Chapter 2

SUBSTANTIAL PUBLIC POLICY REASONS TO EXTEND OR NOT TO EXTEND SUCH BENEFITS IN PART OR IN TOTAL TO SAME-GENDER COUPLES

Act 5, Session Laws of Hawaii 1995 defined the Commission's second task as follows:

"(2)Determine substantial public policy reasons to extend or not to extend such benefits in part or in total to same- sex couples."1

This part of the report identifies the substantial public policy reasons the Commission found to warrant the extension of benefits in total to same-gender couples. Each policy is stated and a discussion of the policy issues follows. The conclusion summarizes these findings.

I.Public Policy

The Commission listened to many testimonies, reviewed voluminous materials, and discussed different ideas concerning public policy issues. After digesting all this material, the Commission finds that substantial public policy reasons exist to extend all the legal and economic benefits discussed in Chapter 1 to same-gender couples who are willing to enter into the marriage contract, along with all the responsibilities and burdens that contract entails. In that regard, the Commission adopts the following public policies which are related to (1) Equal Protection, (2) the Loving case, (3) Procreation and Compelling State Interests, and (4) Separation of Church and State.

A.Equal Protection

Article I, sections 2, 3, and 5 of the Constitution of the State of Hawaii states clearly that all persons in Hawaii are entitled to equal protection under the law, including the right to enjoy their inherent and inalienable rights to life, liberty and pursuit of happiness, and be free from illegal discrimination or the denial of basic rights on the basis of gender.

The Commission finds that the denial of the benefits of marriage to same-gender couples, purely on the basis of their gender, is a violation of those basic constitutional rights.

The Commission finds that the Constitutional right to equal protection is central to this marriage debate. The United States Supreme Court has found that under restricted conditions, even prison inmates have a right to marry(2). The Hawaii Supreme Court has ruled that denying governmental certification to married couples on the basis of gender is discriminatory and presumptively unconstitutional, based on equal protection under the law.

Once the importance of the equal protection argument is made, the Commission finds it beneficial to examine the issue from an alternative perspective. Instead of asking "what reasons exist to extend the benefits identified in Chapter 1 of this report?" it becomes helpful in analyzing the issues to ask "what compelling state interests exist to deny extending these benefits?" This restatement is based on the standard of scrutiny imposed by the court when such rights are threatened in the State of Hawaii. When this standard is established, as in the Baehr case, the burden of proof falls on the discriminator to justify the discrimination. While the task assigned to the Commission by Act 5 requires the Commission to determine if substantial public policy exists to extend these benefits, the Commission finds that it is forced to also examine if there are any compelling state interests that exist to deny extending these benefits.

These equal protection arguments are based on the specific language of the State of Hawaii Constitution(3) which is similar to the United States Constitution. The Commission recognizes that the over-riding right that "no person shall be ... denied the equal protection of the laws"(4) is one of the basic liberties we hold to be self-evident. The Hawaii Constitution extends this prohibition of discrimination further than the United States Constitution by prohibiting discrimination based on gender. In Hawaii "No person shall ... be discriminated against ... because of race, religion, sex or ancestry".(5) The Hawaii Constitution strengthened its gender protection with an equal rights amendment that states: "Equality of rights under the law shall not be denied or abridged by the State on account of sex."(6)

In the Baehr v. Lewin decision, the Hawaii Supreme Court cited Hawaii's Constitutional guarantees of equal protection in holding that State law prohibiting same-gender marriage is discriminatory and presumptively unconstitutional.(7)

Some public testimony argued that allowing same-gender marriage would give special rights not equal rights. The Commission considered the issue of special rights and agrees that the benefits might appear special because they have not yet been granted to same-gender couples by any state. On closer examination, however, we find that the rights being discussed are important civil rights and the benefits being granted are already available to others, and no special benefit is being contemplated. The Commission recalls the debate over the Civil Rights Act of 1964(8). Thirty years ago it was thought to be a special right for an African- American person to spend a night in a white-owned hotel in the South or to eat in an all-white restaurant. These are rights that are taken for granted today. The Commission believes that thirty years from now, the majority of citizens will look back on the extension of marriage rights as the right thing to do.

The argument was raised that special rights seem to be some kind of zero-sum game in which granting a civil right to one person somehow takes it away from someone else. The Commission recognizes how allowing same-gender couples to marry may require others to provide services to people who they may wish to exclude. The Commission has considered the weight of this argument. Balancing the level of inconvenience and upset of those who would like to exclude same-gender couples from their businesses based on their personal dislikes or disapprovals, versus providing equal rights to all, the Commission finds the scale tips in favor of equal rights.

