FINDINGS AND RECOMMENDATIONS
a.Article I, sections 2, 3, and 5 of the Constitution of the State of Hawaii clearly states 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.
b.In the case which gave rise to the establishment of this Commission, Baehr v. Lewin, 74 Haw. 530 (1993), the Supreme Court of Hawaii 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.
c.The argument that same-sex 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.
d. 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. Furthermore, the Constitution prohibits any religious group from having to perform the marriage of a couple that is not recognized by that religion.
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