The irony of this "minority" opinion is that its conclusions actually reflect the view of a majority of Hawaii's residents(1). According to the most recent poll taken by SMS Research, The Honolulu Advertiser and KHON July 19-29, 1994, more than two-thirds(2) of the respondents stated that Hawaii should not allow people of the same sex to marry. The public response to the Draft Final Report of this Commission confirms this as well. Of 1033 written comments received, 455 were in favor and 578 were opposed to homosexual marriage(3). At the December 6, 1995, meeting, where public comment was received, of 103 who testified, 22 were in favor and 81(4) were opposed to homosexual marriage. In addition, the Legislative Reference Bureau (LRB) received so many telephone calls concerning the Draft Report that they could not record the messages because it would interfere too much in their ability to do their other work.
Opposition to changing the definition of marriage is also consistent with the policy in Hawaii prohibiting "common law marriage". The State of Hawaii has protected traditional marriage and has narrowly circumscribed marriage rights since 1920.
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(5).
The irony of the Majority Response to Minority Opinion, is that the majority's rebuttal to the minority opinion validates the content of the minority opinion. In the Response, the majority excuses its conduct on its understanding that it had to address its efforts "with speed and decisiveness if it was to complete its work within the limited time allowedÓ(6). That force and a disinterest in opinions opposed to homosexual marital rights drove what the minority describes as a railroad job in this minority opinion.
I.Introduction A.Reason For Minority
A.Reason For Minority OpinionDue to the five-member majority of Commission members who vigorously support homosexual rights, the debate needed for serious analysis did not occur. The Governor's Commission on Sexual Orientation and the Law failed in its effort to seriously analyze the issues presented. See letters to Chairman Gill dated October 10, 1995, from Commissioner Hochberg and October 11, 1995, from Commissioner Sheldon attached hereto as Appendix H.
This opinion of a minority of the Governor's Commission on Sexual Orientation and the Law is written because the two-member minority disagreed with the substance of the majority's analysis and because the process employed by the majority to reach their conclusions is faulty. Instead of looking to Act 5, 1995 Session Laws, for guidance, the majority of the Commission saw its role as validating favorable portions of the court opinion in Baehr v. Lewin(7), even though in Act 217, 1994 Session Laws, the legislature roundly criticized the court opinion in Baehr. As a result, during the actual Commission meetings, the majority of Commissioners refused to examine the major legal and economic benefits reserved for married couples, but instead simply reached their conclusions. In addition, the majority refused to examine substantial public policy reasons not to extend these benefits in part or in whole to homosexual couples.8 The overwhelming credible evidence available to the Commission requires that the State of Hawaii not recognize homosexual unions as equivalent to traditional, heterosexual marriage.
The minority of the Commission recommends that no action be taken to extend any legal or economic marital benefits to homosexual couples that they do not already enjoy. In addition, the minority finds that the majority's recommendation that the legislature embrace same-sex marriage will severely, negatively affect the Attorney General's ability to prevail in the pending Baehr v. Miike litigation. In light of this, the minority also strongly recommends that the legislature undertake to amend the Constitution of the State of Hawaii to reserve marriage and marital rights to unions between one man and one woman. If any marital rights are granted to homosexual couples, the minority vigorously recommends that the legislation contain a sweeping religious exemption. Finally, the minority recommends that the legislature consider reviewing Hawaii laws to determine whether it should enlarge the definition of "family" in some statutes in order to protect legitimate "family" needs for unmarried people. In evaluating which, if any, statutes should be changed in this regard, the minority also strongly recommends that the legislature evaluate the cost to the state from such change.
This report presents information received from persons who testified before the Commission as well as material included in the Commission's bibliography. This modern literature concerns legal, economic and social policy analysis of marriage and marital rights, family and child rearing, the attributes of homosexuality and the effects of homosexuality on the community. Many people testified that they were opposed to homosexual marital rights on economic, religious, historical, medical and psychological grounds. Of critical importance to many people who testified was the protection of children. The majority report simply rejects all these bases of opposition to homosexual marital rights. The majority's argument relies on the tenuous assumption that the present legal status of gay marriages parallels the laws against interracial marriages in the 1960s. The minority opinion addresses some of the reasons why this is a false assumption. Race and gender are immutable characteristics. Clearly, sexual orientation is not in the same category--sexual orientation is known to change and is, to a large extent, behavioral. The argument that homosexuality is genetically determined and so in the same category as race or gender has not valid scientific support. There are many elements of behavior, such as the propensity to violence for which a genetic determinant has been found. This does not mean that such a behavior should be elevated to the status of the most favored in the State. Homosexual marital rights are simply not civil rights. As discussed in more detail below, homosexuality is not immutable but is caused by disturbed family environment and interaction between the parents and their children.
Regardless of any person's philosophy that homosexuality is either deviant or an acceptable alternative lifestyle, the issue of homosexual marital rights must be resolved on the basis of what is good for society. While the majority were not interested in discussion of reasons not to extend the benefits of marriage to homosexual couples, this minority opinion identifies the following major reasons why there should not be a drastic revision of the marriage law.
The minority refutes the assumption that legalizing same- sex marriage will be of any benefit at all to Hawaii's economy. On the contrary, it is more likely that Hawaii's major industry, tourism, will be negatively affected, as the image of Hawaii deteriorates from the aloha state to the gay honeymoon and wedding destination of the world.
The minority is seriously concerned about the adverse effect legalizing homosexual marriage will have on the social, sexual and psychological development of children. The majority did manage to find some "expert" to testify that being raised in a homosexual household had no detrimental effects on children, but the vast body of work done on the issue suggests the opposite.
The minority believes that the ramifications on the education system would be far-reaching, touching all elements of the curriculum. Parents are protective and concerned about their children's education, as demonstrated by the outrage caused by the misguided Project 10 on the Big Island. The rights of parents must be favored over the rights of the homosexual community.
Every person's review of this report should focus on resolving the issue of homosexual marital rights in such a manner as to protect and preserve society, both in Hawaii and the United States. Clearly, this issue will affect everyone in the State. It will affect the entire country, since other states will be forced to deal with whether their states must accept any homosexual marital rights granted on a statewide basis in Hawaii. There is even a home page on the Internet where homosexual activists freely discuss this issue across the country.
