(MINORITY OPINION, continued)
E.Homosexuality is a Psychological Pathology Which is Not
Equivalent to Heterosexuality; Many Homosexuals are Cured of Their
Homosexual Desires Every Year, and Therefore, Homosexuality is Not
an Immutable Trait, but is Instead a Conduct-Based Psychological
Disorder. 1.Homosexuality is Not Equivalent to Heterosexuality and
Homosexuality Should not Receive the Benefits and Protection
1.Homosexuality is Not Equivalent to Heterosexuality and Homosexuality Should not Receive the Benefits and Protection Afforded Heterosexuality.
The majority of the Commission failed to consider whether homosexuality and heterosexuality are so distinctly different that the two cannot be equivalents. However, significant evidence of that fact was available to the Commission, but ignored. The interests of society in marriage and family have justified substantial regulation of marriage throughout history. Aristotle taught that it was the first duty of legislators to establish rules regulating entrance into marriage(1). Throughout history societies have given unique and special preference to heterosexual marriage because of the benefits that those relationships provides for society in general, and for individual women, men, and children.
To justify giving similar preferred legal protection to same- sex couples, it is necessary to consider the social purposes of marriage, and to compare heterosexual unions with same-sex unions in terms how each relationship furthers those purposes.
It is important to not oversimplify and distort the heterosexual-marriage position. We acknowledge that two men or two women may share a deep, meaningful personal relationship with each other (usually called "friendship"), support each other, develop and pursue mutually-fulfilling, socially beneficial common interests, make strong commitments to each other, and in many ways be as good citizens as persons in heterosexual marriages. However, we believe that same-sex unions simply do not equate with heterosexual union of husband and wife in terms of the purposes of marriage.
We believe that the majority's Commission Report denies and devalues the unique strengths and social contributions of heterosexual marriage, and that legalization of same-sex marriage or domestic partnership would put the state in the position of presenting a false image of both marriage and of same-sex unions. We agree with Governor Pete Wilson of California who said, when he vetoed a much narrower, much more modest domestic partnership proposal last year: "Government policy ought not to discourage marriage by offering a substitute relationship that demands much less - and provides much less than is needed by the children...and ultimately much less than is needed by society”(2).
He also stated that government has an obligation to "encourage and reward marriage and the formation of strong families(3). He added: "A society that devalues marriages, and which accepts illegitimacy as commonplace, encourages the explosion of teenage out-of-wedlock births that California has in fact experienced”(4).
There are numerous social purposes of marriage as to which heterosexual marriages provide tremendous benefits to society that are unequaled by homosexual unions. They are: (1) protecting safe sexual relations, (2) social concerns regarding procreation and child-rearing, (3) protecting the status of women, (4) fostering marital stability, (5) promoting economic security for parents and children, (6) providing for recognition of Hawaii marriages in other jurisdictions, and (7) protecting the foundations of self- government. Clearly, the marriage statute itself regulates who may marry in order to prevent incest (HRS 572-1(1)), to protect children (HRS 572-1(2) and 572-2), to prevent the spread of venereal disease on public health grounds (HRS 572-1(5)) and to prevent bigamy (HRS 572-1(3)).
First, sexual behavior is a central concern in marriage and marriage regulation. Same-sex marriage is, by definition, homosexual marriage because sexual relations between the spouses is an integral part of marriage. Thus, it is disingenuous (and simply erroneous) to suggest, as a plurality of the Hawaii Supreme Court did in Baehr v. Lewin, that not all same-sex marriages will be homosexual marriages. If, however, homosexual marital rights are extended to all unmarried people, then marriage would be stripped of all of its value to society and simply reduced to a vehicle for obtaining benefits from government without contributing to society those benefits which were historically given by marriage to society. Moreover, in these days of sex- saturated entertainment, when the exploitation of children in pornography is such a severe problem that Congress has had to pass laws to try to restrain it, when incidents of forcible rape and "date rape" are skyrocketing, when American servicemen incite an international incident bringing dishonor on the nation they serve because of their callous rape of a pre-teen girl in another nation in which they were guests, when children are receiving less sex- education in the home and more on the street, when rates of adolescent sexuality, pregnancy, and even abortion are at near- disaster levels, it would be an act of unforgivable irresponsibility to brush aside the tremendous social interest in regulating sexual behavior.
Moreover, it is the very nature and acts of homosexual behavior that are the core and identifying feature of homosexual relations. It is not friendship between persons of the same gender, or mere cohabitation of persons of the same gender that creates social concern, but the acts of homosexual sexual relations that is at the core of the moral concern. Thus, to try to evade that issue, to refuse (as the majority) to investigate it or even to listen to witnesses discuss it is to evade a critical dimension of the marriage issue.
