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Same Sex Marriage: Report of the Commission on Sexual Orientation and the Law [Folder 2] [1]
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�Report of the Commission
On Sexual Orientation
And the Law
Thomas P. Gill, Chair
Morgan Britt
L. KiTumeaaloha Gomes
Lloyd James Hochberg, Jr.
Nanci Kreidman
Marie A. "Toni" Sheldon
Bob StaufTer
December 8, 1995
ADVANCE COPY
�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.
ui
�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.
Act
This Report is being submitted to the Legislature pursuant to the timetable set forth in
The next move is up to that body.
IV
�T A B L E OF CONTENTS
Page
SUMMARY
iii
ACKNOWLEDGMENT
vi
PREFACE
Chapter 1.
vii
Major Legal and Economic Benefits
Extended to Married Opposite-Gender
Couples, But Not to Same-Gender Couples
1
Substantial Public Policy Reasons to
Extend or Not to Extend Such Benefits in
Part or in Total to Same-Gender Couples
23
Appropriate Action Which May be Taken
by the Legislature to Extend Such
Benefits to Same-Gender Couples
35
Chapter 4.
Findings and Recommendations
43
Chapter 5.
Minority Opinion
45
Chapter 6.
Majority- Response to Minority Opinion
97
Chapter 2.
Chapter 3.
APPENDICES
A.
Act 5, Session Laws of Hawaii 1995
103
B.
List of Hawaii Revised Statutes
105
C.
Invited Guests
127
D.
Suggested Legislation
133
E.
Historical Lessons
179
F.
Collection of References
183
G.
Survey of Public Opinion Polls
201
H.
Written Communications Between Commissioners
205
I.
Selected Testimony
241
BIBLIOGRAPHY
285
�ACKNOWLEDGEMENT
The Commission on Sexual Orientation and the Law acknowledges the assistance that
has been received, and thanks all those who assisted. Amongst those who helped make this
report possible are the Hawaii Legislature and Governor, and the Legislative Reference
Bureau and its tireless staff, including in particular, Pamela Martin, Esq. The Commission
also expresses its appreciation to the many people who testified and provided valuable
information and materials, including those who flew from the neighbor islands and even the
United States mainland to testify. The Legislative Reference Bureau printed this report as
received from the Commission and was not responsible for the editing of the content of this
report.
VI
�PREFACE
This report is submitted by the Commission on Sexual Orientation and the Law to the
Eighteenth Legislature as requested by Act 5, Session Laws of Hawaii 1995. Act 5 is
attached to this report as Appendix A.
I.
Background and Authority
The Commission on Sexual Orientation and the Law was convened by the Legislature
to address some of the issues that have arisen in the case of Baehr v. Lewin, 74 Haw.530,
(1993).
A.
Baehr v. Lewin; An Overview
A lawsuit filed in May 1991 by three same-gender couples against the State of Hawaii,
specifically against John Lewin, in his capacity as the Director of Health, complained of an
unconstitutional marriage law that prohibited same-gender couples from obtaining marriage
licenses. The complaint alleged a violation of the couple's right to privacy and equal
protection under the Constitution of the State of Hawaii. The trial court dismissed the case
on the pleadings and the couples appealed to the Supreme Court of Hawaii. In May 1993 the
Supreme Court reversed the trial court and remanded the case back for trial. Although the
Supreme Court found that there is no fundamental right to same-sex marriage under the right
to privacy, the court did conclude that the marriage law does deny the same-gender couples
equal protection rights in violation of article I, Section 5 of the Hawaii Constitution. The
Hawaii Supreme Court held that the discrimination is based on the "gender" of an individual
and is a "suspect category." Therefore, for purposes of the equal protection analysis, the
marriage law is subject to a "strict scrutiny" test. This places the burden on the State to
show that the statute's gender-based classification is justified by compelling state interests
1
2
3
4
1.
Right to privacy, Article 1, Section 6 of the Hawaii Constitution provides:
"The right of the people to privacy is recognized and shall not be infringed without
the showing of a compelling state interest. The Legislature shall take affirmative
steps to implement this right."
Right to Equal Protection, Article 1, Section 5 of the Hawaii Constitution provides:
"No person shall be deprived of life, liberty or property without due process of law,
nor be denied the equal protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the exercise thereof because of
race, religion, sex or ancestry."
2.
Baehr v. Leuin, 74 Haw. 530, 852 P.2d 44 (1993) at 74 Haw. 557.
3.
Baehr, 74 Haw. at 564.
4.
Baehr, 74 Haw. at 580.
vu
�and the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples'
constitutional rights.
5
B.
Legislative Action
The Legislature reacted to the Supreme Court's decision in Baehr v. Lewin by holding
public hearings throughout the State in September and October of 1993. At the next
legislative session the Legislature proceeded to pass Act 217, Session Laws of Hawaii 1994.
Act 217 accomplished several things.
First, Act 217 provided a venue in its purpose section for the Legislature to express its
position. The purpose section of Act 217 has been interpreted to create legislative history
after the fact while at the same time telling the Supreme Court not to interpret the law in a
different fashion. Second, Act 217 also amended the marriage law to specifically require a
man and a woman to be eligible for a marriage license, but it did not prohibit the private
solemnization of any ceremony. Third, Act 217 created the prior Commission on Sexual
Orientation and the Law.
The Commission as created by Act 217 (hereafter the " Act 217 Commission*') was an
eleven-member Commission that had representatives from an assorted group of
organizations, some religious in nature.. In December of 1994, a federal lawsuit was filed in
United States District Court against the Governor concerning the appointment of certain
members of the Act 217 Commission. The suit complained of a constitutional violation that
was based on the separation of church and state. Judge Harold Fong ultimately granted the
plaintiff's motion to permanently enjoin the participation of those members of the Act 217
Commission who represented the Catholic Diocese and the Church of Jesus Christ Latter-Day
Saints In January of 1995 the eleven-member Act 217 Commission was left with seven
members. The Legislature created a new Commission in Act 5, Session Laws of Hawaii 1995
(hereafter the "Act 5 Commission" or simply "the Commission").
6
II.
The Commission Members
Act 5, Session Laws of Hawaii 1995 specified that a seven-member Commission be
appointed by the Governor with at least two members selected from a list from the Senate
President and two from a list provided by the Speaker of the House. In early August 1995 the
Governor appointed Thomas P. Gill, Chairperson, and Morgan Birtt, Ku'umeaaloha Gomes,
Lloyd James Hochberg, Jr., Nanci Kreidman, Marie "Toni" Sheldon, and Robert Stauffer to
the Commission. Mr. Hochberg and Ms. Sheldon were selected from the Speaker's list and
5.
Id.
6.
McGivem v. Woihee, United States District Court, District of Hawaii, Civil No. 94-00843,
HMF, Jan. 13, 1995.
vui
�Mr. Gill and Ms. Kreidman were selected from the Senate President's list.
Ms. Gomes, and Dr. Stauffer were Governor appointees.
III.
Mr. Britt,
Report Overview
The Act 5 Commission had their first meeting on September 13, 1995. A schedule
was submitted and accepted that followed the structure of the authorizing Act, breaking the
Commission's work into three tasks. Discussion on each task was planned for one meeting
with voting on the issue at another. The Commission met at least every two weeks until the
report was finalized December 8, 1995. The accepted schedule was adhered to as closely as
possible. In order to stay on schedule and complete the tasks assigned, some meetings had
to be recessed and continued to finish important matters on the agenda. In addition,
subcommittees of the minority and majority were formed early in November, and each met to
expedite the drafting of this report.
7
8
9
All meetings were open, noticed according to the Sunshine Law, and an opportunity
for the public to submit oral testimony was scheduled on each agenda. The fact that all
meetings were held on Oahu made the participation of citizens of the neighbor islands a
concern to the Commission. Several members of neighbor island communities did, at their
own expense come to testify, and others submitted written testimony. There were no funds
allotted to the Legislative Reference Bureau for the Commission to hold meetings on the
neighbor islands. To allow as much participation as possible, the Commission used the State
Library System in all counties to disseminate the draft report for public review and comment
before finalizing the report.
10
11
7.
The full Commission meeting noticed and held on October 11, 1995, continued to
October 12; the meeting noticed and held on October 25, continued to October 26,
November 1, 2, 6 and adjourned on the 7th; the meeting noticed and held on November 22,
contined to November 29, December 4, and adjourned December 6.
8.
The minority subcommittee meeting held on November 9, continued on the 14th, the 15th
and adjourned on the 20th. Another minority subcommittee meeting was noticed and held
on December 5, 1995.
The majority subcommittee meeting noticed and held on
November 13, 1995 was continued to the 15th and 16th. A second majority subcommittee
meeting was noticed and held on November 30, 1995 and continued to December 5, 1995.
9.
Section 92-7, Hawaii Rnrised Statutes (1993 and Supp. 1995).
10.
See Minutes of October 11, 1995, pgs. T-4 and T-98 for testimony of David Kawate of
Kauai; Penelope Spiller of Molokai; Minutes of October 25, 1995, pgs. T - l , and T-2 for
testimony of Bruce Fernandes of Maui; Sandra Pelosi of Maui; See minutes of November 8,
1995, pgs. T-86-89 for testimony of Diane Sutton of the Big Island and Martin Rice of
Kauai.
11.
A summary of the public response received after the public release of the draft report on
November 27, 1995 indicated support of the Commission's work from 455 individuals, 14
organizations and 126 signatures on petitions. Objections to the report were received from
578 individuals, 9 organizations and almost 3,000 signatures on petitions from thirty-two
different groups.
�Early in the Commission meetings it was apparent that all the findings and
recommendations of the Commission would not be unanimous. The majority position was
favorable to extending marital rights to same-gender couples in some form. The minority
position was against such extension. In order to allow both sides to fully express their
positions, it was agreed to allow the minority to prepare and submit a separate chapter. While
the minority participated in the discussion of each issue before the Commission, the majority
did not interfere with the wording or content of the minority chapter.
12
The parts of the report coincide with the authorizing Act as to each of the three tasks.
Chapter 1 addresses the first task:
"(1)
Examine the major legal and economic benefits extended to married oppositesex couples but not to same-sex couples."
Chapter 2 focuses on the issues surrounding the second task:
"(2)
Examine the substantial public policy reasons to extend or not to extend such
benefits in part or in total to same-sex couples."
Chapter 3 reviews the different options that were considered by the Commission in the
exercise of their final task assigned:
"(3)
Recommend appropriate action which may be taken by the legislature to extend
such benefits to same-sex couples."
Chapter 4 of this report presents the findings and recommendations of the
Commission.
Chapter 5 contains the minority opinion in full.
Chapter 6 is a response by the majority of the Commission to the minority opinion.
12.
See votes on motions recording a 4-2 majority in Minutes of September 13, 1995, pg. 3,
Minutes of September 27, 1995, pgs. 4, 5 and 12; Minutes of October 11, 1995, pg. 5.
�Chapter 1
MAJOR LEGAL AND ECONOMIC BENEFITS
EXTENDED TO MARRIED OPPOSITE-GENDER COUPLES,
BUT NOT TO SAME-GENDER COUPLES
The Commission approached their first task to
"(1) Examine the major legal and economic benefits extended to married oppositesex couples, but not to same-sex couples;"
by reviewing the Hawaii Supreme Court decision in Baehr v. Lewin, inviting various speakers
to testify, and reviewing the work of the former Act 217 Commission.
I.
Supreme Court and Act 217 Commission's Work
The Supreme Court of the State of Hawaii identified fourteen different "salient marital
rights and benefits" in the Baehr decision. This served as the starting point for the Act 5
Commission.
13
The Act 217 Commission had started identifying specific statutes that conveyed
benefits but did not complete their review of the entire Hawaii Revised Statutes. The
Legislative Reference Bureau completed the analysis and submitted and distributed to
Commission members a memorandum identifying thirty-seven areas of the law (including the
fourteen previously identified by the Supreme Court) which may confer major legal and
economic benefits.
II.
Invited Guests
The Commission invited several individuals to speak to them regarding their opinions
on the legal and economic benefits of marriage. The speakers represented a range of
expertise including economists, a professor of tax law, representatives from the Employees
Health Fund and the Employees' Retirement System, as well as the attorneys representing
the parties in the Baehr v. Lewin case. Others were invited but could not attend. A list of
invited guests for this topic as well as other topics appears in Appendix C.
13.
"Although it is unnecessary in this opinion to engage in an encyclopedic recitation of all of
them, a number of most salient marital rights and benefits are worthy of note. They
include: (1) a variety of state income tax advantages, including deductions, credits, rates,
exemptions, and estimates, under MRS, chapter 235 (1985 and Supp. 1992); (2) public
assistance from and exemptions relating to the Department of Human Services under HRS
chapter 346 (1985 and Supp. 1992); (3) control, division, acquisition, and disposition of
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
III.
Terminology
An important terminology modification made by the Commission should be noted. In
an effort to be more precise and avoid confusion, the term "sex" has been replaced with the
term "gender".
A.
The Definition of Major Legal and Economic Benefit
The Commission's task includes examining major benefits, necessitating
understanding the meaning of that term. As it was not defined in the legislative history, the
Commission adopted the common rule of interpretation that the words of law are generally to
be understood in their most known and usual significance.
Using this general
understanding rule for the definition of "major" is similar to the reasoning applied by the
Supreme Court of Hawaii in identifying some of the "most salient" benefits of marriage which
relied on a combination of legal and economic factors. This definition would necessarily
include a range of benefits from those of lesser direct economic value, but of major emotional
importance, to those with great economic value and of major importance.
14
15
This definition of major legal and economic benefit has been the subject of vigorous
debate. Act 5 differs from Act 217 with regard to the first defined purpose of the Commission
by replacing the word "precise" with "major." Without direct legislative intent this proved to
be a controversial topic. Several objections to the definition, together with several alternative
approaches to resolving this issue were examined.
16
community property under HRS chapter 510 (1985); (4) rights relating to dower, curtesy,
and inheritance under HRS chapter 533 (1985 and Supp. 1992); (5) rights to notice,
protection, benefits, and inheritance under the Uniform Probate Code, HRS chapter 560
(1985 and Supp. 1992); (6) award of child custody and support payments in divorce
proceedings under HRS chapter 571 (1985 and Supp. 1992); (7) the right to spousal support
pursuant to HRS section 572-24 (1985); (8) the right to enter into premarital agreements
under HRS chapter 572D (Supp. 1992); (9) the right to change of name pursuant to HRS
section 574-5(a)(3) (Supp. 1992); (10) the right to file a nonsupport action under HRS
chapter 575 (1985 and Supp. 1992); (11) post-divorce rights relating to support and
property division under HRS chapter 580 (1985 and Supp. 1992); (12) the benefit of the
spousal privilege and confidential marital communications pursuant to Rule 505 of the
Hawaii Rules of Evidence (1985); (13) the benefit of the exemption of real property from
attachment and execution under HRS chapter 651 (1985); and (14) the right to bring a
wrongful death action under HRS chapter 663 (1985 and Supp. 1992)." Baehr, 74 Haw. at
560, 561.
14.
See Minutes of October 25, 1995, referring to section 1-14, Hawaii Revised Sututes (1993)
as the authority for this point.
15.
See Note 13 and Minutes of October 25, 1995.
16.
Compare Act 217, Session Laws of Hawaii 1994:
"(1)
Identify the precise legal and economic benefits to married couples that
�MAJOR LEGAL AND ECONOMIC BENEFITS
A draft list of major legal benefits was generated by the Legislative Reference Bureau
using the definition of the Act 217 Commission.
This definition necessarily included
benefits that could be obtained through other means in the law but accounted for "lazy
spouse" benefits which referred to instances where if no action is taken the benefit
automatically inures to the spouse. It also included a benefit even if a burden was attached to
it.
17
A second definition was suggested that would operate to exclude a statute as
bestowing a benefit if that benefit could be obtained by other avenues in the law. In other
words, if it costs $50 to change your name if you are a same-gender couple, but it is free if
you are legally married, then this $50 marriage benefit should not be counted as it is
technically not prohibited for same-gender couples who want to change their names and are
willing and able to pay. It is the opinion of both the minority and the majority that to
determine whether there is a major legal and economic benefit you necessarily have to
include the balancing of any burden. Where the minority differed was in application of that
principle. In a definition that was rejected twice by the majority, the minority would like to
apply a four-step analysis to their definition that is structured as follows:
18
19
20
(1)
Does the statute in question create a significant improvement in condition or
advantage for a married couple as a result of holding the status "spouse" or
"family"? If yes, then
(2)
Is there any burden associated with that significant improvement in condition or
advantage? If no, then go to question (4); if yes then
are not extended to same-sex couples."
with Act 5, Session Laws of Hawaii 1995:
(1)
Identify the major legal and economic benefits to married couples that
are not extended to same-sex couples."
17.
The specific definition of the Act 217 Commission is "Anything contributing to an
improvement in condition or an advantage that a married couple would have as result of
holding the status "spouse" or "family" that would not be offered to a same-gender couple
even though they had the same commitments to each other as a married couple." Interim
Report of the Commission on Sexual Orientation and the Law, January 17, 1995, pg. 2.
18.
The specific definition proposed by Commissioner Hochberg is: "A resultant significant
improvement in condition or resultant significant advantage, after consideration of
concomitant burdens, which a married couple enjoys as a result of holding the status
"spouse" or "family" that would not be either offered to a same-sex couple nor available to a
same-sex couple by another avenue or means." See Minutes of September 27, 1995, and
Minutes of October 11, 1995.
19.
Under minority reasoning, the Hawaii Supreme Court would be in error for including the
name-change as a "most salient" benefit of legal marriage. See also Note 13.
20.
See Minutes of October 11, 1995, pgs. 5 and 18.
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
(3)
After considering the burden associated with the improvement in condition or
advantage, is the remaining improvement in condition or advantage still
significant? If yes, then
(4)
Is that remaining significant improvement in condition or advantage not offered
to a same-sex couple nor available to a same-sex couple by another avenue or
means?
The majority considered this definition. But when the Commission applied this formula to the
fourteen marriage benefits identified by the Supreme Court, not one would qualify as a
benefit. Therefore, this formula was rejected as flawed.