The majority supports its position by arguing that withholding marital rights constitutes discrimination against homosexuals. However, even the Hawaii Supreme Court in Baehr held that there is no fundamental right to homosexual marriage:
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 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. (Emphasis added.)(9)
Therefore, the resolution of this issue cannot be analyzed solely on the basis of the value of autonomous freedom for homosexuals, or an assumption of improper discrimination. Permissible discrimination occurs in many ways on a daily basis.
Not all forms of discrimination are inappropriate, and one should not jump to the conclusion that opposition to endorsing homosexuality constitutes inappropriate discrimination(10). Discrimination (approval or disapproval of a person or group) based on judgments in the absence of evidence is inappropriate. However, certain distinctions can reflect prudent judgment based on evidence(11). Therefore, the Commission should have first examined the evidence of the attributes of homosexuality and the effects those attributes have on children, family and society. Although the majority of the Commission did not even consider such information important, only with that information can one take a rational position regarding the extent to which the State of Hawaii should endorse--and by its endorsement encourage--homosexual practices. The majority's recommendations actually constitute prejudiced discrimination against those whose prudent judgment, based on the evidence, does not equate homosexuality and heterosexuality.
II. Act 5, Session Laws of Hawaii 1995: The Legislative Charge The Legislature charged this Commission to "examine the major legal and economic benefits extended to married opposite-sex couples, but not to same-sex couples; to examine the substantial public policy reasons to extend or not to extend such benefits in part or in total to same-sex couples; and to recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couplesÓ(12). Act 5 repealed part of Act 217 from the 1994 legislature, and redefined the Commission's instructions. However, Act 5 did not repeal that portion of Act 217 which contained the Legislature's vigorous chastisement of the Hawaii Supreme Court's opinion in Baehr v. Lewin. Nonetheless, the majority of the Commissioners ignored the legislative intent contained in Acts 217 and 5, and instead addressed its analysis to validating parts of Baehr v. Lewin to scuttle the Attorney General's defense of the marriage laws in the Baehr v. Miike case pending before the court. Substantially all of the public policy discussion at the Commission dealt with invalidating the defense of the litigation, and very little of the Commission's efforts addressed any public policy reasons not to extend benefits to homosexual couples(13).
The minority members of this Commission understood the legislative charge to be to examine the institution of marriage and family, including the major legal and economic benefits, and recommend to the legislature whether or not it is appropriate, based on substantial public policy reasons, to change the long- standing, zealously guarded definition of the marital partnership by opening that partnership to same-sex couples in whole or in part.
The minority members of this Commission understand that because there are good reasons to support the heterosexual norm, due to the fact that it has been developed with great difficulty and can be maintained only if it is cared for and supported, we cannot be indifferent to attacks upon it.
Marriage and the family are institutions necessary for our continued social well-being and, in an individualistic society that tends to liberation from all constraint, they are fragile institutions in need of careful and continuing support(14).
The Commission, controlled by the five-member majority, did not undertake an unbiased academic approach to its charge, due to the majority's pro-homosexual bias and the time constraints placed on the Commission work. In the majority Response to this report, at II.F., the need for "speed and decisiveness" is the euphemism employed. The authors of this minority opinion hope that the legislators read this report for the factual content. It is not presented as an advocacy tool, but as a work of scholarship to assist the legislature with the very difficult, but historically critical task with which Baehr v. Lewin saddled the legislature.
III.The Majority of the Commission Refused to Follow
Legislative Instructions to Examine Major Legal and Economic
Benefits Extended to Married Opposite-sex Couples, But Not to
Same-sex Couples A.The Majority of the Commission Adopted
Without Review the Work Product of the 1994 Commission Which
Examined Precise Legal and Economic Benefits Defined as
"Anything Contributing to an Improvement in Condition or an
Advantage," Notwithstanding the Change in Legislative Charge to
Examine Major Legal and Economic Benefits
A.The Majority of the Commission Adopted Without Review the Work Product of the 1994 Commission Which Examined Precise Legal and Economic Benefits Defined as "Anything Contributing to an Improvement in Condition or an Advantage," Notwithstanding the Change in Legislative Charge to Examine Major Legal and Economic BenefitsIn the first Commission meeting, we discussed the fact that the Legislature modified the charge to the Commission in Act 5 from what had been charged in Act 217(15). That change concerned the replacing of the instruction to examine "precise" legal and economic benefits in Act 217, with "major" legal and economic benefits in Act 5. The legislation does not reveal the reason for that change, nor the change from examining only public policy reasons to extend benefits in Act 217 to examining public policy reasons to extend or not to extend benefits in Act 5. Clearly, however, the implication of the two changes indicates legislative intent to make the inquiry more helpful to the legislature by narrowing the scope of benefits examined and increasing the scope of public policy examined.
The charge in Act 217 to examine precise legal and economic benefits had resulted in the 1994 Commission adopting a working definition of legal benefit as "anything contributing to an improvement in condition or an advantage that a married couple would have as a 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 or familyÓ(16). Such a definition identifies precise benefits, as called for in Act 217. However, such a definition does not identify "major" benefits as charged in Act 5.
For most of the life of the 1995 Commission, the majority continued to use the definition from the 1994 Commission, notwithstanding requests at every meeting to adopt a definition of "major legal and economic benefit" which would give the Commissioners a common benchmark for evaluating marital benefits in light of the changed legislative instruction. The proposed definition, rejected at each meeting, sought to direct the Commission to "significant" legal and economic benefits, weighed against any burdens attached to the benefits, and then defined as major benefits only if these significant benefits were not available to same-sex couples via another avenue or means. Such a definition seemed to address what the legislature meant by "major legal and economic benefits." The majority claims in Chapter 1, Section C.1. of their report that they rejected this definition because it effectively defined no benefits. However, the majority never exercised their five votes in any full Commission meeting to apply the definition to any statute. Clearly, their five votes could have approved the same list of benefits using this rejected definition. The difference is that they would have laid bare their rationale on a statute by statute basis.
