Filed in the First Circuit Court, State of Hawaii
11:06 a.m., Dec. 3, 1996
R.S. Yamada, clerk
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT CIVIL NO. 91-1394
STATE OF HAWAII
FINDINGS OF FACT AND
NINIA BAEHR, GENORA DANCEL, CONCLUSIONS OF LAW
TAMMY RODRIGUES, ANTOINETTE
PREGIL, PAT LAGON, AND
JOSEPH MELILLO,
Plaintiffs,
vs .
LAWRENCE H. MIIKE, in his
official capacity as Director
of the Department of Health,
State of Hawaii,
Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case came on for trial before the Honorable
Kevin S.C. Chang on September 10, 1996. Plaintiffs Ninia Baehr,
Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and
Joseph Melillo were represented by attorneys Daniel R. Foley, Evan
Wolfson and Kirk H. Cashmere. Defendant Lawrence H. Miike was
represented by Deputy Attorney Generals Rick J. Eichor and Lawrence
Goya. The Court having reviewed all the evidence admitted at the
trial and having considered the arguments and other written
submissions of counsel for the parties and the briefs filed by the
amicus curiae, hereby makes the following Findings of Fact and
Conclusions of Law.
FINDINGS OF FACTS
I. THE PARTIES
1. At all times relevant herein, Plaintiffs Ninia
Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon
and Joseph Melillo (hereinafter collectively referred to as
"Plaintiffs") were or are residents of the City and County of
Honolulu, State of Hawaii.
2. Defendant Lawrence H. Miike ("Defendant") is a
resident of the City and County of Honolulu. State of Hawaii.
Defendant Miike is sued in his official capacity as Director of
Department of Health, State of Hawaii. [When this lawsuit was
commenced, John Lewin was the Director of Department of Health,
State of Hawaii. Thereafter, pursuant to Rule 43(c) of the Hawaii
Rules of Appellate Procedure, Defendant Miike was automatically
substituted for Defendant Lewin when he assumed the position of the
Director of Department of Health, State of Hawaii. A Notice of
Substitution of Parties was also filed by defense counsel on
April 23, 1996.]
II. RELEVANT PROCEDURAL HISTORY
3. Plaintiffs filed their Complaint for Injunctive and
Declaratory Relief ("Complaint") on May 1, 1991.
4. In pertinent part, Plaintiffs' Complaint alleges
that on or about December 17, 1990, Defendant and his agent denied
the applications for marriage licenses presented by Plaintiffs
Baehr and Dancel, Plaintiffs Rodrigues and Pregil and Plaintiffs
Lagon and Melillo, respectively, solely on the ground that the
couples are of the same sex. Plaintiffs sought a judicial
declaration that the construction and application of Hawaii
Revised Statutes ("HRS") 572-1 to deny an application for a
license to marry because an applicant couple is of the same sex is
unconstitutional.
5. Defendant filed an Amended Answer to Complaint on
June 7, 1991. In pertinent part, Defendant admitted that
Plaintiffs Baehr and Dancel, Plaintiffs Rodrigues and Pregil and
Plaintiffs Lagon and Melillo applied for marriage licenses on
December 17, 1990, and that the couples applications for marriage
licenses were denied by Defendant through his agent on the ground
that the couples are of the same sex.
6. On July 9, 1991, Defendant filed a Motion For
Judgement on the Pleading which sought a dismissal of the lawsuit.
Defendant asserted, in pertinent part, that Plaintiffs in their
Complaint had failed to state a claim against Defendant upon which
relief could be granted.
7. A hearing was held on Defendant's Motion for
Judgment on the Pleadings on September 3, 1991.
8. An Order Granting Defendant's Motion for Judgment on
the Pleading was filed on October 1, 1991. A Judgment in favor of
Defendant and against Plaintiffs was also filed on October 1, 1991.
9. Plaintiffs filed their Notice of Appeal to the
Supreme Court of the State of Hawaii on October 17, 1991.
10. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993),
the Hawaii Supreme Court vacated the circuit courts order and
judgment in favor of Defendant and remanded the case to the circuit
court for further proceedings. In pertinent part, the Hawaii
Supreme Court directed the following.
On remand, in accordance with the "strict
scrutiny" standard, the burden will rest on
[Defendant] to overcome the presumption that
HRS 572-1 is unconstitutional by
demonstrating that it furthers compelling
state interests and is narrowly drawn to avoid
unnecessary abridgments of constitutional
rights.
Id., 74 Haw. at 583 (citations omitted).
11. On May 17, 1993, Defendant filed a motion for
reconsideration or clarification to the Hawaii Supreme Court.
12. On May 27, 1993, the Hawaii Supreme Court granted
Defendant's motion for reconsideration, or, in the alternative, for
clarification in part, and clarified the mandate on remand as
follows.
Because, for the reasons stated in the
plurality opinion filed in the above-captioned
matter on May 5, 1993, the circuit court
erroneously granted Lewin's motion for
judgment on the pleadings and dismissed the
plaintiffs' complaint, the circuit court's
order and judgment are vacated and the matter
is remanded for further proceedings consistent
with the pluralitv opinion. On remand, in
accordance with the "strict scrutiny"
standard, the burden will rest on [Defendant]
to overcome the presumption that HRS 572-1 is
unconstitutional by demonstrating that it
furthers compelling state interests and is
narrowly drawn to avoid unnecessary
abridgments of constitutional rights.
Baehr v. Lewin 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and
clarification granted in part, 74 Haw. 645, 852 P.2d 74 (1993)
(citations omitted).
13. An Order of Early Assignment to Trial Judge was
filed on May 5, 1995.
14. On July 13, 1995, Defendant Director of Health's
Motion for Reservation of Questions to the Supreme Court of Hawaii
and for Stay Pending Appeal, or, in the alternative for Stay
Pendinq the Action of The Commission on Sexual Orientation and the
Law and of The Eighteenth Legislature filed on July 5, 1995, was
granted in part, and the trial in the above-captioned case was
rescheduled from September 25, 1995 to July 15, 1996. See Order
Denying Defendant Director of Health's Motion for Reservation of
Questions to the Supreme Court of Hawaii and for Stay Pending
Appeal, and Granting Alternative Motion for Stay of Trial Pending
the Action of The Commission on Sexual Orientation and the Law and
of The Eighteenth Legislature filed on September 7, 1995.
15. A Notice of Change of Responsible Deputy was filed
on April 18, 1996, which stated that responsibility for handling of
the case on behalf of the Defendant had been changed to Deputy
Attorney General Rick J. Eichor.
16. Following a status conference with counsel on
April 19, 1996, a Stipulation to Continue Trial Date and Order was
filed on May 9, 1996. As a result, the trial in the above-
captioned case was continued from the week of August 1, 1996 to
September 10, 1996.
III. DEFENDANT'S POSITION
17. The directive of the Hawaii Supreme Court is clear.
Pursuant to the mandate of the Supreme Court, Defendant has the
burden of proof in this case. Id.
18. Defendant's First Amended Pretrial Statement was
filed on May 13, 1996. In pertinent part, Defendant stated the
following.
[A]ll that remains is for the State to show
that there is a compelling State interest to
deny Plaintiff marriage licenses because they
are of the same sex and that this compelling
interest is narrowly drawn to avoid
unnecessary abridgments of constitutional
rights.