One economist defined "major economic benefit" as a large benefit to a large group of
people as distinguished from a large benefit to a small group of people, or small benefits or
infrequent large benefits to a small group of people. A second economist approached the
topic by attempting to calculate the benefit to society from extending benefits to same-sex
couples
That analysis did not address the direct benefit to an individual but instead
included calculations that took into account the probability of a member of the public actually
taking advantage- of a particular benefit, which greatly reduced its economic value. This
made it difficult to compare and contrast their testimonies, as they approached the topic from
different points of view, somewhat like comparing apples with oranges. For example, in
analyzing what the economic benefit of offering a resident tuition to the spouse of a nonresident University of Hawaii faculty member, Dr. Moheb Ghali took the differential value of
the tuition, $1,500, and then multiplied it by the probability of someone taking advantage of
the benefit, which is one in a thousand (1500 x .001), and arrived at a $1.50 value for that
benefit. Dr. Ghali further discounted the value of a resident tuition to a nonresident spouse
over a five-year period and arrived at a present economic value of ninety-six cents The
distributive expected value economic analysis of Dr. Moheb Ghali may be accepted economic
practice, but Dr. Ghali's "barricade of abstraction that separates us from economic reality"
does not consider the direct benefit to the individual, and therefore the Commission has
21
22
2 3
2 4
25
21.
Section 11-204, Hawaii Revised Statutes (1993 and Supp. 1995), was used as an example of
this. This allows a candidate for public office to receive not more than $50,000 from an
immediate family member; otherwise contributions are limited to $2,000, $4,000, or
$6,000 per individual. See Minutes of September 27, 1995, for testimony of Sumner La
Croix, Ph.D.
22.
Section 304-4(b), Hawaii Revised Statutes (1993 and Supp. 1995), authorizes a non-resident
university employee's spouse to qualify for a resident tuition.
23.
See Minutes of the October 11, 1995, pg. T-34 for testimony of Moheb Ghali, Ph.D., and
attached in Appendix I .
24.
I±
25.
Cobb, Clifford, Ted Halstead and Jonathan Rowe, " I f the GDP Is Up, Why Is America
Down?" The Atlantic Monthly, October 1995, pgs. 59-78.
�MAJOR LEGAL AND ECONOMIC BENEFITS
rejected his economic valuations. Dr. Sumner La Croix's analysis would value this benefit at
the full differential. While he recognizes that it is likely that there will be only a few instances
in a year, he also states that "the sum of these numerous small benefits can be quantitatively
significant." The Commission agreed that to some people the sum of many of these small
benefits or just one may create a major benefit.
26
27
B.
Balancing the Burdens Against the Benefits of the Marriage Law
28
The public testimony of both economists and the professor of law brought out that it
would be unfair or an incomplete review if the examining of benefits was not weighed with any
correlating burdens. The Commission did not disagree and, while no formal motions were
made, it was accepted that the burdens would be addressed at the appropriate time. The
double-edged sword of marriage rights and benefits versus the burdens and obligations
appears particularly in the arena of determining the economic value of benefits.
C.
Economic Values
The economic values of each benefit received great attention by the Commission.
Attempting to quantify the exact value of every benefit was impossible, as was pointed out by
both economists who testified before the Commission. Even between economists there
appeared to be some difference in what to measure, the value of the benefit to the individual,
or the value to society of the benefit extended to the individual. The Commission was able
to categorize benefits into three categories:
29
1.
Intangible Benefits
Intangible benefits were defined by the Commission to include the legal
benefits that are often closest to the hearts of the affected couples who are denied the right to
marry.30 These types of benefits are not associated with any monetary value. Quantifying
the values of intangible benefits is often left to juries in civil proceedings.
26.
See Minutes of September 27, 1995, pg. T-10 for testimony of Sumner LaCroix, Ph.D. and
Lee Badgett and attached in Appendix I .
27.
See Minutes of September 27, 1995.
28.
See Minutes of September 27, 1995, for testimony of Sumner La Croix, Ph.D., and Randall
Roth, Esq., and Minutes of October 11, 1995 for testimony of Moheb Ghali, Ph.D.
29.
Compare the testimony of Sumner La Croix on pg. 243 of this report, an excerpt of the
Minutes of September 27, 1995 and testimony of Moheb Ghali, on pg. 269 of this report, an
excerpt of the Minutes of October 11, 1995, in Appendix I .
30.
See Minutes of October 25, 1995.
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
2.
Substantial-Quantifiable Benefits
A second category of benefits was defined as substantial-quantifiable benefits.
Benefits in this category are generally tied to monetary amounts. This type of benefit is also
the type that usually has a burden associated with it.
3.
General Benefits
General benefits are defined as a catch-all for benefits that do not fit into the
categories above. General benefits may not have a major economic value or are used
infrequently although they may have a major impact on an individual couple. In addition,
general benefits can refer to the sum total of smaller benefits that may have a major impact
on an individual couple.
D.
Other Jurisdictions and Dependent Benefits
The Commission could not ignore all the benefits that are reliant on the State's
definition of marriage. When the State defines a spouse it has the effect of pushing the first
domino in a parade of dominos. The marriage certificate affects issues under county
ordinances, other state laws, federal laws and regulations, international treaties, as well
as issues in private industry. While the Commission recognizes many possible reactions in
other states and in the federal jurisdictions to allowing marital status to same-gender couples,
such reactions cannot be accurately predicted. Further, it is not the Commission's task to
analyze such reactions, and many would be based on private litigation. Rather, it is the
Commission's task to recommend what will best serve the public interest and the private
rights of people in Hawaii. While exploring all these benefits is beyond the scope of this
Commission's assigned tasks, the Commission did hear a considerable amount of
31
32
31.
See Minutes of September 27, 1995, pg. T-14, for testimony of Sumner La Croix, Ph.D. and
pg. T-23, for testimony of Randall Roth, Esq., citing benefits in the estate tax area, social
security programs, and federal immigration law.
32.
See the following excerpt from the Minutes of October 25, 1995:
"International Implications
It is understood that most nations of the world bestow special rights and
benefits, or allow special benefits to be chosen, by persons who are recognized
as having a government marriage certificate. It is likewise understood that
these foreign countries generally recognize U.S. marriage certificates. Finally,
it is understood that under the American federal system of governance, the
actual issuance of U.S. marriage certificates is done by the individual states,
including Hawaii.
As such, it can be persuasively argued that the conferring of a marriage
certificate by the State of Hawaii carries with it certain major legal and
economic benefits in these foreign countries, should a couple with such a
marriage certificate visit or otherwise have dealings with such foreign
countries. But these major legal and economic benefits are all subject to the
applicable provisions of international law, any other applicable treaty
provisions that each such country has with the United States, and subject
�MAJOR LEGAL AND ECONOMIC BENEFITS
33
testimony with regard to the federal tax system, and as our state tax system is based on the
Internal Revenue Code, the essence of that discussion is included in this report.
34
Regarding tax issues, both economists and the professor of tax law agreed that the tax
law can carry a marriage "bonus" or a marriage "penalty" and was strictly dependent on
individual fact situations. For example, when married couples have two $100,000 incomes
there is a marriage "penalty," but if the same amount of income ($200,000) is earned by one
married individual with the other married individual as a dependent, there is a benefit of
reduced taxes. Combining several ideas suggested by those who testified before the
Commission, the benefit may be framed in this particular situation as giving the couple the
opportunity to make a choice to select an "economy of the family." This economy of the
family issue relates to the decisions families make as to what is the best economic situation
for the family. For example, does one spouse work in the home to provide care for children or
do both spouses choose to work and pay someone to care for the children. Often these
decisions are based on the economic impact of these decisions. For example, will there be
higher taxes if both work, or additional costs for health insurance? And what is the cost of a
caregiver for a dependent?
35
36
37
The Commission attempted to identify persons in the private industry who would speak
on the major legal and economic benefits associated with marriage in the private industry but
was unable to. Thus, having no direct testimony related to the benefits in private industry, the
Commission did not deal directly with those issues.
further to any applicable internal laws or judicial decisions within each such
country.
An investigation of such international scope has not, to the
Commission's knowledge, ever been undertaken. The scale of such a study is
also clearly outside of the resources made available to the Commission.
As such, the Commission finds that a persuasive argument exists that
many major legal and economic benefits available in foreign countries are
conferred on a couple through the State of Hawaii's conferring of a marriage
certificate.
At the same time, the Commission finds that a precise listing or
valuation of such major legal and economic benefits is outside the scope of its
appropriated investigative resources, and therefore outside the scope of this
report."
33.
See Minutes of September 27, 1995, pg. T-24, for testimony of Randall Roth, Esq., and pgs.
T-13 and T-21, for testimony of Sumner La Croix, Ph.D. and the Minutes of October 11,
1995, pg. T-33, for testimony of Moheb Ghali, Ph.D.
34.
See section 235-3, Hawaii Revised Statules (1993) and generally, see sections 235-2.3, 2.4 and
2.5, Hawaii Revised Statutes (1993 and Supp. 1995).
35.
Id.
36.
See Minutes of September 27, 1995, pg. 9.
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
IV.
Conclusions
After reviewing the variety of definitions for major legal and economic benefits, a
majority of the Commission decided not to view this definition as a static formula to be applied
mechanically to each statute but instead to adopt a concept that would provide guiding
principles to help clarify and identify the major legal and economic benefits to the
Commission. This concept is similar to the reasoning applied by the Supreme Court of
Hawaii in identifying "most salient" rights. And the Commission, as did the Supreme Court,
relied on a combination of legal and economic factors in arriving at the list of major legal and
economic benefits extended to opposite-sex couples but not to same-sex couples. The major
legal and economic benefits identified by the Commission included benefits from the three
categories of economic value benefits.
A.
Intangible Benefits
Intangible benefits, as explained earlier in the text, often have almost no real economic
value. While they cost nothing in terms of burdens on the State, ironically some of them
involve some cost to the individual spouse. The intangible benefits identified by the
Commission as major legal and economic benefits are the right to visit a spouse in the
hospital, to make decisions regarding the medical use of a spouse's body, to decide the
final disposition of a spouse's body, to receive legal notice of certain proceedings in law,
the right of spousal privilege and confidential marital communications under the rules of
evidence, the extension of the physician-patient privilege to family members, and above
38
39
40
42
41
43
37.
See Minutes of October 11, 1995, pg. T-32, for testimony of Moheb Ghali, Ph.D. describing
family decisions to join the work force and be entitled to health insurance.
38.
While this benefit has no statutory citation it is well-accepted policy of many hospitals to
allow only family members to visit seriously ill patients.
39.
Section 327-5, Hawaii Rnnsed Statutes (1993), relying on section 327-3, Hawaii Rarised Statutes
(1993), for authorized personnel for that decision.
40.
Section 346-15(d), Hawaii Revised Statutes (1993).
41.
See sections 334-60.4, 334-60.5, 334-125, and 334-134, Hawaii Revised Statutes (1993 and
Supp. 1994) (notice for involuntary hospitalization for mental health reasons); section
346-71, Hawaii Revised Statutes (1993) (notice required for proceedings for order for immediate
protection to spouse.
42.
Section 626:1-505, Hawaii Revised Statutes (1993).
43.
Section 626:1-504, Hawaii Revised Statutes (1993).
�MAJOR LEGAL AND ECONOMIC BENEFITS
44
all, the simple recognition and equality that is bestowed by section 572-1, Hawaii Revised
Statutes, the requisites to enter into a valid marriage contract.
B.
Substantial-quantifiable Benefits
The second category of major legal and economic benefits were identified in terms of
substantial-quantifiable benefits and contained fourteen different areas in the law. They are
1.
Spousal and dependent support benefits
2.
Health insurance benefits
3.
Other insurance benefits
4.
Retirement benefits
5.
Workers compensation benefits
6.
Wrongful death benefits
7.
Hawaiian home lands surviving spouse benefit
8.
Savings in "creating the relationship" benefits
9.
Income-tax rate benefits
10.
Other income-tax benefits
11.
Estate and transfer-tax benefits
12.
Transfer of home and capital-gains-tax benefits
13.
Tenancy by the entirety benefits
14.
Federal benefits
These major legal and economic benefits in the substantial-quantifiable category have
economic values attached to them that can be quantified. Where feasibly possible, in terms
of the actual amount of the benefit to the individual, the value is attached. The economic
valuation as analyzed by Dr. Sumner La Croix is accepted because Dr. La Croix's analysis
considers the direct benefit to the individual. The Commission identified the following major
legal and economic benefits in this category:
44.
See excerpt from the Minutes of October 25, 1995:
"The Commission further finds that beyond the specific intangible benefits
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
1.
Spousal and Dependent Support Benefits
The Commission identified the group of spousal and dependent-support
benefits as major legal and economic benefits. This package of major legal and economic
benefits is usually made available to only one spouse. Through the government's
enforcement of the marriage law, one spouse will benefit while a burden is placed on the
other spouse. That is to say, by the couple agreeing to the terms of the marriage contract,
they are each agreeing to support the other spouse. The Commission notes that of the
fourteen "most salient" benefits identified by the Supreme Court of Hawaii, six are included in
the benefits identified in this group as spousal and dependent support benefits. These
benefits as identified by the Commission are the control, division, acquisition, and disposition
of community property under Chapter 510, Hawaii Revised Statutes; the rights to notice,
protection, benefits, and inheritance under the Uniform Probate Code, Chapter 560, Hawaii
Revised Statutes; the award of child custody and support payments in divorce proceedings
45
46
47
listed above is one other that stands head and shoulders above all the other benefits
combined. That is the intangible benefit of liberty and equality. What price, what
cost, is it to lose equality?
We cheapen the discussion by reducing legal marriage to only a matter of
dollars and cents. Certainly the majority of those married couples who are allowed
to receive governmental certificates do not view these documents as passports to
economic prosperity. We should step back and look at the bigger picture.
What, for example, was the cost in human liberty to be forced to attend
segregated schools before Brown v. Board of Education 347 U.S.483 (1954)? What was
the cost in terms of human equality for different-gender couples to go to jail for
marrying the one they loved, before Loving v. Virginia, 388 U.S. 1 (1966)?
Add up the hundreds of special marriage-certificate benefits. Now subtract
their purely economic value. What you have left is the greatest intangible benefit of
all: simple recognition and equality. And the Commission finds that this value is
priceless and is above and beyond the other values, intangible or otherwise, simply
because the value of legal marriage is greater than the sum of its parts.
Indeed, the Commission finds that this intangible idea of "being really
married" through governmental certification-the intangible idea itself, removed from
all the purely economic considerations-is one of the primary benefits associated with
legal marriage in the minds of most members of the general public. The Commission
reiterates its finding: this benefit is of substantial but unquantifiable value."
45.
See Note 13.
46.
Specifically, sections 510-5, 6, 9, 10, 22, 23, 24, and 25, Hawaii Revised Statutes (1993 and
Supp. 1995).
47.
This includes the benefits of intestate succession because many people do not leave wills.
The law then provides for the distribution of the estate to the spouse or other family
members and the benefits of elective share for the spouse, the omitted spouse, and exempt
property. Specifically, sections 560:2-101, 2-102, 2-202, 2-203, 2-204, 2-205, 2-206,
2- 301, 2-401, 2-402, 2-403, 2-404, 2-508, 2-802, 3-101, 2-203, 3-403, 3-703, 3-713, 3-901,
3- 902, 3-906, 3-1212, 4-101, 4-207, 5-210, 5-301, 5-309, 5-311, 5-408, 5-410, 5-601,
6-107, Hawaii Revised Statutes (1993 and Supp. 1995).
10
�MAJOR LEGAL AND ECONOMIC BENEFITS
48
under Chapter 571, Hawaii Revised Statutes; the right to spousal support pursuant to
section 572-24, Hawaii Revised Statutes; the right to file a nonsupport action under Chapter
575, Hawaii Revised Statutes; post-divorce rights relating to support and property division
under Chapter 580, Hawaii Revised Statutes; the right to dower and curtesy under Chapter
533, Hawaii Revised Statutes; and the protection of the right to enter into a premarital
agreement under Chapter 572D.
49
50
2.
Health Insurance Benefits
The Commission also recognizes health insurance benefits as a major legal
and economic benefit. The Hawaii Prepaid Health Care Act mandates that employers
provide a minimum package of health insurance benefits to employees who work more than
twenty hours per week. The law allows an employer to charge the employee up to 1.5 percent
of the employee's wage or salary as payment towards the health insurance premium. A
parallel law mandates public employers to provide health insurance benefits. A minimum
contribution from the public employers is mandated, with the precise contribution level.set by
collective bargaining. For most workers, even if an amount is withheld from their salaries,
the portion contributed by the employer is still substantial. Some employers in Hawaii in
certain situations pay all of the insurance premium, a substantial benefit.
51
52
53
54
The law requires that the health insurance coverage provided to workers be available
to their dependents but does not require the employers to pay for the additional costs of
insuring dependents. The payment amount for the coverage of dependents under a group
rate is substantially below the cost of getting the insurance independently. This represents a
substantial benefit. Assuming one spouse is not working (the dependent spouse) and is
eligible for coverage through the other spouse's employer, and assuming the employer
contributes nothing to the cost of the dependent spouse's policy, the estimate of the value to
the married couple is $1,251.48 in saved costs by getting insurance at group rates through
the employer's plan.
55
48.
Specifically, section 571-52, Hawaii Revised Statutes (1993).
49.
Specifically, sections 575-2, and 3, Hawaii Revised Statutes (1993)
50.
Specifically, sections 572D-1, 3, 6, and 10, Hawaii Revised Statutes (1993).
51.
Chapter 393, Hawaii Revised Statutes (1993).
52.
Section 393-13, Hawaii Revised Statutes (1993).
53.
Chapter 87, Hawaii Revised Statutes (1993 and Supp. 1995).
54.
Sections 87-4 and 393-19, Hawaii Revised Statutes (1993).
55.
Sections, 87-4, 393-7, and 21, Hawaii Revised Statutes (1993).
11
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
3.