The majority of the Commission not only rejected this definition at each meeting, and continued to refuse to adopt any other definition of "major legal and economic benefits," but the majority continued to accept the work product of the Legislative Reference Bureau (LRB) staff attorney based upon the legislative directive under Act 217, 1994. In addition, although much of the Commission's research work was completed between September 13 and October 25, 1995, it was not until October 26, 1995, that the majority discussed and adopted a definition of "major" legal and economic benefit. On October 26, 1995, the majority adopted a definition which utterly failed to focus on "major" benefits. Instead, the majority maintained that every benefit, no matter how slight, when combined together with all the other benefits, no matter how slight, constituted together major legal and economic benefits. This clearly did not address the legislative charge in Act 5.
B.The Majority of the Commission Finally Abandoned Pretense In Late October And Defined Major Legal And Economic Benefit Based On The Baehr v. Lewin Supreme Court Opinion Addressing Salient Marital Rights On October 26, 1995, when most of the permitted research work of the Commission had been completed, the majority of the Commission abandoned pretense and fashioned a definition of major legal and economic benefits based upon the Hawaii Supreme Court's 1993 reference to "salient" marital rights in the Baehr v. Lewin decision. The Supreme Court was listing benefits which stood out to them without undertaking exhaustive research and without assigning "major" or "minor" value them. For example, the Supreme Court recognized as a salient marital right, among other things, the right to change of name by changing ones name on the marriage license. Clearly, the legislature in seeking analysis of major benefits, did not adopt the Baehr opinion definition of "salient" rights. In fact, the legislature strongly criticized the opinion in great detail in 1994. Therefore, instead of examining the major benefits as charged by the legislature, the majority marched lock-step with the plaintiffs in the Baehr case and present to the legislature a report which points to every single legal and economic benefit listed in a nineteen-page catalogue of laws containing the words marriage, husband, wife, spouse, or family.
In fact, the definition fashioned by the Commission includes as "major" legal and economic benefits the following, among others:
C.The Majority of the Commission Failed to Analyze or Discuss in Any Detail the Nineteen-Page List of Hawaii Revised Statutes Sections Purportedly Extending Major Legal and Economic Benefits to Married Couples Although a long list of statutes is appended to the majority report to catalogue an exhaustive list of major legal and economic marital benefits (hereinafter referred to as the "Nineteen-Page List")(17) an initial fifteen-page list was developed by the LRB staff Attorney using the 1994 Commission definition of precise legal and economic benefits (hereinafter referred to as the "LRB List"). Not only was the LRB List not based upon a search for major benefits, but the Commission never examined the list of statutes. The Nineteen-Page List was not even presented to the Commission until November 22, 1995.
An actual review of these statutes revealed that at least 205 of these statutes should not be listed as extending major legal or economic benefits to married opposite-sex couples, but not to same- sex couples for several reasons. These reasons include: (1) the statutes do not extend any benefit whatsoever; (2) the benefit extended is not a "marriage" benefit, but a "family" benefit; (3) the benefit is not a spouse or marriage benefit, but a benefit relating to biological parenthood; (4) the benefit, although a marriage benefits, is too small to be considered a major legal or economic benefit; (5) the statute actually extends a marriage burden, not benefit; (6) the benefit extended by the statute is not withheld from same-sex people; (7) although a marriage benefit is extended to the spouse of a service person, when a same-sex couple seeks the benefit, the burden on the same-sex couple far outweighs the benefit; and (8) the basis for finding that the benefit is not extended to same-sex couples is based on the majority's very restrictive definition of "family" which is not contained in the legislation. For instance:
The minority Commissioners examined the Nineteen-Page List during the two weeks between November 22, 1995, when it was received from the majority, and December 6, 1995, the date the final draft of the minority opinion was due. A more detailed review should be made before any of the benefits are extended to homosexual couples. It must be noted that the Commission itself never examined the statutes to determine whether either list was correct and the statutes actually extended the benefits indicated on the lists. In addition, neither list was analyzed to determine whether any benefits extended were major benefits. Consequently, the Nineteen-Page List contains all these statute references whether or not the statutes in fact extend major legal and economic benefits.
D.Most of the Statutes in the Nineteen-Page List Do Not Extend Major Legal or Economic Benefits to Married Couples Two economists testified before the Commission: Sumner La Croix, Ph.D. and Moheb Ghali, Ph.D.(18) Accordingly, to Dr. Ghali, all economists agree that to determine the economic value of any particular benefit, one must first determine the "Expected Value" and then discount that value by the probability of someone taking advantage of the benefit under consideration(19). For instance, where a benefit derives from status as a professor at the University of Hawaii, then the likelihood of someone taking advantage of that benefit is equal to the ratio of the number of U.H. professors to the population at large. In addition, future benefits should be reduced to present value to determine the value of the benefit.
Most of the benefits addressed by Dr. La Croix as expected economic benefits concern estate planning techniques available to married people by virtue of their status as husband and wife. However, all of those benefits, with the exception of the marital deduction and marital elective share, are available to non-married people from the use of inexpensive simple will forms available for a few dollars in stationery stores(20). In addition, the marital deduction benefits are federal law, not likely affected by state law changes. Likewise, the elective share benefits are only relevant where a spouse has been disinherited, and disinheritance is easy to accomplish in ways that avoid elective share rights.
The majority report attributes several thousand dollars of value to estate planning techniques for "replicating marital benefits" based upon the attorney fees to have the documents drawn rather than the value of using the stationary store estate planning forms. Interestingly, the majority refused to identify the three attorneys consulted for the valuation, notwithstanding that the names were twice requested by the minority Commission members who desired to discuss the matter. Whatever the expense of the inexpensive simple will form, it is certainly not the value attributed by the secret attorneys relied on by the majority of the Commission.
Furthermore, where it is worthwhile to spend money on estate planning, it is no more expensive for unmarried couples than for married couples. In addition, trusts, durable powers of attorney and living wills are the remedies available to all unmarried people without regard to their sexual orientation. In Dr. Ghali's opinion, the value of these small benefits is saving the minimal cost of these widely used remedial measures. He opined that the data or measurement of this small value is not warranted in light of the cost to do the research.
Dr. La Croix erroneously found the ERS system to provide major retirement benefits for married, but not unmarried persons. However, to the contrary, the ERS system permits every member to designate anyone as the beneficiary--a spouse, domestic partner or anyone else--and thus there are not additional benefits to be realized in the ERS pension plan.