The following substantial and compelling
state interests will he shown:
a. That the State has a compelling
interest in protecting the health and welfare
of children and other persons. . . .
b. That the State has a compelling
interest in fostering procreation within a
marital setting. . . .
c. That the State has a compelling
interest in securing or assuring recognition
of Hawaii marriages in other jurisdictions. . . .
d. That the State has a compelling
interest in protecting the State's public fisc
from the reasonably foreseeable effects of
State approval of same-sex marriage in the
laws of Hawaii. . . .
e. That the State has a compelling state
interest in protecting civil liberties,
including the reasonably foreseeable effects
of State approval of same-sex marriages, on
its citizens.
Defendant's First Amended Pretrial Statement at pages 2-4.
19. Defendant's Pre-Trial Memorandum was filed on
September 6, 1996. In pertinent part, Defendant asserted the
following.
The State of Hawaii has a compelling interest
to promote the optimal development of
children. . . . It is the State of Hawaii's
position that, all things being equal, it is
best for a child that it be raised in a single
home by its parents, or at least by a married
male and female. . . .
The marriage law furthers the compelling state
interest of securing or assuring recognition
of Hawaii marriages in other jurisdictions. . . .
The marriage law furthers the compelling state
interest in protecting the public fisc from
the reasonably foreseeable effects of approval
of same-sex marriage.
Defendant's Pre-Trial Memorandum at pages 1, 2 and 4.
20. Defense counsel acknowledged Defendant's burden of
proof and, in pertinent part, stated the following in his Opening
Statement. "The State has a compelling interest in promoting the
optimal development of children. . . . It is the State's policy to
pursue the optimal development of children, to unite children with
their mothers and fathers, and to have mothers and fathers take
responsibility for their children." Trial Transcript ("Tr.")
9/10/96. pages 4-5.
IV. DEFENDANT'S WITNESSES
21. Defendant presented testimony from the following
expert witnesses: (1) Kyle D. Pruett, M.D.; (2) David Eggebeen,
Ph.D.; (3) Richard Williams, Ph.D.: and (4) Thomas S. Merrill,
Ph D.
22. Dr. Kyle Pruett is an expert in the field of
psychiatry, specializing in child development. Beginning in 1981
and continuing for a ten-year period, Dr. Pruett conducted a
longitudinal study of fifteen families with young children with
regard to the developmental competence of children raised primarily
by their fathers in intact families. At the end of his study, Dr.
Pruett found that children raised by families with primarily
paternal care in the early months and years of life are competent
and robust in their development, and are not sources of clinical
concern.
23. In pertinent part, Dr. Pruett found that there were
unique paternal contributions made by a father which had a positive
effect on the following: (1) a child's self-esteem and feelings of
being loved and important to the family; (2) a child's ability to
cope with frustration and discouragement; (3) a child's interest in
generative or creative matters; and (4) a child's gender
flexibility.
24. However, Dr. Pruett also stated that the unique or
non-replicable contributions offered by a father (and the unique
contributions offered by a mother) are "small", in comparison to
the contributions that parents make together to their children.
Tr. 9/10/96, page 84. Dr. Pruett conceded that the beneficial
results described above are not essential to being a happy, healthy
and well-adjusted child. Tr. 9/10/96, pages 86-87.
25. Dr. Pruett testified that biological parents have a
predisposition which helps them in parenting children. The
predisposition is based upon the following factors: (1) chromosomal
or genetic contributions; (2) the parents' choice and timing of
conception or procreation; (3) the physical changes to the mother's
body and the father's observations and interaction with those
changes; (4) immediate bonding upon the child's birth; and (5) a
predisposition to sacrifice and make one's self secondary to the
needs of the child.
26. Dr. Pruett also expressed his belief that children
which are adopted or are the result of assisted reproduction live
in a "burden[ed] system." Tr. 9/10/96, pages 58, 62.
27. Dr. Pruett stated that same-sex relationships do not
provide the same type of learning model or experience for children
as does male-female parenting, because there is an overabundance of
information about one gender and little information about the other
gender. Tr. 9/10/96, page 63.
28. Nevertheless, Dr. Pruett also stated that same-sex
parents can, and do, produce children-with a clear sense of gender
identity. Tr. 9/10/96, pages 106.
29. Dr. Pruett stated the following with respect to
raising children in a same-sex marriage environment.
Q. And in comparing same sex parenting
with opposite sex parenting, which is more
likely to pose greater developmental
difficulties for children?
A. In terms of probability, same-sex
marriages are more likely to provide a more
burdened nurturing domain.
Tr. 9/10/96, page 63.
30. It is Dr. Pruett's opinion that most children are
more likely to reach their optimal development being raised in an
intact family by their mother and father. According to Dr. Pruett,
this family configuration presents the fewest burdens on child
development. Tr. 9/10/96, page 63.
31. However, Dr. Pruett also stated that single parents,
gay fathers, lesbian mothers and same-sex couples have the
potential to, and often do, raise children that are happy, healthy
and well-adjusted. Tr. 9/10/96, page 69.
32. Dr. Pruett testified that single parents, gay
fathers, lesbian mothers, adoptive parents, foster parents and
same-sex couples can be, and do become, good parents. Tr. 9/10/96,
page 71. Significantly, Dr. Pruett knows the foregoing to be true
based on his clinical experience. Tr. 9/10/96, page 72.
33. More specifically, Dr. Pruett stated that parents'
sexual orientation does not disqualify them from being good, fit,
loving or successful parents. Tr. 9/10/96, page 72.
34. Dr. Pruett agreed that, in general, gay and lesbian
parents are as fit and loving parents as non-gay persons and
couples. Tr. 9/10/96, page 73.
35. Same-sex couples have the same capability as
different-sex couples to manifest the qualities conducive to good
parenting. Tr. 9/10/96, page 75.
Dr. Pruett testified as follows.
Q. And you've seen same-sex couples
that have those qualities [to being good
parents]?
A. Yes.
Q. And have made good parents?
A. And have made good parents, yes.
Q. And good parents as a couple?
A. Yes.
Tr. 9/10/96, page 75.
36. Dr. Pruett also agreed that same-sex couples should
be allowed to adopt children, provide foster care and to take
children in and raise and care for them. Tr. 9/10/96, page 73.
37. Importantly, Dr. Pruett testified that the quality
of the nurturing relationship between parent and child could, and
would, outweigh any limitation or burden imposed on the child as a
result of having same-sex parents. Tr. 9/10/96, page 79.
38. Finally, when questioned regarding research
performed by Charlotte Patterson regarding children raised by same-
sex couples, Dr. Pruett expressed his agreement with the general
conclusions reached by Dr. Patterson. Tr. 9/10/96, pages 132-133.
More specifically, Dr. Pruett agreed with the following
conclusions, that gay and lesbian parents "are doing a good job"
and that "the kids are turning out just fine." Tr. 9/10/96, pages
133-134.
Dr. Pruett was not surprised by Dr. Patterson's
conclusions. In fact, they are what he expected to see, and
although Dr. Pruett questions Dr. Patterson's research
methodology, he is not aware of any data, research or literature
which disputes Dr. Patterson's findings and conclusions. Tr.