Other Insurance Benefits
In addition to health insurance benefits, the Commission recognizes other
insurance benefits as major legal and economic benefits. The Commission finds that partially
by tradition, and partially by legal mandate, insurers in Hawaii have granted certified
families discounts for various types of insurance and special considerations of spouses. This
may include premium discounts for life insurance, auto insurance, and private disability
ins ranee. The matter is sufficiently complex that the Commission has been unable to further
qu ify the amount, but the Commission finds that the benefit is substantial and includes it
as t. major legal and economic benefit.
56
4.
Retirement Benefits
The Commission identified two specific major legal and economic benefits in
the area of public employee retirement benefits. Retirement benefits are required by law for
public workers of the four Counties and the State. The two benefits are (1) retirement
health insurance coverage; and (2) death-benefit payments as part of workers' pensions. The
marriage bonus arises because these benefits are extended to surviving legal spouses in
certain circumstances.
57
This report addresses retirement health insurance coverage first. If a public
worker qualifies for retirement benefits and retires before the age where Federal Medicare
benefits become available, that worker is allowed the option of retaining the very
comprehensive medical-dental-vision-drug coverage that the worker enjoyed while in active
service with the government. Further, the worker's right to extend these benefits to a legal
spouse (a right that was enjoyed during active service), is retained: in retirement, the legal
spouse is subsidized in his or her comprehensive coverage. One estimate of the value of
this benefit is $1,464 annually.
58
59
When the public retiree reaches the age of qualifying for Medicare, the
retirement benefit shifts to paying for the "Premium for Part B" fee. This benefit is extended
to le^al spouses for the full lifetime of the spouse, whether or not the retiree predeceases the
spejse. One estimate is that this benefit is worth $553.20 annually. With legislation
presently in Congress to raise the premium cost, and with the public employers committed to
60
61
56.
Sections 431:106-105, 431:10C-103, 431:100-212, Hawaii Revised Statutes (1993 and Supp.
1995).
57.
See sections 88-11, 84, 93, and 286 Hawaii Revised Statutes (1993 and Supp. 1994) and
generally Part III Chapter 88, Hawaii Revised Statutes (1993).
58.
Section 87-4.5 and 87-6, Hawaii Revised Statutes (1993 and Supp. 1995).
59.
See Minutes of September 27, 1995, pg. T-33, for excerpt of written testimony of Cenric
Ho.
60.
Id
12
�MAJOR LEGAL AND ECONOMIC BENEFITS
covering the cost at whatever level it rises to, this benefit amount is expected to rise over
time.
Many private pension plans provide similar coverage for retirees' spouses
below the effective age for Medicare, and for retirees' spouses eligible for Medicare coverage.
Like the legal mandate for public employees, this traditional coverage is limited to certified
spouses. As above, these benefits are substantial.
The second benefit in the public employee retirement area is the death-benefit
pension coverage. There are currently two public-sector pension plans, referred to as the
"contributory" and "non-contributory" plans. Generally, the former plan covers workers who
started prior to the mid-1980s, and the latter plan covers most workers since that time. In
general, a contributory plan means the worker contributes to the plan, whereas a noncontributory plan means the worker does not. In both cases the employer makes
contributions. The benefits are usually higher for a contributory plan as more payments
have been made into it. Over ninety percent of current public pensioners are on the
contributory plan, whereas approximately seventy percent of current workers are on the noncontributory plan.
62
63
If a worker dies prior to retirement, but the death was an "ordinary" one, in the
sense that it was NOT caused by an accident on the job, and the worker was in the
contributory plan, there is no "marriage benefit" because the death-benefits are paid to
whomever the worker designated as their beneficiary. The beneficiary need not be a spouse
or a relative. So, whether legally married or not, a worker has the option of naming a partner
or not. If the same ordinary death occurs, but the worker was in the noncontributory plan,
however, a marriage benefit clearly exists. In this case, the death benefits are paid to a legal
spouse. If there is no legal spouse, then no payment is made unless there are children.
However, payments to the children are much lower than to a legal spouse. In other words,
the worker has no right to name a beneficiary, and instead is forced to have the primary
payments go only to a legal spouse. Furthermore, the value of the death-benefits do not go to
64
65
61.
See Minutes of September 27, 1995, pgs. T - l l for testimony of Sumner La Croix, Ph.D.
62.
See Minutes of September 27, 1995, pgs. T-26 and T-27, for testimony of David
Shimabukuro, Assistant Administrator, Employees' Retirement System of the State of
Hawaii.
While the statements and findings of this subsection of the report are those of the
Commission, the Commission thanks Assistant Administrator Shimabukuro for his
assistance and testimony in helping the Commission deal with this issue.
63.
Section 88-123, Hawaii Revised Statutes (1993).
64.
Section 88-84, Hawaii Revised Statutes (1993 and Supp. 1994).
65.
Section 88-286, Hawaii Revised Statutes (1993 and Supp. 1994).
13
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
the worker's estate or other heirs if there is no legal spouse or any children as it would in the
contributory plan.
66
The value of this "marriage bonus" is dependent on each worker's particular
case. Its exact figure depends on the specific salary conditions of the employee and can be
assumed to be a substantial amount of money.
The next type of death benefit is one caused by an accident on the job. In the
case of non-contributory members, their benefit is the same as above: the death-benefits are
paid to a legal spouse (and children) only. The value is the same as if the worker had died an
ordinary death, and is substantial. If the accident-on-the-job death was to a public worker
on the contributory plan, however, things are treated differently than if it had been an ordinary
death.
For an accidental death, the legal spouse gets a death-bonus whether or not the
worker named the spouse as a beneficiary. This benefit is a substantial benefit.
67
68
69
In the case of all certified spouses receiving a death-benefit payment, they
have the further benefit of rolling the payment amount over into an IRA, while an unrelated
recipient of the death-benefit cannot do so and so must pay a sizeable tax penalty. Deferring
and reducing the ultimate tax penalty (through use of the IRA option) is an additional
substantial benefit for legal spouses.
70
A full examination of private-sector retirement benefits that includes a marriage
bonus is beyond the scope of this report, though it is understood that similar retirement plan
benefits exist in private-sector plans and represent substantial and common benefits to
certified spouses.
5.
Workers' Compensation Benefits
The Commission identified major legal and economic benefits in the Workers'
Compensation law.
The Commission finds that Hawaii's workers' compensation law allows death
benefits to be paid, due to employment-related death, to a dependent certified spouse (or
other family members: dependent parent, children, grandchildren). However, these benefits
are not paid to an uncertified spouse. These benefits are significant and may equal sixty71
66.
Compare sections 88-84 and 88-286, Hawaii Revised Statutes (1993 and Supp. 1994).
67.
Section 88-286, Hawaii Revised Statutes (1993 and Supp 1994).
68.
Section 88-85, Hawaii Revised Statutes (1993 and Supp. 1994).
69. Id.
70.
See the Minutes of September 27, 1995, pgs. T-16, for testimony of Sumner La Croix,
Ph.D.
71.
See sections 386-34, 41, 42, 43, and 54, Hawaii Revised Statutes (1993).
14
�MAJOR LEGAL AND ECONOMIC BENEFITS
two percent of the worker's weekly wage. This monthly payment to the certified spouse does
not end until that spouse's death or remarriage.
72
6.
Wrongful Death Benefits
The Commission identified a major legal and economic benefit under the
wrongful death law. In a wrongful-death complaint, a legal spouse is allowed to sue for loss
of support to the surviving spouse and the loss to the estate. The suit may also attempt to
recover damages, including loss of companionship, consortium, and marital care, as well as
the expenses of any illness and burial. In most cases, an uncertified spouse cannot sue for
support. For example, if someone murders or causes the wrongful death of a spouse, except
for any private insurance a same-sex couple may have carried, and except for the extremely
limited payments under the Criminal Injuries Compensation law, the surviving partner will
get no monetary payment other than charity.
73
74
75
Society has addressed this injustice by allowing legal spouses to bring "wrongful death
complaints," which are forms of civil lawsuits, against those responsible for the wrongful
death. If the perpetrators are capable of making a payment, and if the lawsuit is successful,
the surviving spouse may collect support payments (i.e., payments over time), a lump-sum
award for the loss to the person's estate of his or her earning power caused by the death,
together with other payments. The precise sum collected would, of course, depend on the
cost of support to the surviving spouse, the lost value to the estate (including the earning
power of the deceased), the circumstances of the wrongful death, the level of success of the
lawsuit, and the amount spent on legal costs for the case. While an exact value cannot be
determined, this nevertheless is a substantial benefit. These laws provide this comprehensive
form of benefit at no real cost to the government, and the benefit is a significant one.
7.
Hawaiian Home Lands Surviving Spouse Benefit
The Commission identified a major legal and economic benefit under the
Hawaiian Homes Commission Act that provides, upon the death of a Hawaiian Home Lands
lessee, a certified spouse can assume the lease if the spouse is qualified by bloodquantum, while a spouse without a marriage certificate cannot. The marriage benefit here
depends on having the lessee spouse die while the legal spouse is still living. The value of
76
77
72.
Section 386-43, Hawaii Revised Statutes (1993).
73.
Section 663-1 and 3, Hawaii Revised Statutes (1993).
74.
Webster's New World Dictionary Third College Edition defines this as "the companionship
and support provided by marriage, including the right of each spouse to receive this from
the other."
75.
Chapter 351, Hawaii Revised Statutes (1993 and 1995 Supp.).
76.
An inheriting legal spouse need be only 25 percent blood-quantum. See section 209,
Hawaiian Homes Commission Act, Hawaii Revised Statutes (1993 and Supp. 1994).
15
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
the benefit would depend on how many years the surviving spouse lives. One estimate puts
the benefit at $4,812 annually. In any case, it is a substantial benefit.
78
8.
Savings in "Creating the Relationship"
The Commission recognizes that to replicate certain automatic presumptions
that a spouse may have under the law, a same-gender couple would have to take extensive
legal action. The cost of this legal action, which is automatic on becoming a certified spouse,
can be seen as "savings in creating and documenting the relationship." The Commission
recognizes this savings to certified spouses to be a major legal and economic benefit.
This package of major legal and economic benefits can be called "creating the
relationship." While some of the costs listed in this section refer to benefits that may have
been mentioned in other sections, this major legal and economic benefit does not look to the
actual legal condition creating the benefit but looks to the cost of setting up the relationship
that duplicates the benefit under marriage. There are three costs associated with replicating
a certified marriage. First, some of the steps involve paying a government fee (as with the
name-change). Second, nearly all the steps require costly legal (or other) services and third,
the replication is not always guaranteed. We have placed an undervalued estimate of
financial value on this specific marriage-certificate benefits to illustrate what it would cost to
replicate the benefits by drawing up documents.
79
The benefits in this package start with the right to change your name without
paying the normal costs of a name-change, $50 plus $250 in legal and notice fees. Another
item of this benefit is under the probate code where a certified spouse can inherit by intestate
succession. In addition, the surviving spouse would be presumed to assume the custody of
any dependent children. Non-certified spouses can attempt to replicate this right by each
having careful wills and trusts set up by their lawyer(s) at a substantial cost of $300 for the
two wills and $3,000 for the two trusts. An additional parenting agreement that details what
happens if the marriage is dissolved, including the care for children and custody and visitation
80
81
77.
Section 209, Hawaiian Homes Commission Act, Hawaii Revised Statutes (1993 and Supp.
1994).
78.
See Minutes of October 11, 1995, pg. T-34, for testimony of Moheb Ghali, Ph.D., attached
in Appendix I.
79.
The estimates given in the text are from a local attorney who specializes in this work, and
as reviewed by two other attorneys. Actual costs to a couple may vary and could greatly
exceed the figures given in the text, depending on the complexity of the couple's estates and
other factors.
80.
Sections 574-1 and 574-5(a)(3), Hawaii Revised Statutes (1993 and Supp. 1995); see also pg. 3
of this report.
81.
These costs may be higher. Mr. Martin Rice, a member of the public who testified before
the Commission regarding replicating the marriage relationship through legal documents,
forwarded a letter from Mr. Daniel J . Custer, attorney for Martin Rice, stating that
although Mr. Rice "did a significant portion of the work in drafting the documents...the fee
for the preparation of the your estate planning documents was $796."
16
�MAJOR LEGAL AND ECONOMIC BENEFITS
rights if the marriage is dissolved, $500. Durable power of attorney for finances, which allows
one spouse to make financial decisions should the other spouse become incapacitated: $100
each, or $200 total. A living-together contract, including an agreement about any sharing of
finances in the marriage, an agreement about property owned before and during the marriage,
and an agreement about disposition of property at (non-legal) divorce: $2500.
The basic value of a government marriage certificate can be placed at $6800.
An additional point concerning wealth should be made. The duplication of the marriage
relationship rights is only to same-gender couples who are wealthy enough to afford a lawyer
to draft the documents--in contrast to the poorest opposite-gender couple, to whom these
rights are available for the small $25 fee for a marriage certificate.
9.
Income Tax Rate Benefits
The Commission agrees with the Hawaii Supreme Court in recognizing that
there are several benefits from marriage associated with the income-tax law. The
Commission identified the variable tax-table rates as a major legal and economic benefit.
While the economic issues in tax law can be complex, the Commission accepts the
discussion above with regard to the federal income-tax benefits and recognizes that the
individual fact situations under state income tax law may also operate to provide a benefit.
While testimony was received by the Commission that the average of the tax effects on all
legally married couples in the United States is a marriage penalty of $4,500, this should not
exclude those families who balance the average by enjoying the marriage bonus in their
income taxes. These families typically have only one working spouse. In that case a
substantial benefit exists. Testimony was also received that perhaps the best way to frame
the income-tax benefits with regard to the tax-table rates is to allow a same-gender couple the
choice of deciding whether they will receive a marriage bonus or a penalty.
The
Commission agrees with this testimony and finds that the income-tax law with regard to the
variable tax-table rates for same-gender couples and married couples is a major legal and
economic benefit.
82
83
10.
Additional Income Tax Benefits
The Commission also recognizes that there are other items in the income tax
law that create additional major legal and economic benefits. The Commission finds that
certified spouses (who are not claimed as dependents on other tax returns), are automatically
given an exemption, while uncertified spouses must meet a much more rigorous test of
economic dependency which many certified spouses could not meet. The Commission
further finds that if an uncertified spouse's employer offers domestic partner benefits (such as
health care or other benefits), the amount paid to the worker for their spouse's benefits are
82.
See Minutes of September 27, 1995, pgs. T-23 to T-26, for testimony of Randall W. Roth,
Esq.
83.
11
17
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
84
considered part of the worker's income unless the spouse is claimed as a dependent. The
amount paid out by employers for certified spouses' benefits, however, is not treated as
taxable income.
The Commission further finds that if a marriage dissolves, there are tax
advantages if the couple was certified. Alimony payments for (once) certified couples are
deductible, and (legal) divorce-related property settlements (such as transfers from one legal
spouse to the other) are exempt from capital gains tax (until the certified spouse receiving the
property sells it). When uncertified marriages dissolve, these tax benefits cannot be claimed.
The Commission finds that these additional tax benefits are a major legal and economic
benefit.
11.
Estate and Transfer Tax Benefits
The Commission identified major legal and economic benefits in the Estate and
Transfer Tax Reform Act of 1983. This state estate and transfer tax is based solely on the
federal estate and gift tax and as such the allowances and laws regulating those actions
directly affect the State's treatment. Under the federal estate and gift tax laws, a legally
married person receiving an estate (or total gifts) beyond $600,000 from his or her spouse
does not owe transfer taxes due to the unlimited "marital deduction." Other heirs, including
an uncertified spouse, would have to pay estate and transfer taxes on the value of the estate
or gifts beyond the $600,000 ceiling. The generally positive effect of this law for certified
surviving spouses is to allow them to defer payment of the transfer tax until their own death.
Also, annual gifts beyond $10,000 to unrelated individuals are taxed; transfers to spouses are
not taxed.
85
86
In the cases of couples without sizeable estates, the marriage bonus here is
irrelevant. But to those couples who are affected, this bonus is substantial, amounting in the
hundreds of thousands of dollars (or millions of dollars), depending on their assets.
12.
Capital Gains Tax Benefit for a Couple's Home
The Commission also identified a major legal and economic benefit on the
transfer by death of a couple's home. Couples, particularly homeowners in Hawaii, commonly
fine their homes (and other assets) to have appreciated enormously over the time they have
o w ed them. Upon the death of one spouse, the general half-ownership of the house (and
other assets) are transferred to the surviving spouse. Normally at this time a capital-gains tax
(of 45-50 percent between the Federal and State tax systems), would become due on the
84.
Editors, "Benefits for Domestic Partners were Income, Tax Week, Report No. 33, August
1994, pg. 3.
85.
Chapter 236D, Hawaii Revised Statutes (1993 and Supp. 1995).
86.
See Minutes of September 27, 1995, pg. T-14, for testimony of Sumner La Croix, Ph.D. and
attached in Appendix I .
18
�MAJOR LEGAL AND ECONOMIC BENEFITS
87
increase-in-value (capital gain), that belonged to the deceased spouse. Legal spouses may,
however, choose to defer the capital-gains tax on the deceased spouse's appreciated assets.
This free deferral can continue throughout the remaining life of the surviving spouse. Thus
the value of this marriage benefit is two-fold. First, the value of deferring the bill is
substantial. Second, the cost of the bill several years from now will not have been adjusted
for inflation and so its absolute value will have fallen. The amount of this fall (the discount
based on inflation), represents a second substantial benefit.
It is difficult to put precise figures on this benefit as its value depends on the
worth of the couple's house (and other assets), and the number of years the surviving spouse
remains alive. However, it can be pointed out that all homes in Hawaii have appreciated
substantially over time; in the three-year 1988-1990 period, appreciation averaged about
$200,000. Taking this example, if a couple owns a house that went through this appreciation
period, then each of their capital-gain was about $100,000.
Upon death, the inheriting
spouse, if they did not have the government marriage certificate, could have to pay capitalgains taxes on the deceased spouse's appreciation, a tax which in this case could be $45,000
to $50,0000.
