It is said that we as a society are doomed to repeat the mistakes of
the past unless we study and learn the lessons of history.  For the
purposes of this report, the Commission finds the most compelling
similarity of facts, and hence the existence of relevant lessons from
history, in the treatment of "marriage" during the religious wars of
17th century England.2
	
	Two other historical periods are less clear as relevant examples for
the Commission's work. Most African-Americans prior to 1865 could get
married using their own clergy or, at times, a state-licensed member of
the clergy, but they would not be issued government certificates
because they were slaves. Such couples were married but lacked
certificates.
	
	Jewish-Germans under the Nazi government were likewise capable of
getting married but not being certified by the government.
	
	In both these latter examples, however, the people being
discriminated against were also denied many other basic human rights
and were not considered full citizens. The married couples, or
potentially marriable couples, in modern Hawaii who are being denied
certificates are, however, accorded many more basic human rights than
the slaves or Jews in these two examples.
	
	Also, the slaves and Jews were generally in immutable situations --
they could not themselves change their race, slave- status, or
ethnicity. The religious minorities of 17th century England were
instead persecuted for their choice of religions belief -- they could
themselves change their status by converting to the state church. For
the same-gender couples in modern Hawaii who are discriminated against,
many may have immutable sexual orientations, but at least some may have
chosen their partner as a matter of choice.3
	
	
	Many other similarities exist between the English example and the
modern Hawaii situation. The laws against the non- believers and
wrong-believers in England were based on their "immorality" of
religious belief and their "pernicious" conduct. The discrimination was
based on the further belief that society- wide disaster would await
England due to Divine retribution for allowing the wrong-believers and
non-believers to legally exist.
	
	The discrimination was also based on strongly-held majoritarian
religious beliefs. And it was based on strongly-held majoritarian
social beliefs, as and enacted into law by the people's
representatives. The discrimination was also based on not wanting to
extend "special rights" to the non-believers and wrong-believers. That
is to say, the persecutory laws were equal in their application: all
non-believers and wrong-believers were treated equally. It could be
said that it would be granting a "special right" to allow any of them
to worship in a manner anathema to the True Church and against the laws
of the land.
	
	This then is the historical case: for a decade in the 1650s the
English throne was overturned and a non-monarchy republic established.
The official Church of England, allied to the throne, also lost favor,
while the "Nonconformist" churches held much power, particularly the
Puritans (today's United Church of Christ).
	
	With the restoration of the monarchy and re-establishment of the
Kingdom in 1660, the state church also regained power. Laws were soon
passed outlawing all Nonconformist faiths, particularly the newly
founded Quakers (the Religious Society of Friends) and the Baptists.
	
	Many Nonconformists saw their church buildings seized or shut-down,
their clergy threatened with arrest or forced underground.  With their
worship officially outlawed, many would gather at dining tables in
private homes with food set out before them, and hold their services.
If the authorities burst in -- as they often did -- the worshipers
could claim that they were simply gathered for a meal.
	
	The Quakers went a step further, gathering outside their seized or
government-destroyed meeting houses and holding their services in the
open, daring the authorities to act. The government met the challenge,
beating many worshippers and arresting thousands, with large numbers
dying in the filthy prisons of the era. At the height of the
"Intolerance" era, throughout large areas of England not a single adult
male Quaker remained outside of jail.
	
	The laws weighed heavily within the arena of marriage. Couples who
married at a Nonconformist church were denied government marriage
certificates. These marriages were not "legal marriages," and the
spouses were not "legal spouses." Put another way, the couples were
married, but lacked a government certificate because of religious
discrimination on the part of the government.
	
	These couples could be prosecuted under criminal statutes for "living
in sin," their children could be harassed or sometimes taken away as
being "illegitimate," and greedy relatives often could claim the
family's assets at the time of death of one or both parents, thus
dispossessing the children and at times the second spouse.
	
	That is to say, the "major legal and economic marriage benefits" of
the day guaranteed the right to legally cohabit, to have legal
children, and to provide for an orderly probate process at the time of
death, in favor of the surviving spouse and children. These benefits
were denied to those married couples that did not have government
certificates.
	
	The persecution of the day created tremendous pressure on married
couples seeking to provide benefits for their children. Several married
Quaker couples, for instance, would seek out a government-sanctioned
priest to certify their relationships. But this meant breaking the
doctrine of their own religion, which regarded the Church of England
priests as agents of evil. Quaker congregations met often during this
period to counsel and at times discipline couples who had sinned by
consenting to "marriage by the priest."4
	
	The government's witch hunt meanwhile reached its climax when the
Quaker minister William Penn, later the founder of Pennsylvania, went
to his seized and shuttered meeting house in London in 1670 and began
services on the sidewalk outside. William Meade was in the congregation
with other Friends, when the constables attacked.
	
	The religious persecution laws permitted trials without jury, but the
authorities unwittingly charged Penn and Meade with rioting, a charge
accorded the right of jury. The trial was however short-lived, Penn
appealing to the "fundamental rights" of all English citizens, and the
judge ordering he and Meade hauled away.
	
	The jury returned a decision of "not guilty" for Meade, and found
Penn "guilty of speaking in Gracious Street," noting that street talk
was no crime. The judge refused the verdict, whereupon it was repeated
in writing by the jury and again refused, the jury then being sent off
without "meat, drink, fire, and tobacco" until the next morning.
	
