NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. A PETITION FOR RECONSIDERATION IN THE SUPREME COURT MAY BE PENDING.

   Ninia BAEHR, Genora Dancel, Tammy Rodrigues, Antoinette Pregil,
Pat Lagon, Joseph Melilio, Plaintiffs-Appellants, 
                                       v. 
    John C. LEWIN, in his official capacity as Director of the
Department of Health, State of Hawaii, Defendant-Appellee. 
                                   No. 15689. 
                            Supreme Court of Hawaii. 
                                  May 5, 1993.

Before MOON, Acting C.J., LEVINSON, J., Intermediate Court of Appeals Chief Judge BURNS, in place of LUM, C.J., Recused, Intermediate Court of Appeals Judge HEEN, in place of KLEIN, J., recused, and Retired Justice HAYASHI, [FN*] Assigned by Reason of Vacancy.

HEEN, J., dissenting.

I dissent. [FN35] Although the lower court judge may have engaged in "verbal overkill" in arriving at his decision, the result he reached was correct and should be affirmed. See State v. Taniguchi, 72 Haw. 235, 815 P.2d 24 (1991).

I agree with the plurality's holding that Appellants do not have a fundamental right to a same sex marriage protected by article I, s 6 of the Hawaii State Constitution.

However, I cannot agree with the plurality that (1) Appellants have a "civil right" to a same sex marriage; (2) Hawaii Revised Statutes (HRS) s 572-1 unconstitutionally discriminates against Appellants who seek a license to enter into a same sex marriage; (3) Appellants are entitled to an evidentiary hearing that applies a "strict scrutiny" standard of review to the statute; and (4) HRS s 572-1 is presumptively unconstitutional. Moreover, in my view, Appellants' claim that they are being discriminatorily denied statutory benefits accorded to spouses in a legalized marriage should be addressed to the legislature.

*25 Citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the plurality holds that Appellants have a civil right to marriage. I disagree. " 'It is axiomatic ... that a decision does not stand for a proposition not considered by the court." ' People v. Superior Court, 8 Cal.App. 4th 688, 703, 10 Cal.Rptr.2d 873, 881 (1992) (quoting People v. Harris, 47 Cal.3d 1047, 1071, 255 Cal. Rtpr. 352, 767 P.2d 619 (1989)).
Loving is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same sex couples. Loving points out that the right to marriage occupies an extremely venerated position in our society. So does every other case discussing marriage. However, the plaintiff in Loving was not claiming a right to a same sex marriage. Loving involved a marriage between a white male and a black female whose marriage, which took place in Washington, D.C., was refused recognition in Virginia under that state's miscegenation laws. [FN36]
The plurality also cites Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), as establishing constitutional limits on the states' right to regulate marriage. That is an undeniable principle. In Zablocki an application for a marriage license by a male and a female was denied because the male was not able to show, pursuant to a Wisconsin statute's requirement, that he was in compliance with all existing obligations for child support.
Loving and Zablocki neither establish the right to a same sex marriage nor limit a state's power to prohibit any person from entering into such a marriage. The plurality's conclusion here that Appellants have a right to a same sex marriage and, therefore, an evidentiary hearing is completely contrary to the clear import of Zablocki and Loving.
Although appellants suggest an analogy between the racial classification involved in Loving and Perez and the alleged sexual classification involved in the case at bar, we do not find such an analogy. The operative distinction lies in the relationship which is described by the term "marriage" itself, and that relationship is the legal union of one man and one woman. Washington statutes, specifically those relating to marriage ... and marital (community) property ..., are clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman who are otherwise qualified to enter that relationship.
* * *
[A]ppellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. Singer v. Hara, 11 Wash.App. 247, 253-55, 522 P.2d 1187, 1191-92, review denied, 84 Wash.2d 1008 (1974) (footnotes omitted).
*26 The issue of a right to a same sex marriage has been considered by the courts in four other states. Those courts arrive at the opposite conclusion from the plurality here. See Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct.App.1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); De Santo v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952 (1984); Singer v. Hara, supra. I do not agree with the plurality's contention that those cases are not precedent for this case. The basic issue in each of those four cases, as in this one, was whether any person has the right to legally marry another person of the same sex. Neither do I agree with the plurality that Loving refutes the reasoning of the courts in those four cases.

HRS s 572-1 treats everyone alike and applies equally to both sexes. The effect of the statute is to prohibit same sex marriages on the part of professed or non-professed heterosexuals, homosexuals, bisexuals, or asexuals, and does not effect an invidious discrimination. [FN37]

The constitutional guarantee of equal protection of the laws means that no person or class of persons shall be denied the same privileges and benefits under the laws that are enjoyed by other persons or other classes of persons in like circumstances. Mahiai v. Suwa, 69 Haw. 349, 742 P.2d 359 (1987). HRS s 572-1 does not establish a "suspect" classification based on gender [FN38] because all males and females are treated alike. A male cannot obtain a license to marry another male, and a female cannot obtain a license to marry another female. Neither sex is being granted a right or benefit the other does not have, and neither sex is being denied a right or benefit that the other has.

My thesis is well illustrated by the case of Phillips v. Wisconsin Personnel Comm'n, 167 Wis.2d 205, 482 N.W.2d 121 (Ct.App.1992). In that case, the plaintiff, an unmarried female, was denied medical benefits for her unmarried female "dependent" lesbian companion because Phillips' state health plan defined "dependent" as spouse or children. Phillips appealed the commission's dismissal of her gender discrimination complaint and the Wisconsin Court of Appeals, in striking down her claim, stated that dependent insurance coverage is unavailable to unmarried companions of both male and female employees. A statute is only subject to a challenge for gender discrimination under the equal protection clause when it discriminates on its face, or in effect, between males and females. Id. 167 Wis. at 227, 482 N.W.2d at 129 (emphasis in original and citations omitted).