88
In the example above, often the the surviving spouse is older and does not
have the income or liquid assets to make such a payment. Borrowing on the house may also
be difficult as an income stream to service the loan may not be available. The result could
sometimes be losing the house to pay the tax. The marriage benefit in this case simply
allows the surviving spouse to defer paying this tax throughout the balance of their lifetime.
As such, the tax-flow to the government is not stopped but simply delayed. Still, the benefit
to the surviving spouse is substantial: not having to pay the tax at once, and therefore
possibly not having to lose the house. The precise economic benefit, outside of the human
side of not losing the house, would be the value of the tax deferral, which would depend on
the circumstances of each couple.
13.
"Tenancy by the Entirety" Benefits
The Commission was able to identify a major legal and economic benefit that
was unanimously agreed to. This benefit is the benefit of ownership under tenancy by the
entirety. Only a few states have the form of ownership of real estate known as "tenancy by
the entirety." It bestows unique legal protections and benefits on a certified couple. The
87.
Technically, all this falls under the matter of estate taxes, covered above. But that section
looked at couples holding sizeable estates, whereas this section looks at the much more
common occurrence of a couple in Hawaii that does not have an unusual estate except for
the appreciated value of their home.
88.
This figure could be substantially more for some couples.
The appreciation amount for a couple that had held their home for a longer period would
also have to be adjusted for capital gains or losses over those other years. After all,
Hawaii's real estate market has fluctuated over the years and has even lost some value
recently for some homes.
19
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
protections and benefits, in turn, cannot be completely replicated by the use of other legal
instruments, no matter what price is paid to attorneys in drawing up such instruments.
89
The Commission also recognizes that tenancy by the entirety is a form of
protection of the couple's ownership of their house in times of legal attachment. The
economic value is difficult to determine with precision, but the Commission finds that it is a
major legal and economic benefit.
14.
Federal Benefits
The Commission acknowledges that it has previously stated that identifying the
benefits beyond the State's jurisdiction is beyond the scope of the task assigned. But as
many of the federal benefits are driven by the State definition of marriage, the Commission is
obligated to recognize that the State of Hawaii can directly control who is technically certified
to receive federal spousal benefits. The Commission therefore finds the State's ability to
indirectly award these federal benefits through a valid marriage certificate is a major legal and
economic benefit. Specifically these include special spousal rights under the Retirement
Equity Act of 1984. This is a "choice" type benefit as the special rights can cut both ways,
and the main option of being able to get a certificate is that the couple has the choice of
taking out the certificate or not and therefore being covered or not under the REA. Another
Federal benefit involves Social Security. Certified married couples receive significant
advantages in the nation's Social Security programs, particularly in the size of the monthly
benefit amount that is paid under the. Old-Age and Survivors Insurance Program (OASI), but
also under the Disability Insurance Program.
90
91
The benefits from getting a marriage certified in the OASI Program have
several sources. First, when a fully-insured worker retires, his or her legal spouse receives a
bonus benefit equal to 50 percent of the retired worker's benefit (unless the legal spouse is
entitled to a larger benefit based on his or her own work history). In 1993, the average
monthly benefit for the covered spouses was $347, or $4,164 more than the couple would
have received if their marriage were not certified. Second, when the retired worker dies, the
surviving certified spouse (from age 60 and up), then receives the retired worker's full benefit.
In 1993, the average certified surviving spouse in this program received $630 per month, or
$7,560 annually, whereas the uncertified surviving spouse receives nothing. Third, when an
insured certified spouse dies, the surviving certified spouse is entitled to a one-time death
benefit of $255. Finally, when a currently insured (non-retired) worker dies, the surviving
certified spouse is eligible for a monthly benefit if the couple had children who are under age
16 (or disabled), and the legal children of the deceased also receives benefits. In 1993, the
89
For further explanation of this benefit see The Encyclopedia of Financial and Estate Plaming,
Hawaii Institute of Continuing Legal Education, Honolulu, 1990.
90.
This benefit was discussed by Randall W. Roth, Esq., see Minutes of September 27, 1995,
pgs. 4 and T-23 to T-25.
91.
All figures cited in the following text are taken from the 1994 "Green Book," compiled by
the Committee on Ways and Means, U.S. House of Representatives.
20
�MAJOR LEGAL AND ECONOMIC BENEFITS
average survivor in this category received $448 per month or $5,376 annually, and the
children in this category received an average of $173 per month or $2,076 annually. In these
cases, an uncertified surviving spouse and that spouse's children received nothing.
The Disability Insurance system also favors certified couples. If a disabled
worker has a legal spouse who is either age 62 or older (or is caring for a young or disabled
child of the worker), then the legal spouse is eligible for a benefit that averaged $156 per
month or $1,872 annually in 1993. For an uncertified couple, the spouse would receive
nothing.
More detailed studies of the Social Security system show that over time, the
numerous benefits awarded by the system to certified couples are significant. Certified
couples, even when both legal spouses work, have rates of return on their Social Security
taxes that are two to three times higher than the rate of return earned by non-certified married
couples with the same income and taxes paid.
In sum, the OASI tax advantages for certified couples generate significant
economic benefits that are worth thousands of dollars annually during retirement. In addition,
the payments provided to some legal spouses under the Disability Insurance System provides
substantial added financial security benefits when a legal spouse becomes disabled.
C.
General Benefits
The third economic category of benefits, general benefits, consists of a relatively large
class of rights that is of limited economic value when applied singly to the couple, but when
taken as a package, these rights are major legal and economic benefits. These benefits
include the waiver of conveyance taxes between married individuals, even in divorce,
allowing the spouse of a non-resident university professor to pay resident tuition fees,
allowing a member of the immediate family to contribute up to $50,000 to a candidate instead
of limiting it to the usual $2,000 certain fishing in Hilo Bay, and statewide fishing for nehu
and '/ao.
92
93
9 4
95
96
Appendix B, while not exhaustive, provides a list of four hundred Hawaii laws that
bestow intangible, substantive, or general benefits; most of these laws, singly or in groups,
fall into the general category. While it is possible to economically assess the value of each of
92.
Section 247-3(4) and (12), Hawaii Revised Statutes (1993).
93.
Section 304-4(b), Hawaii Revised Statutes (1993 and Supp. 1995).
94.
Section 11-204, Hawaii Revised Statutes (1993 and Supp. 1995). Note that Act 10, Special
Session of Hawaii 1995, increased the limits to $4,000 and $6,000 for elections to fouryear offices.
95.
Section 188-34, Hawaii Revised Statutes (1993).
96.
Section 188-45, Hawaii Revised Statutes (199.3).
21
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
the general benefits, the lack of time and funding limited the Commission to examining the
substantial benefit list above and not extending the same level of scrutiny to these myriad of
general benefits.
97
A majority of these benefits are conferred on the basis of the definition of fam/7y or
immediate family. Some statutes specifically define the term, as in the election law, but
others must rely on the statutory rule of construction.
V.
Summary
In summary, the Commission can not claim that the list of major legal and economic
benefits that are extended to different-gender couples but are not extended to same-gender
couples as identified above is exhaustive. But the Commission finds that it is complete
enough to recognize the magnitude of the benefits conferred as result of the privilege to
marry under the law. The Commission believes that an overwhelming number of benefits may
be taken for granted on a daily basis by state-certified married individuals.
97.
As one example of analyzing a general benefit, careful work between economists and
marine biologists could estimate the supply of certain fish in Hilo bay, and of nehu and 'ioo
fish in waters around the State. It could then be shown that the State laws (sections
188-34 and 45, Hawaii Revised Statutes) that deny all non-married families and commercial
enterprises the right to fish these species result in the fish supply being therefore relatively
high and that the resources of a married couple necessary to invest to catch the fish is
relatively low.
22
�Chapter 2
SUBSTANTIAL PUBLIC POLICY REASONS TO EXTEND
OR NOT TO EXTEND SUCH BENEFITS
IN PART OR IN TOTAL TO SAME-GENDER COUPLES
Act 5, Session Laws of Hawaii 1995 defined the Commission's second task as follows:
"(2)
Determine substantial public policy reasons to extend or not to extend such
benefits in part or in total to same-sex couples."
98
This part of the report identifies the substantial public policy reasons the Commission
found to warrant the extension of benefits in total to same-gender couples. Each policy is
stated and a discussion of the policy issues follows. The conclusion summarizes these
findings.
I.
Public Policy
The Commission listened to many testimonies, reviewed voluminous materials, and
discussed different ideas concerning public policy issues. After digesting all this material, the
Commission finds that substantial public policy reasons exist to extend all the legal and
economic benefits discussed in Chapter 1 to same-gender couples who are willing to enter
into the marriage contract, along with all the responsibilities and burdens that contract entails.
In that regard, the Commission adopts the following public policies which are related to (1)
Equal Protection, (2) the Loving case, (3) Procreation and Compelling State Interests, and (4)
Separation of Church and State.
A.
Equal Protection
Article I, sections 2, 3, and 5 of the Constitution of the State of Hawaii states clearly
that all persons in Hawaii are entitled to equal protection under the law, including the right to
enjoy their inherent and inalienable rights to life, liberty and pursuit of happiness, and be free
from illegal discrimination or the denial of basic rights on the basis of gender.
The Commission finds that the denial of the benefits of marriage to same-gender
couples, purely on the basis of their gender, is a violation of those basic constitutional rights.
98.
Act 5, Section 3, paragraph (2), Session Laws of Hawaii 1995.
23
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
The Commission finds that the Constitutional right to equal protection is central to this
rnarnage debate. The United States Supreme Court has found that under restricted
conditions, even prison inmates have a right to marry." The Hawaii Supreme Court hi-:3 ruled
that denying governmental certification to married couples on the basis of gender is
disc.minatory and presumptively unconstitutional, based on equal protection under the law.
Once the importance of the equal protection argument is made, the Commission finds
it \
ficial to examine the issue from an alternative perspective. Instead of asking "what
rea. :s exist to extend the benefits identified in Chapter 1 of this report?" it becomes helpful
in analyzing the issues to ask "what compelling state interests exist to deny extending these
benefits?" This restatement is based on the standard of scrutiny imposed by the court when
such rights are threatened in the State of Hawaii. When this standard is established, as in
the Baehr case, the burden of proof falls on the discriminator to justify the discrimination.
While the task assigned to the Commission by Act 5 requires the Commission to determine if
substantial public policy exists to extend these benefits, the Commission finds that it is forced
to also examine if there are any compelling state interests that exist to deny extending these
benefits.
These equal protection arguments are based on the specific language of the State of
Hawaii Constitution which is similar to the United States Constitution. The Commission
recognizes that the over-riding right that "no person shall be ... denied the equal protection of
the laws" is one of the basic liberties we hold to be self-evident. The Hawaii Constitution
extends this prohibition of discrimination further than the United States Constitution by
prohibiting discrimination based on gender. In Hawaii "No person shall ... be discriminated
100
101
99.
"The right to marry, like many other rights, is subject to substantial restrictions as a result
of incarceration. Many important attributes of marriage remain, however, after taking into
account the limitations imposed by prison life. First, inmate marriages, like others, are
expressions of emotional support and public commitment. These elements are an important
and significant aspect of the marital relationship. In addition, many religions recognize
marriage as having spiritual significance; for some inmates and their spouses, therefore, the
commitment of marriage may be an exercise of religious faith as well as an expression of
personal dedication. Third, most inmates eventually will be released by parole or
commutation, and therefore most inmate marriages are formed in the expectation that they
ultimately will be fully consummated. Finally, marital status often is a precondition to the
receipt of government benefits (e.g.. Social Security benefits), property rights (e.g., tenancy
by the entirety, inheritance rights), and other less tangible benefits (e.g., legitimation of
children bom out of wedlock). These incidents of marriage, like the religious and personal
aspects of the marriage commitment, are unaffected by the fact of confinement or the
pursuit of legitimate corrections goals." Turner v. Safley, 107 S.Ct. 2254, 2265. [Emphasis
added.]
100. See Note 1.
101. Article 1, Section 5, State of Hawaii Constitution; and
Section 1, Article 14, Amendments to the United States Constitution states:
All persons born or naturalized in the United States, and subject to the jurisdiction
24
�SUBSTANTIAL PUBUC POUCY REASONS
102
against ... because of race, religion, sex or ancestry"
The Hawaii Constitution
strengthened its gender protection with an equal rights amendment that states: "Equality of
rights under the law shall not be denied or abridged by the State on account of sex."
103
In the Baehr v. Lewin decision, the Hawaii Supreme Court cited Hawaii's Constitutional
guarantees of equal protection in holding that State law prohibiting same-gender marriage is
discriminatory and presumptively unconstitutional.
104
Some public testimony argued that allowing same-gender marriage would give special
rights not equal rights. The Commission considered the issue of special rights and agrees
that the benefits might appear special because they have not yet been granted to samegender couples by any state. On closer examination, however, we find that the rights being
discussed are important civil rights and the benefits being granted are already available to
others, and no special benefit is being contemplated. The Commission recalls the debate
over the Civil Rights Act of 1964. Thirty years ago it was thought to be a special right for
an African-American person to spend a night in a white-owned hotel in the South or to eat in
an all-white restaurant. These are rights that are taken for granted today. The Commission
believes that thirty years from now, the majority of citizens will look back on the extension of
marriage rights as the right thing to do.
105
The argument was raised that special rights seem to be some kind of zero-sum game
in which granting a civil right to one person somehow takes it away from someone else. The
Commission recognizes how allowing same-gender couples to marry may require others to
provide services to people who they may wish to exclude. The Commission has considered
the weight of this argument. Balancing the level of inconvenience and upset of those who
would like to exclude same-gender couples from their businesses based on their personal
dislikes or disapprovals, versus providing equal rights to all, the Commission finds the scale
tips in favor of equal rights.
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of its
jurisdiction the equal protection of the laws.
102. Article 1, Section 5, State of Hawaii Constitution.
103. Article 1, Section 3, State of Hawaii Constitution.
104. Baehr, 74 Haw. at 557-558.
105. See Marcosson, Samuel A. "The 'Special Rights' Canard in the Debate Over Lesbian and
Gay Civil Rights," Notre Dame Journal of IMW, Eihxcs & Public Policy, 1995, Vol. 9, No. 1.
25
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
The Commission also considered those arguments that same-gender marriage would
infringe on others' individual rights. For example, would an employer, whose religion does
not recognize same-gender marriage be obligated to extend the same spouse healthinsurance benefits to same-gender married couples as to opposite-gender married couples?
Again, we find history instructive: who would say today that an employer, parent or restaurant
owner should be able to fire a worker, replace a teacher, or refuse service, based solely on
race? If history teaches a lesson, it is that allowing marriage for same-gender couples may
enhance society as a whole by moving our nation towards more equal treatment for all.
B.
The Loving Case
The Supreme Court of Hawaii, in the case which gave rise to the establishment of this
Commission, Baehr v. Lewin, 74 Haw. 530 (1993), recognized the relevance of the United
States Supreme Court's 1967 decision to strike down a Virginia statute which prohibited
miscegenation, or interracial marriage, Loving v. Virginia, 388 U.S. 1 (1967). The Hawaii
Supreme Court has found that denial of same-gender marriage was presumed to be a
violation of equal protection of the law unless the State could show a "compelling state
interest" for such denial. The Commission finds that the various reasons advanced for
denying same-gender marriages-including religious, moral and public health and safety-are
similar to the Loving case and do not constitute a "compelling state interest" and, as a matter
of public policy, should not be used to deny equal rights under the law to same-gender
couples.
Loving v. Virginia, 388 U.S. 1 (1967) has been cited by the Supreme Court of Hawaii in
Baehr v. Lew/n as well as in several testimonies before the Commission. The Loving
case prohibited the State of Virginia from enforcing laws that discriminated against inter-racial
couples who wanted to marry. Some testimony suggested that the Loving decision parallels
the issues now before the Commission. Some of the arguments were and are imbedded in
tradition, separate-but-equal standards, and religious objections.
106
107
108
Other testifiers disagreed, stating that the racial discrimination issues in Loving are
dissimilar to the gender discrimination issues before the Commission. Clearly, race and
gender are different issues. However, closer examination of the broader social debates
106. Baehr v.Uwin, 74 Haw. 530, 562, 563, 567-70 (1993).
107. See Minutes of October i l , 1995 for testimonies of Steven Michaels, Esq. and Daniel Foley,
Esq. See Minutes of October 25, 1995 for testimonies of Jon Van Dyke, Esq., Frederick
Rohlfing, Esq., and Thomas F. Coleman, Esq.
108. Laving v. Virginia 388 U.S. 1, at 3, 7, 8 (1967).
26
�SUBSTANTIAL PUBUC POUCY REASONS
reveals that the two issues are similar. There is much to learn from a review of the Loving
case. The parallels are very strong.
During the 1960's when interracial marriage was becoming more frequent, societal
attitudes in Virginia that were based on religion objected to interracial marriage. Public
argument also focused on morality issues. A popular view was that it was immoral not to
discriminate on the basis of race, in the interests of protecting the children. Fears that
children would not be raised in a healthy environment fueled the fire. Discriminating on the
basis of race was believed good for the public health because there would be no interracial
marriages producing mongrel and weak children. The public supported the most basic
defense that the very definition of marriage was a union between those of the same race.
The parallels in this issue to the Loving case become obvious when examining the
testimony presented to the Commission. The Commission repeatedly heard that some of the
State's citizens are in favor of prohibiting same-gender marriage. Objecting to the morality of
the behavior of couples who seek marriage certificates, some testifiers believe it is immoral
not to discriminate on the basis of gender. Focusing on the ills that would befall children with
gay and lesbian parents, some public testimony cited the potential for weak and confused
children as dangers to public health and safety, using this as a rationale for discriminating on
the basis of gender.
109
The Commission embraces the lessons of Loving and has listened carefully to the
testimonies that are rooted in religious, moral and public health ideas. The Commission
recognizes the sincerity of all testimony and recognizes that each person has the right to
practice their individual religious and moral beliefs. The Commission also recognizes that no
one has the right to impose those on others. Additionally, the Commission believes that
testimonies stating the extension of benefits to same-gender couples would threaten public
health are inaccurate. Both the American Psychiatric Association and the American
Psychological Association removed homosexuality from its list of maladies more than twenty
years ago. In addition, the Commission heard substantive testimony that children of gay and
lesbian parents develop similarly to the children of opposite-sex parents.