The Commission also considered those arguments that same- gender marriage would infringe on others' individual rights. For example, would an employer, whose religion does not recognize same- gender marriage be obligated to extend the same spouse health- insurance benefits to same-gender married couples as to opposite- gender married couples? Again, we find history instructive: who would say today that an employer, parent or restaurant owner should be able to fire a worker, replace a teacher, or refuse service, based solely on race? If history teaches a lesson, it is that allowing marriage for same-gender couples may enhance society as a whole by moving our nation towards more equal treatment for all.

B.The Loving Case

The Supreme Court of Hawaii, in the case which gave rise to the establishment of this Commission, Baehr v. Lewin, 74 Haw. 530 (1993), recognized the relevance of the United States Supreme Court's 1967 decision to strike down a Virginia statute which prohibited miscegenation, or interracial marriage, Loving v. Virginia, 388 U.S. 1 (1967). The Hawaii Supreme Court has found that denial of same- gender marriage was presumed to be a violation of equal protection of the law unless the State could show a "compelling state interest" for such denial. The Commission finds that the various reasons advanced for denying same-gender marriages--including religious, moral and public health and safety--are similar to the Loving case and do not constitute a "compelling state interest" and, as a matter of public policy, should not be used to deny equal rights under the law to same-gender couples.

Loving v. Virginia, 388 U.S. 1 (1967) has been cited by the Supreme Court of Hawaii in Baehr v. Lewin(9) as well as in several testimonies before the Commission(10). The Loving case prohibited the State of Virginia from enforcing laws that discriminated against inter-racial couples who wanted to marry. Some testimony suggested that the Loving decision parallels the issues now before the Commission. Some of the arguments were and are imbedded in tradition, separate-but-equal standards, and religious objections(11).

Other testifiers disagreed, stating that the racial discrimination issues in Loving are dissimilar to the gender discrimination issues before the Commission. Clearly, race and gender are different issues. However, closer examination of the broader social debates reveals that the two issues are similar. There is much to learn from a review of the Loving case. The parallels are very strong.

During the 1960's when interracial marriage was becoming more frequent, societal attitudes in Virginia that were based on religion objected to interracial marriage. Public argument also focused on morality issues. A popular view was that it was immoral not to discriminate on the basis of race, in the interests of protecting the children. Fears that children would not be raised in a healthy environment fueled the fire. Discriminating on the basis of race was believed good for the public health because there would be no interracial marriages producing mongrel and weak children. The public supported the most basic defense that the very definition of marriage was a union between those of the same race.

The parallels in this issue to the Loving case become obvious when examining the testimony presented to the Commission. The Commission repeatedly heard that some of the State's citizens are in favor of prohibiting same-gender marriage. Objecting to the morality of the behavior of couples who seek marriage certificates, some testifiers believe it is immoral not to discriminate on the basis of gender. Focusing on the ills that would befall children with gay and lesbian parents, some public testimony cited the potential for weak and confused children as dangers to public health and safety, using this as a rationale for discriminating on the basis of gender.(12)

The Commission embraces the lessons of Loving and has listened carefully to the testimonies that are rooted in religious, moral and public health ideas. The Commission recognizes the sincerity of all testimony and recognizes that each person has the right to practice their individual religious and moral beliefs. The Commission also recognizes that no one has the right to impose those on others. Additionally, the Commission believes that testimonies stating the extension of benefits to same-gender couples would threaten public health are inaccurate. Both the American Psychiatric Association and the American Psychological Association removed homosexuality from its list of maladies more than twenty years ago. In addition, the Commission heard substantive testimony that children of gay and lesbian parents develop similarly to the children of opposite-sex parents.(13)

Another similarity between Loving and the issue before the Commission is the legal non-recognition of an existing situation. Inter-racial relationships, including marriages, existed long before the Loving case. The United States Supreme Court officially prohibited Virginia from restricting those inter-racial couples from marrying. The Hawaii Supreme Court has suggested a similar intent here by imposing the heavy burden of showing a compelling state interest if it is to bar same-gender marriages. Same-gender couples have had relationships that include marriage in some churches.(14) The non-recognition of these on-going relationships warrants a similar standard of scrutiny as in Loving. Historically, there was no serious disruption of the public order because of Loving. The Commission expects the same result if same-gender marriages are recognized by the State.