Dr. Ghali concluded that only very few of the legal or economic benefits contained in the LRB List address the Legislature's instruction to the Commission to "examine major legal and economic benefits." In fact, of the benefits listed in the LRB List, Dr. La Croix identified only nine "[b]enefits from Marriage with a Significant Expected ValueÓ(21). Of those, Dr. Ghali testified that:
Because many of the benefits listed by Professor La Croix under his heading have very small probabilities of being used, as he correctly points out, the expected value of each benefit is small, and the sum of the discounted expected values of this group of benefits is likely to be small. While it is possible to collect data to measure the discounted expected values of these benefits, I do not believe the magnitude of the benefits is sufficient to justify the cost of the data acquisition(22).
E.There are Apparently Three or Four Benefits Addressed By Dr. La Croix Which Merit Investing the Resources to Research the Value Dr. Ghali agrees that three or four benefits addressed by Dr. La Croix merit investing the resources to research the value. Those benefits are: Retirement Health Insurance Benefits, Non- Retirement Health Insurance, ERS Death Benefits, and Hawaiian Home Lands Leases. According to Dr. Ghali, none of the other benefits can possibly be large enough to bear the cost of the analysis needed to determine the value, and therefore cannot constitute major legal or economic benefits(22).
Concerning the retirement health insurance benefits, most unmarried people in Hawaii have health care. Employers must provide coverage to employees. Many unemployed also receive free health insurance. Assuming that the homosexual and common law marriage community are retired, unmarried and uninsured, Dr. Ghali suggests that data be collected and analyzed to determine the economic value of the benefit. The data needed should concern the average annual cost of spousal retirement medical coverage (the remedy) and the estimate of the number of people expected to benefit (the class to receive the new benefit). This information will reveal the estimated fiscal impact on the ERS and the Health Fund, and whether a general increase in employee contributions or in State tax revenues will be required to cover the additional cost.
Concerning the non-retirement health insurance benefits, Dr. Ghali suggests that data be collected and analyzed concerning the average annual cost of spousal medical coverage and the estimate of the number of people expected to benefit from non retirement health insurance. This information will reveal the magnitude of the subsidy. In addition, alternative ways of funding the health insurance coverage must be analyzed.
Concerning the ERS Death Benefits, Mr. Shimabukuro, of the ERS, testified that the benefits payable upon the death in-service of an employee are only available to the surviving spouse (until remarriage) and the dependent children (until attainment of majority) if the employee was under the non-contributory plan. The only benefit exclusive to spouses under the contributory plan is an additional pension. However, the contributory plan has been closed to new members since the mid-1980's. As Dr. Ghali explained how to measure the economic value of these benefits:
Data on the number of cases of in-service death as a percent of the total active membership over the past five years would give a reasonable estimate of the probability of the death benefits. The average payment per case of in-service death over the past five years would be a reasonable estimate of the benefit value. Both of these data should be easily available from ERS. The benefit value multiplied by the probability would yield the expected value of the death benefits. This figure, the expected value of death benefits to survivors of non-contributory members is needed to measure both the potential benefits and costs of any policy change. Similarly, the expected value of the exclusive spouse pension under the contributory plan can be calculated to evaluate the potential benefit and cost of the policy change(24).
Concerning the Hawaiian Home Lands Lease issue, Dr. Ghali opines that to determine whether to extend this benefit to Non- Hawaiians, the cost of extending this benefit must be evaluated in light of the shortage of Hawaiian Home sites. To the extent that the Hawaiian family on the waiting list pays a rent higher than the Hawaiian Homes lease rent, there is an inefficiency in the allocation of resources. He states that data on the excess demand for Hawaiian Home Lands parcels must be analyzed. Dr. Ghali suggested that:
To evaluate this potential benefit, one needs to know the frequency of unmarried people that occupy Hawaiian Homes Lands properties at this time. An opinion survey of Hawaiian community attitude towards granting the rights to unmarried partners of Hawaiians in preference to their Hawaiian families would be helpful, as it will ultimately be the Hawaiian Home Lands that will make the decision regarding the extension of this benefit to domestic partners(25).
Dr. La Croix and Professor Roth both discussed federal tax benefits from marriage. Both testified that the tax code benefits and burdens married and unmarried couples depending on the taxable income rather than the marital status. Both also agreed that neither this Commission nor the state legislature can modify the U.S. Internal Revenue Code. Therefore, it is not certain that federal tax economic benefits will be gained extending marital rights to unmarried people. Were people to actually marry, whether they benefit or are burdened depends on their relative incomes. Unless data show that most or all same-sex couples have greatly unequal income, Dr. Ghali, Professor Roth and Dr. La Croix agree that there is no reason to assume a general tax benefit from marriage.
F.Most of the Benefits in the Nineteen-Page List are also Not Extended to Unmarried, Heterosexual Couples
As explained by Justice Levinson in Baehr v. Lewin at pg. 559, in Hawaii, since 1920, people living in "common law marriage" (cohabiting without being legally married) have consistently been refused marital benefits(26). The majority's recommendations are contrary to this long-maintained policy and constitute a step backward for Hawaii as a culture. Hawaii has long zealously guarded the definition of marriage, having codified it in 1872. Were the legislature to permit homosexual couples to enjoy the benefits of marriage more than one hundred years of social policy in Hawaii would be changed in one fell swoop. In addition, were these marital benefits not granted to unmarried heterosexual couples under a domestic partnership statute, then the claims in the Baehr v. Miike case would again be created in our statutes. Heterosexual couples could complain that they have been singled out as the only group of people not to receive the marital benefits on the basis of their sex if, as heterosexuals, they do not qualify for Domestic Partnership status. However, the cost to society of extending marital benefits to all unmarried adults would possibly crush the economy of Hawaii. No study has been done to determine the effect of these domestic partnerships in our state.
G. Most of the Few Specific Legal and Economic Benefits Actually Discussed by the Commission are Not Denied to Homosexual Couples Since Already Available to Other Means and Therefore are Not Major Benefits of Marriage The definition of major legal and economic benefits, which the majority of the Commission rejected, sought to look at significant legal and economic benefits, and determine if the same benefit was available to unmarried same-sex couples through an avenue or means other than being legally married. If so, then the benefit would not qualify as a major legal and economic benefit extended to married opposite-sex couples but not to same-sex couples(27). Most of the few specific legal and economic benefits actually discussed by the Commission are already available to same-sex couples. Most of the estate planning, control of medical treatment, retirement benefits, power of attorney, life insurance benefits, etc. are available to same-sex couples.