110
Another similarity between Loving and the issue before the Commission is the legal
non-recognition of an existing situation. Inter-racial relationships, including marriages, existed
long before the Loving case. The United States Supreme Court officially prohibited Virginia
from restricting those inter-racial couples from marrying. The Hawaii Supreme Court has
suggested a similar intent here by imposing the heavy burden of showing a compelling state
109. See Minutes of October 11, 1995, pg. T-23, for testimony of Dan Kehoe, Ph.D., and pg.
T-76 for testimony for Mike Gabbard.
110. See Minutes of November 8, 1995, pgs. 2 and T-3 and T-43 for testimony of Dr. Robert
Bidwell, and attached in Appendix I .
27
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
interest if it is to bar same-gender marriages. Same-gender couples have had relationships
that include marriage in some churches.
The non-recognition of these on-going
relationships warrants a similar standard of scrutiny as in Loving. Historically, there was no
serious disruption of the public order because of Loving. The Commission expects the same
result if same-gender marriages are recognized by the State.
111
Related to the arguments that the public order in Hawaii would be disrupted are the
contentions that extending benefits to same-gender couples will wreak havoc on the economic
status of the State. Again, we can point to another similarity to the Loving case. The State of
Virginia feared economic hardship if racial discrimination were ended. The Commission
heard substantial testimony on the economic effect on tourism in Hawaii if benefits are
extended to same-gender couples. Testimony from economists focused on a Southern
California Law Journal article.
That article projected a $153 million annual increase in
tourism to Hawaii from gay and lesbian couples travelling to the first state that allowed same
gender marriage.
Even though economists discounted the methodology of the article's
author, who is not an economist, they agreed there would be some effect, and two of them
estimated the positive effect at $127 million over five years, though all three economists
agreed that a more precise estimate would be difficult to predict without further data. The
range of general testimony on how the State will fare economically if same-gender marriage
were allowed included a prediction of an economic boost, fear it will create a situation that will
destroy tourism in Hawaii, and still others said that the effect would be unnoticeable. The
Commission has heard testimony and is aware of the economies of other cities and
communities where gay rights have been strongly supported, and understands those areas
not to have suffered economically but have even prospered. Therefore, the Commission
does not give weight to the argument that tourism will be effected negatively.
112
113
114
115
116
117
111. A partial list includes Quakers, Metropolitan Community Church, Unity, UniversalistUnitarians, Dignity USA, and Buddhists.
112. See Minutes of September 27, 1995, pgs. T-10 to T-22, for testimonies of Sumner La
Croix, Ph.D. and Jim Mak, Ph.D. and Minutes of October 11, 1995, pgs. T-35 to T-56 for
testimony of Moheb Ghali, Ph.D.
113. Brown, Jennifer Gerarda "Competitive Federalism and the Legislative Incentives to
Recognize Same-Sex Marriage," Southern California Law Review, Volume 68, 1995, pgs. 745839.
114. Brawn at 755.
115. See Minutes of October 11, 1995 for testimonies of Sumner La Croix, Ph.D. and Jim Mak,
Ph.D. and attached in Appendix I .
116. Id.
117. Drummond, Tammerlin. "Not in Kansas Anymore," Time, September 25, 1995, pgs. 54-55.
28
�SUBSTANTIAL PUBUC POLICY REASONS
Discussion of the economic effect on tourism included the introduction of a
resolution that explored the results of accepting or rejecting certain public policies.
Basically, if a given action by the legislature were to cause loss of jobs or income, it would be
opposed as bad for the community and considered a bad policy for the State. Conversely, if
such an action created positive conditions for the average citizen, it could be seen as a good
policy for the State. Sifting through the testimony, the Commission finds a net positive
economic impact from legalizing same-gender marriage and simply recognizes that a new
incentive for a particular market to visit the islands would increase the tourism economy of the
State. Adopting a policy that would have that result would be good for the State.
118
Another parallel to Loving is the objection that parents would have to send their
children to schools attended by the children of parents who are different or to classes taught
by teachers who are different. The Commission favors the belief of John F. Kennedy: "If we
cannot end our differences, at least we can help make the world safe for diversity."
Regarding the issue of public sentiment, local public polls are mixed, depending on
how the survey question is phrased. Although more people might oppose same-gender
marriage than support i t , about two-thirds of Hawaii's voters support equal rights for its gay
and lesbian citizens. But justice may not be reflected in the public polls. At the time of the
Supreme Court decision requiring the integration of schools in Brown v. Board of Education
347 U.S. 483 (1954) integration was tremendously unpopular. Stubborn governors sent
armed troops to prevent children of the "wrong" race from going to school.
119
Opposition to the 1967 Loving decision on interracial marriage was also heated. Yet
the Commission also finds no rational argument today that either Brown or Loving were the
wrong things to do. Instead, the Commission finds that both these decisions have provided a
more fair and equal life for all Americans. Similarly, testimony indicated that when Denmark
passed a national domestic partnership law the majority of the people were against it, but now
the law is generally accepted.
A time line presented to the Commission indicated
movement towards more acceptance throughout the United States of same-gender
relationships, with Hawaii being a leader in many of the steps taken.
120
121
118. See Minutes of October 25, 1995.
119. Five Hawaii Polls on Legalizing Same-sex Marriage compiled by an unknown source,
attached in Appendix G.
120. See Minutes of September 27, 1995, pg. 7, for testimony of Daniel Foley, Esq.
121. See Minutes of October 25, 1995, for testimony of Thomas F. Coleman, Esq.
29
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
C.
Procreation and Compelling State Interests
The argument that same-gender marriage should be barred because it cannot lead to
procreation is invalid, inconsistent, and discriminatory. Public policy should not deny samesex couples the right to marriage, and the right to raise a family if they wish to do so, on the
excuse that they, between themselves, cannot procreate, when this reason is not applied to
opposite-gender couples. State law does not require that opposite sex couples prove that
they are capable of procreation before they can be married, and many are obviously not,
because of age, medical or other reasons. Individuals in a same-gender marriage may have
children from a prior opposite-gender marriage, or can adopt children if they desire a family.
The Commission invited both of the attorneys who will argue at the trial of the Baefrr
case now set for July 15, 1996, to brief the Commission. The First Deputy Attorney General
who is defending the State in the Circuit Court trial of Baehr v. MMe shared with the
Commission the position the Office that the Attorney General will be presenting in the case.
The Hawaii Supreme Court has ruled in Baehr v. Lewin, that the State has the burden of
showing a "compelling state interest" that is narrowly drawn if the State prohibits samegender couples from obtaining a marriage license. The First Deputy Attorney General has
explained to the Commission that the State's position is that a compelling state interest exists
that is related to the interest of procreation and protection of children. Their position does not
deal with sexual orientation, per se, nor even with gender, per se. Instead, it is based on the
belief that being raised by biological parents is best for the children of Hawaii and that is what
the marriage law is intended to do.
122
123
The obvious question concerns those different-gender couples who apply to get their
marriages certified by the government and may not have, intend not to have, or are incapable
c living children. The First Deputy Attorney General addresses this issue by appealing to a
rtiated defense of privacy.
124
125
The Hawaii Constitution has a very strong constitutional protection of privacy. This
right of privacy includes the right to privacy in general concerning reproductive matters and
122. Baehr v.Miike, Circuit Court of the First District, State of Hawaii, Civil No. 91-1394-05 is the
new caption for the ongoing case of Baehr v. Lewin which was remanded for trial by the
Hawaii Supreme Court. Since that ruling, the State administration has changed and John
Lewin is no longer the Director of Health. The case at trial now has been officially changed
and is now captioned as Baehr v. Miike. Dr. Miike is the current Director of Health under the
Cayetano administration.
123. See Note 122 for the explanation of the difference between the Baehr v. Lewin case and the
Baehr v. Miike case.
124. See Minutes of September 27, 1995, pg. 7, for testimony of Steven Michaels, Esq.
125. Article 1, Section 6, Hawaii State Constitution, see Note 1 for exact language.
30
�SUBSTANTIAL PUBLIC POUCY REASONS
this is what the First Deputy relies on when explaining the over-inclusiveness of those
different-gender applicants under the protections of the compelling state interest that nurtures
procreation, who do not want to, or cannot, procreate. With regard to their right to privacy,
the First Deputy suggests, it would be unconstitutional to question different-gender couples
requesting their marriages to be certified as to whether or not they could or would have
children.
On the other hand, same-gender couples can not biologically procreate and
therefore can be excluded from the marriage law that is rooted in the interest of procreation.
The Commission finds this argument to be unconvincing.
126
The Commission also thinks that due attention should be placed on traditional
Hawaiian custom as stated in Section 7, Article XII, State of Hawaii Constitution. "The State
reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence,
cultural and religious purposes..." The Commission recognizes that in traditional Hawaiian
culture, a great number of children were raised not directly by the biological parents, but
instead by the hanai parents. This traditional custom and practice, the Commission finds, is
well documented.
The Commission concludes that the State's arguments run counter to
the Hawaii Constitution and State law cited above, and therefore the argument that children
are best raised by their biological parents does not impress the Commission as a compelling
State interest.
127
While the Commission agrees that procreation, the protection of children, and privacy
are all in the public interest, the Commission also finds that these same issues argue for the
conferring of government certification of same-gender marriages and not against. The
encouragement of stable relationships would benefit the individual couples, and the families
as well as society. The Commission finds that the continuation of the current same-gender
prohibition of state-certified marriage and denial of equal rights is harmful to the public
interest.
D.
Separation of Church and State
Under our constitutional government the fact that some religions or churches condemn
same-gender marriages does not mean that those religious beliefs can be imposed on others.
Our separation of church and state prevents religious enforcement through state institutions,
such as the Department of Health.
area.
Representatives from a variety of religious organizations were invited to testify in this
Clearly, there are as many different opinions on this matter as there are religious
126. See Minutes of September 27, 1995, pg. 7, for testimony of Steve Michaels, Esq.
127. See for example section 386-2, Hawaii Revised Statutes (1993) defining "child" to include a hanai
child. See also sections 346-71, Hawaii Revised Statutes (1993 and Supp. 1995), and section 79-14,
Hawaii Revised Statutes (1993).
31
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
organizations. For example, the Church of Jesus Christ Latter-Day Saints and some
evangelical and fundamentalist Christian representatives would not like the State to recognize
same-gender relationships. Some other Christian representatives and the Buddhists asked
the Commission to support stable relationships between loving people regardless of whether
those loving people are the same gender.
128
129
Some of the public testimony was based on an alleged violation of natural law. Yet
conflicting religious testimony stated that same-gender activity can be found in a variety of life
forms and therefore is not against natural law. Some Christian testimony said same-gender
relations were against God's will and therefore should be banned. Other Christians disagree.
Many religions do not recognize God or the one God. Buddhism, the second largest religion
in the State, does not believe in God. The Commission finds that the interpretation of various
sacred scriptures is open to legitimate differences of opinion but irrelevant to the
Commission's purpose. Hawaii welcomes, protects, and cherishes hundreds of different
religions and denominations-churches, synagogues, temples, and other places of
worship-yet none of these provides the basis of our legal system.
The Commission also listened to Christian testimony that incorrectly interpreted the
State motto, "Ua Mau Ke Ea, 0 Ka Aina I Ka Pono," to apply to the issues at hand.
Translations of the motto by these public testimonies implied that the common translation
"The life of the land is perpetuated in righteousness" refers to pious Christian behavior.
The Commission disagrees with this translation of the State motto as having any sectarian
meaning. Hawaiian authorities agree that Kauikeaouli (Kamehameha III) is the author of these
words. The word pono stated in conjunction with the words ea, meaning "sovereignty," and
ma, meaning land, in this context refers to the correct political behavior for protecting the
land. Kauikeauoli uttered the statement after the sovereignity of the land was returned on
July 31, 1843, by Admiral Thomas.
130
131
Other religious testimony feared that the State would force churches to marry samegender couples, even if that marriage opposed their religious ideology. This is not the current
structure of the marriage law, nor would it be if same-gender couples were awarded
certificates of marriage. Religious organizations would still be free to exclude those who do
128. See Minutes of October 11, 1995, for testimony of Father Mark Alexander, Dam Kehoe,
Bishop Richard Lipka, Reverend John Boaz, and Chaplain Mary Woodard.
129. See Minutes of October 11, 1995, testimonies of Robert Aiken, Reverend Joris Watland,
Diana Paw U, Reverend Bob Nakata, Reverend Donald K. Johnson and Sister Joan
Chatfield.
130. See Minutes of October 11, 1995, pgs. 14, 15, and T-92, for testimonies of Leon Siu and
Paul Kamanu.
131. Kame'eleihiwa, Lilikala. Native Land and Foreign Desires: Pehea La E Pono Si?, Bishop Museum
Press, Honolulu, 1992, pgs. 160-161.
32
�SUBSTANTIAL PUBUC POUCY REASONS
not share their beliefs, although there may come a time when they become more accepting of
same-gender marriages as these become more common.
II.
Conclusion
The Commission finds that the four public policies presented above are substantial
public policy reasons that warrant the extension of all the legal and economic benefits
discussed in Chapter 1 to same-gender couples willing to enter into the marriage contract,
with all the responsibilities and burdens which that contract entails. The Commission notes
that while the task at hand was to find substantial public policy reasons to extend part or all of
the benefits identified, much of the discussion in this chapter focuses on the comparison of
allowing state-certified marriage to same-gender couples versus denying it. This is a product
of addressing the testimony and material presented to the Commission. The Commission has
tried to incorporate and address as many of the ideas presented in the testimony as possible
in its discussions of these policies.
The Commission finds substantial public policy with regard to equal protection
arguments and rejects the the idea of nurturing procreation as a compelling state interest.
The Commission also finds the Loving case to be similar to the issues surrounding the role of
the Commission. The Commission, in determining whether there is substantial public policy
that exists to extend all or part of the benefits identified in Chapter 1 of this report has
reviewed a variety of positions and has concluded that substantial public policy reasons exist
to extend not just part, but all benefits.
The primary reason for this is the deeply rooted belief of the people of Hawaii,
America, and all humanity, in equality and equal rights of all people.
33
�Chapter 3
APPROPRIATE ACTION WHICH MAY BE TAKEN
BY THE LEGISLATURE TO EXTEND
SUCH BENEFITS TO SAME-SEX COUPLES
The Commission's last task as assigned by Act 5, really had two steps. As stated the
third task was to
"(3)
Recommend appropriate action which may be taken by the legislature to
extend such benefits to same-sex couples."
In Chapter 1, the Commission identified major legal and economic benefits that are
extended to married couples that are not extended to same-gender couples. Then, in Chapter
2, the Commission discussed the arguments surrounding how they arrived at adopting four
substantial public policies to extend those benefits. The adoption of those policies to extend
all benefits to same-gender couples has bearing on this third task assigned to the
Commission. Because the Commission has determined that substantial public policy exists to
extend all benefits, the Commission had to reject any legislative option that does not provide
that. A list of the options that were considered follows:
I.
Options Considered
A.
No Action
The Commission could recommend no action and keep the marriage law as it reads
currently, allowing only a man and a woman to apply for a marriage license. This option is
available only if no benefits are to be extended. Ironically, by taking this action, one testifier
predicted that the Circuit Court may decide that the State has not shown a "compelling state
interest" that is narrowly drawn and would order the State to issue marriage licenses to samegender couples who apply and meet the requirements, therefore awarding all the benefits and
responsibilities of full marriage. On the other hand the Court could interpret a no-action
recommendation by the Commission and by the legislature to mean the legislature believes
the current law reflects the current public policy.
132
132. See Minutes of October 25, 1995, for testimony of Thomas F. Coleman, Esq.
35
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
B.
Domestic Partnership
1.
Limited Domestic Partnership that Extends Some Rights, Not All
If the Commission recommended a domestic partnership law that included the
extension of some benefits but not all, it would most likely be considered a law to be
exercised within the limits of the State, and it is unlikely that it would be recognized in other
jurisdictions not subject to State law. Benefits extended under this type of arrangement
would most likely include benefits as a result of being a public employee and might include an
extension of filing under a "married" status for same-sex couples under Hawaii's income-tax
law.
2.
Comprehensive Domestic Partnership
A comprehensive domestic partnership law would essentially extend all the
possible benefits and responsibilities of marriage to same-sex couples but through a
different chapter in the law. The treatment of domestic partners would be similar to that of
spouses under the marriage law. Domestic partners would be recognized as spouses
throughout the Hawaii Revised Statutes. This comprehensive domestic partnership law, while
not providing for real marriage, has been suggested to "moot" the Baehr v. Miike * * case by
providing all the incidents of marriage. In the words of the First Deputy Attorney General, "If
it walks like a duck and talks like a duck, it's probably a d u c k . "
The Commission
disagrees. Under the Baehr decision case, adopting domestic partnership would not grant
equal protection under the law.
133
1
3
135
C.
Separate Religious Marriage and Civil Marriage
The option to separate religious marriage and civil marriage was suggested by two
peo; le who provided testimony to the Commission.
The concept is based on the
constitutional provision of separation of church and state. The procedure to marry under the
cu ent law requires the State to issue a license and then to have the couple solemnize the
reL .unship in a ceremony performed by an individual licensed to solemnize marriages.
136
rr
137
133. The Commission can only recommend changes within the State's jurisdiction and, as a
domestic partnership status is untested as to the extension of benefits in other jurisdictions,
the Commission notes this limitation
134. See Note 122 for the explanation of the difference between the Baehr v. Lewin case and the
Baehr v. Miike case.
135. See Minutes of October 11, 1995, for testimony of Steven Michaels, Esq.
136. See Minutes of October 11, 1995, for testimonies of Jori Watland and Penelope G. Spiller.
137. Section 572-11, Hawaii Revised Statutes (1993).
36
�APPROPRIATE ACTION WHICH MAY BE TAKEN BY THE LEGISLATURE
These individuals are members of religious organizations ordained or authorized to perform
marriage ceremonies or they are judges, justices or magistrates.