Similarly, HRS s 572-1 does not discriminate on the basis of gender. The statute applies equally to all unmarried persons, both male and female, who desire to enter into a legally recognized marriage. [FN39] Thus, no evidentiary hearing is required.

The cases cited by the plurality to support its holding that Appellants are a "suspect class" are inapposite. [FN40] Unlike the instant case, the facts in both cases show government regulations preferring one gender (class) over another. In Holdman v. Olim, 59 Haw. 346, 581 P.2d 1164 (1978), the prison regulation requiring female visitors to wear proper undergarments clearly affected only female visitors to the state prison system. Male visitors to the prison were not subject to such a regulation. The supreme court explicitly referred to the regulation as being a sex-based classification. While the reasoning in Holdman is very interesting, it does not support the plurality's conclusion in this case that HRS s 572-1 creates a suspect class.

*27 Likewise, in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the federal statutes required that female members of the military service, but not male members, prove that they provided over one-half of their spouse's support in order to have the spouses classified as "dependents." The statutes were clearly discriminatory, since male members of the military were favored over female members.

Since HRS s 572-1 is not invidiously discriminatory and Appellants are not members of a suspect class, this court should not require an evidentiary hearing. [FN41] Neither should this court mandate that HRS s 572-1 be subjected to the "strict scrutiny" test. If anything, Appellants' challenge subjects the statute only to the "rational basis" test. Estate of Coates v. Pacific Engineering, 71 Haw. 358, 791 P.2d 1257 (1990). Thus, the issue is whether the statute rationally furthers a legitimate state interest. Id. There is no question that such a rational relationship exists; therefore, the statute is a constitutional exercise of the legislature's authority. In my view, the purpose of HRS s 572-1 is analogous to the purpose of Washington's marriage license statute as stated in Singer, supra.

In the instant case, it is apparent that the state's refusal to grant a license allowing the appellants to marry one another is not based upon appellants' status as males, but rather it is based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.

... [M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same sex marriage results from such impossibility of reproduction rather than from an invidious discrimination "on account of sex." Therefore, the definition of marriage as the legal union of one man and one woman is permissible as applied to appellants, notwithstanding the prohibition contained in the ERA, because it is founded upon the unique physical characteristics of the sexes and appellants are not being discriminated against because of their status as males per se. [FN42]

Id. 11 Wash.App. at 259-60, 522 P.2d at 1195 (emphasis and footnote added). The court in Singer was considering the case in the light of that state's Equal Rights Amendment (identical to article I, s 3 of the Hawaii State Constitution). The Washington court's reasoning is pertinent, in my view, to Appellants' claim in the case at hand and supports the constitutionality of the statute.

Furthermore, I cannot agree with the plurality that HRS s 572-1 is presumptively unconstitutional. The general rule is that every statute is presumed to be constitutional, and the party challenging the law on constitutional grounds has the heavy burden of overcoming this presumption. Washington v. Fireman's Fund Ins. Cos., 68 Haw. 192, 199, 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 977 (1986).

*28 In Washington this court, in considering a constitutional challenge to a statutory classification, stated:
To prevail, a party challenging the constitutionality of a statutory classification on equal protection ground has the burden of showing, "with convincing clarity tat the classification is not rationally related to the" statutory purpose, State v. Bloss, 62 Haw. 147, 154, 613 P.2d 354, 359 (1980), or that "the challenged classification does not 'rest upon some ground of difference having a fair and substantial relation to the object of the legislation,' " Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 330, 475 P.2d 679, 681 (1970), and is therefore "arbitrary and capricious." State v. Freitas, 61 Haw. 262, 272, 602 P.2d 914, 922 (1979). See also, Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139 1977
This court has ruled that:
[E]qual protection does not mandate that all laws apply with universality to all persons; the State "cannot function without classifying its citizens for various purposes and treating some differently from others." The legislature may not, however, in exercising this right to classify, do so arbitrarily. The classification must be reasonably related to the purpose of the legislation.
We set out in Hasegawa a two-step procedure for determining whether the statute passed constitutional muster:
First, we must ascertain the purpose or objective that the State sought to achieve in enacting (the challenged statute]. Second, we must examine the means chosen to accomplish that purpose, to determine whether the means bears a reasonable relationship to the purpose. Joshua, 65 Haw. at 629, 656 P.2d at 740 (quoting Hasegawa, 52 Haw. at 330, 475 P.2d at 681). Id. 68 Haw. at 199, 708 P.2d at 134.
In my view, the statute's classification is clearly designed to promote the legislative purpose of fostering and protecting the propagation of the human race through heterosexual marriages and bears a reasonable relationship to that purpose. [FN43] I find nothing unconstitutional in that.
5.
Appellants complain that because they are not allowed to legalize their relationships, they are denied a multitude of statutory benefits conferred upon spouses in a legal marriage. However, redress for those deprivations is a matter for the legislature, which can express the will of the populace in deciding whether such benefits should be extended to persons in Appellants' circumstances. Those benefits can be conferred without rooting out the very essence of a legal marriage. [FN44] This court should not manufacture a civil right which is unsupported by any precedent, and whose legal incidents--the entitlement to those statutory benefits--will reach beyond the right to enter into a legal marriage and overturn long standing public policy encompassing other areas of public concern. This decision will have far-reaching and grave repercussions on the finances and policies of the governments and industry of this state and all the other states in the country.
click here for footnotes.
click here for concurring opinion written by Justice Burns.
click here for dissenting opinion.

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