9/10/96, pages 132-134.
39. Dr. David Eggebeen is an expert in the field of
sociology with a special emphasis in demographics related to family
and children.
40. In pertinent part, Dr. Eggebeen testified regarding
changes or trends which have occurred in partnering, child bearing
and labor force behavior in the United States. For example, Dr.
Eggebeen testified regarding the following facts: (1) the marriage
rate in the U.S. population has declined over the past twenty
years; (2) the median age of marriage for women in the U.S.
population has risen over the past twenty years; (3) the annual
divorce rate in the U.S. population has increased over the past
approximate thirty years; (4) the number of young adults currently
cohabiting has increased over the past eight years; (5) the birth
rate for women in the U.S. population has decreased over the past
twenty years; (6) the number of proportionate births to non-married
women in certain racial groups has increased over the past thirty
years; and (7) the number of women in the labor force in the U.S.
population and the number of working mothers with children under
the age of six has increased dramatically over the past thirty
years.
41. Based on his studies of the changes referred
above, Dr. Eggebeen testified as follows.
[C]hildren are going through fundamental
changes in the structure of childhood and what
we're seeing today is children today are
living in very different circumstances than
was evident or the case in the past. It's
common today to find children in single parent
families. It's common today to find children
in single parent families. It's common today
to find children living with a mother who
never married. It's common today to find
children in remarried families. It's common
today to find children in dual earner families
where both parents participate in the type of
work. It is common or getting common to find
children whose parents never married and
thev're cohabiting.
Tr. 9/11/96, pages 32-33.
42. However, Dr. Eggebeen also testified that, as of
1990, almost six out of ten children in the United States are
living in families where their parents are married and both of the
parents are biological parents of the child.
43. Dr. Eggebeen explained further that ". . . children
have gone through substantial changes in their lives. . . [T]here
is greater diversity in living arrangements and family --- in
families that children live today in the '9Os. However, a
substantial percentage of children remain or will spend their
childhood in . . . traditional kinds of family structures." Tr.
9/11/96, page 38.
44. Based on his research, Dr. Eggebeen concluded that
marriage is a "gateway to becoming a parent," and marriage is
synonymous with having children. Tr. 9/11/96, page 42.
45. However, Dr. Eggebeen also testified that individuals get
married without intending to
have children, or marry and are biologically unable to have children.
Further, the
absence of the intent or the ability to have children does not
weaken the institution of marriage.
In fact, Dr. Eggebeen recognized that people marry and
want to get married for reasons other than having children; that
those reasons are valuable and important; and that regardless of
children, it is beneficial to society for adults to marry. Dr.
Eggebeen testified that individuals should not be prohibited from
marriage simply because they cannot have children.
Tr. 9/11/96, pages 55-57.
46. Dr. Eggebeen testified that children raised in a
single parent home are at a "heightened risk", as
compared to children raised in a married couple family. Tr. 9/11/96, page 43.
According to Dr. Eggebeen, children in a single parent family are at
greater risk for the following: (1) poverty or economic hardship; (2) poor
academic performance; (3) behavior problems and
conduct disorders; and (4) premarital or teenage birth for girls.
47. Dr. Eggebeen stated that remarriage or cohabiting
with a step-parent does not lessen or eliminate the risks to
children from single parent families. "[C]hildren in a remarriage
family. . . do not seem to perform any differently than children
who remain in single parent families and therefore their
performance or the risk of poor outcomes is about the same as is
for children in single parent families." Tr. 9/11/96, page 46.
48. Dr. Eggebeen suggested that the lack of improvement
in risk factors in remarriage or step-parent families may be
attributable to "the role ambiguity of step parent relationships,"
characteristics which a step-parent brings to the family and which
adversely affect the children or the absence of a biological
relationship with the children. Tr. 9/11/96, pages 46-48. With
respect to the latter, Dr. Eggebeen related the story of Cinderella
and her evil stepmother. Tr. 9/11/96, page 48.
49. Dr. Eggebeen equates a same-sex couple with children
to a step-parent situation with all of the above-described risk
factors. Specifically, Dr. Eggebeen testified that "same-sex
marriages where children [are] involved is by definition a step
parent relationship," because there is one parent who is not the
biological parent of the child. Tr. 9/11/96, pages 49.
50. However, Dr. Eggebeen conceded that there are some
situations involving a same-sex couple which would not fit the
classic step-parent scenario. For example, a situation involving
a same-sex couple that sought and received reproductive assistance
and in which the non-biological parent was fully involved from the
beginning of the planning process, was present throughout the nine
month period and at birth, and thereafter, raised the child as
though they were the biological parents of the child. Tr. 9/11/96,
pages 114-115.
51. Dr. Eggebeen also testified that single parents,
adoptive parents, lesbian mothers, gay fathers and same-sex couples
can create stable family environments and raise healthy and well-
adjusted children. Tr. 9/11/96, page 82.
52. It is Dr. Eggebeen's opinion that gay and lesbian
couples can, and do, make excellent parents and that they are
capable of raising a healthy child. Tr. 9/11/96, page 83.
53. Dr. Eggebeen agrees that gay and lesbian parents
should be allowed to adopt children and serve as foster parents.
Tr. 9/11/96, page 85.
54. Dr. Eggebeen testified that cohabiting same-sex
couples are less stable than married couples. However, the sole
basis for Dr. Eggebeen's conclusion is a chart taken from the book
entitled American Couples, co-authored by Pepper Schwartz, Ph.D.
The chart which summarizes approximately twenty year old
information is Defendant's Exhibit Q, and depicts a comparison of
the percentages of married, gay and lesbian couples, respectively,
which had stayed together or broken up over periods of time.
Dr. Eggebeen testified that Exhibit Q is the best data
that he could find which proves that gay and lesbian couples have
substantially higher break up rates over time than married
different sex couples. Tr. 9/11/96,-pages 73-74. Dr. Eggebeen
admitted that he has done limited research on the subject of same
sex couples and gay and lesbian parenting, and agrees that
Charlotte Patterson and Pepper Schwartz are experts in the fields.
Tr. 9/11/96, pages 131-132.
55. Finally, and importantly, Dr. Eggebeen stated that
children of same-sex couples would be helped if their families had
access to or were able to receive the following benefits of
marriage: (1) state income tax advantages; (2) public assistance;
(3) enforcement of child support, alimony or other support orders;
(4) inheritance rights; and (5) the ability to prosecute wrongful
death actions. Dr. Eggebeen also agreed that children of same-sex
couples would be helped if their families received the social
status derived from marriage. Tr. 9/11/96, pages 89-92.
56. Dr. Richard Williams is an expert in the field of
psychology with special expertise in qualitative and quantitative
research and research methods, statistical analysis and
construction of research studies.
57. Dr. Williams was asked by defense counsel to review
and analyze studies of children raised by gay and lesbian parents.
He reviewed approximately twenty to thirty studies, and eventually
selected nine studies to critique.
58. At trial, Dr. Williams presented commentary
regarding nine research studies which defense counsel anticipated
that Plaintiffs' expert witnesses would rely upon for their
testimony and opinions in this case.