While it is not
uncommon to have a judge or justice marry a couple, it is more common to have the
ceremony performed by a religious individual. This recognition by the State of a religious
figure to authenticate the marital vows and entitlement to the benefits of marriage is peculiar
from the perspective of the separation of church and state arguments. This somewhat
contradictory structure is further confused by excluding the participation of the religious
organizations if the marriage fails, leaving the dissolution strictly to the courts, much to the
dismay of one testifier.
138
139
This concept would provide a civil marriage that included the application of the
license, and an oath or affirmation of the marriage vows by an authorized state individual who
is completely separate from, and independent of, any religious ceremony that may be
performed. The State would not need to license religious individuals to perform ceremonies,
but they could perform any ceremony their religious beliefs recognize. There would be no
need to have a religious ceremony if the couple did not desire. Likewise, the religious
ceremony could be performed without state recognition, which is currently the case for samesex couples. All the benefits and burdens of marriage under the law would be bestowed by
the civil marriage. This option would extend all the benefits of marriage to same-sex couples
and at the same time make optional the now-required step of a religious or judicial
solemnization.
D.
Allow Marriage
Allowing marriage of same-sex couples would necessarily extend all the benefits
currently enjoyed by opposite-sex couples. It would be the strongest statement with regard to
those same-sex couples who present their married status in other jurisdictions.
E.
Provide for Civil Registration or Something New
This option is intended to consider providing for some type of new registration for
everyone. This option would probably use a new chapter in the law to provide for some type
of spousal registration. The requirements would be similar to the current marriage law but it
would incorporate the separation issues as suggested in the option outlined in "C." above.
Necessarily this type of legislation would also have to repeal the current marriage law. This
option has the potential to create legal problems for the existing married couples in the State.
136. Section 572-12, Hawaii Revised Statutes (1993).
139. See Minutes of October 11, 1995, for testimony of Reverend Jori Watland.
37
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
F.
Repeal Marriage
The option to repeal marriage was presented to the Commission. Members of the
public who testified before the Commission presented interesting ideas. One suggested that
the marriage law is not perfect and needs to be fixed even for different-gender couples.
Another suggested that the only way to make everyone equal is to not give any benefits to
anyone. If the marriage law is repealed, then no one would receive any benefits.
140
G.
Constitutional Amendment Allowing Marriage Between a
Man and Woman Only
A constitutional amendment to the State of Hawaii Constitution allowing marriage
between a man and a woman only is an option that would effectively moot the case. The
Supreme Court of Hawaii is the ultimate interpreter of the State Constitution, and an
amendment specifically prohibiting marriage between people of the same-sex would make the
Baehr v. Lewin opinion incorrect. This option would not extend any benefits to same-sex
couples.
H.
Other
Redefine the Terms Family and Immediate Family. The option to define the terms
family and immediate family throughout the Hawaii Revised Statutes was proposed to the
Commission. By redefining family to include individuals who maintain households and share
the expenses and necessities of life, the Commission could pick and choose individual
benefits to confer to same-gender couples. The legislation for this option could be very
lengthy and cumbersome.
II.
Full Faith and Credit Issues
141
The Commission heard testimony from several sources concerning the full-faith and
credit clause of the United States Constitution. The testimony suggests that because no state
currently allows same-gender marriages, if the State of Hawaii were to allow them, a rash of
litigation would spring up across the country from those couples who came to Hawaii to get
married. The couples would return to their home states and expect to be recognized as
140. See Minutes of October 11, 1995, pgs. 10 and 11 to 12, for testimonies of Sister Chatfield
and Reverend Joris Watland.
141. See Minutes of October 11, 1995, pg. 6, for testimony of Steven Michaels, Esq., and
Minutes of October 25, 1995, pg. T-14, for testimony of Jon Van Dyke, Esq. and pgs. T-31
to T-34 for testimony of Thomas F. Coleman, Esq.
38
�APPROPRIATE ACTION WHICH MAY BE TAKEN BY THE LEGISLATURE
142
married. Legal scholars generally agree it is not clear what will happen.
While the
Commission is cognizant of this problem, the issue is beyond the scope of the assigned
tasks.
III.
Residency Requirements
The Commission received testimony on the option of imposing a residency
requirement. A residency requirement has been suggested as a method to avoid an influx of
gay tourists, although like income taxes, a residency requirement is a double-edged sword. A
residency requirement in the marriage law would be an effective tool to dramatically decrease
the number of Hawaiian weddings by all visitors to Hawaii including the marriages of
Japanese nationals. At the same time a residency requirement may encourage those who
would not otherwise do so, to move to the State and establish residency. These arguments
would also apply if a comprehensive domestic partnership law is used to extend benefits to
same-gender couples. The Commission believes that imposing a residency requirement
would not be beneficial to the State.
IV.
Conclusions
The Commission finds that married couples of the same gender are entitled to equal
protection under the law and thus should be conferred governmental certification of their
marriages. Therefore the Commission must reject all options stated above that do not confer
full benefits.
It has been suggested that an appropriate action that might be taken by the
Legislature in ending this gender discrimination is the passage of a domestic partnership bill.
The Commission finds, however, that a domestic partnership is defined in a leading article on
the topic as "two people living together in a committed, mutually inter-dependent
relationship." Further, that laws governing domestic partnerships "apply uniformly to all
couples," different-gender and same-gender, with a majority of the current governmentcertified domestic partners on the mainland United States being of different genders. Such
couples are also sometimes referred to as "unmarried partners." The numbers of these
unmarried partners have shown a significant increase over the last decade.
143
142. Compare the testimonies of Steven Michaels, Esq., Minutes of October 11, 1995; Jon Van
Dyke, Esq.; and Thomas F . Coleman, Esq., Minutes of October 25, 1995. See also
Appendix F.
143. Associated Press, "More career women choosing motherhood but not marriage," Honolulu
Advertiser, November 8, 1995.
39
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
The Commission finds that domestic partnership laws are designed for couples of
• whatever gender who do not want to get married, but who wish some legal form of protection
and commitment that falls short of the protection and commitments inherent in marriage and
government certification of marriage.
:
The Commission considered the options that would repeal benefits for everyone and
rejected them as causing more problems than they solve. Therefore the Commission rejects
the repeal of marriage.
The option to amend certain statutes to redefine family is rejected because it would
have to amend each of the statutes in Appendix B. The Commission finds that approach to
be complex, unwieldy, and unnecessary.
The option to create something new would effectively take a step towards the option of
separation of the church and state in government certification of marriage, but both these
options would cause more problems than they would solve. While the Commission finds this
may eventually become a feasible, non-discriminatory way to address the issue, at this time it
appears too unwieldy and complex.
The recommendation of the Commission is to extend all the benefits to same-gender
couples by allowing them to marry. The Commission recognizes that certain religious groups
fear that they will somehow be forced to celebrate the religious marriage ceremonies for
couples that they disapprove of. The legislation recommended to the Legislature should
include provisions to ensure that no religious group is compelled to celebrate marriage for any
couple it disapproves of. The proposed bill, as contained in Appendix D, attached hereto,
therefore contains such religious protection language.
The Commission additionally finds that with the recommended proposed bill, samegender couples might fear that their certificates will somehow not be recognized by other
jurisdictions. While no bill can be crafted that would guarantee recognition by other
jurisdictions, legislation recommended to the Legislature includes provisions to safeguard that
certificates awarded by the State will be recognized in other jurisdictions. The proposed bills,
as contained in Appendix D, therefore contain such language.
The Commission acknowledges that approval of a bill allowing same-gender couples to
marry may be politically difficult. This local political and sociological environment
approximates the interracial marriage environment described in the Loving case thirty years
ago on the mainland, where legalization of interracial marriage occurred by judicial order
instead of by legislative action.
It has been suggested that a State comprehensive domestic partnership act be
recommended in lieu of extending the marriage statute to same-gender couples. The
40
�APPROPRIATE ACTION WHICH MAY BE TAKEN BY THE LEGISLATURE
Commission disagrees. Under the Baehr decision case, adopting domestic partnership would
no; grant equal protection under the law. Although the Commission recognizes that domestic
partnership would create a separate-but-"equal" solution, at least the extension of many
marriage benefits would reach more couples. A sample bill along these lines is contained in
Appendix D.
State-recognized domestic partnership would create a new status in addition to
marriage, and the results of such an act are uncertain. Two items are reasonably certain.
First, it would have to be open to different-gender couples. Second, it might encourage samegender couples to move permanently to Hawaii as the benefits of the comprehensive
domestic partnership may not be transferable to their home states.
The Commission has found that couples of the same gender are marrying today, and
that these marriages are entitled to equal protection under the law and should be granted all
the benefits and should take on the obligations conferred by governmental certification of
marriages.
41
�Chapter 4
FINDINGS AND RECOMMENDATIONS
I.
Findings
1.
The Commission finds that the conferring of a marriage certificate can bestow
benefits in other jurisdictions. While those may be beyond the scope of this Commission, the
ability of the State to extend those benefits by providing a marriage certificate to individuals is
significant.
2.
The Commission finds that major legal and economic benefits conferred by the
marriage certificate through the Hawaii Revised Statutes include intangible, substantialquantifiable, and general benefits.
3.
The Commission finds there are substantial public policy reasons to extend the
those benefits in total to same-sex couples. Those public policy reasons include:
a.
Article I, sections 2, 3, and 5 of the Constitution of the State of Hawaii
clearly states that all persons in Hawaii are entitled to equal protection
under the law, including the right to enjoy their inherent and inalienable
rights to life, liberty and pursuit of happiness, and be free from illegal
discrimination or the denial of basic rights on the basis of gender.
The Commission finds that the denial of the benefits of marriage to samegender couples, purely on the basis of their gender, is a violation of those
basic constitutional rights.
b.
In the case which gave rise to the establishment of this Commission, Baehr
v. Lewin, 74 Haw. 530 (1993), the Supreme Court of Hawaii recognized
the relevance of the United States Supreme Court's 1967 decision to strike
down a Virginia statute which prohibited miscegenation, or interracial
marriage, Loving v. Virginia, 388 U.S. 1 (1967). The Hawaii Supreme Court
has found that denial of same-gender marriage was presumed to be a
violation of equal protection of the law unless the State could show a
"compelling state interest" for such denial. The Commission finds that the
various reasons advanced for denying same-gender marriages, including
religious, moral and public health and safety, are similar to the Loving case
and do not constitute a "compelling state interest" and, as a matter of
public policy, should not be used to deny equal rights under the law to
same-gender couples.
43
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
c.
The argument that same-sex marriage should be barred because it cannot
lead to procreation is invalid, inconsistent, and discriminatory. Public
policy should not deny same-sex couples the right to marriage and the
right to raise a family if they wish to do so, on the excuse that they,
between themselves, cannot procreate, when this reason is not applied to
opposite-gender couples. State law does not require that opposite-sex
couples prove that they are capable of procreation before they can be
married, and many are obviously not, because of age, medical or other
reasons. Individuals in a same-gender marriage may have children from a
prior opposite-gender marriage, or can adopt children if they desire a
family.
d.
Under our constitutional government the fact that some religions or
churches condemn same-gender marriages does not mean that those
religious beliefs can be imposed on others. Our separation of church and
state prevents religious enforcement through state institutions, such as the
Department of Health.
Furthermore, the Constitution prohibits any
religious group from having to perform the marriage of a couple that is not
recognized by that religion.
4.
The Commission finds that, based on the major legal and economic benefits and
the substantial public policy, the only logical conclusion is to recommend that same-gender
uples be allowed to marry under chapter 572, Hawaii Revised Statutes. The Commission
iiso acknowledges that the extension of marriage to same-gender couples may not be a
legislative alternative at this time.
5.
In the event that same-gender marriage under chapter 572, Hawaii Revised
Statutes, is not a legislative alternative, the Commission recommends a universal
comprehensive domestic partnership act that confers all the possible benefits and obligations
of marriage for two people regardless of gender.
II.
Recommendations
Based on the findings stated above, the Commission first recommends the Legislature
amend chapter 572 to allow two people to marry, regardless of their gender. The Commission
also recommends the Legislature adopt a universal comprehensive domestic partnership act
thr' confers all the possible benefits and obligations of marriage for two people, regardless of
ge .Jer.
44
�Chapter 5
MINORITY OPINION
The irony of this "minority" opinion is that its conclusions actually reflect the view of a
majority of Hawaii's residents. According to the most recent poll taken by SMS Research,
The Honolulu Advertiser and KHON July 19-29, 1994, more than two-thirds of the
respondents stated that Hawaii should not allow people of the same sex to marry. The public
response to the Draft Final Report of this Commission confirms this as well. Of 1033 written
comments received, 455 were in favor and 578 were opposed to homosexual marriage. At
the December 6, 1995, meeting, where public comment was received, of 103 who testified, 22
were in favor and 8 1 were opposed to homosexual marriage. In addition, the Legislative
Reference Bureau (LRB) received so many telephone calls concerning the Draft Report that
they could not record the messages because it would interfere too much in their ability to do
their other work.
144
145
146
1 4 7
Opposition to changing the definition of marriage is also consistent with the policy in
Hawaii prohibiting "common law marriage". The State of Hawaii has protected traditional
marriage and has narrowly circumscribed marriage rights since 1920.
So zealously has this court guarded the state's role as the exclusive progenitor of
the marital partnership that it declared, over seventy years ago, that 'common law
marriages'-i.e., 'marital' unions existing in the absence of a state-issued license
and not performed by a person or society possessing governmental authority to
solemnize marriages-would no longer be recognized in the Territory of H a w a i i .
148
The irony of the Majority Response to Minority Opinion, is that the majority's rebuttal
to the minority opinion validates the content of the minority opinion. In the Response, the
majority excuses its conduct on its understanding that it had to address its efforts "with speed
and decisiveness if it was to complete its work within the limited time allowed." That force
149
144. See "Five Hawaii Polls On Legalizing Same-Sex Marriages" attached as Appendix G.
145. Id.
146. These numbers represent comments from individuaJs and do not include the approximately
2000 signatures submitted in petitions opposing same-sex marriage from thirty different
groups.
147. Several written testimonies, not presented orally, were received at the December 6, 1995,
meeting. In addition, one of the members of the public who did testify presented 800
signatures on a petition opposed to homosexual marital rights.
148. Baehr v. Lewin, 74 Haw. 530, 559 (1993) quoting Parke v. Parke, 25 Haw. 397, 404-05 (1920).
149. See Section II.F. of Chapter 6 of this report.
45
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
and a disinterest in opinions opposed to homosexual marital rights drove what the minority
describes as a railroad job in this minority opinion.
I.
Introduction
A.
Reason For Minority Opinion
Due to the five-member majority of Commission members who vigorously support
homosexual rights, the debate needed for serious analysis did not occur. The Governor's
Commission on Sexual Orientation and the Law failed in its effort to seriously analyze the
issues presented. See letters to Chairman Gill dated October 10, 1995, from Commissioner
Hochberg and October 11, 1995, from Commissioner Sheldon attached hereto as Appendix H.
This opinion of a minority of the Governor's Commission on Sexual Orientation and the
Law is written because the two-member minority disagreed with the substance of the
majority's analysis and because the process employed by the majority to reach their
conclusions is faulty. Instead of looking to Act 5, 1995 Session Laws, for guidance, the
majority of the Commission saw its role as validating favorable portions of the court opinion in
Baehr v. Lew/n, even though in Act 217, 1994 Session Laws, the legislature roundly
criticized the court opinion in Baehr. As a result, during the actual Commission meetings, the
majority of Commissioners refused to examine the major legal and economic benefits
reserved for married couples, but instead simply reached their conclusions. In addition, the
majority refused to examine substantial public policy reasons not to extend these benefits in
part or in whole to homosexual couples.
The overwhelming credible evidence available to
the Commission requires that the State of Hawaii not recognize homosexual unions as
equivalent to traditional, heterosexual marriage.
150
151
B.
Recommendations
The minority of the Commission recommends that no action be taken to extend any
legal or economic marital benefits to homosexual couples that they do not already enjoy. In
addition, the minority finds that the majority's recommendation that the legislature embrace
same-sex marriage will severely, negatively affect the Attorney General's ability to prevail in
the pending Baehr v. Miike litigation. In light of this, the minority also strongly recommends
'aat the legislature undertake to amend the Constitution of the State of Hawaii to reserve
• .arriage and marital rights to unions between one man and one woman. If any marital rights
are granted to homosexual couples, the minority vigorously recommends that the legislation
150. See Preface to this report at item IA.
151. Laboring under the misapprehension that any opposition to homosexual marital rights is
simply wrong, the majority rejects outright all opposition to homosexual marital rights
without seeking to understand the reason for that judgment.
46
�MINORITY OPINION
contain a sweeping religious exemption. Finally, the minority recommends that the legislature
consider reviewing Hawaii laws to determine whether it should enlarge the definition of
"family" in some statutes in order to protect legitimate "family" needs for unmarried people.
In evaluating which, if any, statutes should be changed in this regard, the minority also
strongly recommends that the legislature evaluate the cost to the state from such change.
C.
Summary
This report presents information received from persons who testified before the
Commission as well as material included in the Commission's bibliography. This modern
literature concerns legal, economic and social policy analysis of marriage and marital rights,
family and child rearing, the attributes of homosexuality and the effects of homosexuality on
the community. Many people testified that they were opposed to homosexual marital rights
on economic, religious, historical, medical and psychological grounds. Of critical importance
to many people who testified was the protection of children. The majority report simply
rejects all these bases of opposition to homosexual marital rights. The majority's argument
relies on the tenuous assumption that the present legal status of gay marriages parallels the
laws against interracial marriages in the 1960s. The minority opinion addresses some of the
reasons why this is a false assumption. Race and gender are immutable characteristics.
Clearly, sexual orientation is not in the same category-sexual orientation is known to change
and is, to a large extent, behavioral. The argument that homosexuality is genetically
determined and so in the same category as race or gender has not valid scientific support.
There are many elements of behavior, such as the propensity to violence for which a genetic
determinant has been found. This does not mean that such a behavior should be elevated to
the status of the most favored in the State. Homosexual marital rights are simply not civil
rights. As discussed in more detail below, homosexuality is not immutable but is caused by
disturbed family environment and interaction between the parents and their children.
