Preface

This report is submitted by the Commission on Sexual Orientation and the Law to the Eighteenth Legislature as requested by Act 5, Session Laws of Hawaii 1995. Act 5 is attached to this report as Appendix A.

I.Background and Authority

The Commission on Sexual Orientation and the Law was convened by the Legislature to address some of the issues that have arisen in the case of Baehr v. Lewin, 74 Haw.530, (1993).

A.Baehr v. Lewin: An Overview

A lawsuit filed in May 1991 by three same-gender couples against the State of Hawaii, specifically against John Lewin, in his capacity as the Director of Health, complained of an unconstitutional marriage law that prohibited same-gender couples from obtaining marriage licenses. The complaint alleged a violation of the couple's right to privacy and equal protection under the Constitution of the State of Hawaii(1). The trial court dismissed the case on the pleadings and the couples appealed to the Supreme Court of Hawaii. In May 1993 the Supreme Court reversed the trial court and remanded the case back for trial. Although the Supreme Court found that there is no fundamental right to same-sex marriage under the right to privacy(2), the court did conclude that the marriage law does deny the same-gender couples equal protection rights in violation of article I, Section 5 of the Hawaii Constitution(3). The Hawaii Supreme Court held that the discrimination is based on the "gender" of an individual and is a "suspect category." Therefore, for purposes of the equal protection analysis, the marriage law is subject to a "strict scrutiny" test(4). This places the burden on the State to show that the statute's gender-based classification is justified by compelling state interests and the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights(5).

B.Legislative Action

The Legislature reacted to the Supreme Court's decision in Baehr v. Lewin by holding public hearings throughout the State in September and October of 1993. At the next legislative session the Legislature proceeded to pass Act 217, Session Laws of Hawaii 1994. Act 217 accomplished several things.

First, Act 217 provided a venue in its purpose section for the Legislature to express its position. The purpose section of Act 217 has been interpreted to create legislative history after the fact while at the same time telling the Supreme Court not to interpret the law in a different fashion. Second, Act 217 also amended the marriage law to specifically require a man and a woman to be eligible for a marriage license, but it did not prohibit the private solemnization of any ceremony. Third, Act 217 created the prior Commission on Sexual Orientation and the Law.

The Commission as created by Act 217 (hereafter the " Act 217 Commission") was an eleven-member Commission that had representatives from an assorted group of organizations, some religious in nature. In December of 1994, a federal lawsuit was filed in United States District Court against the Governor concerning the appointment of certain members of the Act 217 Commission. The suit complained of a constitutional violation that was based on the separation of church and state. Judge Harold Fong ultimately granted the plaintiff's motion to permanently enjoin the participation of those members of the Act 217 Commission who represented the Catholic Diocese and the Church of Jesus Christ Latter-Day Saints(6). In January of 1995 the eleven-member Act 217 Commission was left with seven members. The Legislature created a new Commission in Act 5, Session Laws of Hawaii 1995 (hereafter the "Act 5 Commission" or simply "the Commission").

II.The Commission Members

Act 5, Session Laws of Hawaii 1995 specified that a seven-member Commission be appointed by the Governor with at least two members selected from a list from the Senate President and two from a list provided by the Speaker of the House. In early August 1995 the Governor appointed Thomas P. Gill, Chairperson, and Morgan Birtt, Ku'umeaaloha Gomes, Lloyd James Hochberg, Jr., Nanci Kreidman, Marie "Toni" Sheldon, and Robert Stauffer to the Commission. Mr. Hochberg and Ms. Sheldon were selected from the Speaker's list and Mr. Gill and Ms. Kreidman were selected from the Senate President's list. Mr. Britt, Ms. Gomes, and Dr. Stauffer were Governor appointees.

III.Report Overview

The Act 5 Commission had their first meeting on September 13, 1995. A schedule was submitted and accepted that followed the structure of the authorizing Act, breaking the Commission's work into three tasks. Discussion on each task was planned for one meeting with voting on the issue at another. The Commission met at least every two weeks until the report was finalized December 8, 1995. The accepted schedule was adhered to as closely as possible. In order to stay on schedule and complete the tasks assigned, some meetings had to be recessed and continued to finish important matters on the agenda(7). In addition, subcommittees of the minority and majority were formed early in November, and each met to expedite the drafting of this report(8).

All meetings were open, noticed according to the Sunshine Law(9), and an opportunity for the public to submit oral testimony was scheduled on each agenda. The fact that all meetings were held on Oahu made the participation of citizens of the neighbor islands a concern to the Commission. Several members of neighbor island communities did, at their own expense come to testify, and others submitted written testimony(10).

There were no funds allotted to the Legislative Reference Bureau for the Commission to hold meetings on the neighbor islands. To allow as much participation as possible, the Commission used the State Library System in all counties to disseminate the draft report for public review and comment before finalizing the report(11).

Early in the Commission meetings it was apparent that all the findings and recommendations of the Commission would not be unanimous(12). The majority position was favorable to extending marital rights to same-gender couples in some form. The minority position was against such extension. In order to allow both sides to fully express their positions, it was agreed to allow the minority to prepare and submit a separate chapter. While the minority participated in the discussion of each issue before the Commission, the majority did not interfere with the wording or content of the minority chapter.

The parts of the report coincide with the authorizing Act as to each of the three tasks.

Chapter 1 addresses the first task:

"(1)Examine the major legal and economic benefits extended to married opposite-sex couples but not to same-sex couples."

Chapter 2 focuses on the issues surrounding the second task:

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

Chapter 3 reviews the different options that were considered by the Commission in the exercise of their final task assigned:

"(3)Recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couples."

Chapter 4 of this report presents the findings and recommendations of the Commission.

Chapter 5 contains the minority opinion in full.

Chapter 6 is a response by the majority of the Commission to the minority opinion.

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