Second, marriage has long been favored because it is the most favorable setting in which to bring children into the world and to raise them. If anything is clear in social science, it is that conventional male-female marriage provides the best environment for the nurture, care, training, education and responsible socialization of children. It is equally clear that children suffer most from the creative "alternative" relationships that adults sometimes pursue for their own adult self-interest. Children are the most numerous (and most innocent) victims of the disintegration of marriage. The impoverishment of children has been shown repeatedly and irrefutable to be a direct result of the change in family structure in the past three decades. Yet, incredibly, the majority of the Commission blithely ignores the suffering of children and proposes yet another radical destructuring of marriage. Why must Hawaii's children pay and suffer for the faddish social experimentation of same-sex marriage or domestic partnership?
The concern for our children is not limited to specific children living with specific parents. Undoubtedly, one can find conscientious and devoted adults caring for children under any kind of family structure. Rather, the greater concern is that children generally will suffer from the message that homosexual marital rights send to all prospective parents--the message that a mother and a father are not both optimally necessary for the raising of children. In a time when fathers are abandoning their children's lives in record numbers, it would be irresponsible to adopt a marriage or domestic partnership reform that sent the false message that same-sex marriage and domestic partnership clearly convey about the disposability of two-gender parenting. A state and society that cares for its children and its future will not be so reckless when the interests, futures and lives of its children are at risk. The law should emphatically model, support, and encourage two-parent, mother-father parenting rather than create yet another ill-considered alternative to that institution that will impose untold misery on yet another generation of Hawaii's children.
Third, studies repeatedly have shown that wives and mothers make the greatest investment in marriage and children, and suffer the greater economic disadvantage when marriage is undermined. Marriage is the one institution which historically has recognized the indispensable equality of women because a man could not have a marriage without a woman. It is the oldest equal rights relationship in law and society. Since male homosexuals outnumber female homosexuals, even this new domestic institution will become just another male-dominated institution. How many mothers in Hawaii will lose custody to their "gay" former husband and his same-sex partner if same-sex marriage or domestic partnership is legalized? The message of same-sex marriage and domestic partnership trivializes the contributions of tens of thousands of Hawaii wives and mothers and says to them, "your contributions to your children, your family, and our society are no different, no better than those of a homosexual partner."
Fourth, fostering marital stability is a great concern of the State. Given the indisputable evidence (summarized elsewhere in the Minority Opinion) of the unavoidably promiscuous, fleeting nature of most same-sex relationships it is facetious to compare the stability of same-sex marriage with conventional male-female marriage--even in these days of high divorce rates marriages are as solid as the Rock of Gibraltar compared to same-sex liaisons. While one might shrug and say it is up to the adults to choose for themselves whether they want one stable relationship or many temporary relationships, that is simply irresponsible when one is talking about marriage, the basic unit of society. Male-female relations are complementary in ways that same-sex relations are not(5). The law should not pretend otherwise and send false messages about reality simply because that happens to be the popular political fashion of the day. And, again, the people who suffer the most from unstable families are children. Their interest must not be sacrificed to the instability of same-sex relationships.
Fifth, marriage has been repeatedly shown to promote economic security for parents and children. Marital instability is associated with poverty for women and children. Again, the concern is not so much for particular couples because undoubtedly exceptional cases can be found in any family form. The greater concern is for the impact on society and the children of society generally if the law presents unstable unions as the equivalent of and as socially as valuable as real heterosexual marriage. The law should not engage in false advertising. Equating same-sex unions with conventional male-female marriage would clearly send a false message which would hurt untold thousands of individuals and their families when the bitter realities of the instability of same-sex unions set in. Not only are unstable marriages impoverishing for the individuals involved, but they impose heavy costs on society, ranging from the costs to the state (for the agencies typically involved in dealing with family instability--courts, social work agencies, domestic violence, welfare, etc.) but also many great indirect costs resulting from lowered productivity of the individuals involved in the unstable relationship, stress, emotional problems, etc.
Sixth, Hawaii, like all states, has an important interest in providing for recognition of Hawaii marriages in other jurisdictions. Hawaii has an interest in not creating a form of marriage that will not be recognized elsewhere. Indeed, if Hawaii legalizes same-sex marriage or domestic partnership and that new institution is not recognized, persons who rely on the legality of the marriage in Hawaii may find that their rights in other jurisdictions are severely curtailed or rejected. Again, this would do a great disservice to many people. Rights derived from lawful marriages (including inheritance rights, insurance rights, pension rights, property rights, etc.) may be denied in other states and other nations. Spouses and children of a person who once entered into a same-sex marriage and later entered into a conventional marriage could find their marriage-derivative rights were challenged or not recognized in other jurisdictions.
Seventh, the state has a profound interest in preserving society from disintegration. Dr. Socarides opined in 1994:
As regards the creation of a new psychosexual institution (i.e., homosexual "marriage") alongside that of heterosexual marriage, I submit the following. The institutions of heterosexuality and heterosexual marriage are created for family structure. To introduce homosexuality as a valid psychosexual institution is to destroy the function of heterosexuality as the last place in our society where affectivity can still be cultivated. Homosexuals cannot make a society, nor keep ours going for very long. It operates against the cohesive elements of society in the name of a fictitious freedom. It drives the opposite sex in a similar direction and no society can long endure when the child is neglected or when the sexes war upon each other(6).Not all marriages and families "work," but it is unwise to let pathology and failure, rather than a vision of what is normative and ideal, guide us in the development of social policy.