Dr. Williams' general criticism of the nine studies
included the following: (1) there was non-representative sampling
of heterosexual, gay and lesbian parents; (2) inadequate sample
size was employed; and (3) comparison groups used in the studies
were not comparable in terms of household make up. Dr Williams
also presented specific criticism as to each of the nine referenced
studies .
59. The testimony of Dr. Williams is not persuasive or
believable because of his expressed bias against the social
sciences, which include the fields of psychology and sociology.
For example, Dr. Williams believes that a majority of the
studies in the social sciences have theoretical or methodological
flaws. Tr. 9/12/96, pages 71-72. According to Dr. Williams,
modern psychology is so flawed that no fix, reconciliation or
overhaul can correct it. Tr. 9/12/96, page 70.
60. Further, even assuming that research studies are
conducted properly, Dr. Williams still doubts the ultimate value of
psychology and other social sciences. Tr. 9/12/96, page 73.
61. At times, Dr. Williams expressed severe views. For
example, Dr. Williams believes that there is no scientific proof
that evolution occurred. Tr. 9/12/96, page 80.
62. Finally, Dr. Williams admitted that his critique of
studies regarding gay and lesbian parenting is a minority position.
Tr. 9/12/96, pages 74-75.
63. Defendant's last witness was Thomas Merrill, Ph.D.
Dr. Merrill is an expert in the field of psychology, including the
areas of human development, gender development and relationships
relative to children and their development.
64. Dr. Merrill is a psychologist in private practice in
Honolulu, Hawaii. His clinical experience with families involving
one or two gay or lesbian parents is limited. Dr. Merrill has not
testified as an expert in Family Court cases which involved the
sexual orientation of a parent or a same-sex couple and the custody
of a child. He has not participated in or conducted any study
which focused on the children of gay and lesbian parents. Tr.
9/13/96, page 36.
65. Dr. Merrill examined the issue of same-sex versus
opposite sex parent and child development for the first time as a
result of his retention in this case. Tr. 9/13/96, page 35.
66. In pertinent part, Dr. Merrill testified that the
parental relationship is an important learning model for children
and that it is significant to have opposite sex parents for a
child's learning. Tr. 9/13/96, pages 12-13.
67. Dr. Merrill stated that different-sex parents are
important because both parents serve as models and as objects for
a child's learning and development. Dr. Merrill explained as
follows:
We interact with -- and when I say identify,
we measure and develop ourself in relationship
to our same gender parent. We also identify
our relationship with our opposite sex parents
and there are different developmental stages
where that relationship with the opposite sex
parent is equal to or more important than our
development -- our relationship at the moment
with the same gender parent.
Tr. 9/13/96, page 13.
68. According to Dr. Merrill, although replacement of a
biological parent is certainly possible, as in the case of
remarriage and adoption, it would result in the presence of a
different influence on the child and the child's developmental
outcome may be different. Tr. 9/13/96, pages 20-21.
69. Dr. Merrill testified that same-sex parents do
provide a learning experience for a child. However, Dr. Merrill
stated that there is insufficient information regarding the effects
of being raised by gay or lesbian parents on the development of a
child. Tr. 9/13/96, page 22.
As a result, Dr. Merrill has no opinion regarding the
development of children in a family with same-sex parents.
Specifically, he cannot say whether or not children raised in a
same-sex family environment will develop to be healthy, well-
adjusted adults. Tr. 9/13/96, page 38.
70. At the close of his direct examination, Dr. Merrill
presented the following opinions.
Q. In your opinion, to a reasonable
degree of psychological probability, in what
family structure are children most likely to
reach their optimal development?
A. Children are most apt to reach their
optimal level of development as exhibited in
terms of their adjustment as adults in a
family in which there is a limited amount of
strife, a maximum amount of nurturing, a
maximum amount of support, a maximum amount of
guidance, a maximum amount of leadership, and
a very strong and intimate bond between
parents and child.
Q. And does the presence of the mother
and father improve the likelihood that there
will be a strong bond?
A. That would be a significant part of
the maximum optimum environment in which to
raise a child, yes.
Tr. 9/13/96, pages 32-33.
71. Dr. Merrill testified that the sexual orientation of
a parent is not an indication of parental fitness. Tr. 9/13/96,
page 46.
72. Dr. Merrill also agreed that gay and lesbian couples
with children do have successful relationships. Tr. 9/13/96, page
46.
73. On one occasion, Dr. Merrill was retained by two
attorneys to do a custody evaluation in a case involving a same-sex
relationship on the mother's side. In part, he was asked to
address children's development issues. Dr. Merrill testified that
the fact that there was a same-sex relationship on the mother's
side was not an issue and did not affect his evaluation in the
case. Tr. 9/13/96, page 34.
74. Finally, and in pertinent part, Dr. Merrill
testified as follows.
Q. Now, doctor, do you think the
children, regardless of whether they have a
mother and a father, male-female parents,
single parents, adoptive parents, gay and
lesbian parents, same gender parents, should
have the same opportunity in society to reach
their optimum development, each child?
A. Yes, I do.
Tr. 9/13/96, page 45.
Dr. Merrill further stated that children should not be
denied benefits, such as health care, education and housing based
on the status of their parents. Opposite-sex, same-sex, single and
adoptive parent status should not be a basis to deny benefits to
children. Tr. 9/13/96, page 46.
V. PLAINTIFFS' WITNESSES
75. Although Plaintiffs do not have the burden of proof
in this case, they nevertheless presented testimony from the
following expert witnesses: (1) Pepper Schwartz, Ph.D; (2)
Charlotte Patterson, Ph.D.; (3) David Brodzinsky, Ph.D; and (4)
Robert Bidwell, M.D.
76. The court found the testimony of Dr. Schwartz and
Dr. Brodzinsky to be especially credible.
Dr. Schwartz and Dr. Brodzinsky are well-qualified
individuals. See Plaintiffs' Exhibits 1 and 2, respectively.
At trial, each of them testified in a knowledgeable,
informative and straightforward manner worthy of belief. In
general, the expert opinions of Dr. Schwartz and Dr. Brodzinsky
appear to be well-founded based on their significant research and
analysis, and their clinical and professional experience,
respectively.
77. Dr. Schwartz is an expert in sociology and
interdisciplinary studies of sexuality with a special expertise in
gender and human sexuality, marriage and the family,
and same-sex relations in parenting and research. She testified,
in pertinent part, to the following.
78. Initially, Dr. Schwartz discussed her book, American
Couples. Dr. Schwartz specifically addressed a chart taken from
the book and relied upon by Defendant. According to Dr Schwartz,
the data contained in Defendant's Exhibit Q represents the
following: (1) that there is a substantially higher break up rate
for all three kinds of couples (gay men, lesbian and cohabitors)
than there is for married couples; and (2) married couples have an
advantage that keeps them together longer than other kinds of
couples. Tr. 9/16/96, pages 47-48.
79. Dr. Schwartz noted that the data presented in
American Couples was collected in the late '70s and up until 1980
or 1981. Since that time, there have been significant changes in
society. For example, the entry of AIDS into gay male life and
society, has made people more cautious and less likely to have
multiple partners and more desirous of settling down. Gay men, in
particular, have been hardest hit by the disease and it has made
monogomy and couplehood more attractive.
Additionally, there is now a trend in which people
contemplate and want to be more serious, to make families and to
engage in long-term committed relationships. This is a large change from
the attitudes of the late '70s and early '80s. Tr. 9/16/96, page 54-56.