Related to the arguments that the public order in Hawaii would be disrupted are the contentions that extending benefits to same-gender couples will wreak havoc on the economic status of the State. Again, we can point to another similarity to the Loving case. The State of Virginia feared economic hardship if racial discrimination were ended. The Commission heard substantial testimony on the economic effect on tourism in Hawaii if benefits are extended to same-gender couples. Testimony from economists(15) focused on a Southern California Law Journal article.(16) That article projected a $153 million annual increase in tourism to Hawaii from gay and lesbian couples travelling to the first state that allowed same gender marriage.(17) Even though economists discounted the methodology of the article's author, who is not an economist, they agreed there would be some effect, and two of them estimated the positive effect at $127 million over five years(18), though all three economists agreed that a more precise estimate would be difficult to predict without further data. The range of general testimony on how the State will fare economically if same- gender marriage were allowed included a prediction of an economic boost, fear it will create a situation that will destroy tourism in Hawaii, and still others said that the effect would be unnoticeable.(19) The Commission has heard testimony and is aware of the economies of other cities and communities where gay rights have been strongly supported, and understands those areas not to have suffered economically but have even prospered.(20) Therefore, the Commission does not give weight to the argument that tourism will be effected negatively.

Discussion of the economic effect on tourism included the introduction of a resolution(21) that explored the results of accepting or rejecting certain public policies. Basically, if a given action by the legislature were to cause loss of jobs or income, it would be opposed as bad for the community and considered a bad policy for the State. Conversely, if such an action created positive conditions for the average citizen, it could be seen as a good policy for the State. Sifting through the testimony, the Commission finds a net positive economic impact from legalizing same- gender marriage and simply recognizes that a new incentive for a particular market to visit the islands would increase the tourism economy of the State. Adopting a policy that would have that result would be good for the State.

Another parallel to Loving is the objection that parents would have to send their children to schools attended by the children of parents who are different or to classes taught by teachers who are different. The Commission favors the belief of John F. Kennedy: "If we cannot end our differences, at least we can help make the world safe for diversity."

Regarding the issue of public sentiment, local public polls are mixed, depending on how the survey question is phrased. Although more people might oppose same-gender marriage than support it(22), about two-thirds of Hawaii's voters support equal rights for its gay and lesbian citizens. But justice may not be reflected in the public polls. At the time of the Supreme Court decision requiring the integration of schools in Brown v. Board of Education 347 U.S. 483 (1954) integration was tremendously unpopular. Stubborn governors sent armed troops to prevent children of the "wrong" race from going to school.

Opposition to the 1967 Loving decision on interracial marriage was also heated. Yet the Commission also finds no rational argument today that either Brown or Loving were the wrong things to do. Instead, the Commission finds that both these decisions have provided a more fair and equal life for all Americans. Similarly, testimony indicated that when Denmark passed a national domestic partnership law the majority of the people were against it, but now the law is generally accepted.(23) A time line presented to the Commission indicated movement towards more acceptance throughout the United States of same-gender relationships, with Hawaii being a leader in many of the steps taken.(24)

C.Procreation and Compelling State Interests

The argument that same-gender marriage should be barred because it cannot lead to procreation is invalid, inconsistent, and discriminatory. Public policy should not deny same-sex couples the right to marriage, and the right to raise a family if they wish to do so, on the excuse that they, between themselves, cannot procreate, when this reason is not applied to opposite-gender couples. State law does not require that opposite sex couples prove that they are capable of procreation before they can be married, and many are obviously not, because of age, medical or other reasons. Individuals in a same-gender marriage may have children from a prior opposite-gender marriage, or can adopt children if they desire a family.

The Commission invited both of the attorneys who will argue at the trial of the Baehr case now set for July 15, 1996, to brief the Commission. The First Deputy Attorney General who is defending the State in the Circuit Court trial of Baehr v. Miike(25) shared with the Commission the position the Office that the Attorney General will be presenting in the case. The Hawaii Supreme Court has ruled in Baehr v. Lewin(26), that the State has the burden of showing a "compelling state interest" that is narrowly drawn if the State prohibits same-gender couples from obtaining a marriage license. The First Deputy Attorney General has explained to the Commission that the State's position is that a compelling state interest exists that is related to the interest of procreation and protection of children. Their position does not deal with sexual orientation, per se, nor even with gender, per se. Instead, it is based on the belief that being raised by biological parents is best for the children of Hawaii and that is what the marriage law is intended to do.

The obvious question concerns those different-gender couples who apply to get their marriages certified by the government and may not have, intend not to have, or are incapable of having children. The First Deputy Attorney General addresses this issue by appealing to a related defense of privacy.(27)

The Hawaii Constitution has a very strong constitutional protection of privacy.(28) This right of privacy includes the right to privacy in general concerning reproductive matters and this is what the First Deputy relies on when explaining the over-inclusiveness of those different-gender applicants under the protections of the compelling state interest that nurtures procreation, who do not want to, or cannot, procreate. With regard to their right to privacy, the First Deputy suggests, it would be unconstitutional to question different-gender couples requesting their marriages to be certified as to whether or not they could or would have children.(29) On the other hand, same-gender couples can not biologically procreate and therefore can be excluded from the marriage law that is rooted in the interest of procreation. The Commission finds this argument to be unconvincing.