The adoption of children by homosexual couples is a serious issue. A child should be brought up with a mother and a father, in order to develop appropriate gender-defined self identity. If he does not do so, severe individual problems will occur. The matter should be approached with great caution for the child has no voice in this matter and he may be unfortunately consigned to a pathological family setting from which he can not escape without serious psychological damage... The negative effect on children who are adopted into homosexual "family" structure can be profound. I believe that:
The families of homosexual patients I have treated are markedly deficient in carrying out many of the functions necessary for the development of an integrated heterosexual child. Distorting influences are very profound in families in which the child is not helped to develop the appropriate gender-identity... The disturbance in gender-defined self-identity sets the stage for the development of all sexual deviations and many of the neurotic conditions(7).
- a normal environment provides a child with the opportunity to utilize his capacities in order to further the promotion of a sense of autonomy and identity, to enhance and affirm ego- boundaries between himself and other family members, and to promote a healthy self-esteem as a member of his own sex;
- the parents' function is to promote the child's separation from the mother into an independent entity, all the while supplying physical and emotional security needs;
- both mother and father are models for identification toward the assumption of appropriate sexual identity and sexual role in accordance with anatomy;
- the alleviation of conflicts, especially those involving distortion of roles during the earliest years, help the child to channel his drives, energy, and role-learning in the proper direction...
2.Homosexuality was Removed as a Pathology from the American Psychological Association in 1973 as a Result of Political, Not Medical or Psychological Considerations The majority relies on the removal of homosexuality from the list of psychological disorders in 1973 to support its rejection of the overwhelming opposition to homosexual marital rights(8). However, in 1973, homosexuality was removed from the category of aberrancy by the American Psychiatric Association as a direct result of relentless intimidation and pressure from gay rights group activists and mistaken beliefs by the few that they were doing a kindness to the homosexual community, although it was not based upon psychoanalytic knowledge of human sexual behavior and no new scientific or clinical findings gave credence to this political act.9 The quoted and referenced materials in subsections 4. and 5. below, are subsequent to that de-listing, and validate the medical, scientific and psychoanalytic bases for maintaining homosexuality as a psychopathology.
According to Dr. Socarides, "The new position [in 1973] favoring deletion of homosexuality was obviously clinically untenable and scientifically fallacious, even to a first-year resident in psychiatry. There was no scientific explanation for this deletion except the statement that the homosexual did not experience 'suffering'; those who disliked being homosexual and 'suffered over it' or 'complained' were to be considered to have a 'disorder'(10).” He also writes:
Homosexuality is a psychiatric psychopathological condition. It is acquired, not innate, and is a consequence of a disturbed family constellation: an interaction between parents and their children, resulting in a certain abnormal and deviant sexual behavior. It can be treated or even cured when the patient is motivated to change by professionals who understand this condition and know how to treat it(11).”Based upon this psychological nature of homosexuality, the state should not designate homosexual coupling as one of the alternatives for our society to choose from in the maturation process.
3.Homosexuality Is Still Listed In The International Diagnostics Manual As A Psychological Pathology
Although the American Psychiatric Association de- listed homosexuality as a psychological pathology in 1973 on political grounds, the World Health Organization still catalogues homosexuality as a disorder. The International Classification of Diseases, 9th Revision (ICD-9) published by the World Health Organization, contains a chapter on "Mental Disorders" including "Section 302, Sexual Deviations and Disorders." Section 302.0 deals with homosexual conflict disorder and lesbianism(12).
Homosexuality is an abnormal condition caused by childhood experiences within the family and by personalities of the parents and the nature of the relationship. It is directly related to faulty psychological development of the child within his disturbed family(13). It is not caused by biologic or genetic factors, but is clearly environmental in source(14). The majority incorrectly states that the minority presumes that homosexuality is completely voluntary(15). To the contrary, all the psychological and psychiatric evidence cited in this minority opinion evidences that the root of the compulsion to engage in homosexual acts lies in deep emotional disturbance.
Contrary to the majority citation to the 1994 work by Friedman and Downy for the proposition that the "jury is still out" concerning this issue, a biologic source for homosexuality has not been found. Several studies were conducted which neither proved the genetic basis for homosexuality, nor, more importantly, were replicated by peer review(16). The jury in scientific research is nothing like our criminal jury system where the defendant is innocent until proven guilty. The biologic base for homosexuality must be proved scientifically, and until it is, it is not scientific truth. On the other hand, the psychological basis has been proved for a hundred years. A 100% success rate is never expected with treatment of psychological disorders. On the other hand, a genetic base for a trait would result in a 100% occurrence rate, occasional recessive genes aside.
In any event, when some scientific evidence suggests a genetic predisposition for homosexual orientation, the case is not significantly different from evidence of predispositions toward other traits -- for example, alcoholism or violence. In each instance we must still ask whether such a predisposition should be acted upon or whether it should be resisted(17). Consequently, the failure of the Commission to discuss these issues when recommending homosexual marital rights is inexcusable.