In addition, many of the benefits the majority found to be unavailable to same-sex couples are unavailable based on the majority's definition of "family". The availability of the benefits to "family" members, in the absence of a definition of "family" which expressly included same-sex couples, led the majority of the Commission to assume that these benefits were denied same-sex couples. However, the definition of "family" did not specifically exclude same-sex couples, and indeed often the state agency would extend these benefits to same-sex couples(28).
H.The Few Legal and Economic Benefits Which were Actually Discussed by the Commission were Based on Faulty Economic Analysis and Therefore do Not Provide the Foundation for the Conclusions Drawn by the Commission As discussed above, the Commission mis-defined major legal and economic benefits to include any benefit no matter how small or unlikely to be used, failed to reduce expected economic value to true economic value, and failed to review the Nineteen-Page List of statutes appended to the majority report as the compilation of legal and economic benefits. Consequently, these efforts of the Commission do not support the conclusions drawn by the Commission. Whether there are in fact major legal and economic benefits extended to opposite- sex married couples but not to same-sex couples has not truly been examined by the Commission.
However, that is not to say that there are no major legal or economic benefits reserved solely for married couples. Justice Levinson recited the now seventy-five year history of our state "zealously guarding the state's role as the exclusive progenitor of the marital partnership... "(29) and it is safe to assume that there are major legal and economic benefits reserved for that marital partnership. That is addressed below at section IV. E. 1 below. The point simply is that the majority of the Commission failed to analyze the statutes in a manner to report what the legislature charged the Commission to examine.
I.There is No Evidence Whatsoever that Granting Marital Benefits to Homosexual Couples will Increase Tourism Revenues in the State of Hawaii For twenty-three years Dr. Ghali studied Hawaii's economy as a tenured professor in the Economics Department at the University of Hawaii. He has published the authoritative analysis of Hawaii's economy, including a model containing more than one hundred variables(30). Dr. Ghali testified to the Commission that Dr. La Croix had no support for the economic evaluation prepared by Dr. La Croix, and that Dr. La Croix could not conclude whether there would be a positive or negative effect on Hawaii's tourism resulting from homosexual marriage. Dr. La Croix then admitted that his figures presented to the Commission are "unreliable"(31).
Although it has been reported in the local press that extending marital benefits to homosexual couples will result in an increase in tourism revenues to the State of Hawaii, there is absolutely no valid data to support that claim. The claim arose out of an article written by Jennifer Gerarda Brown, published in 1995 in the Southern California Law Review.32 However, both Dr. Ghali and Dr. La Croix opined that her economic analysis was completely faulty. Dr. Ghali testified to the Commission that "Professor Brown has chosen to present her argument as an economic proposition. We treated it as such and found it has no merit"(33).
Dr. La Croix(34) agreed that if additional tourists do come to Hawaii because of same-sex marriage here, in order for the net economic effect to be positive, the net revenue generated, after considering the expenses of providing the tourism services and after considering the costs involved with the burden on infrastructure, must be greater than the decrease in tourism dollars resulting from tipping (the lowering of the value of visiting Hawaii for non- homosexual tourists in response to the same-sex marriage policy).
However, at least one tourist location in New York has greatly suffered as a result of the increase in the homosexual population. In "The Boys of the Beach," Midge Decter, a celebrated author, wrote in a piece in Commentary magazine about the change in milieu at Fire Island due to the increase in the homosexual population. She writes that:
At the end of our fifth summer in the Pines, we decided not to return there any more. There were a number of reasons for this decision, but prominent among them was the fact that the balance between the homosexuals and the straights had clearly begun to tilt. The former were growing ever more numerous and concomitantly ever less circumspect both in their public demeanor and in their private behavior toward us... In any case, our once friendly neighbors were beginning to indicate to us in all sorts of ways--from a new shrillness of voice to the appearance of drag costumes in the afternoon to a provocative display of social interest in our teenage children--that the place was getting too small to contain the tastes and wishes of both communities(35).
It is currently unknown whether such an increase in our homosexual population will have a positive or negative effect on tourism. Dr. La Croix could not estimate whether the net effect on tourism dollars would be positive or negative. Dr. Ghali and Dr. La Croix agreed that it would take several years of research to answer the question.
The arguments for economic benefit is based on several other fallacious assumptions. First, if Hawaii legalizes same-sex marital rights but no other state does, it will do no good for same-sex couples from other states to come to Hawaii, get married or form domestic partnerships, then return to their home states to live because their home states do not recognize the marital rights. The "marital rights" would be a legal nullity. Why would people incur substantial expense for a legal nullity? Second, if even just one other state legalizes same-sex marital rights, Hawaii will lose the "only state" advantage and with it all the pie-in-the-sky economic benefits. If legalizing same-sex marital rights is economically so advantageous, will all other states refuse to enter the same-sex marriage market? When they do, what will happen to Hawaii? For example, who goes to Reno for divorce any more? Would Hawaii have scared off the family vacation business only to find that the homosexual vacation business is divided up among other states (more convenient for homosexuals on the mainland to get married)? Third, if Hawaii is going to sell out its family values and moral integrity for economic gain, there are a lot of other things it could "put on the market" that would probably generate more money than merely legalizing same-sex marriage. For example, if Hawaii is willing to legalize same-sex marriage, why not legalize prostitution, gambling, marijuana, or even better, child prostitution? That would probably be even more lucrative--in the short term. Fourth, the claims of economic benefit to Hawaii are based on fantasized assumptions about the numbers of homosexuals, the number of same-sex couples who would want to marry, how many of them would fly to Hawaii to marry, and how much they would spend. Even the economic gains predicted by the pie-in-the-sky analysis are not very great, especially if they are one-time, short-lived benefits. Fifth, the costs factor must be considered. That is, what economic impact will result from the same-sex couples that come to Hawaii to get married, and stay in Hawaii? With a domestic partnership status, they would almost certainly have to reside here to benefit from the statute. Would Hawaii become a haven for same-sex couples? If so, would the public health costs not rise(36)? If so, how much financial burden will that impose on the families of Hawaii? For example, how many new schools would not be built, and how many programs for needy women and children would be sacrificed to pay for the increased public costs associated with luring the same-sex traffic to Hawaii? Who knows what these costs might be? The Commission certainly did not investigate them, and no recommendation to legalize same- sex marital rights of any kind can be taken seriously until these dimensions of the issue have been thoroughly considered.