Regardless of any person's philosophy that homosexuality is either deviant or an
acceptable alternative lifestyle, the issue of homosexual marital rights must be resolved on
the basis of what is good for society. While the majority were not interested in discussion of
reasons not to extend the benefits of marriage to homosexual couples, this minority opinion
identifies the following major reasons why there should not be a drastic revision of the
marriage law.
•
The minority refutes the assumption that
of any benefit at all to Hawaii's economy.
Hawaii's major industry, tourism, will be
Hawaii deteriorates from the aloha state
destination of the world.
•
The minority is seriously concerned about the adverse effect legalizing
homosexual marriage will have on the social, sexual and psychological
47
legalizing same-sex marriage will be
On the contrary, it is more likely that
negatively affected, as the image of
to the gay honeymoon and wedding
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
development of children. The majority did manage to find some "expert" to
testify that being raised in a homosexual household had no detrimental effects
on children, but the vast body of work done on the issue suggests the opposite.
•
The minority believes that the ramifications on the education system would be
far-reaching, touching all elements of the curriculum. Parents are protective
and concerned about their children's education, as demonstrated by the
outrage caused by the misguided Project 10 on the Big Island. The rights of
parents must be favored over the rights of the homosexual community.
Every person's review of this report should focus on resolving the issue of homosexual marital
rights in such a manner as to protect and preserve society, both in Hawaii and the United
Sta'es. Clearly, this issue will affect everyone in the State. It will affect the entire country,
sir^e other states will be forced to deal with whether their states must accept any homosexual
marital rights granted on a statewide basis in Hawaii. There is even a home page on the
Internet where homosexual activists freely discuss this issue across the country.
The majority supports its position by arguing that withholding marital rights constitutes
discrimination against homosexuals. However, even the Hawaii Supreme Court in Baehr held
that there is no fundamental right to homosexual marriage:
Applying the foregoing standards to the present case, we do not believe that a right
to same-sex marriage is so rooted in the traditions and collective conscience of our
people that failure to recognize it would violate the fundamental principles of liberty
and justice that lie at the base of all our civil and political institutions. Neither do
we believe that a right to same-sex marriage is implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if it were sacrificed.
Accordingly, we hold that the applicant couples do not have a fundamental
constitutional right to same-sex marriage arising out of the right to privacy cr
otherwise. (Emphasis added.)
152
Therefore, the resolution of this issue cannot be analyzed solely on the basis of the value of
autonomous freedom for homosexuals, or an assumption of improper discrimination.
Permissible discrimination occurs in many ways on a daily basis.
Not all forms of discrimination are inappropriate, and one should not jump to the
conclusion that opposition to endorsing homosexuality constitutes inappropriate
discrimination.
Discrimination (approval or disapproval of a person or group) based on
judgments in the absence of evidence is inappropriate. However, certain distinctions can
reflect prudent judgment based on evidence. Therefore, the Commission should have first
153
154
152. Baehr, 74 Haw. at 556, 557.
153. See Minutes of October 11, 1995, pgs. T-8 to T-13, for testimony of Dallas Willard, Ph.D.
154. Dinesh D'Souza, "Prudent Discrimination, Myth of the Racist Cabbie, National Review,
October 9, 1995 pg. 36.
48
�MINORITY OPINION
examined the evidence of the attributes of homosexuality and the effects those attributes
have on children, family and society. Although the majority of the Commission did not even
consider such information important, only with that information can one take a rational
position regarding the extent to which the State of Hawaii should endorse--and by its
endorsement encourage-homosexual practices. The majority's recommendations actually
constitute prejudiced discrimination against those whose prudent judgment, based on the
evidence, does not equate homosexuality and heterosexuality.
II.
Act 5, Session Laws of Hawaii 1995: The Legislative Charge
The Legislature charged this Commission to "examine the major legal and economic
benefits extended to married opposite-sex couples, but not to same-sex couples; to examine
the substantial public policy reasons to extend or not to extend such benefits in part or in total
to same-sex couples; and to recommend appropriate action which may be taken by the
legislature to extend such benefits to same-sex couples." Act 5 repealed part of Act 217
from the 1994 legislature, and redefined the Commission's instructions. However, Act 5 did
not repeal that portion of Act 217 which contained the Legislature's vigorous chastisement of
the Hawaii Supreme Court's opinion in Baehr v. Lewin. Nonetheless, the majority of the
Commissioners ignored the legislative intent contained in Acts 217 and 5, and instead
addressed its analysis to validating parts of Baehr v. Lewin to scuttle the Attorney General's
defense of the marriage laws in the Baehr v. Miike case pending before the court.
Substantially all of the public policy discussion at the Commission dealt with invalidating the
defense of the litigation, and very little of the Commission's efforts addressed any public
policy reasons not to extend benefits to homosexual couples.
155
156
The minority members of this Commission understood the legislative charge to be to
examine the institution of marriage and family, including the major legal and economic
benefits, and recommend to the legislature whether or not it is appropriate, based on
substantial public policy reasons, to change the long-standing, zealously guarded definition of
the marital partnership by opening that partnership to same-sex couples in whole or in part.
The minority members of this Commission understand that because there are good
reasons to support the heterosexual norm, due to the fact that it has been developed with
great difficulty and can be maintained only if it is cared for and supported, we cannot be
indifferent to attacks upon it.
155. Act 5, Session Laws of Hawaii 1995 (see Appendix A).
156. See Minutes of October 11, 1995 and Minutes of November 8, 1995.
49
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Marriage and the family are institutions necessary for our continued social wellbeing and, in an individualistic society that tends to liberation from all constraint,
they are fragile institutions in need of careful and continuing support.
157
The Commission, controlled by the five-member majority, did not undertake an
unbiased academic approach to its charge, due to the majority's pro-homosexual bias and the
time constraints placed on the Commission work. In the majority Response to this report, at
II.F., the need for "speed and decisiveness" is the euphemism employed. The authors of this
minority opinion hope that the legislators read this report for the factual content. It is not
presented as an advocacy tool, but as a work of scholarship to assist the legislature with the
very difficult, but historically critical task with which Baehr v. Lewin saddled the legislature.
III.
The Majority of the Commission Refused to Follow Legislative Instructions to Examine
Major Legal and Economic Benefits Extended to Married Opposite-sex Couples, But
Not to Same-sex Couples
A.
The Majority of the Commission Adopted Without Review the Work Product of
the 1994 Commission Which Examined Precise Legal and Economic Benefits
Defined as "Anything Contributing to an Improvement in Condition or an
Advantage," Notwithstanding the Change in Legislative Charge to Examine
Major Legal and Economic Benefits
In the first Commission meeting, we discussed the fact that the Legislature modified
the charge to the Commission in Act 5 from what had been charged in Act 217.
That
change concerned the replacing of the instruction to examine "precise" legal and economic
benefits in Act 217, with "major" legal and economic benefits in Act 5. The legislation does
not reveal the reason for that change, nor the change from examining only public policy
reasons to extend benefits in Act 217 to examining public policy reasons to extend or not to
extend benefits in Act 5. Clearly, however, the implication of the two changes indicates
legislative intent to make the inquiry more helpful to the legislature by narrowing the scope of
benefits examined and increasing the scope of public policy examined.
158
The charge in Act 217 to examine precise legal and economic benefits had resulted in
the 1994 Commission adopting a working definition of legal benefit as "anything contributing
to an improvement in condition or an advantage that a married couple would have as a result
of holding the status 'spouse' or 'family' that would not be offered to a same-gender couple
even though they had the same commitments to each other as a married couple or family."
159
157. The Ramsey Colloquium, "The Homosexual Movement, A Response bv the Ramsey
Colloquium," First Things, March 1994.
158. See Minutes of September 13, 1995.
159. Interim Report from the Commission on Sexual Orientation and the Law, January 17, 1995.
50
�MINORITY OPINION
Such a definition identifies precise benefits, as called for in Act 217.
definition does not identify "major" benefits as charged in Act 5.
However, such a
For most of the life of the . 1995 Commission, the majority continued to use the
definition from the 1994 Commission, notwithstanding requests at every meeting to adopt a
definition of "major legal and economic benefit" which would give the Commissioners a
common benchmark for evaluating marital benefits in light of the changed legislative
instruction.
The proposed definition, rejected at each meeting, sought to direct the
Commission to "significant" legal and economic benefits, weighed against any burdens
attached to the benefits, and then defined as major benefits only if these significant benefits
were not available to same-sex couples via another avenue or means. Such a definition
seemed to address what the legislature meant by "major legal and economic benefits." The
majority claims in Chapter 1, Section C.I. of their report that they rejected this definition
because it effectively defined no benefits. However, the majority never exercised their five
votes in any full Commission meeting to apply the definition to any statute. Clearly, their five
votes could have approved the same list of benefits using this rejected definition. The
difference is that they would have laid bare their rationale on a statute by statute basis.
The majority of the Commission not only rejected this definition at each meeting, and
continued to refuse to adopt any other definition of "major legal and economic benefits," but
the majority continued to accept the work product of the Legislative Reference Bureau (LRB)
staff attorney based upon the legislative directive under Act 217, 1994. In addition, although
much of the Commission's research work was completed between September 13 and
October 25, 1995, it was not until October 26, 1995, that the majority discussed and adopted
a definition of "major" legal and economic benefit. On October 26, 1995, the majority adopted
a definition which utterly failed to focus on "major" benefits. Instead, the majority maintained
that every benefit, no matter how slight, when combined together with all the other benefits,
no matter how slight, constituted together major legal and economic benefits. This clearly did
not address the legislative charge in Act 5.
B.
The Majority of the Commission Finally Abandoned Pretense In Late October
And Defined Major Legal And Economic Benefit Based On The Baehr v. Lewin
Supreme Court Opinion Addressing Salient Marital Rights
On October 26, 1995, when most of the permitted research work of the Commission
had been completed, the majority of the Commission abandoned pretense and fashioned a
definition of major legal and economic benefits based upon the Hawaii Supreme Court's 1993
reference to "salient" marital rights in the Baehr v. Lewin decision. The Supreme Court was
listing benefits which stood out to them without undertaking exhaustive research and without
assigning "major" or "minor" value them. For example, the Supreme Court recognized as a
salient marital right, among other things, the right to change of name by changing ones name
on the marriage license. Clearly, the legislature in seeking analysis of major benefits, did not
adopt the Baehr opinion definition of "salient" rights. In fact, the legislature strongly criticized
51
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
the opinion in great detail in 1994. Therefore, instead of examining the major benefits as
charged by the legislature, the majority marched lock-step with the plaintiffs in the Baehr case
and present to the legislature a report which points to every single legal and economic benefit
listed in a nineteen-page catalogue of laws containing the words marriage, husband, wife,
spouse, or family.
In fact, the definition fashioned by the Commission includes as "major" legal and
economic benefits the following, among others:
1.
HRS section 183D-22, which affords resident fees for hunting licenses to a
spouse of an active duty military person stationed in Hawaii; obviously, the
burden imposed on a homosexual member of the military when identifying his
"spouse" for hunting license purposes, is not worth the value of the difference
between the resident and non-resident hunting license fee.
2.
HRS section 157-32, which requires the Milk Board to consider the cost of the
producers' family labor when determining minimum prices for milk.
3.
HRS section 188-34, which permits certain fishing in Hilo Bay to feed one's
family but not otherwise; although "family" is not defined in the statute, the
majority assumes that such fishing would be prohibited if the family was
unmarried.
4.
HRS section 188-45, which permits statewide fishing for Nehu and "lao to feed
one's family but not otherwise; although "family" is not defined in the statute,
the majority assumes that such fishing would be prohibited if the family was
unmarried.
5.
HRS section 200-39, which allows transfer of permits for commercial ocean
activity in Kaneohe Bay to be made between family members. However,
according to Steve Thompson of the Vessel Registration Section of the Boating
and Recreation Division, the law only applies to five or fewer of companies, and
to his knowledge of those, only one transfer has taken place (and not to a
family member anyway).
6.
HRS section 338-14, which provides the immediate family of a veteran free
copies of certificates and other records.
7.
HRS Chapter 510, which deals with community property rights. Chapter 510
was enacted in 1945 but repealed in its entirety in Hawaii in 1949. Although
interests which had vested during the four years Hawaii permitted community
property were not divested by repeal, it is clear that since no homosexual
couple can possibly have any vested rights under Chapter 510, the legislature
52
�MINORITY OPINION
would look rather foolish if it purported to include homosexual couples within
the purview of Chapter 510.
8.
HRS Chapter 533, sections 1-16, which deal with dower rights; dower rights
were abolished in Hawaii in 1977. Although dower rights vested at that time
were not effected, it is not likely that there is any current benefit whatsoever
from HRS sections 533-1 through 16. Again, it would detract from the
legislature's credibility to extend to same-sex couples rights which were, many
years ago, repealed with respect to heterosexual couples.
Due to the definition employed by the majority of the Commission, there were scores
of other examples of legal and economic benefits erroneously defined as "major" legal and
economic benefits. The majority's reliance on the Baehr opinion's recitation of salient rights
to define the legislature's charge to examine major legal and economic benefits defies rules
of construction of legislative intent. Clearly, the court's opinion was available to the
legislature in 1994 when it was so roundly criticized in the preamble to H.B. No. 2312, which
became Act 217. However, the legislature did not refer to the opinion in Act 5, nor reference
the court's list of salient marital rights. The legislature's ignoring of the court's use of salient
rights indicates that the legislature did not intend the Commission to use salient to define
major. The definitions of the two words themselves further support that position.
C.
The Majority of the Commission Failed to Analyze or Discuss in Any Detail the
Nineteen-Page List of Hawaii Revised Statutes Sections Purportedly Extending
Major Legal and Economic Benefits to Married Couples
Although a long list of statutes is appended to the majority report to catalogue an
exhaustive list of major legal and economic marital benefits (hereinafter referred to as the
"Nineteen-Page List"), an initial fifteen-page list was developed by the LRB staff Attorney
using the 1994 Commission definition of precise legal and economic benefits (hereinafter
referred to as the "LRB List"). Not only was the LRB List not based upon a search for major
benefits, but the Commission never examined the list of statutes. The Nineteen-Page List
was not even presented to the Commission until November 22, 1995.
160
An actual review of these statutes revealed that at least 205 of these statutes should
not be listed as extending major legal or economic benefits to married opposite-sex couples,
but not to same-sex couples for several reasons. These reasons include: (1) the statutes do
not extend any benefit whatsoever; (2) the benefit extended is not a "marriage" benefit, but a
"family" benefit; (3) the benefit is not a spouse or marriage benefit, but a benefit relating to
biological parenthood; (4) the benefit, although a marriage benefits, is too small to be
considered a major legal or economic benefit; (5) the statute actually extends a marriage
160. See Appendix B.
53
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
burden, not benefit; (6) the benefit extended by the statute is not withheld from same-sex
people; (7) although a marriage benefit is extended to the spouse of a service person, when a
same-sex couple seeks the benefit, the burden on the same-sex couple far outweighs the
benefit; and (8) the basis for finding that the benefit is not extended to same-sex couples is
based on the majority's very restrictive definition of "family" which is not contained in the
legislation. For instance:
(1)
The following Hawaii Revised Statutes sections, included in the list do not
extend any benefit whatsoever: 11-13, 11-191, 46-4, 53-5, 53-7, 53-56, 87-25,
88-4, 111-2, 145-1 146-21, 147-71, 226-4, 226-19, 261-31, 261-34, 321-23,
329-1, 346-10, 346-82, 351-2, 398-1, 412:10-100, 431:10A-103, 431:10D-104,
431N-1, 510-5, 510-6, 510-9, 519-10, 510-22, 510-23, 510-24, 510-25, 533-1,
533-2, 533-3, 533-4, 533-5, 533-6, 533-7, 533-8, 533-9, 533-10, 533-11, 533-12,
533-13, 533-14, 533-15, 533-16, 533A-1, 554-6, 554B-1, 560:2-202, 560:2-203,
560:2-204, 560:2-205, 650:3-703, 560:6-107, 572D-10, 651-91, 651C-1, 706-673,
801D-2.
(2)
The following Hawaii Revised Statutes sections, included in the list, do not
extend a "marriage" benefit, but extend a "family" benefit: 11-204, 79-13,
105-2(6), 226-5, 235-55.7, 324-22, 338-14, 398-3, 706-670.5, 801D-4.
(3)
The following Hawaii Revised Statutes sections, included in the list, extend a
benefit based upon biological parenthood, but not a spouse or marriage benefit:
235-7.5, 338-21, 431:10A-116.5, 431:1-601, 584-6, 321-321, 321-322, 346-17.4,
346-37.1, 350C-1, 350C-2, 350C-3, 350C-4, 350C-5, 350C-6. 350C-7, 352-29.
(4)
The following Hawaii Revised Statutes sections, included in the list, extend
such a small marriage benefit that it cannot be considered a major legal or
economic benefit: 200-39, 334-10, 574-5(3).
(5)
The following Hawaii Revised Statutes sections, included in the list, actually
extend marriage burdens, not benefits: 88-4, 171-74, 201E-141, 207-2, 235-4,
235-5.5, 425-125, 443B-1, 551-2, 558-6, 560:2-508, 560:2-803, 572D-3, 334-6.
(6)
The following Hawaii Revised Statutes sections, included in the list, extend
benefits which are not withheld from same-sex people: 26-14, 28-101, 46-6,
53-6, 79-7, 111-4b, 111-7, 111-4, 171-84, 201E-1, 201E-62, 201E-130,
201E-131, 201E-145, 201E-200, 206E-10.5, 209-8, 226-3, 226-22, 226-25,
231-57, 235-54, 261-33, 301-2, 321-331, 334-60.5, 334-125, 334-134, 338-18,
346-71, 346-261, 346-262, 346-263, 346-264, 346-265 , 346-266, 346-267,
346-268 , 346-269, 346-270, 346-271, 346-272, 431:10A-103, 431:10A-115,
431:10^202, 431:100-114, 516-71, 560;5-410, 560;5-601, 571-46, 572-21,
572-22, 572-23, 572D-1, 574-1, 586-1, 663-3, 707-700, 709-906.