80. Dr. Schwartz testified that heterosexual and
homosexual people want to get married. Tr. 9/16/96, pages 58-59,
65. The doctor stated specifically:
[T]hey want companionship, they want love,
they want trust, they want someone who will be
with them through thick and thin. They're
looking for a live and a love partner. . . .
[I]n our own [culture] it's an aspiration for
--- for intimacy and security. And that is
the definition of marriage as people first and
primarily think of it."
Tr. 9/16/96, page 59.
81. Dr. Schwartz stated that same-sex couples can, and do, have
successful, loving and
committed relationships. Tr. 9/16/96, page 129.
82. Dr. Schwartz also identified practical, economic, legal,
social and psychological
benefits of marriage and reasons for people to marry. Tr. 9/16/96, pages 59-65.
83. Dr. Schwartz testified that the sexual orientation of
parents is not an indicator of
parental fitness. Tr. 9/16/96, page 128.
84. Dr. Schwartz also testified that gay and lesbian parents and
same-sex couples are as
fit and loving parents, as non-gay persons and different-sex couples. Tr.
9/16/96, page 127.
85. Dr. Schwartz believes that the primary quality of parenting
is not the parenting
structure, or biology, but is the nurturing relationship between parent
and child. Tr. 9/16/96, page 129.
86. Dr. Schwartz also believes that children should not be
denied benefits and
protections because of the status of their parents. Tr. 9/16/96, pages 129-130.
87. Dr. Schwartz has the following opinions.
First, there is no reason related to the promotion of the
optimal development of children
why same-sex couples should not be permitted to marry. Tr. 9/16/96, page 130.
Second, allowing same-sex couples to marry would not have a
negative impact on
society or the institution of marriage. Dr. Schwartz testified, "[T]here
would be no dishonor and no
ultimate
fragility to the institution [of marriage] by including gays and
lesbians." Tr. 9/16/96, pages 130-131.
Third, allowing same-sex couples to marry would have a
positive impact on society and the institution of marriage. Dr.
Schwartz stated the following.
I think that marriage is really a high
state of hope and effort for people. I think
when we deny it to people we say that --- that
there's some other location for love and
raising children and that we're not as
concerned about these kids' welfare or in some
ways we don't think it would be good for them
to be in a married home. It's not that those
children don't exist, it's not that those
families don't exist, they do.
To me, I think that most Americans
believe in marriage strongly. I believe by
taking other people into the fold and asking
that they behave as responsible to their
children to give them support to have both
rituals to enter into their relationships and
legal complications by exiting them, that we
shore up how important we think marriage is.
I think it --- I think it in no way undermines
it and I think it strengthens it by our
insistence about how important it is and why
we hope this will be available for all
families.
Tr. 9/16/96, pages 131-132.
88. Dr. Charlotte Patterson is an expert in the field of
psychology of child development with a special expertise in lesbian
and gay parenting and the development of children of lesbian and
gay parents. She testified, in pertinent part, to the following.
89. Dr. Patterson is a professor at the University of
Virginia. She has completed two studies regarding the children of
lesbian and gay parents.
90. The first study is known as the Bay Area Family
Study. The study involved thirty-seven families, all of which had
at least one child between the ages of four and nine. In every
case, the children had either been born to women who identified
themselves as lesbian at the time of the study, or who adopted
children early in life. Data in the Bay Area Family Study was
collected in 1990 and 1991.
91. According to Dr. Patterson, the main result of the
Bay Area Family Study was a conclusion that the particular group of
children, when compared to available norms, appeared to be
developing in a normal fashion. Tr. 9/17/96, pages 23-24.
However, Dr. Patterson also noted a finding that the
children of the lesbian mothers sample were more likely to express
that they felt (within a normal range) symptoms of stress in their
lives, as compared to children in the normal sample. The children
who described symptoms of stress also said that they felt an
overall sense of well-being about themselves in their lives.
Although she has two plausible explanations, Dr. Patterson does not
have a definitive interpretation or explanation for the above
finding. Tr. 9/17/96, page 25.
Dr. Patterson agreed that the sample group of lesbian
mothers in the Bay Area Family Study, when considering ethnic
background, education, income, and other socioeconomic factors is
not representative of women and all mothers in America. Tr.
9/17/96, pages 81-84.
92. Dr. Patterson's second study is known as the
Contemporary Family Study. The study involved eighty families who
conceived a child using the resources of the Sperm Bank of
California. and all of which had at least one child that was at
least five years old at the time of the study. Fifty-five of the
families were headed by lesbian mothers. The remaining twenty-five
families were headed by heterosexual parents. Most of the data for
this study was collected in 1994 and 1995.
93. The three main conclusions of the Contemporary
Family Study are as follows: (1) as a group, the children born as
a result of donor insemination were developing normally; (2) sexual
orientation of the parents was not a good predictor of how well
children do in terms of a child's well-being and adjustment; and
(3) irrespective of their parents' sexual orientation, children who
live in a harmonious family environment had better reports from
parents and teachers. Tr. 9/17/96, pages 36-37.
94. Based on her studies and review of other research,
Dr. Patterson testified as follows. A biological relationship
between parent and child is not essential to raising a healthy
child. The quality of parenting which a child receives is more
important than a biological connection or the gender of a parent.
Tr. 9/17/96, pages 42-43.
95. According to Dr. Patterson, there is no data or
research which establishes that gay fathers and lesbian mothers are
less capable of being good parents than non-gay people and which
supports denying gay people the ability to adopt and raise
children. Tr. 9/17/96, page 52.
96. Dr. Patterson believes that gay and lesbian people
and same-sex couples are as fit and loving parents as non-gay
people and different-sex couples. Further, sexual orientation is
not an indicator of parental fitness. Tr. 9/17/96, pages 53-54.
97. Dr. Patterson testified that same-sex couples can,
and do, have successful, loving and committed relationships. Tr.
9/17/96, pages 54.
98. Dr. Patterson presented the following opinion.
There is no reason related to the promotion of the development of
children why same-sex couples should not be permitted to marry.
Tr. 9/17/96, page 55.
99. Dr. David Brodzinsky is an expert in the fields of
psychology and child development with a special expertise in
adoption and other forms of nonbiological parenting and the
development of children raised by nonbiological parents.
100. Dr. Brodzinsky counsels children and families in a
clinical setting and also has an academic appointment at Rutgers
University. In the academic setting, Dr. Brodzinsky does research,
teaches, directs a program on counseling foster children and does
clinical supervision. He has been at Rutgers University since
1974.
Dr. Brodzinsky serves as a consultant to several adoption
agencies in New Jersey and New York and is a founding director of
the Adoption Institute, a newly formed nonprofit organization,
whose mission is to provide information and education and promote
research regarding adoption and adoption practices. In the past
ten to fifteen years, he has conducted research and written
extensively on the psychology of adoption, foster care, stress and
coping in children.
101. In his clinical practice, Dr. Brodzinsky has worked
with gay and lesbian parents. He has provided counseling over the
years to approximately forty families headed by same-sex parents
and same-sex couples. In pertinent part, Dr. Brodzinsky testified
as follows.
