State of Hawaii
Report of the Commission
on Sexual Orientation
and the Law

    Chapter 1 Footnotes

  1. See Minutes of October 25, 1995, referring to section 1-14, Hawaii Revised Statutes (1993) as the authority for this point.
  2. See Note 13 and Minutes of October 25, 1995.
  3. Compare Act 217, Session Laws of Hawaii 1994:

    "(1)Identify the precise legal and economic benefits to married couples that are not extended to same-sex couples."

    with Act 5, Session Laws of Hawaii 1995:

    "(1)Identify the major legal and economic benefits to married couples that are not extended to same-sex couples."

  4. The specific definition of the Act 217 Commission is "Anything contributing to an improvement in condition or an advantage that a married couple would have as result of holding the status "spouse" or "family" that would not be offered to a same-gender couple even though they had the same commitments to each other as a married couple." Interim Report of the Commission on Sexual Orientation and the Law, January 17, 1995, pg. 2.
  5. The specific definition proposed by Commissioner Hochberg is: "A resultant significant improvement in condition or resultant significant advantage, after consideration of concomitant burdens, which a married couple enjoys as a result of holding the status "spouse" or "family" that would not be either offered to a same- sex couple nor available to a same-sex couple by another avenue or means." See Minutes of September 27, 1995, and Minutes of October 11, 1995.
  6. Under minority reasoning, the Hawaii Supreme Court would be in error for including the name-change as a "most salient" benefit of legal marriage. See also Note 13.
  7. See Minutes of October 11, 1995, pgs. 5 and 18.
  8. Section 11-204, Hawaii Revised Statutes (1993 and Supp. 1995), was used as an example of this. This allows a candidate for public office to receive not more than $50,000 from an immediate family member; otherwise contributions are limited to $2,000, $4,000, or $6,000 per individual. See Minutes of September 27, 1995, for testimony of Sumner La Croix, Ph.D.
  9. Section 304-4(b), Hawaii Revised Statutes (1993 and Supp. 1995), authorizes a non-resident university employee's spouse to qualify for a resident tuition.
  10. See Minutes of the October 11, 1995, pg. T-34 for testimony of Moheb Ghali, Ph.D., and attached in Appendix I.
  11. Id.
  12. Cobb, Clifford, Ted Halstead and Jonathan Rowe, "If the GDP Is Up, Why Is America Down?" The Atlantic Monthly, October 1995, pgs. 59-78.
  13. See Minutes of September 27, 1995, pg. T-10 for testimony of Sumner LaCroix, Ph.D. and Lee Badgett and attached in Appendix I.
  14. See Minutes of September 27, 1995.
  15. See Minutes of September 27, 1995, for testimony of Sumner La Croix, Ph.D., and Randall Roth, Esq., and Minutes of October 11, 1995 for testimony of Moheb Ghali, Ph.D.
  16. Compare the testimony of Sumner La Croix on pg. 243 of this report, an excerpt of the Minutes of September 27, 1995 and testimony of Moheb Ghali, on pg. 269 of this report, an excerpt of the Minutes of October 11, 1995, in Appendix I.
  17. See Minutes of October 25, 1995.
  18. See Minutes of September 27, 1995, pg. T-14, for testimony of Sumner La Croix, Ph.D. and pg. T-23, for testimony of Randall Roth, Esq., citing benefits in the estate tax area, social security programs, and federal immigration law.
  19. See Minutes of September 27, 1995, pg. T-24, for testimony of Randall Roth, Esq., and pgs. T-13 and T-21, for testimony of Sumner La Croix, Ph.D. and the Minutes of October 11, 1995, pg. T-33, for testimony of Moheb Ghali, Ph.D.
  20. See section 235-3, Hawaii Revised Statutes (1993) and generally, see sections 235-2.3, 2.4 and 2.5, Hawaii Revised Statutes (1993 and Supp. 1995).
  21. Id.
  22. See Minutes of September 27, 1995, pg. 9.
  23. See Minutes of October 11, 1995, pg. T-32, for testimony of Moheb Ghali, Ph.D. describing family decisions to join the work force and be entitled to health insurance.
  24. While this benefit has no statutory citation it is well-accepted policy of many hospitals to allow only family members to visit seriously ill patients.
  25. Section 327-5, Hawaii Revised Statutes (1993), relying on section 327-3, Hawaii Revised Statutes (1993), for authorized personnel for that decision.
  26. Section 346-15(d), Hawaii Revised Statutes (1993).
  27. See sections 334-60.4, 334-60.5, 334-125, and 334-134, Hawaii Revised Statutes (1993 and Supp. 1994) (notice for involuntary hospitalization for mental health reasons); section 346-71, Hawaii Revised Statutes (1993) (notice required for proceedings for order for immediate protection to spouse.
  28. Section 626:1-505, Hawaii Revised Statutes (1993).
  29. Section 626:1-504, Hawaii Revised Statutes (1993).
  30. See excerpt from the Minutes of October 25, 1995: See excerpt from the Minutes of October 25, 1995:

    "The Commission further finds that beyond the specific intangible benefits listed above is one other that stands head and shoulders above all the other benefits combined. That is the intangible benefit of liberty and equality. What price, what cost, is it to lose equality?

    We cheapen the discussion by reducing legal marriage to only a matter of dollars and cents. Certainly the majority of those married couples who are allowed to receive governmental certificates do not view these documents as passports to economic prosperity. We should step back and look at the bigger picture.

    What, for example, was the cost in human liberty to be forced to attend segregated schools before Brown v. Board of Education 347 U.S.483 (1954)? What was the cost in terms of human equality for different-gender couples to go to jail for marrying the one they loved, before Loving v. Virginia, 388 U.S. 1 (1966)?

    Add up the hundreds of special marriage-certificate benefits. Now subtract their purely economic value. What you have left is the greatest intangible benefit of all: simple recognition and equality. And the Commission finds that this value is priceless and is above and beyond the other values, intangible or otherwise, simply because the value of legal marriage is greater than the sum of its parts.

    Indeed, the Commission finds that this intangible idea of "being

  31. See Note 13.
  32. Specifically, sections 510-5, 6, 9, 10, 22, 23, 24, and 25, Hawaii Revised Statutes (1993 and Supp. 1995).
  33. This includes the benefits of intestate succession because many people do not leave wills. The law then provides for the distribution of the estate to the spouse or other family members and the benefits of elective share for the spouse, the omitted spouse, and exempt property. Specifically, sections 560:2-101, 2-102, 2-202, 2-203, 2-204, 2-205, 2-206, 2-301, 2-401, 2-402, 2-403, 2-404, 2-508, 2-802, 3-101, 2-203, 3-403, 3-703, 3-713, 3-901, 3-902, 3-906, 3-1212, 4-101, 4-207, 5-210, 5-301, 5-309, 5-311, 5-408, 5-410, 5-601, 6-107, Hawaii Revised Statutes (1993 and Supp. 1995).
  34. Specifically, section 571-52, Hawaii Revised Statutes (1993).
  35. Specifically, sections 575-2, and 3, Hawaii Revised Statutes (1993)
  36. Specifically, sections 572D-1, 3, 6, and 10, Hawaii Revised Statutes (1993).
  37. Chapter 393, Hawaii Revised Statutes (1993).
  38. Section 393-13, Hawaii Revised Statutes (1993).
  39. Chapter 87, Hawaii Revised Statutes (1993 and Supp. 1995).
  40. Sections 87-4 and 393-19, Hawaii Revised Statutes (1993).
  41. Sections, 87-4, 393-7, and 21, Hawaii Revised Statutes (1993).
  42. Sections 431:10B-105, 431:10C-103, 431:10D-212, Hawaii Revised Statutes (1993 and Supp. 1995).
  43. See sections 88-11, 84, 93, and 286 Hawaii Revised Statutes (1993 and Supp. 1994) and generally Part III Chapter 88, Hawaii Revised Statutes (1993).
  44. Section 87-4.5 and 87-6, Hawaii Revised Statutes (1993 and Supp. 1995).
  45. See Minutes of September 27, 1995, pg. T-33, for excerpt of written testimony of Cenric Ho.
  46. Id.
  47. See Minutes of September 27, 1995, pgs. T-11 for testimony of Sumner La Croix, Ph.D.
  48. See Minutes of September 27, 1995, pgs. T-26 and T-27, for testimony of David Shimabukuro, Assistant Administrator, Employees' Retirement System of the State of Hawaii.
    While the statements and findings of this subsection of the report are those of the Commission, the Commission thanks Assistant Administrator Shimabukuro for his assistance and testimony in helping the Commission deal with this issue.
  49. Section 88-123, Hawaii Revised Statutes (1993).
  50. Section 88-84, Hawaii Revised Statutes (1993 and Supp. 1994).
  51. Section 88-286, Hawaii Revised Statutes (1993 and Supp. 1994).
  52. Compare sections 88-84 and 88-286, Hawaii Revised Statutes (1993 and Supp. 1994).
  53. Section 88-286, Hawaii Revised Statutes (1993 and Supp 1994).
  54. Section 88-85, Hawaii Revised Statutes (1993 and Supp. 1994).
  55. Id.
  56. See the Minutes of September 27, 1995, pgs. T-16, for testimony of Sumner La Croix, Ph.D.
  57. See sections 386-34, 41, 42, 43, and 54, Hawaii Revised Statutes (1993).