4.Mental Health Professionals Say that Homosexuals Can Change
Dr. Gerard van den Aardweg (Ph.D in psychology from University of Amsterdam; taught in universities in Netherlands and Brazil) writes:
...Indeed since relatively few homosexuals seriously try to change and few therapists encourage them to do so, the notion that homosexuality is irreversible is a self-fulfilling prophecy. If nobody tries, nobody will succeed....Why would we take a fatalistic attitude toward the possibilities of improvement of homosexuality when an acceptable percentage improves substantially?(18)Dr. Ruth Tiffany Barnhouse (M.D. from Columbia University College of Physicians and Surgeons; clinical assistant psychiatrist at Harvard University; member of the Ethics Committee of the Massachusetts Psychiatric Society) writes:
The frequent claim by "gay" activists that it is impossible for homosexuals to change their orientation is categorically untrue. Such a claim accuses scores of conscientious, responsible psychiatrists and psychologists of falsifying their data(19).
Dr. Reuben Fine (Ph.D in clinical psychology from USC; Director of the New York Center for Psychoanalytic Training; visiting professor at Adelphi University) writes:
I have recently had occasion to review the results of psychotherapy with homosexuals, and been surprised by the findings. It is paradoxical that even though the politically active homosexual group denied the possibility of change, all studies from Schrenck-Notzing on have found positive effects, virtually regardless of the kind of treatment used... (p. 84) Whether with hypnosis...,psychoanalysis of any variety, educative psychotherapy, behavior therapy, and/or simple educational procedures, a considerable percentage of overt homosexuals became heterosexual.... If the patients were motivated, whatever procedure is adopted a large percentage will give up their homosexuality. In this connection public information is of the greatest importance. The misinformation spread by certain circles that "homosexuality is untreatable by psychotherapy" does incalculable harm to thousands of men and women. (Pgs. 85-86.)(20)Dr. Robert Kronemeyer (studied at Amherst College; Ph.D. in Psychology from Columbia University; served as Adjunct Professor at New York University; developed Syntonic Therapy) writes:
With rare exceptions, homosexuality is neither inherited nor the result of some glandular disturbance or the scrambling of genes or chromosomes. Homosexuals are made, not born "that way." From my 25 years' experience as a clinical psychologist, I firmly believe that homosexuality is a learned response to early painful experiences and that it can be unlearned. For those homosexuals who are unhappy with their life and find effective therapy, it is 'curable.'(21)And finally:
Treatment using dynamic individual psychotherapy, group therapy, aversion therapy, or psychotherapy with an integration of Christian principles will produce object-choice reorientation and successful heterosexual relationships in a high percentage of persons.... Homosexuals can change their orientation.
What You Should Know About Homosexuality, edited by Charles W. Keysor (Grand Rapids: Zondervan Publishing House, 1979, pg. 167).
5.Studies Show That Homosexuality Can Be Cured By Psychoanalysis(22). Houston MacIntosh, M.D., reporting a recent survey of 285 psychoanalysts who had analyzed 1215 patients found that:
*23% of their patients changed to heterosexuality;
*84% received significant therapeutic benefit.
This cure rate is comparable to the 27% cure rate reported by Bieber in 1962(23). In addition, the recent NARTH Bulletin (September 1994) reported:
A review of the literature from the past reveals an interesting tidbit from behavioral psychologist Joseph Wolpe. Wolpe once reported an unexpected cure in a case of homosexuality. No--not with electric prods or lobotomy. In fact, his original therapeutic goal was to reinforce and affirm the 32-year-old patient's homosexual orientation and desensitize his Catholic guilt. This strategy, Wolpe later explained, was due to his belief at the time that homosexuality was biologically determined.F.The Majority of Commissioners Refused to Discuss the Necessity for a Very Broad Religious Freedom Exemption Covering Religious Institutions and Individuals Who have Religiously Motivated Objections to Accepting Homosexual Couples as Marriage-equivalent(25)
To the surprise of both the patient and Wolpe, the man gave up his homosexual lifestyle and relationship and began to date women. Wolpe explained this spontaneous reversal as a consequence of the patient's feeling more socially assertive, independent and accepted by men for the first time in his life. Four years later, a follow-up showed that the patient had gotten married, was reporting a very satisfactory sex life, and his wife was expecting a baby (24).
Many of the people who testified before the Commission expressed opposition to homosexual marital rights on the basis of their religious beliefs(26). The majority dismisses all of these arguments based on an extreme view of the doctrine of separation of church and state(27). This view has, as recently as 1986, been rejected by the U.S. Supreme Court. In upholding criminal punishment for sodomy in Georgia, the Supreme Court relied on "the millennia of moral teaching" in opposition to homosexuality(28). Clearly, in Hawaii, our common law restricting same-sex couples from marrying reflects that same moral teaching. In addition, looking to the sometimes-cited ancient Hawaiian cultural view of homosexuality in reference to the Aikane and the Mahu, cannot support same-sex marriage in light of the fact that before going to war, the Hawaiians would purge all the Mahus, including in many instances, killing them. Abandoning such Hawaiian traditions was a great improvement in Hawaiian society.