IV.The Majority of the Commission Refused to Examine Significant, Substantial Public Policy Reasons Not to Extend Benefits in Part or in Total to Same-sex Couples Although the majority and minority opinions appear to address the full range of public policy issues related to homosexual marital rights, these issues were not discussed among the Commissioners except in the drafting of the report language. As a draft of the report became available, the minority discovered the majority's position on the public policy issues. However, no discussion, debate or attempted resolution of apparently mutually exclusive positions, was had. Instead, the reports present the opposing positions, and at that, presented in a way which could lead the reader to assume that the points of view were debated by the Commissioners without resolution of the differences. Nothing could be further from the truth. In fact, not only did the Commission not discuss the minority's perspective, but the majority precluded such testimony whenever possible.
A.The Majority of the Commission Refused to Permit Testimony Via Long Distance Telephone by National Traditionalist Experts on the Public Policy Issues Several nationally known experts on issues concerning social policy considerations related to homosexual marital rights were invited by Commissioner Hochberg to testify at the meeting of the Commission at which social policy matters were to be examined. Because these experts live on the Mainland, they were not able to arrange to visit Hawaii on the short notice permitted by the Commission meeting schedule. However, Dr. Dallas Willard, Dr. Joseph Nicolosi, Roger M. Magnuson, Esq. and Richard Duncan, Esq. committed to be available for telephone testimony on October 11, 1995, as follows:
Certainly the Commission's work would have been more complete had these experts addressed the Commission, and perhaps the conclusions reached by the majority of the Commission would have been different. This is not likely, based on the strong pro- homosexual bias of the majority. However, Mr. Magnuson provided each Commissioner with a copy of his book Informed Answers To Gay Rights Questions, Dr. Nicolosi provided significant written materials concerning the psychological pathology of homosexuality, and Professor Duncan suggested a sweeping religious exemption in a one-page letter which referenced his Notre Dame Journal article on the religious freedom issues.38 Only Dr. Willard was able to send written testimony directed specifically to the Commission and its work. None of the written submissions from these experts was discussed or referenced by the majority of the Commission.
B.The Majority of the Commission Ignored Testimony and Information Concerning the Negative Impact of Domestic Partnerships and/or Same-sex Marriage on Children and the Family but Adopted the Sole Viewpoint of Dr. Bidwell, Known to Support Same-sex Marriage Although rejecting the overwhelming evidence to the contrary, the majority of the Commission adopted Dr. Bidwell's testimony that no evidence exists to deny homosexual parenting rights(39). Dr. Bidwell admitted he was not trained in psychology or psychiatry but was a developmental pediatrician. However, at the October 11, 1995 Commission meeting, Dan Kehoe, Ph.D. (clinical psychologist) testified concerning his more than twenty years experience as a school psychologist counseling school children. It is his professional opinion that:
Homosexuality is in part a pathological condition and can derive directly from disturbed childhood development. Homosexuality is often the result in large measure of a flawed confusion regarding psychosexual cross identifications. Clearly, a developing child will be deprived of this most elemental process when reared by a homosexual couple... Social Science data has long documented numerous studies showing detrimental effects of homosexual parenting on children. These studies include but are not limited to Bigners and Bozetts, 1990; Riddle and Arguellis, 1981; Lewis, 1980; Bozett, 1980, 1981; Humphreys, 1979; Spada, 1979; and Pennington's work in 1987 which was based on ten years of clinical experiences(40).
The majority had invited the testimony concerning the impact of same-sex marriages on children and the family from Robert J. Bidwell, M.D., a homosexual pediatrician who advocates the homosexual lifestyle and the conferring of benefits on couples engaged in that lifestyle. Dr. Bidwell is well-known in Hawaii as a homosexual activist(41).
Notwithstanding that Dr. Bidwell is not a psychologist or psychiatrist, he testified that he had only been able to find one study which indicates anything negative regarding gay and lesbian parents. According to Dr. Bidwell, that study was conducted in 1973 and used only 16 subjects. However, when asked, Dr. Bidwell was unable to tell the Commission which computer word-search terms he used in his research, so no cross-checking was possible. Although he acknowledged the fact that most current research into homosexuality issues is done by homosexual scientists, and their work is criticized as biased, he was unable to say whether the favorable studies he relied on for his opinions were conducted by homosexual or heterosexual researchers. He did not have information about the testimony of Dr. Kehoe or a widely published author named Paul Cameron who has written prolifically on many aspects of homosexuality(42).
In addition, available to the Commission is a testimony by Lawrence Burtoft, Ph.D., reporting on Diana Baumrind's (University of California at Berkeley) review of a study by J.M. Bailey on the sexual orientation of adult sons of gay fathers. She questioned Bailey's conclusion that children of gay men and lesbians are not more likely than children of heterosexuals to adopt a homosexual orientation:
I question their conclusion on theoretical and empirical grounds. Theoretically, one might expect children to identify with lifestyle features of their gay and lesbian parents. One might also expect gay and lesbian parents to be supportive rather than condemnatory of their child's non-normative sexual orientation(43).
Baumrind addresses her empirical basis for her doubts, which concern the disproportionate numbers of sons who were identified as homosexual compared to general population figures.
Repeated studies have placed the percentage of exclusive male homosexuals at 2-3%. This would indicate that sons of gay parents are three times as likely to be homosexual than those raised by heterosexual parents(44).
Thus, according to Dr. Lawrence Burtoft, in testimony before the Washington legislature, children raised by homosexual parents may have a disproportionate chance of duplicating the statistical findings related to homosexuals' extremely high medical health risks, relational instability and sexual promiscuity, elevated mental health risks, social disapproval and ostracism and risk of molestation. Homosexuals are found to be disproportionately more likely to be involved in child molestation. Approximately 35% of child molesters are homosexual(45). Depending upon whether one accepts the 2% or 6% population figure, male homosexuals are six to seventeen times more likely to be involved in child sexual abuse(46).
