State of Hawaii
Report of the Commission
on Sexual Orientation
and the Law

SUMMARY

Pursuant to the requirements of Act 5, Session Laws of Hawaii 1995, the Commission met on numerous occasions from late September to early December 1995, received public statements, heard and examined numerous witnesses, and addressed the three tasks assigned to it by that Act. These tasks were, in brief: (1) examining major legal and economic benefits extended to married opposite-sex couples but not to same-sex couples; (2) examining the public policy reasons to extend or not to extend all or some of such benefits to same-sex couples; and (3) recommend legislative action to so extend such benefits. The Commission's tasks and structure arose from several interconnected judicial and legislative actions: the first was the State Supreme Court decision in Baehr v. Lewin (74 Haw. 530, 1993); the second was Act 217, Session Laws of Hawaii 1994, in which the Legislature, in reaction to the Baehr case, redefined marriage under Chapter 572, Hawaii Revised Statutes, as being between a man and a woman and then, interestingly and after the fact, attempted to create a legislative history for this concept; third, the first Commission, set up under Act 217, was unable to complete its work and collapsed because of court challenges to some of its members because of their selection by certain religious organizations; fourth and finally, the present Commission of seven members from the general public was selected according to said Act 5 and appointed by the Governor.

During the course of its work, the Commission identified a substantial number of such major benefits and divided these benefits into three categories: (1) "intangible" benefits related emotionally to the status of marriage, which do not necessarily have an economic value; (2) "quantifiable" benefits which can be tied to monetary amounts; and (3) "general" benefits which may not have major economic value, may be infrequently used, or which may be a combination of smaller benefits. These benefits are listed and described in detail in Chapter 1 of this report.

The Commission in Chapter 2 went on to identify four basic policy reasons why the right to legally marry should be extended to same-sex couples: (1) the denial of such right is a denial of the state and federal constitutional right to equal protection of the law; (2) the state Supreme Court's requirement in the Baehr case that the State show a "compelling state interest" for such denial and the reasons advanced by those who support this denial show a close parallel to the landmark case of Loving v. Virginia 388 U.S. 1 (1967) in which the United States Supreme Court found a Virginia statute outlawing interracial marriage to be invalid; (3) the argument that same-sex marriage should be barred because it would not lead to procreation was invalid, inconsistent and discriminatory because this standard was not applied to heterosexual marriage; and (4) the religious beliefs of some members of the community which would ban such marriages can certainly be adhered to by those persons or their churches but they cannot be imposed by state law on others who do not subscribe to such beliefs.

Pursuant to its third basic task--to recommend appropriate legislative action to extend such benefits to same-sex couples--the Commission recommends, and the simplest solution would be, amending the marriage statute to allow same-gender marriage and extend all the benefits and burdens of such status to those couples if they wished to assume them. In addition to its first recommendation, the Commission recommends a second suggestion which would be a comprehensive Domestic Partnership law. This law would not solve the question of equal protection because it would stop short of marriage, but it would allow all couples--same gender or opposite gender--to assume most of the rights and obligations of marriage without being married. These options are not mutually exclusive--the Legislature could choose either or both. Draft legislation covering these options is included in the Appendices.

Because of strong differences between a five-member majority of the Commission and the two minority members--Mr. Hochberg and Ms. Sheldon--the majority is submitting the Report of the Commission as outlined above and has asked the minority to prepare a minority opinion which is included in Chapter 5 of the Report.

Where appropriate, the materials in the Appendices attached are noted as pertaining to the Report or to the minority opinion.

This Report is being submitted to the Legislature pursuant to the timetable set forth in Act 5. The next move is up to that body.

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