The Commission also thinks that due attention should be placed on traditional Hawaiian custom as stated in Section 7, Article XII, State of Hawaii Constitution. "The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes..." The Commission recognizes that in traditional Hawaiian culture, a great number of children were raised not directly by the biological parents, but instead by the hanai parents. This traditional custom and practice, the Commission finds, is well documented.(30) The Commission concludes that the State's arguments run counter to the Hawaii Constitution and State law cited above, and therefore the argument that children are best raised by their biological parents does not impress the Commission as a compelling State interest.

While the Commission agrees that procreation, the protection of children, and privacy are all in the public interest, the Commission also finds that these same issues argue for the conferring of government certification of same-gender marriages and not against. The encouragement of stable relationships would benefit the individual couples, and the families as well as society. The Commission finds that the continuation of the current same-gender prohibition of state-certified marriage and denial of equal rights is harmful to the public interest.

D.Separation of Church and State

Under our constitutional government the fact that some religions or churches condemn same-gender marriages does not mean that those religious beliefs can be imposed on others. Our separation of church and state prevents religious enforcement through state institutions, such as the Department of Health.

Representatives from a variety of religious organizations were invited to testify in this area. Clearly, there are as many different opinions on this matter as there are religious organizations. For example, the Church of Jesus Christ Latter-Day Saints and some evangelical and fundamentalist Christian representatives would not like the State to recognize same-gender relationships.(31) Some other Christian representatives and the Buddhists asked the Commission to support stable relationships between loving people regardless of whether those loving people are the same gender.(32)

Some of the public testimony was based on an alleged violation of natural law. Yet conflicting religious testimony stated that same-gender activity can be found in a variety of life forms and therefore is not against natural law. Some Christian testimony said same-gender relations were against God's will and therefore should be banned. Other Christians disagree. Many religions do not recognize God or the one God. Buddhism, the second largest religion in the State, does not believe in God. The Commission finds that the interpretation of various sacred scriptures is open to legitimate differences of opinion but irrelevant to the Commission's purpose. Hawaii welcomes, protects, and cherishes hundreds of different religions and denominations--churches, synagogues, temples, and other places of worship--yet none of these provides the basis of our legal system.

The Commission also listened to Christian testimony that incorrectly interpreted the State motto, "Ua Mau Ke Ea, O Ka Aina I Ka Pono," to apply to the issues at hand. Translations of the motto by these public testimonies implied that the common translation "The life of the land is perpetuated in righteousness" refers to pious Christian behavior.(33) The Commission disagrees with this translation of the State motto as having any sectarian meaning. Hawaiian authorities agree that Kauikeaouli (Kamehameha III) is the author of these words. The word pono stated in conjunction with the words ea, meaning "sovereignty," and aina, meaning land, in this context refers to the correct political behavior for protecting the land. Kauikeauoli uttered the statement after the sovereignity of the land was returned on July 31, 1843, by Admiral Thomas.34

Other religious testimony feared that the State would force churches to marry same-gender couples, even if that marriage opposed their religious ideology. This is not the current structure of the marriage law, nor would it be if same-gender couples were awarded certificates of marriage. Religious organizations would still be free to exclude those who do not share their beliefs, although there may come a time when they become more accepting of same-gender marriages as these become more common.

II.Conclusion

The Commission finds that the four public policies presented above are substantial public policy reasons that warrant the extension of all the legal and economic benefits discussed in Chapter 1 to same-gender couples willing to enter into the marriage contract, with all the responsibilities and burdens which that contract entails. The Commission notes that while the task at hand was to find substantial public policy reasons to extend part or all of the benefits identified, much of the discussion in this chapter focuses on the comparison of allowing state-certified marriage to same-gender couples versus denying it. This is a product of addressing the testimony and material presented to the Commission. The Commission has tried to incorporate and address as many of the ideas presented in the testimony as possible in its discussions of these policies.

The Commission finds substantial public policy with regard to equal protection arguments and rejects the the idea of nurturing procreation as a compelling state interest. The Commission also finds the Loving case to be similar to the issues surrounding the role of the Commission. The Commission, in determining whether there is substantial public policy that exists to extend all or part of the benefits identified in Chapter 1 of this report has reviewed a variety of positions and has concluded that substantial public policy reasons exist to extend not just part, but all benefits.

The primary reason for this is the deeply rooted belief of the people of Hawaii, America, and all humanity, in equality and equal rights of all people.

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