The majority also find that no one should "impose" his religious or moral views on others. Yet, that is precisely what the majority seeks to do with homosexual marital rights to more than two-thirds of the Hawaii population for the benefit of some portion of 2% of the population. The majority goes so far as to report in Chapter 2, section D, page 33, of the draft of the report that the religious groups opposed to homosexual marriage will be able to refuse to solemnize homosexual marriages, but that the pressure which will be exerted on these traditional religious people and their churches will force them to abandon their religious objections to homosexuality(29). It is for exactly these reasons that the religious exemption must be as broad and sweeping as possible.
Richard Duncan, Esq., Constitutional Law Professor, University of Nebraska, College of Law, desired to discuss the critical need for a religious exemption via telephone with the Commission. He was not permitted; however, he did send written suggestions to adopt a very broad religious exemption. Even Dan Foley, Esq., the lawyer for the Plaintiffs in Baehr, supports a religious exemption.
If homosexual marital rights are recognized in Hawaii, either in the form of domestic partnership, homosexual marriage, or otherwise, a very broad religious exemption is necessary for many reasons. Parents of public school students, teachers in the public schools, people who are licensed to solemnize marriages, owners of rental housing, and employers who object to homosexual marriage rights on religious grounds should be protected from government forced acknowledgement of homosexual marriage rights.
One of the serious consequences of including homosexual coupling in the marital partnership will occur in the public school setting. If homosexual coupling is acknowledged on the same level with heterosexual marriage, the public schools will be forced to teach children that homosexual coupling is equivalent to marriage. Since as many as two-thirds of the people polled in Hawaii do not support homosexual marriage rights(30), it is safe to assume that a great majority of parents and teachers also do not agree with homosexual marriage rights.
Public anxiety about homosexuality is preeminently a concern about the vulnerabilities of the young. This, we are persuaded, is a legitimate and urgent public concern(31).
Indeed, we do not think it a bad thing that people should experience a reflexive recoil from what is wrong. To achieve such a recoil is precisely the point of moral education of the young(32).
Those parents who on religious grounds object to the school teaching their children that homosexual coupling is equivalent to heterosexual marriage, must be given the express statutory right to remove their children from such school lessons. However, the difficulty in enforcing such a right counsels the legislature to prohibit such teaching in any public school by teachers or invited speakers. The ongoing dispute in Pahoa concerning Project 10 is a prime example. One parent from Pahoa testified before the Commission that she was greatly concerned by the possibility of homosexual marital rights specifically because of the negative impact on her community's fight to keep Project 10 out of their schools(33).
Teachers who, for religious reasons, do not desire to teach that homosexual coupling is on par with heterosexual marriage must be protected by express statutory provisions as well. Their religious freedom must be protected by specifically creating in the homosexual marriage rights legislation their freedom to oppose the teaching of homosexual marriage rights as equivalent to heterosexual marriage. At least one of the Commissioners, Morgan Britt, desires to ensure that schools are forced to teach, and children forced to learn, that homosexuality and heterosexuality are equivalent.
Any legislation creating homosexual marriage rights must expressly state that no person shall be subject to fine, loss of license, liability for damages, or other punishment or penalty for rejecting homosexual marriage rights on religious grounds.
In addition, religious people who are authorized to solemnize marriages based upon licensing from the State Health Department must not be required to solemnize homosexual couples, and must not be in any manner punished for refusing to do so. The legislation creating homosexual marriage rights must expressly state that no person licensed to solemnize marriages in Hawaii shall be subject to fine, loss of license, liability for damages, or other punishment or penalty for rejecting homosexual marriage rights on religious grounds.
Furthermore, people who on grounds of religious belief oppose homosexual coupling must not in any manner be forced to acknowledge homosexual coupling, either as a landlord renting a house or apartment, as an employer extending spousal benefits, or otherwise. The legislation creating homosexual marriage rights must expressly state that no person shall be subject to fine, liability for damages, or other punishment or penalty for rejecting homosexual marriage rights on religious grounds.
The religious freedom of the U.S. Constitution and the Constitution of the State of Hawaii must be fully protected in the event homosexual couples are extended any marriage benefits.
VI.The Majority of the Commissioners were Biased in Favor of Homosexuality and the Desires of the Homosexual Community
The results reached by the majority of the Commission were long anticipated even before the first meeting. Each successive meeting reinforced the expectation that the majority would demand homosexual marriage rights in order to assist the plaintiffs in the Baehr v. Miike litigation.