102. Dr. Brodzinsky stated the following with respect to
the following question: "Are there advantages to being raised by
one's biological parents?"
The issue is not the structural variable,
biological versus nonbiological, one parent
versus two parent. Those are kind of --- they
hide, I think, really what is going on. The
issue is really the process variables, how
children are cared for, is the child provided
warmth, is the child provided consistency of
care, is the child provided a stimulated
environment, is the child given support.
Those are the factors we can call, for lack of
a better way of saying it, sensitive care-
giving which transcend whether you're a single
parent, two parent, biological, nonbiological.
The research shows that --- that those are the
factors that carry the biggest weight. And
when you take a look at structural variables,
there's not all that much support that
structural variable in and of themselves are
all that important.
Tr. 9/18/96, page 42.
103. Dr. Brodzinsky noted that same-sex parent adoptions
occur and it is his opinion that same-sex parent adoptions should
be allowed. Tr. 9/18/96, page 49. Dr. Brodzinsky explained as
follows.
Q. As an expert in adoption and as a
psychologist, do you believe that gay men and
lesbians, same-sex couples, should be continue
to be allowed to adopt children?
A. Absolutely.
Q. Why?
A. Because they are able to provide,
like heterosexual couples or single parents,
warm and loving environments. They're ---
they're adopting children now. They're doing
a good job of it. Obviously, you know, when
we --- when a person seeks to adopt, there is
an evaluation. It would be the same kind of
an evaluation. We would exclude a gay or
lesbian individual for the same reason that we
would exclude a heterosexual individual. That
is, if they had a significant emotional
problems or some other kind of factor that we
felt, as -- as, you know, agency consultants,
you know, would not -- would not predict well
to a child's well-being.
Tr. 9/18/96, pages 56-57.
104. Dr. Brodzinsky testified that the research shows
that same-sex couples and different-sex couples can be highly
competent care-givers. The sexual orientation of parents is not an
indicator of parental fitness. Tr. 9/18/96, page 50.
105. According to Dr. Brodzinsky, the primary quality of
good parenting is not the particular structure of the family or
biology, but is the nurturing relationship between parent and
child. Tr. 9/18/96, page 63.
106. Dr. Brodzinsky believes that children adopted by
same-sex couples are not at any increased risk for behavioral or
psychological problems. Tr. 9/18/96, page 50.
107. Dr. Brodzinsky expressed his strong view regarding
the issue of whether there is a best family environment to raise
children.
Q. Now, the State's arguments seem to
suggest that we somehow need to identify a
best family for children, or as between
mothers and fathers, we have to pick a best
parent. What's your position on that?
A. I find that offensive truthfully. I
find it offensive because it tends to suggest
that there's only one way of being a parent.
It excludes all nonbiological parenting which
would be adoptive parenting, stepparenting,
foster parenting, parenting by gay and
lesbians. It suggests that if there are some
additional issues that come with some of these
nontraditional families that should be reason
for excluding rather than taking that
information and using it not in a punitive way
but in a proactive, kind of supportive way to
help families deal with the inevitable issues
that come up in life. And there are going to
be some unique issues in varying forms of
family. But to talk about one form of family
that is best, I find that, you know,
truthfully offensive and a distortion of the
research literature. And that's really why
I'm here, you know, to make sure that message
comes across.
Tr. 9/18/96, pages 58-59.
108. Finally, it is Dr. Brodzinsky's opinion that there
is no reason related to the promotion of the development of
children why same-sex couples should not be permitted to marry.
Tr. 9/18/96, page 63.
109. Dr. Robert Bidwell is an expert in pediatrics with
a subspecialty in adolescent medicine. Dr. Bidwell is the Director
of Adolescent Medicine at Kapiolani Medical Center and is also
employed at the University of Hawaii Department of Pediatrics with
the John A. Burns School of Medicine. Dr. Bidwell teaches medical
students and pediatric residents in training, provides patient
care, and practices adolescent medicine and general pediatrics at
Kapiolani Medical Center.
110. In his clinical practice, Dr. Bidwell has treated
children of same-sex parents. He has provided medical services to
hundreds of children with families which included a single gay or
lesbian parent or same-sex parents. In pertinent part, Dr. Bidwell
testified as follows.
111. Dr. Bidwell described the best environment to raise
a healthy, well-adjusted child or adolescent as being one in which
"there's all those things that we associate with family, which is
love and nurturance and guidance, protection, safety." Tr.
9/19/96, pages 27-28.
112. According to Dr. Bidwell, gay and lesbian parents
and same-sex couples can, and do, provide an environment for their
children. Tr. 9/19/96, page 29.
113. Dr. Bidwell testified that gay and lesbian parents
and same-sex couples raise children that are just as healthy and
well-adjusted as those raised by different-sex couples. Tr.
9/19/96, page 38.
114. Dr. Bidwell conceded- that he has worked with
adolescents and teen-aged children living in a same-sex family
environment that have experienced embarrassment, distress or a
"difficult time" because their family "is not the same as the
majority of families that surround them." However, the doctor also
described the situation as a phase in the child's development. He
said the following.
What's been reassuring to me is that --
that this has been a phase in their
development, that I do not know of any
teenager who has not gotten through this phase
intact as a healthy adolescent. And, yes, I
think there was pain. I think that there may
have been tears from time to time, wishing
that things were different. But I think it's
-- I mean it's what we call growing up. I
mean there are many different kinds of
families. And all of our parents are
different in some way from what we would like
to see. . . .
So I think my experience has been for the
same -- has been the same for the children of
gay and lesbian parents, is that they may go
through a rough time. And not all of them do.
Remarkably, most of them, they make their
accommodations. They find ways to deal with
it. But they get through these periods. And
if anything, I think they grow stronger
through that experience. They learn about
life. They learn about diversity. And the
research -- and although I'm not a heavy-duty
research person, I do look at the research.
The research confirms that --that teenagers
get through this period.
But I guess to get back to your question,
yes, there is a special experience for these
young people, and sometimes it's painful. But
it doesn't do developmental damage to these
kids. If anything, it creates strength and
promotes growth.
Tr. 9/19/96, pages 30-32.
115. Finally, Dr. Bidwell believes that children of same-
sex parents would benefit, with respect to their health,
development and adjustment, if their parents were married. Tr.
9/19/96, page 38.
VI. SPECIFIC FINDINGS
116. The following are specific findings of fact for this
case based on the credible evidence presented at trial.
117. Defendant presented insufficient evidence and failed
to establish or prove any adverse consequences to the public fisc
resulting from same-sex marriage.
118. Defendant presented insufficient evidence and failed
to establish or prove any adverse impacts to the State of Hawaii or
its citizens resulting from the refusal of other jurisdictions to
recognize Hawaii same-sex marriages or from application of the
federal constitutional provision which requires other jurisdictions
to give full faith and credit recognition to Hawaii same-sex
marriages. See Article IV, Section 1 of the U.S. Constitution (The
Full Faith and Credit Clause).
119. Defendant presented insufficient evidence and failed
to establish or prove the legal significance of the institution of
traditional marriage and the need to protect traditional marriage
as a fundamental structure in society.
120. There is a public interest in the rights and well-
being of children and families. See H.R.S. Chapters 571 and 577.