	The next day found the jury unrepentant, with the judge threatening
to cut off the jury foreman's nose, Penn claiming that menacing a jury
violated the Magna Charta, and the court's recorder -- in words
reminiscent of testimony received by the Commission -- calling for the
(Quaker) perversion to be removed from the land through introducing the
techniques of the Spanish Inquisition.  The following day,  with the
jury still on their enforced fast,  they again stood by their verdict,
and when this was refused once more, they issued a new written verdict
of "not guilty" for both Penn and Meade.
	
	The judge then fined and jailed the jury and kept the now not-guilty
Penn and Meade in jail as well. Word of the scandal, and the heroism of
the non-Quaker jury, spread through the Kingdom. Months later the jury
was released after an Habeas Corpus appeal. About a year later a higher
court, led by a judge who evidently loved the Church of England but
loved liberty more, issued the landmark Bushell's Case decision, named
for Edward Bushell, an outspoken member of the jury.
	
	Wrote the latter court, "what either necessary or convenient use can
be fancied of [i.e., found for] juries, or [even] to continue trials by
them at all" if their presiding judges do not give them the right to
decide decisions?5 British and American principles of civil rights,
including the right by a jury free to issue its own decision, have
abided by the Bushell's Case's principles ever since. 	
	
	Still, the religious wars continued, the level of persecution first
ebbing and then flowing once again. Nearly twenty years later (1689)
there was a Toleration Act that eased the oppression religious rules
somewhat, but it was 1753 before Quaker marriages (for
different-gendered couples) were universally certified by the
government. 	
	
	It was the fearful memories of the abuse of "fundamental rights"
perpetrated by government-supported churches and religiously-influenced
governmental laws that led ultimately within the U.S. to adoption of
the First Amendment's rules, (a) against the Federal government showing
favoritism towards any particular religion, and, (b) against improper
influence of religion in government. These two rules were then extended
to the States after passage of the Fourteenth Amendment in 1868.
	
	The Commission finds clear and convincing parallels between the
events outlined above and the current marriage situation in Hawaii.
Some of the Nonconformist churches of that earlier day, in their modern
incarnations,6 and other churches,7 are today marrying
together spouses, only to find that these couples cannot receive
government certificates.
	
	The Commission also finds that these many churches are legally
protected in their right to marry same-gender couples,8          more
than can be said for the lack of liberty given their counterparts in
England three centuries ago.  But these modern Hawaii churches and
their members still cannot obtain certification for these marriages.
Further, while history has judged the English authorities to have
discriminated on the basis of religion, the Hawaii Supreme Court has
judged the Hawaii State authorities to be showing discrimination today
on the basis of gender. The Commission finds further that the broader
question of whether something should be recommended to be done about
this is addressed in the body of this report.
	
	The lessons from the above historical parallels, however, reinforce
the Commission's finding that it is necessary in this report to
differentiate between "marriage" and being "legally married;" between
being a spouse and being a "legal spouse;" and between being "married"
and "having a government certificate." There are same-gender spouses in
Hawaii today who are married and have formally celebrated their
religious marriage ceremonies in their churches, presided over by
government-licensed clergy.9 What does not exist today in
Hawaii, however, are such couples that possess government certificates,
just as there were so many married couples three centuries ago that
were denied such certificates.
	
____________________________________

This appendix was contributed by Dr. Stauffer and approved and
endorsed by the Commission.

One text, which includes key portions of the transcript from the
historic Bushell's Case described later in the text, is
Braithwaite, William C. The Second Period of Quakerism. York,
England: William Sessions Limited, 1979 edition of the 1919
original volume.

See also the two general histories by Hill, Christopher:
Puritanism and Revolution. New York: Schocken, 1958, and The
World Turned Upside Down. New York: Viking, 1972.

The Hon. James Burns, acting associate justice of the Hawaii
Supreme Court for the Baehr case, based his partial dissent on
this point.   I.e., that if sexual orientation is an immutable
status, then discrimination exists; if it is not immutable, then
perhaps it does not. Baehr v. Lewin, 74 Haw. 530, 585.

The court's majority ruled that the issue was not relevant as the
discrimination was not on the basis of sexual orientation but
purely on gender.

The historical example of the English persecutions would support
this: whether a discriminated class is based on immutable grounds
such as race or ethnicity, or whether it is based on mutable
grounds such as religious belief, is irrelevant. As long as it is
a protected class (such as religion, national origin, or gender),
it should be accorded the proper level of protection.

Braithwaite, p. 253.

Braithwaite, p. 73.

I.e., in Hawaii, congregations of the United Church of Christ and
of the Religious Society of Friends have both either married same-
gender couples or announced their willingness to do so.

E.g., the Unitarian-Universalists, some Lutherans, the
Metropolitan churches, many Buddhist denominations, etc.

Section 572-1.6, Hawaii Revised Statutes (1993 and Supp 1994).

This also applies to couples ready, willing, and able to get
married, who would be denied certificates if they got married and
then applied for governmental certification. It also applies to
couples who, like their different-gender counterparts, would
desire to get certified by a judge.

	
	

	Appendix F	Reports and Studies	Table of Contents