A.Prior to Conducting the First Meeting, the Commissioners were Provided with Proposed Legislation Creating Domestic Partnerships in the State of Hawaii
Prior to the first meeting, Chairman Gill provided the Commissioners with a packet of materials. His memorandum accompanying the materials indicated that they were being furnished "so that we can familiarize ourselves with some of the issues and points of view we will need to consider"(34). The materials concerning the "issues and points of view" consisted of fully drafted, proposed legislation creating domestic partnerships in the State of Hawaii; three separate, legally comprehensive articles advocating domestic partnerships and/or same sex marriage(35); and two short articles (collectively encompassing three pages) containing information opposing the legalization of such relationships--a two-page religious dissertation, void of any legal arguments whatsoever(36) and a one-page article opposing government recognition of homosexual relationships which had been published in the February 1995 Hawaii Bar Journal(37). In other words, the materials offered for review and consideration by the Commissioners were facially unbalanced and prejudicial from the outset. The fully drafted proposed legislation was provided as a starting point for discussion and negotiation because the make-up of the Commission ensured a recommendation of homosexual marital rights of some kind.
B.The Majority of Commissioners Opposed and Deliberately Thwarted any Discussion of Homosexuality in Connection with the Work of the Commission
At the first meeting on September 13, 1995, the majority agreed that no discussion of homosexuality should be permitted in connection with the Commission's work since the majority found any such discussion inflammatory or offensive. Specifically, Commissioner Stauffer recommended that because he believed there is no reason to discriminate against someone on the basis of their sexual orientation, the Commission should prohibit any discussion or testimony addressing homosexuality and concentrate its efforts solely on legal and economic issues. The other members of the majority agreed that discussion concerning homosexuality was generally offensive(38). However, the two minority Commissioners raised the issue of how the Commission could perform the legislative charge to examine policy issues without discussing homosexuality. They also raised First Amendment freedom of speech rights, and the discussion culminated in no formal resolution or motions being made(39).
Also, at the first meeting on September 13, 1995, Mr. Jonathan C. Cuneo and Ms. Karyn Tiedeman of He Kanaka Hou attempted to testify before the Commission(40) concerning their respective personal experience of being healed from homosexuality. Mr. Cuneo testified first, introducing himself as the Executive Director of He Kanaka Hou. Commissioner Gomes interrupted him and ridiculed him for mispronouncing the Hawaiian name of his organization. When Ms. Tiedeman began testifying, she attempted to obtain the correct pronunciation from Commissioner Gomes, but her efforts were met with rude disdain. In addition, these speakers had provided the Commissioners with handouts concerning their organization which counsels homosexuals who seek to come out of that lifestyle. As they were leaving, Commissioner Gomes was observed literally shoving the handouts back into their hands.
At the October 11, 1995 meeting, the majority of the Commissioners refused to receive expert testimony via telephone from Joseph Nicolosi, Ph.D. concerning his long use of reparative therapy in successfully treating homosexuals through psychoanalysis. Also on October 11, 1995, Loree Johnson, a mother and grandmother, testified before the Commission in opposition to homosexual marital rights. In her personal testimony as a member of the public, she characterized homosexual activity as "repugnant, disgusting, self-indulgent, exploitative, addictive, and dangerous"(41). Commissioner Morgan Britt interrupted Ms. Johnson's testimony at least twice, demanding that she not be permitted to continue because he found her testimony offensive.
At the November 1, 1995 continuation of the October 25, 1995 regularly held meeting, a member of the public wearing a priest's collar attended and requested five minutes to testify. The person indicated that he could not return at the next scheduled meeting on November 8, 1995, and this would be his only opportunity to testify. Chairman Gill refused to permit his testimony(42). At the November 8, 1995, meeting, Mrs. Diane Sutton, a resident from the Big Island, attended the meeting and testified(43). Mrs. Sutton presented testimony concerning the adverse effect of same sex-marriage on public policy from the public school curricula and misleading of adolescents concerning the homosexual lifestyle(44). Commissioner Morgan Britt interrupted Mrs. Sutton, virtually shouting his objections to her being permitted to present the matters in her testimony. Commissioner Britt's conduct was so disruptive that Mrs. Sutton actually skipped a portion of her written testimony. Indeed, at one point Commissioner Britt described Mrs. Sutton's testimony as factually inaccurate. Mrs. Sutton was literally stopped from speaking due to Commissioner Britt's harassment. Mrs. Sutton was so outraged by her treatment that she subsequently wrote to the Commission to formally complain of her treatment as a member of the public and what she perceived to be Mr. Britt's inference that she was a liar(45).
Ms. Loree Johnson again attempted to present public testimony at the November 8, 1995 meeting, and was again rudely interrupted by Commissioner Britt with the assistance of Commissioner Gomes. So disruptive were these Commissioners' vocalized objections to Ms. Johnson's testimony that she was forced to bring her testimony to an abrupt close(46).
C.The Official Record of the Meetings Failed to Accurately Reflect the Content of the Meetings, and the Majority of the Commissioners Voted Down Attempts to Have the Record Correctly Reflect What Actually Occurred at the Meetings
At the first meeting, Commissioner Hochberg moved to have a licensed court reporter transcribe the meeting if he could find one who would volunteer to provide the services without cost to the State, and have transcripts prepared within the Commission's time limits. The motion failed 2-4(47).