Dr. Burtoft's testimony addressed whether homosexual, bisexual, transsexual or transvestites should be permitted to be adoptive, foster or placement parents. His opinion in summary is that they should not because the homosexual family setting is harmful to children. The state's primary concern is to do all within its power to seek the optimal family setting. His opinion is that:
[g]iven that empirical research overwhelmingly identifies the biological family as most suited to the well-being of children; given the large amount of research indicating the negative factors associated with homosexuality; and given that even the small amount of research on gay and lesbian parents points to an increased likelihood of harm.
the best interest of children requires that homosexual, bisexual, transsexual or transvestites should not be permitted to be adoptive, foster or placement parents(47). His reasoning applies equally to the issue before the Commission because adoption and family rights accompany legal recognition of the homosexual couple.
Further, despite Dr. Bidwell's testimony to the contrary, the overwhelming bulk of the evidence indicates that homosexual relationships threaten the very core of our society--the family. The following provide some of the most telling examples:
a. Writing for the Alabama Journal of Medical Science in July, 1978, Harold M. Voth, M.D., a senior psychiatrist and psychoanalyst at the Menninger Foundation in Topeka, Kansas wrote:
The crucible from which all life springs is the family. The events within the family can make or break the individual and, collectively, civilization. This fundamental unit is the building block and was the building block of all social organizations from the tribe, village, and onto the most highly developed societies and civilizations. Will Durant said the family can survive without the state, but without the family all is lost. Therefore, not only must the family survive, but its internal workings must function in ways that turn out strong men and women--not weak ones who eventually become casualties of one form or another or who may work actively against the best values and traditions of our country.Dr. Voth goes on to point out that homosexuality is on the increase, and is an abnormal condition, the cause of which has been unequivocally traced to childhood experiences within the family and to the personalities of parents and the nature of their relationships.
The underpinnings of personality are biologic underpinnings. None are more fundamental than the biologic imperatives which lead to the psychologic qualities of maleness and femaleness.... One of the most fundamental functions of parenting is to evoke, develop, and reinforce gender identity and then proceed to shepherd the developing child in such a way as to bring his psychological side into harmony with his biological side, and thereby develop a solid sense of maleness or femaleness.
... Human beings are not biologically bisexual, despite what the gay liberationists would have us believe.The human spirit is greatly impaired when childhood development does not lead to fully developed masculinity or femininity. Fully masculine men and feminine women are by definition mature, and that term implies the ability to live out one's abilities. These include the capacity to mate, live in harmony with a member of the opposite sex, and carry out the responsibilities of parenthood. Mature people are competent and masterful; not only can they make families but they can take hold of life generally and advance it, and in particular they can replace themselves with healthy children who become healthy men and women.... The fate of mankind depends on the durability of the heterosexual relationship, and the stability and integrity of the family. (Emphasis added.)(48)
One's biology does not cause the condition. The increase in this form of psychopathology is directly related to the faulty psychological development of the child within his disturbed family. It is an ominous fact that the gay movement is having its way of life redefined as a simple variant of normal human sexuality and woven into the fabric of society. (Emphasis added.)(49)
Dr. Voth points out that Dr. Abram Kardiner, a distinguished physician, psychoanalyst and anthropologist, notes that homosexuality reaches an epidemic level in societies in crises or in a state of collapse. Says Dr. Voth: "I am vehemently opposed to having this condition called normal. We are indebted to those persons who call a spade a spade on this issue."(50) Dr. Voth concludes:The key link in the whole chain is the pivotal point around which all societies turn, the family. Everyone must turn attention to the task of making it flourish.... We must fight back against the social movements which are destructive to our way of life.... This means, above all, preventing the passage of laws which ignore the differences between a male and a female, and which undermine the security and stability of the family and the nation. Strong pioneer families created this country, strong families and strong leaders will save it(51).
b.The social arrangement that has proved most successful in promoting the social development of the child and ensuring his or her physical survival is the family unit of the biological mother and father(52).
c. When children do not receive parenting from a masculine father and a feminine mother who are firmly bonded together--when they do not grow up in a healthy family--their own effectiveness is inevitably weakened and their identity may become blurred. Some emerge with an identity of the opposite sex. Inevitably, a price is paid for these deviations away from what might have developed. These individuals always lack the effectiveness they might have had. "Hostility among the sexes, along with role blurring and identity confusion, cost both the individual and society heavily." (Emphasis added.)(53).
d. Throughout the history of Anglo-American jurisprudence, homosexual behavior has been sometimes tolerated, but never legitimated. In part, this is because, as evidenced by historical and sociological evidence, such behavior is incompatible with long- term societal well-being. If what Hawaii citizens desire (though some may not) is a stable yet dynamic long-lasting society, we must foster strong family units, effective education of the young, reduction of sexual harassment and exploitation, and a decrease in sexual-behavior-related health problems. These are all goals which are undermined by homosexual behavior. What is at issue in Hawaii today regarding dealing with homosexual behavior is not really a civil rights discrimination issue but an issue of societal well-being. "Self-gratifying (homo) sexual interests should not masquerade under the "rights" banner, but rather should always be subordinated to the overall welfare of society"(54).
The evidence about homosexuality shows that our society will be damaged by granting homosexual marital rights. As Charles Socarides, M.D., a preeminent psychiatrist, wrote in 1995:Homosexuality cannot make a society, nor keep one going for very long. It operates against the cohesive elements of society. It drives the sexes in opposite directions. And no society can long endure when either the child is neglected or when the sexes war upon each other... Regarding homosexuality as a normal variant of sexual activity... militates against the family and destroys the function of the latter as the last place in our society where affectivity can still be cultivated(55).Vitality of society depends on the continued vitality of male/female relationships to build family and community. Homosexuality operates against this, both because of the failure to draw together partners of different sexes, and because of the effect on society of segregation by sexes. In addition, throughout history, healthy civilization is found only when society highly values preservation of sexual expression within the male/female marriage partnership at the exclusion of all other sexual expression.