  58. Section 386-43, Hawaii Revised Statutes (1993).
  59. Section 663-1 and 3, Hawaii Revised Statutes (1993).
  60. Webster's New World Dictionary Third College Edition defines this as "the companionship and support provided by marriage, including the right of each spouse to receive this from the other."
  61. Chapter 351, Hawaii Revised Statutes (1993 and 1995 Supp.).
  62. An inheriting legal spouse need be only 25 percent blood-quantum. See section 209, Hawaiian Homes Commission Act, Hawaii Revised Statutes (1993 and Supp. 1994).
  63. Section 209, Hawaiian Homes Commission Act, Hawaii Revised Statutes (1993 and Supp. 1994).
  64. See Minutes of October 11, 1995, pg. T-34, for testimony of Moheb Ghali, Ph.D., attached in Appendix I.
  65. The estimates given in the text are from a local attorney who specializes in this work, and as reviewed by two other attorneys. Actual costs to a couple may vary and could greatly exceed the figures given in the text, depending on the complexity of the couple's estates and other factors.
  66. Sections 574-1 and 574-5(a)(3), Hawaii Revised Statutes (1993 and Supp. 1995); see also pg. 3 of this report.
  67. These costs may be higher. Mr. Martin Rice, a member of the public who testified before the Commission regarding replicating the marriage relationship through legal documents, forwarded a letter from Mr. Daniel J. Custer, attorney for Martin Rice, stating that although Mr. Rice "did a significant portion of the work in drafting the documents...the fee for the preparation of the your estate planning documents was $796."
  68. See Minutes of September 27, 1995, pgs. T-23 to T-26, for testimony of Randall W. Roth, Esq.
  69. Id.
  70. Editors, "Benefits for Domestic Partners were Income, Tax Week, Report No. 33, August 1994, pg. 3.
  71. Chapter 236D, Hawaii Revised Statutes (1993 and Supp. 1995).
  72. See Minutes of September 27, 1995, pg. T-14, for testimony of Sumner La Croix, Ph.D. and attached in Appendix I.
  73. Technically, all this falls under the matter of estate taxes, covered above. But that section looked at couples holding sizeable estates, whereas this section looks at the much more common occurrence of a couple in Hawaii that does not have an unusual estate except for the appreciated value of their home.
  74. This figure could be substantially more for some couples.
  75. The appreciation amount for a couple that had held their home for a longer period would also have to be adjusted for capital gains or losses over those other years. After all, Hawaii's real estate market has fluctuated over the years and has even lost some value recently for some homes.
  76. For further explanation of this benefit see The Encyclopedia of Financial and Estate Planning, Hawaii Institute of Continuing Legal Education, Honolulu, 1990.
  77. This benefit was discussed by Randall W. Roth, Esq., see Minutes of September 27, 1995, pgs. 4 and T-23 to T-25.
  78. All figures cited in the following text are taken from the 1994 "Green Book," compiled by the Committee on Ways and Means, U.S. House of Representatives.
  79. Section 247-3(4) and (12), Hawaii Revised Statutes (1993).
  80. Section 304-4(b), Hawaii Revised Statutes (1993 and Supp. 1995).
  81. Section 11-204, Hawaii Revised Statutes (1993 and Supp. 1995). Note that Act 10, Special Session of Hawaii 1995, increased the limits to $4,000 and $6,000 for elections to four-year offices.
  82. Section 188-34, Hawaii Revised Statutes (1993).
  83. Section 188-45, Hawaii Revised Statutes (1993).
  84. As one example of analyzing a general benefit, careful work between economists and marine biologists could estimate the supply of certain fish in Hilo bay, and of nehu and 'iao fish in waters around the State. It could then be shown that the State laws (sections 188-34 and 45, Hawaii Revised Statutes) that deny all non-married families and commercial enterprises the right to fish these species result in the fish supply being therefore relatively high and that the resources of a married couple necessary to invest to catch the fish is relatively low.

Chapter 1 Table of Contents