Although Commissioner Hochberg brought a formal motion to correct the Minutes of the September 13, 1995, to accurately reflect the opinions of the guests who testified in opposition to homosexual marital rights, the majority voted against the motion, refusing to permit the Minutes--the official record of the Commission's work--to accurately reflect what actually occurred at the meeting(48).
At the September 27, 1995 meeting, Commissioner Hochberg brought several motions in an attempt to amend the proposed September 13, 1995 record to accurately reflect what occurred at the meeting. The most significant of those motions include the following:
D.The Majority of the Commissioners Consistently Voted in a Block to Thwart the Attempts of the Two Other Commissioners To Insist That the Commission Conduct its Work in a Fair and Balanced Manner
As discussed above in this minority opinion, the first meeting on September 13, 1995, the LRB attorney informed the Commissioners that she had compiled the LRB List based on the definition of legal benefits in Act 217. The Commissioners then discussed the legislative modification set out in Act 5, but no working definition of "major" legal and economic benefit was determined.
At the next meeting on September 27, 1995, Commissioner Hochberg moved that the Commission adopt a definition of "major legal and economic benefits". Chairman Gill ruled Commissioner Hochberg out of order. The Chairman, supported by the usual majority of the Commissioners, refused to entertain Commissioner Hochberg's motion. Commissioner Hochberg renewed his motion concerning a working definition of "major legal and economic benefits" at the end of the meeting. The motion failed 2-4(49).
Despite repeated attempts by Commissioner Sheldon to bring motions to the floor concerning: (1) neighbor island participation; (2) the credentials of the alleged expert whose work Commissioner Stauffer primarily relied on for his proposed "findings of the Commission"; (3) the Chairman's responses to Commissioner Sheldon's specific concerns regarding the manner in which the Commission was proceeding with its work; (4) the review and approval of the Minutes of October 11, 1995; and the (5) adoption of Robert's Rules of Order for the conduct of Commission meetings, the Chairman consistently refused to entertain any of Commissioner Sheldon's motions until Commissioner Stauffer finally suggested to the Chairman on November 2, 1995 that Commissioner Sheldon's motions should be addressed. Each of the above- referenced motions failed, by a vote of 2-4 or 2-3 with one abstention. The Chairman did not vote as a general rule, and when he did vote, it was always with the majority which advocates special rights for homosexual couples.
While the failure to pass the above motions evidences the imbalance on the Commission, the refusal by the majority to undertake to travel to the neighboring islands is especially significant since those citizens living on those islands who cannot afford to travel to Oahu were deprived of their right to participate in the process.
See the letters between Chairman Gill, Commissioner Hochberg and Commissioner Sheldon attached hereto as Appendix H.
E.In His Quest to Submit a Report to the Legislature, the Chairman Selectively Stifled Substantive Discussion and Demanded that the Commission Vote on Crucial Matters Before the Record of Meetings Containing Indispensable Expert Testimony Were Corrected and/or Approved
On October 9, 1995, two days before the third regularly scheduled Commission meeting, the Chairman dispatched a memorandum to all Commissioners with a "Resolution of the Commission on Sexual Orientation and the Law" attached(50). The resolution proposed that the Commission adopt the statutes on the LRB List as the major legal and economic benefits extended to married opposite-sex couples(51). The next day, October 10, 1995, Commissioner Hochberg wrote to Chairman Gill with copies to all Commissioners expressing his concerns that the list Chairman Gill sought to adopt had not been discussed or analyzed, but was based on work done by the previous Commission which was operating under different instructions than the present Commission(52). Commissioner Sheldon delivered a similar letter at the October 11, 1995 meeting(53). TV and print reporters attended the October 11, 1995 meeting and as a result, voting on this resolution was delayed.
The October 25, 1995 meeting began with a review of the Minutes of October 11, 1995. Commissioner Stauffer presented a one-page list of his proposed amendments which was distributed to the Commissioners at the meeting. Chairman Gill insisted that the Commission vote on these proposed changes with little opportunity to actually review them, and without any discussion. Thereafter, Chairman Gill refused to entertain any oral corrections proposed by Commissioner Hochberg, and required that Commissioner Hochberg submit his proposed changes to the minutes in writing for consideration at a later time(54).
Thereafter, the Chairman proceeded with the guest speaker portion of the meeting. The Commission heard from three speakers regarding public policy implications and concerns associated with extending benefits to same-sex couples. Among those professionals was Thomas F. Coleman of the Spectrum Institute. Mr. Coleman stated that he is homosexual. He purported to be a legal expert on sexual orientation and marital status discrimination, the definition of family, and domestic partnership issues(55). Mr. Coleman was afforded uninterrupted, virtually carte blanche time to deliver his presentation which included visual aids. Commissioner Hochberg inquired of Mr. Coleman for information concerning the "Spectrum Institute" because Mr. Hochberg's research indicated that Spectrum Institute was really the alter-ego of Mr. Coleman(56). At the conclusion of Mr. Coleman's presentation, Chairman Gill asked Mr. Coleman to provide the Commission with a draft comprehensive domestic partnership legislation. He has done so.
