neither should this court mandate that HRS § 572-1 be subjected to
the "strict scrutiny" test. If anything, Appellants' challenge subjects the
statute only to the "rational basis" test. Estate of Coates v. Pacific
Engineering, 71 Haw. 358, 791 P.2d 1257 (1990). Thus, the issue is whether the
statute rationally furthers a legitimate state interest. Id. [*594] There is
no question that such a rational relationship exists; therefore, the statute is
a constitutional exercise of the legislature's [***102] authority.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 The apparent result of the plurality opinion is that Appellants do not
have any burden of proof on remand. According to the plurality opinion, all
Appellants need to do is appear in court and say, "Here we are. The statute
discriminates against us on the basis of our sex (whether male or female) and
sex is a suspect class." Even in cases alleging racial discrimination (a suspect
class), "the invidious quality of a law claimed to be racially discriminatory
must ultimately be traced to a racially discriminatory purpose[,]" and the
burden is on the plaintiff to prove that discriminatory purpose. Washington v.
Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597, 607-08 (1976);
see State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). The plurality opinion has
eliminated the need for Appellants to prove purposeful discrimination.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In my view, the purpose of HRS § 572-1 is analogous [***103] to the purpose
of Washington's marriage license statute as stated in Singer, supra.
In the instant case, it is apparent that the state's refusal to
grant a license allowing the appellants to marry one another is not
based upon appellants' status as males, but rather it is based upon
the state's recognition that our [**73] 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. Further, it is apparent that no same-sex couple offers
the possibility of the birth of children by their union. Thus the
refusal of the state to authorize same sex marriage results from such
impossibility of reproduction rather than from an invidious
discrimination "on account of sex." Therefore, the definition of
marriage as the legal union of one man and one woman is permissible as
applied to appellants, notwithstanding the prohibition contained in
the ERA, because it is founded upon the unique physical
characteristics of the sexes and appellants are not [***104] being
discriminated against because of their status as males per se. n8
[*595] Id. 11 Wash. App. at 259-60, 522 P.2d at 1195 (emphasis and footnote
added). The court in Singer was considering the case in the light of that state
's Equal Rights Amendment (identical to article I, § 3 of the Hawaii State
Constitution). The Washington court's reasoning is pertinent, in my view, to
Appellants' claim in the case at hand and supports the constitutionality of the
statute.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 Since, in my view, the purpose of HRS § 572-1 is to promote and protect
propagation, the concern expressed in Chief Judge Burns' concurring opinion as
to whether the statute discriminates against persons who may be genetically
impelled to homosexuality does not cause the statute to be invidiously
discriminatory.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
4.
Furthermore, I cannot agree with the plurality that HRS § 572-1 is
presumptively unconstitutional.
The general rule is that every statute is presumed to be constitutional, and
the party [***105] challenging the law on constitutional grounds has the heavy
burden of overcoming this presumption. Washington v. Fireman's Fund Ins. Cos.,
68 Haw. 192, 199, 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169, 106 S.
Ct. 2890, 90 L. Ed. 2d 977 (1986).
In Washington this court, in considering a constitutional challenge to a
statutory classification, stated:
To prevail, a party challenging the constitutionality of a statutory
classification on equal protection ground has the burden of showing,
"with convincing clarity that the classification is not rationally
related to the" statutory purpose, State v. Bloss, 62 Haw. 147, 154,
613 P.2d 354, 359 (1980), or that "the challenged classification does
not 'rest upon some ground of difference having a fair and substantial
relation to the object of the legislation,'" [*596] Hasegawa v.
Maui Pineapple Co., 52 Haw. 327, 330, 475 P.2d 679, 681 (1970), and is
therefore "arbitrary and capricious." State v. Freitas, 61 Haw. 262,
272, 602 P.2d 914, 922 (1979). [***106] See also, Schwab v. Ariyoshi,
58 Haw. 25, 31, 564 P.2d 135, 139 (1977).
This court has ruled that:
[E]qual protection does not mandate that all laws apply with
universality to all persons; the State "cannot function
without classifying its citizens for various purposes and
treating some differently from others." The legislature may
not, however, in exercising this right to classify, do so
arbitrarily. The classification must be reasonably related
to the purpose of the legislation.
We set out in Hasegawa a two-step procedure for determining whether
the statute passed constitutional muster:
First, we must ascertain the purpose or objective that the
State sought to achieve in enacting [the challenged
statute]. Second, we must examine the means chosen to
accomplish that purpose, to determine whether the means
bears a reasonable relationship to the purpose.
Joshua, 65 Haw. at 629, 656 P.2d at 740 (quoting Hasegawa, 52 Haw.
at 330, 475 P.2d at 681).
[**74] Id. 68 Haw. at 199, 708 P.2d at 134. [***107]
In my view, the statute's classification is clearly designed to promote the
legislative purpose of fostering and protecting the propagation of the human
race through [*597] heterosexual marriages and bears a reasonable relationship
to that purpose. n9 I find nothing unconstitutional in that.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 In 1984, the state legislature amended HRS § 572-1 by deleting the
requirement that marriage applicants show they are not impotent or that they are
not physically incapable of entering into a marriage. Act 119, § 1, 1984 Haw.
Sess. Laws 238. The plurality contends that the amendment refutes my assertion
that the purpose of HRS § 572-1 is to foster and protect the propagation of the
human race. I disagree.
A careful reading of the senate committee report on the amendment indicates
that the amendment does not attenuate the fundamental purpose of HRS § 572-1.
The intent of the amendment was to remove any impediment that may prevent
persons who are "physically handicapped, elderly, or have temporary physical
limitations from entering into a valid marriage relationship." Sen. Stand. Comm.
Rep. No. 570-84, in 1984 Senate Journal, at 1284. The amendment accommodates
only persons with physical limitations on their productive capacities. With
respect to those persons, the legislature stated that the view that the primary
purpose of marriage is to bear children is "narrow and outdated." That
characterization should not be expanded to include the applicants in this case.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***108]
5.
Appellants complain that because they are not allowed to legalize their
relationships, they are denied a multitude of statutory benefits conferred upon
spouses in a legal marriage. However, redress for those deprivations is a matter
for the legislature, which can express the will of the populace in deciding
whether such benefits should be extended to persons in Appellants'
circumstances. Those benefits can be conferred without rooting out the very
essence of a legal marriage. n10 This court should not manufacture a civil right
which is unsupported by any [*598] precedent, and whose legal incidents -- the
entitlement to those statutory benefits -- will reach beyond the right to enter
into a legal marriage and overturn long standing public policy encompassing
other areas of public concern. This decision will have far-reaching and grave
repercussions on the finances and policies of the governments and industry of
this state and all the other states in the country.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 I note that a number of municipalities across the country have adopted
domestic partnership ordinances that confer such benefits on the domestic
partners as the municipalities have authority to grant. Note: A More Perfect
Union: A Legal And Social Analysis Of Domestic Partnership Ordinances, 92 Colum.
L. Rev. 1164 (1992).