Appendix E HISTORICAL LESSONS1
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.
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