121. A father and a mother can, and do, provide his or
her child with unique paternal and maternal contributions which are
important, though not essential, to the development of a happy,
healthy and well-adjusted child.
122. Further, an intact family environment consisting of
a child and his or her mother and father presents a less burdened
environment for the development of a happy, healthy and well-
adjusted child.
There certainly is a benefit to children which comes from
being raised by their mother and father in an intact and relatively
stress free home.
123. However, there is diversity in the structure and
configuration of families. In Hawaii, and elsewhere, children are
being raised by their natural parents, single parents, step-
parents, grandparents, adopted parents, hanai parents, foster
parents, gay and lesbian parents, and same-sex couples.
124. There are also families in Hawaii, and elsewhere,
which do not have children as family members.
125. The evidence presented by Plaintiffs and Defendant
establishes that the single most important factor in the
development of a happy, healthy and well-adjusted child is the
nurturing relationship between parent and child.
More specifically, it is the quality of parenting or the
"sensitive care-giving" described by David Brodzinsky, which is the
most significant factor that affects the development of a child.
126. The sexual orientation of parents is not in and of
itself an indicator of parental fitness.
127. The sexual orientation of parents does not
automatically disqualify them from being good, fit, loving or
successful parents.
128. The sexual orientation of parents is not in and of
itself an indicator of the overall adjustment and development of
children.
129. Gay and lesbian parents and same-sex couples have
the potential to raise children that are happy, healthy and well-
adjusted.
130. Gay and lesbian parents and same-sex couples are
allowed to adopt children, provide foster care and to raise and
care for children.
131. Gay and lesbian parents and same-sex couples can
provide children with a nurturing relationship and a nurturing
environment which is conducive to the development of happy, healthy
and well-adjusted children.
132. Gay and lesbian parents and same-sex couples can be
as fit and loving parents, as non-gay men and women and different-
sex couples.
133. While children of gay and lesbian parents and same-
sex couples may experience symptoms of stress and other issues
related to their non-traditional family structure, the available
scientific data, studies and clinical experience presented at trial
suggests that children of gay and lesbian parents and same-sex
couples tend to adjust and do develop-in a normal fashion.
134. Significantly, Defendant has failed to establish a
causal link between allowing same-sex marriage and adverse effects
upon the optimal development of children.
135. As noted herein, there is a benefit to children
which comes from being raised by their mother and father in an
intact and relatively stress-free home.
However, in this case, Defendant has not proved that
allowing same-sex marriage will probably result in significant
differences in the development or outcomes of children raised by
gay or lesbian parents and same-sex couples, as compared to
children raised by different-sex couples or their biological
parents.
In fact, Defendant's expert, Kenneth Pruett, agreed, in
pertinent part, that gay and lesbian parents "are doing a good job"
raising children and, most importantly, "the kids are turning out
just fine."
136. Contrary to Defendant's assertions, if same-sex
marriage is allowed, the children being raised by gay or lesbian
parents and same-sex couples may be assisted, because they may
obtain certain protections and benefits that come with or become
available as a result of marriage. See Baehr v. Lewin, 74 Haw.
530, 560-561, 852 P.2d 44, 59 (1993), for a list of noteworthy
marital rights and benefits.
137. In Hawaii, and elsewhere, same-sex couples can, and
do, have successful, loving and committed relationships.
138. In Hawaii, and elsewhere, people marry for a
variety of reasons including, but not limited to the following: (1)
having or raising children; (2) stability and commitment; (3)
Personal closeness (4) intimacy and monogamy; (5) the
establishment of a framework for a long-term relationship; (6)
personal significance; (7) recognition by society; and (8) certain
legal and economic protections, benefits and obligations. See
Baehr v. Lewin, 74 Haw. 530, 560-561, 852 P.2d 44, 59 (1993) for a
list of noteworthy marital rights and benefits.
In Hawaii, and elsewhere. gay men and lesbian women share
this same mix of reasons for wanting to be able to marry.
139. Simply put, Defendant has failed to establish or
prove that the public interest in the well-being of children and
families, or the optimal development of children will be adversely
affected by same-sex marriage.
140. If any of the above findings of fact shall be deemed
conclusions of law, the Court intends that every such finding shall
be construed as a conclusion of law.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter
and the parties to this action. Venue is proper in the First
Circuit Court. HRS 603-21.5 and 603-36.
2. The trier of fact determines the credibility of a
witness and the weight to be given to his or her testimony. In
pertinent part, the trier of fact may consider the witness'
demeanor and manner while on the stand, the character of his or her
testimony as being probable or improbable, inconsistencies, patent
omissions and discrepancies in his or her testimony or between the
testimony of other witnesses, contradictory testimony or evidence,
his or her interest in the outcome to the case and other factors
bearing upon the truthfulness or untruthfulness of the witness'
testimony. Younq Ah Chor v. Dulles, 270 F.2d 338! 341 (9th Cir.,
1959); and Nani Koolau Co. v. Komo Construction, Inc., 5 Haw. App.
137, 139-140, 681 P.2d 580, 584 (1984). In a non-jury trial, the
credibility of a witness is a matter for the trial court to
determine and the court can accept or reject the testimony of a
witness in whole or in part. Lee v. Kimura, 2 Haw. App. 538, 544,
634 P.2d 1043, 1047-1048 (1981).
3. Defendant's burden in this case is to "overcome the
presumption that HRS 572-1 is unconstitutional by demonstrating
that it furthers a compelling state interest and is narrowly drawn
to avoid unnecessary abridgements of constitutional rights."
Baehr, 74 Haw. 530, 583, 852 P.2d 44, 74 (1993) citing Naqle v.
Board of Education, 63 Haw. 389, 392, 629 P.2d 109, 111 (1987) and
Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978).
4. There is no fundamental right to marriage for same
sex couples under article I, section 6 of the Hawaii Constitution.
Marriage is a state-conferred legal status which gives rise to
certain rights and benefits. Baehr v. Lewin, 74 Haw. 530, 557 and
560-561, 852 P.2d 44, 57 (1993).
5. The Department of Health, State of Hawaii, has the
exclusive authority to issue licenses to marriage applicants.
Baehr v. Lewin, 74 Haw. 530, 560, 852 P.2d 44, 59 (1993).
6. There are certain rights and benefits which
accompany the state-conferred legal status of marriage See Baehr
v. Lewin, 74 Haw. 530, 560-561, 852 P.2d 44, 59 (1993) for a list
of noteworthy marital rights and benefits.
7. If Plaintiffs, and other same-sex couples, were
allowed the state-conferred legal status of marriage, they would be
conferred with these and other marital rights and benefits.
8. HRS 572-1, on its face and as applied, regulates
access to the status of marriage and its concomitant rights and
benefits on the basis of the applicants' sex. As such, HRS 572-1
establishes a sex-based classification. Baehr v. Lewin, 74 Haw.
530, 572, 852 P.2d 44, 64 (1993).
9. Sex is a "suspect category" for purposes of equal
protection analysis under article I, section 5 of the Hawaii
Constitution. Consequently, HRS 572-1 is subject to the "strict
scrutiny" test. Baehr v. Lewin, 74 Haw. 530, 580, 852 P.2d 44, 67
(1993).