The scholar J.D. Uwin published his study of 86 different historical societies in Sex and Culture, reviewed in Christianity Today by Philip Yancy in 1994. Mr. Yancy writes:In human records there is no instance of a society retaining its energy after a complete new generation has inherited a tradition which does not insist on pre-nuptial and post-nuptial continence'... [J.D. Unwin] found with no exceptions that [Roman, Greek, Sumerian, Moorish, Babylonian, and Anglo-Saxon] societies flourished during eras that valued sexual fidelity. Inevitably, sexual mores would loosen and the societies would subsequently decline, only to rise again when they returned to more rigid sexual standards(56).
According to David McWhirter and Andrew Mattison, the two most noted homosexual researchers of homosexual psychology, the homosexual community does not define relational fidelity as sexual exclusiveness.Sexual exclusivity among [homosexual] couples is infrequent, yet their expectations of fidelity are high. Fidelity is not defined in terms of sexual behavior but rather by their emotional commitment to each other. Ninety-five percent of the couples have an arrangement whereby the partners may have sexual activity with others at some time under certain conditions... Stated another way, all [homosexual] couples with a relationship lasting more than five years have incorporated some provision for outside sexual activity in their relationships(57). (Emphasis added.)Consequently, creating homosexual marital rights constitutes a loosening of sexual mores which historically caused the decline of societies. Such a policy determination must not be undertaken without the most serious analysis.
Finally, what is very enlightening and should serve as a real warning of things to come should this legislature decide to legitimize homosexual marriages and/or domestic partnerships is the fact that homosexual activists themselves espouse the destruction of the family unit. Some of the most "salient" examples are:
a. Paula Ettelbrick, a Lesbian activist and former director of the Lambda Legal Defense and Education Fund and now the policy director for the National Center for Lesbian Rights, supports the "right" of homosexuals to marry, but opposes marriage as oppressive in and of itself. According to Ms. Ettelbrick, homosexual marriage does not go far enough to transform society.Being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so... Being queer means pushing the parameters of sex, sexuality, and family, and in the process, transforming the very fabric of society.... As a lesbian, I am fundamentally different from non-lesbian women....In arguing for the right to legal marriage, lesbians and gay men would be forced to claim that we are just like heterosexual couples, have the same goals and purposes, and vow to structure our lives similarly... We must keep our eyes on the goals of providing true alternatives to marriage and of radically reordering society's views of reality(58).
b. In April 1994, Genre, a homosexual-oriented magazine, examined current practices among male homosexuals who live with partners. According to the article, the most successful such relationships are possible largely because the partners have "outside affairsÓ(59). The article went to say that in 1993, David P, McWhirter and Andrew M. Mattison, authors of The Male Couple, reported that in a study of 156 males in loving relationships lasting from one to 37 years, only seven couples considered themselves to have been consistently monogamous... It should be recognized that what has survival values in a heterosexual context may be destructive in a homosexual context,... Life-enhancing mechanisms used by heterosexual men and women should not necessarily be used as a standard by which to judge the degree of a homosexual's adjustment. In other words, to adapt heterosexual models to homosexual relations is more than just foolhardy; it's an act of oppressionÓ (60).
C. The Majority of the Commission Refused to Discuss the Impact of Same-Sex Marriage or Domestic Partnerships on the Overall Health of the Community
In recent years, rising health care costs attracted and maintained the attention of the media, politicians, as well as people in the public and private sectors. Much discussion has occurred generally on how to reduce rising health care costs in order to gain control over growing government budgets in times of shrinking public funds. However, the majority refused to address these issues in relation to homosexual marital rights, notwithstanding the significant health care issues in the homosexual community. Some salient examples are:
D.The Majority of the Commission Refused to Consider Any Reasons for Not Extending the Benefits Afforded Opposite Sex Married Couples to Same-Sex Couples
- The weight of evidence of widespread health problems in the homosexual community appears as robust as is that against smoking(61). "Medical specialists have long known the disproportionate impact on the homosexual population of diseases like gonorrhea, syphilis, Hepatitis A, Hepatitis B, cytomegalovirus, amoebic bowel disease ('gay bowel syndrome), and herpesÓ(62).
- Based on obituary information collected from 947 obituaries published "The Blade," a homosexual-oriented magazine, 804 (87%) of the 947-person sample died of AIDS or AIDS-related illness, only 123 died of other causes. Of those who died of AIDS, 361 had a long-time sex partner, and the median age of death was 37. Of the 947-person sample, 426 did not have a long-time sex partner, and their median age of death was also 37. Fifteen died married to a wife, and their median age of death was 44. Of those who die of AIDS, 49 had long- time sex partners, and their median age of death was 41. Seventy-five did not have long-time sex partners, and their median age of death was also 41(63).
- The primary sexual activity of gay males is, without reference to disease, anatomically unhealthy(64).
- Taking disease into consideration, the primary sexual activity of gay males is well known to result in AIDS. Specifically, as of June 30, 1993, 315,390 cases of AIDS had been reported. Of those cases, 191,642 were homosexual and bisexual men. In other words, homosexual and bisexual men account for 61% of all AIDS cases. Since homosexual males make up approximately 2% of the population, this means they are 30 times more likely to contract HIV(65).
Common sense dictates that extending marriage benefits to individuals that comprise such an inordinate health risk will cause the cost of health care to escalate for heterosexual families. Moreover, extending such benefits punishes those who do not condone homosexual activity for religious or moral reasons, by requiring those individuals to pay the cost for 2% of the population's aberrant behavior. In fact, the lower health insurance premiums available to families but not homosexuals, cited by the majority as a desired homosexual marital benefit, would be negatively impacted by any increased cost of providing medical treatment once homosexuals were permitted to obtain that reduced premium medical coverage. Is it appropriate to increase the cost of health care for families in order to give family health care premium rates to 2% of the population? Such an issue should have been debated by the Commission, however, it was not discussed.
The majority refused to permit the minority to have any input whatsoever in the Commission's findings and recommendations. At the October 26, 1995 continuation of the October 25, 1995 meeting, the Commissioners first discussed the content of the Commission's proposed work. Commissioners Hochberg and Sheldon attempted to suggest opposing viewpoints. However, the Chairman refused to permit any such minority input to be included in the working draft and required the minority to simply write their own report. Honest debate on both sides of all the issues did not occur.
End of Chapter 5, Part 1
Footnotes Chapter 5, Pt. 2 Table of Contents