Another invited expert at the October 25, 1995 meeting, Fritz Rohlfing, Esq., was not given the opportunity to fully present his opposition to homosexual marital rights. He was rudely rushed to finish by the Chairman without objection from the majority(57). The majority simply did not desire to hear testimony with which they disagreed.
When the October 25, 1995 meeting reconvened on October 26, 1995, Chairman Gill announced that the Commission would finish its report by the end of November "come hell or high water". He then refused to permit the Commission to resolve the disputed record of the economists' testimony October 11, 1995 testimony. The majority upheld the Chairman's position by a vote of 5-2. Moreover, the Chairman rudely chastised Commissioner Hochberg, forbid him to put any motions on the table, stifled his attempts at discussion and continuously demeaned his efforts to make a viable contribution to the Commission's work. Indeed, at the close of this session, Chairman Gill inquired as to whether Commissioner Hochberg would "gas everybody next week to stop the proceedings"(58).
The Chairman's attitude and insistence that we forge ahead was particularly disconcerting because the October 11, 1995 Minutes and Commissioner Hochberg's written but unreviewed suggested corrections thereto concerned the testimony of expert economists. That testimony is crucial to the Commission's consideration of Commissioner Stauffer's proposed report sections which Chairman Gill insisted the Commission vote on beginning at the October 26 session. As a result of the Chairman's actions, which were unopposed by the majority of the Commissioners, the Commission proceeded to vote on the substantive content of those portions of the report dealing with "major legal and economic benefits" without any recourse to the minutes which contained the very essence of the information required to reach a fair and honest conclusion concerning such alleged benefits(59). The majority report cites and quotes from these minutes although at the time those portions of the majority report were written, the Commission did not have the minutes to cite or quote.
Chairman Gill permitted no business to take place at that meeting other than considering the draft report containing Commissioner Stauffer's proposed Commission findings regarding "major legal and economic benefits" as interpreted by Commissioner Stauffer's definition which he calls "Terminology". In essence, through the forced vote on Commissioner Stauffer's First Memo representing a portion of the ultimate Commission Report, the majority adopted Commissioner Stauffer's "Terminology" as the definition of "major" legal and economic benefit long sought by the minority. As discussed above, this "Terminology" essentially exchanged the Legislature's language of "major" for the Hawaii Supreme Court's language of "salient" as used in the Baher v. Lewin decision rendered two years before the legislation establishing this Commission was crafted(60). This is interesting in that Commissioner Stauffer's "Terminology" was, for all intents and purposes, "railroaded" through as a definition under another name while Commissioner Hochberg's efforts to discuss and arrive at a definition were ridiculed, found out of order and banished from discussion.
The October 25, 1995 meeting was continued in various sessions through November 6, 1995. During that time, although Commissioner Hochberg sought to include in the draft report opposing viewpoints, Chairman Gill demanded that opposing information not be addressed until after Commissioners Stauffer and Britt's material were completed on behalf of the majority. The minority has never been given that opportunity except in writing this minority opinion.
Virtually none of the matters covered by either Commissioner Stauffer's proposed findings concerning "major" or "salient" legal and economic benefits or Commissioner Britt's proposed findings concerning "substantial public policy reasons" to extend benefits to homosexuals were discussed in any form whatsoever before the so called "findings" were drafted. Moreover, discussion concerning those "findings" was severely limited by the Chairman once the associated motions were placed on the floor. Nevertheless, the imaginary "findings of the Commission" as determined by Commissioners Stauffer and Britt were forced to a vote and passed 4-2 with little or most often no changes from their submitted form. This was the case even where the "findings" were facially erroneous and/or legally incorrect.
VII.Recommendations to Legislature A. In light of the damage done to the Attorney General's ability to win the Baehr litigation as a result of the recommendations of the majority, the legislature should adopt a Constitutional Amendment preserving marriage and the marital partnership as between one man and one woman as husband and wife.
B. The legal and economic benefits conferred on married couples in the State of Hawaii should not be extended to homosexual and/or "common law marriage" couples without determining the cost of doing so.
C. The legal and economic benefits conferred on married couples in the State of Hawaii should not be extended to homosexual and/or "common law marriage" couples in order to preserve and protect children, families, and society because homosexuality is a psychological pathology and should not be encouraged or equated with heterosexuality.
D. Rather than legalize homosexual marriage or domestic partnership, or otherwise adopt a broad extension of derivative rights to homosexual couples, the State should identify specific, particular rights which might be extended to homosexual couples without undermining the institution of heterosexual marriage or imposing unreasonable costs upon the State. To make that determination, further study is necessary because this Commission failed to undertake that kind of examination. It may be that defining "family" to include "all persons who share a household" in some statutes would provide fair and appropriate protection without undermining the basic unit of society or imposing inordinate risks on children and marriage.
E. The legislature must create a very broad religious freedom exemption covering religious institutions and individuals who have religiously motivated objections to treating same-sex partnerships as marriage-equivalents.
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