10. Defendant, rather than Plaintiffs, carries a heavy
burden of justification. Nachtwey v. Doi, 59 Haw. 430, 435, 583
P.2d 955, 959 (1978) citing San Antonio School District v.
Rodriquez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16,
33 (1973).
11. Specifically, HRS 572-1 is presumed to be
unconstitutional and the burden is on Defendant to show that the
statute's sex-based classification is justified by compelling state
interests and the statute is narrowly drawn to avoid unnecessary
abridgments of constitutional rights. Baehr v. Lewin, 74 Haw. 530,
583, 852 P.2d 44, 67 (1993), reconsideration and clarification
granted in part, 74 Haw. 645, 646, 852 P.2d 74 (1993).
12. Article IV section 1 of the U.S. Constitution
provides, in pertinent part, that all states must recognize the
"public acts, records and judicial proceedings of every other
state."
Whether other states will recognize or avoid recognizing
same-sex marriages which take place in Hawaii and the consequences
to Hawaii residents of other states' recognition or non-recognition
of same-sex marriage (and all of the rights and benefits associated
with marriage) is an important issue.
However, except for asking the court to take judicial
notice of the Defense of Marriage Act, P.L. 1-4-199 ("DOMA"),
Defendant introduced little or no other evidence with regard to
this significant issue of comity and same-sex marriage, conflict-
of-laws, and/or the effects, if any, of the Full Faith and Credit
Clause of the U.S. Constitution.
13. Except for the affidavit testimony of Kenneth K. M.
Ling and Michael L. Meaney, which provided statistical, budgetary
and operational information regarding the Family Court of the First
Circuit Court and the Child Support Enforcement Agency, State of
Hawaii, respectively Defendant presented little or no other
evidence which addressed how same-sex marriage would adversely
affect the public fisc. Defendant did not offer any testimony
which explained the significance of the above and Defendant did not
specifically explain or establish how same-sex marriage would
adversely impact the Family Court or the Child Support Enforcement
Agency.
14. Defendant presented meager evidence with regard to
the importance of the institution of traditional marriage, the
benefits which that relationship provides to the community and,
most importantly, the adverse effects, if any, which same-sex
marriage would have on the institution of traditional marriage and
how those adverse effects would impact on the community and
society. The evidentiary record in this case is inadequate to
thoughtfully examine and decide these significant issues.
15. Finally, Defendant's argument that legalized
prostitution, incest and polygamy will occur if same-sex marriage
is allowed disregards existing statutes and established precedent
[for example, State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)
(upholding ban on prostitution)] and the Supreme Court's
acknowledgment of compelling reasons to prevent and prohibit
marriage under circumstances such as incest. Baehr v. Lewin, 74
Haw. 530, 562 n.19, 852 P.2d 44, 59 n.19 (1993).
16. In Dean v. District of Columbia, 653 A.2d 307
(D.C.App. 1995), two homosexual males filed a complaint against the
District of Columbia which sought an injunction to require the
Clerk of the Superior Court to issue them a marriage license. The
trial court granted summary judgment in favor of the District of
Columbia. On appeal, the District of Columbia Court of Appeals
affirmed the trial court's order granting summary judgment.
In the Dean case, Judge Ferren wrote a lengthy opinion
concurring in part and dissenting in part, and in which the
majority joined in part.
Judge Ferren would have reversed summary judgment and
remanded the case for trial to decide (1) the level of scrutiny
constitutionally required, and (2) whether the District of Columbia
has demonstrated a compelling or substantial enough governmental
interest to justify refusing plaintiffs a marriage license. The
portion of Judge Ferren's opinion which deals with the question of
whether the District of Columbia could demonstrate at trial a
substantial or compelling state interest is useful and informative.
In pertinent part, Judge Ferren wrote the following.
[I]f the government cannot cite actual
prejudice to the public majority from a change
in the law to allow same-sex marriages . . .
then the public majority will not have a sound
basis for claiming a compelling, or even a
substantial, state interest in withholding the
marriage statute from same-sex couples; a mere
feeling of distaste or even revulsion at what
someone else is or does, simply because it
offends majority values without causing
concrete harm, cannot justify inherently
discriminatory legislation against members of
a constitutionally protected class - as the
history of constitutional rulings against
racially discriminatory legislation makes
clear.
Suppose, on the other hand, that
scientifically credible "deterrence" evidence
were forthcoming at trial, so that either the
heterosexual majority or the homosexual
minority would be prejudiced in some concrete
way, depending on whether the marriage statute
was, or was not, available to homosexual
couples. In that case, the ultimate question
of whose values should be enforced, framed in
terms of what a substantial or compelling
state interest really is, would pose the hardest possible
question for the court as
majority and minority interests resoundingly
clash.
Dean at 653 A.2d at 355-356 (1995) (footnotes omitted).
17. In this case, the evidence presented by Defendant
does not establish or prove that same-sex marriage will result in
prejudice or harm to an important public or governmental interest.
18. Defendant has not demonstrated a basis for his claim
of the existence of compelling state interests sufficient to
justify withholding the legal status of marriage from Plaintiffs.
As discussed hereinabove, Defendant has failed to present
sufficient credible evidence which demonstrates that the public
interest in the well-being of children and families, or the optimal
development of children would be adversely affected by same-sex
marriage. Nor has Defendant demonstrated how same-sex marriage
would adversely affect the public fisc, the state interest in
assuring recognition of Hawaii marriages in other states, the
institution of traditional marriage, or any other important public
or governmental interest.
The evidentiary record presented in this case does not
justify the sex-based classification of HRS 572-1.
Therefore, the court specifically finds and concludes, as
a matter of law, that Defendant has failed to sustain his burden to
overcome the presumption that HRS 572-1 is unconstitutional by
demonstrating or proving that the statute furthers a compelling
state interest.
19. Further, even assuming arguendo that Defendant was
able to demonstrate that the sex-based classification of HRS 572-1
is justified because it furthers a compelling state interest,
Defendant has failed to establish that HRS 572-1 is narrowly
tailored to avoid unnecessary abridgments of constitutional rights.
Nachtwey v. Doi, 59 Haw. 430, 435, 583 P.2d 955, 958 (1978)
(citations omitted) (quoting San Antonio School District v. Rodriquez, 411
U.S. 1, 16-17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973).
20. If any of the above conclusions of law shall be
deemed findings of fact, the court intends that each such
conclusion be construed as a finding of fact.
21. Based on the foregoing, in accordance with the
mandate of the Hawaii Supreme Court, and applying the law to the
evidence presented at trial, judgment shall be entered in favor of
Plaintiffs Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette
Pregil, Pat Lagon and Joseph Melillo as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. The sex-based classification in HRS 572-1, on its
face and as applied, is unconstitutional and in violation of the
equal protection clause of article I, section 5 of the Hawaii
Constitution.
2. Defendant Lawrence H. Miike, as Director of
Department of Health, State of Hawaii, and his agents, and any
person in acting in concert with Defendant or claiming by or
through him, is enjoined from denying an application for a
marriage license solely because the applicants are of the same sex.
3. To the extent permitted by law, costs shall be
imposed against Defendant and awarded in favor of Plaintiffs.
DATED: Honolulu. Hawaii. December 3, 1996.
KEVIN S. C. CHANG
Judge of the Above-Entitled