Sexual Orientation and the Law
Committee Report

Chapter 4

FINDINGS AND RECOMMENDATIONS

I.Findings

  1. The Commission finds that the conferring of a marriage certificate can bestow benefits in other jurisdictions. While those may be beyond the scope of this Commission, the ability of the State to extend those benefits by providing a marriage certificate to individuals is significant.
  2. The Commission finds that major legal and economic benefits conferred by the marriage certificate through the Hawaii Revised Statutes include intangible, substantial-quantifiable, and general benefits.
  3. The Commission finds there are substantial public policy reasons to extend the those benefits in total to same-sex couples. Those public policy reasons include:
    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.

  4. The Commission finds that, based on the major legal and economic benefits and the substantial public policy, the only logical conclusion is to recommend that same-gender couples be allowed to marry under chapter 572, Hawaii Revised Statutes. The Commission also acknowledges that the extension of marriage to same-gender couples may not be a legislative alternative at this time.
  5. In the event that same-gender marriage under chapter 572, Hawaii Revised Statutes, is not a legislative alternative, the Commission recommends a universal comprehensive domestic partnership act that confers all the possible benefits and obligations of marriage for two people regardless of gender.
II. Recommendations

Based on the findings stated above, the Commission first recommends the Legislature amend chapter 572 to allow two people to marry, regardless of their gender. The Commission also recommends the Legislature adopt a universal comprehensive domestic partnership act that confers all the possible benefits and obligations of marriage for two people, regardless of gender.

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