54
�MINORITY OPINION
(7)
The following Hawaii Revised Statutes sections, included in the list, extend a
marriage benefit to the spouse of a person currently serving in the armed
forces, and consequently, when a same-sex couple seeks the benefit, the
burden on the same-sex couple far outweighs the small benefit: 183D-22,
231-15.8, 261-32, 286-l07(g), 606-5.
(8)
Finally, the following Hawaii Revised Statutes sections are included in the list
as marriage benefits refused to same-sex couples, based on the majority's very
restrictive definition of "family" which is not contained in the legislation:
11-14.5, 46-15.3, 150A-5(2)(A), 157-32, 231-25, 40-85(c), 188-34, 188-45,
201F-3, 209-29, 231-25, 237-24.3(10), 281-3, 306-1, 321-123, 321-351, 334-59,
335-1, 346-14, 346-53, 346-65, 352-13, 352-22, 352-26, 352D-1, 352D-2,
352D-3, 352D-4, 352D-5, 352D-6, 352D-7, 352D-8, 352D-9, 352D-10.
The minority Commissioners examined the Nineteen-Page List during the two weeks
between November 22, 1995, when it was received from the majority, and December 6, 1995,
the date the final draft of the minority opinion was due. A more detailed review should be
made before any of the benefits are extended to homosexual couples. It must be noted that
the Commission itself never examined the statutes to determine whether either list was
correct and the statutes actually extended the benefits indicated on the lists. In addition,
neither list was analyzed to determine whether any benefits extended were major benefits.
Consequently, the Nineteen-Page List contains all these statute references whether or not the
statutes in fact extend major legal and economic benefits.
D.
Most of the Statutes in the Nineteen-Page List Do Not Extend Major Legal or
Economic Benefits to Married Couples
Two economists testified before the Commission: Sumner La Croix, Ph.D. and Moheb
Ghali, Ph.D.
Accordingly, to Dr. Ghali, all economists agree that to determine the
economic value of any particular benefit, one must first determine the "Expected Value" and
then discount that value by the probability of someone taking advantage of the benefit under
consideration.
For instance, where a benefit derives from status as a professor at the
University of Hawaii, then the likelihood of someone taking advantage of that benefit is equal
161
162
161. Emeritus Professor of Economics, University of Hawaii. He is currently the Vice Provost
for Research, Dean of the Graduate School, and Professor of Economics, Western
Washington University. Author of, among other things: Tourism and Regional Groivth, Studies in
Applied Regional Science, Vol. 11, Martinus Nijhoff Social Sciences Division, Leiden, 1977; The
Structure and Dynamic Properties of a Regional Economy, Lexington Books, D.C. Heath and
Company, Lexington, Toronto, London, 1975.
162. See Minutes of October 11, 1995 for Dr. Ghali's testimony entitled "Discussion of Some
Benefits Which May Accrue to Individuals From Extending Marital Benefits to Domestic
Partners," attached in Appendix I .
55
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
tc -ie ratio of the number of U.H. professors to the population at large. In addition, future
b- efits should be reduced to present value to determine the value of the benefit.
Most of the benefits addressed by Dr. La Croix as expected economic benefits
concern estate planning techniques available to married people by virtue of their status as
husband and wife. However, all of those benefits, with the exception of the marital deduction
and marital elective share, are available to non-married people from the use of inexpensive
simple will forms available for a few dollars in stationery stores.
In addition, the marital
deduction benefits are federal law, not likely affected by state law changes. Likewise, the
elective share benefits are only relevant where a spouse has been disinherited, and
disinheritance is easy to accomplish in ways that avoid elective share rights.
163
The majority report attributes several thousand dollars of value to estate planning
techniques for "replicating marital benefits" based upon the attorney fees to have the
documents drawn rather than the value of using the stationary store estate planning forms.
Interestingly, the majority refused to identify the three attorneys consulted for the valuation,
notwithstanding that the names were twice requested by the minority Commission members
who desired to discuss the matter. Whatever the expense of the inexpensive simple will form,
it is certainly not the value attributed by the secret attorneys relied on by the majority of the
Commission.
Furthermore, where it is worthwhile to spend money on estate planning, it is no more
expensive for unmarried couples than for married couples. In addition, trusts, durable powers
of attorney and living wills are the remedies available to all unmarried people without regard to
their sexual orientation. In Dr. Ghali's opinion, the value of these small benefits is saving the
minimal cost of these widely used remedial measures. He opined that the data or
measurement of this small value is not warranted in light of the cost to do the research.
Dr. La Croix erroneously found the ERS system to provide major retirement benefits
for married, but not unmarried persons. However, to the contrary, the ERS system permits
every member to designate anyone as the beneficiary--a spouse, domestic partner or anyone
else--and thus there are not additional benefits to be realized in the ERS pension plan.
Dr. Ghali concluded that only very few of the legal or economic benefits contained in
the LRB List address the Legislature's instruction to the Commission to "examine major legal
and economic benefits." In fact, of the benefits listed in the LRB List, Dr. La Croix identified
only nine "(bjenefits from Marriage with a Significant Expected Value."
Of those, Dr. Ghali
testified that:
164
163. Id.
164. See Minutes of the October 5, 1995, for testimony of Sumner La Croix, Ph.D., attached in
Appendix I on pg. 244 of this report.
56
�MINORITY OPINION
Because many of the benefits listed by Professor La Croix under his heading have
very small probabilities of being used, as he correctly points out, the expected value
of each benefit is small, and the sum of the discounted expected values of this group
of benefits is likely to be small. While it is possible to collect data to measure the
discounted expected values of these benefits, I do not believe the magnitude of the
benefits is sufiicient to justify the cost of the data acquisition.
165
E.
There are Apparently Three or Four Benefits Addressed By Dr. La Croix Which
Merit Investing the Resources to Research the Value
Dr. Ghali agrees that three or four benefits addressed by Dr. La Croix merit investing
the resources to research the value. Those benefits are: Retirement Health Insurance
Benefits, Non-Retirement Health Insurance, ERS Death Benefits, and Hawaiian Home Lands
Leases. According to Dr. Ghali, none of the other benefits can possibly be large enough to
bear the cost of the analysis needed to determine the value, and therefore cannot constitute
major legal or economic benefits.
166
Concerning the retirement health insurance benefits, most unmarried people in Hawaii
have health care. Employers must provide coverage to employees. Many unemployed also
receive free health insurance. Assuming that the homosexual and common law marriage
community are retired, unmarried and uninsured, Dr. Ghali suggests that data.be collected
and analyzed to determine the economic value of the benefit. The data needed should
concern the average annual cost of spousal retirement medical coverage (the remedy) and
the estimate of the number of people expected to benefit (the class to receive the new
benefit). This information will reveal the estimated fiscal impact on the ERS and the Health
Fund, and whether a general increase in employee contributions or in State tax revenues will
be required to cover the additional cost.
Concerning the non-retirement health insurance benefits, Dr. Ghali suggests that data
be collected and analyzed concerning the average annual cost of spousal medical coverage
and the estimate of the number of people expected to benefit from non retirement health
insurance. This information will reveal the magnitude of the subsidy. In addition, alternative
ways of funding the health insurance coverage must be analyzed.
Concerning the ERS Death Benefits, Mr. Shimabukuro, of the ERS, testified that the
benefits payable upon the death in-service of an employee are only available to the surviving
165. See Minutes of October 11, 1995, for Dr. Ghali's testimony entitled "Discussion of Some
Benefits Which May Accrue to Individuals From Extending Marital Benefits to Domestic
Partners," attached in Appendix I , on pg. 270 of this report.
166. See Minutes of October 11, 1995, for Dr. Ghali's testimony entitled "Discussion of Some
Benefits Which May Accrue to Individuals From Extending Marital Benefits to Domestic
Partners," attached in Appendix I , on pg. 270 of this report.
57
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
spouse (until remarriage) and the dependent children (until attainment of majority) if the
employee was under the non-contributory plan. The only benefit exclusive to spouses under
the contributory plan is an additional pension. However, the contributory plan has been
closed to new members since the mid-1 QSO's. As Dr. Ghali explained how to measure the
economic value of these benefits:
Data on the number of cases of in-service death as a percent of the total active
membership over the past five years would give a reasonable estimate of the
probability of the death benefits. The average payment per case of in-service death
over the past five years would be a reasonable estimate of the benefit value. Both
of these data should be easily available from ERS. The benefit value multiplied by
the probability would yield the expected value of the death benefits. This figure,
the expected value of death benefits to survivors of non-contributory members is
needed to measure both the potential benefits and costs of any policy change.
Similarly, the expected value of the exclusive spouse pension under the contributory
plan can be calculated to evaluate the potential benefit and cost of the policy
change.
167
Concerning the Hawaiian Home Lands Lease issue, Dr. Ghali opines that to determine
whether to extend this benefit to Non-Hawaiians, the cost of extending this benefit must be
evaluated in light of the shortage of Hawaiian Home sites. To the extent that the Hawaiian
family on the waiting list pays a rent higher than the Hawaiian Homes lease rent, there is an
inefficiency in the allocation of resources. He states that data on the excess demand for
Hawaiian Home Lands parcels must be analyzed. Dr. Ghali suggested that:
To evaluate this potential benefit, one needs to know the frequency of unmarried
people that occupy Hawaiian Homes Lands properties at this time. An opinion
survey of Hawaiian community attitude towards granting the rights to unmarried
partners of Hawaiians in preference to their Hawaiian families would be helpful, as
it will ultimately be the Hawaiian Home Lands that will make the decision
regarding the extension of this benefit to domestic partners.
168
Dr. La Croix and Professor Roth both discussed federal tax benefits from marriage.
Both testified that, the tax code benefits and burdens married and unmarried couples
depending on the taxable income rather than the marital status. Both also agreed that neither
this Commission nor the state legislature can modify the U.S. Internal Revenue Code.
Therefore, it is not certain that federal tax economic benefits will be gained extending marital
rights to unmarried people. Were people to actually marry, whether they benefit or are
burdened depends on their relative incomes. Unless data show that most or all same-sex
167. See Minutes of October 11, 1995, for Dr. Ghali's testimony entitled "Discussion of Some
Benefits Which May Accrue to Individuals From Extending Marital Benefits to Domestic
Partners," attached in Appendix I on pg. 272 of this report.
168. See Minutes of October 11, 1995 for Dr. Ghali's testimony entitled "Discussion of Some
Benefits Which May Accrue to Individuals From Extending Marital Benefits to Domestic
Partners," attached in Appendix I , on pg. 273 of this report.
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�MINORITY OPINION
couples have greatly unequal income, Dr. Ghali, Professor Roth and Dr. La Croix agree that
:here is no reason to assume a general tax benefit from marriage.
F.
Most of the Benefits in the Nineteen-Page List are also Not Extended to
Unmarried, Heterosexual Couples
As explained by Justice Levinson in Baehr v. Lewin at pg. 559, in Hawaii, since 1920,
people living in "common law marriage" (cohabiting without being legally married) have
consistently been refused marital benefits. The majority's recommendations are contrary
to this long-maintained policy and constitute a step backward for Hawaii as a culture. Hawaii
has long zealously guarded the definition of marriage, having codified it in 1872. Were the
legislature to permit homosexual couples to enjoy the benefits of marriage more than one
hundred years of social policy in Hawaii would be changed in one fell swoop. In addition,
were these marital benefits not granted to unmarried heterosexual couples under a domestic
partnership statute, then the claims in the Baehr v. Miike case would again be created in our
statutes. Heterosexual couples could complain that they have been singled out as the only
group of people not to receive the marital benefits on the basis of their sex if, as
heterosexuals, they do not qualify for Domestic Partnership status. However, the cost to
society of extending marital benefits to all unmarried adults would possibly crush the
economy of Hawaii. No study has been done to determine the effect of these domestic
partnerships in our state.
169
G.
Most of the Few Specific Legal and Economic Benefits Actually Discussed by
the Commission are Not Denied to Homosexual Couples Since Already
Available to Other Means and Therefore are Not Major Benefits of Marriage
The definition of major legal and economic benefits, which the majority of the
Commission rejected, sought to look at significant legal and economic benefits, and
determine if the same benefit was available to unmarried same-sex couples through an
avenue or means other than being legally married. If so, then the benefit would not qualify as
a major legal and economic benefit extended to married opposite-sex couples but not to'
same-sex couples.
Most of the few specific legal and economic benefits actually
discussed by the Commission are already available to same-sex couples. Most of the estate
planning, control of medical treatment, retirement benefits, power of attorney, life insurance
benefits, etc. are available to same-sex couples.
170
In addition, many of the benefits the majority found to be unavailable to same-sex
couples are unavailable based on the majority's definition of "family". The availability of the
benefits to "family" members, in the absence of a definition of "family" which expressly
169. See, also, Catherine Hyde Aehegma v. Aelbert Aehegma, 8 Haw. App. 215 (1990).
170. See Section III.C.(6) in this Minority Opinion, above.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
included same-sex couples, led the majority of the Commission to assume that these benefits
were denied same-sex couples. However, the definition of "family" did not specifically
exclude same-sex couples, and indeed often the state agency would extend these benefits to
same-sex couples.
171
H.
The Few Legal and Economic Benefits Which were Actually Discussed by the
Commission were Based on Faulty Economic Analysis and Therefore do Not
Provide the Foundation for the Conclusions Drawn by the Commission
As discussed above, the Commission mis-defined major legal and economic benefits
to include any benefit no matter how small or unlikely to be used, failed to reduce expected
economic value to true economic value, and failed to review the Nineteen-Page List of
statutes appended to the majority report as the compilation of legal and economic benefits.
Consequently, these efforts of the Commission do not support the conclusions drawn by the
Commission. Whether there are in fact major legal and economic benefits extended to
opposite-sex married couples but not to same-sex couples has not truly been examined by the
Commission.
However, that is not to say that there are no major legal or economic benefits reserved
solely for married couples. Justice Levinson recited the now seventy-five year history of our
state "zealously guarding the state's role as the exclusive progenitor of the marital
partnership... "
and it is safe to assume that there are major legal and economic benefits
reserved for that marital partnership. That is addressed below at section IV. E. 1 below. The
point simply is that the majority of the Commission failed to analyze the statutes in a manner
to report what the legislature charged the Commission to examine.
1 7 2
I.
There is No Evidence Whatsoever that Granting Marital Benefits to
Homosexual Couples will Increase Tourism Revenues in the State of Hawaii
For twenty-three years Dr. Ghali studied Hawaii's economy as a tenured professor in
the Economics Department at the University of Hawaii. He has published the authoritative
analysis of Hawaii's economy, including a model containing more than one hundred
variables.
Dr. Ghali testified to the Commission that Dr. La Croix had no support for the
economic evaluation prepared by Dr. La Croix, and that Dr. La Croix could not conclude
whether there would be a positive or negative effect on Hawaii's tourism resulting from
173
171. See Interim Report from the Commissior. on Sexual Orientation and the Law, January 17, 1995,
particularly description of Chapter 20 IE, Hawaii Revised Statules, in Appendix B of this report.
172. Baehr v. Lewin, 74 Haw. 530, 559 (1993) quoting Parke v. Parke, 25 Haw. 397, 404-05 (1920).
173. A copy of that book was donated to the Commission's library by Dr. Ghali.
60
�MINORITY OPINION
nomosexual marriage.
Dr. La Croix then admitted that his figures presented to the
Commission are "unreliable".
174
Although it has been reported in the local press that extending marital benefits to
homosexual couples will result in an increase in tourism revenues to the State of Hawaii,
there is absolutely no valid data to support that claim. The claim arose out of an article
written by Jennifer Gerarda Brown, published in 1995 in the Southern California Law
Review.
However, both Dr. Ghali and Dr. La Croix opined that her economic analysis was
completely faulty. Dr. Ghali testified to the Commission that "Professor Brown has chosen to
present her argument as an economic proposition. We treated it as such and found it has no
merit."
175
176
177
Dr. La Croix agreed that if additional tourists do come to Hawaii because of samesex marriage here, in order for the net economic effect to be positive, the net revenue
generated, after considering the expenses of providing the tourism services and after
considering the costs involved with the burden on infrastructure, must be greater than the
decrease in tourism dollars resulting from tipping (the lowering of the value of visiting Hawaii
for non-homosexual tourists in response to the same-sex marriage policy).
However, at least one tourist location in New York has greatly suffered as a result of
the increase in the homosexual population. In "The Boys of the Beach," Midge Decter, a
celebrated author, wrote in a piece in Commentary magazine about the change in milieu at
Fire Island due to the increase in the homosexual population. She writes that:
At the end of our fifth summer in the Pines, we decided not to return there any
more. There were a number of reasons for this decision, but prominent among
them was the fact that the balance between the homosexuals and the straights had
clearly begun to tilt.
The former were growing ever more numerous and
concomitantly ever less circumspect both in their public demeanor and in their
private behavior toward us... In any case, our once friendly neighbors were
beginning to indicate to us in all sorts of ways-from a new shrillness of voice to the
174. Because of this exchange at the October 11, 1995 meeting, the refusal by the Chairman to
complete the correction to the minutes appears to be related to the substance of the meeting
and the testimony of the economists. The October 11, 1995, meeting minutes were finally
resolved on December 4, 1995; the majority voted not to include this admission of Dr. La
Croix in the minutes, as though it was never said.
175. Jennifer Gerarda Brown, "Competitive Federalism And The Legislative Incentives To
Recognize Same-Sex Marriage," Southern California Law Review, Vol. 68, No. 4 (1995),
pgs. 745-839.
176. See also, Minutes of October 11, 1995, for Dr. Moheb Ghali's "Hawaii, Tourism and SameSex Marriage, A Testimony Before the Commission on Sexual Orientation and the Law,"
attached in Appendix I .
177. See Minutes of October 11, 1995, for testimonies of Sumner La Croix, Ph.D., and James
Mak, Ph.D., attached in Appendix I .
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
appearance of drag costumes in the afternoon to a provocative display of social
interest in our teenage children-that the place was getting too small to contain the
tastes and wishes of both communities.
178
It is currently unknown whether such an increase in our homosexual population will
have a positive or negative effect on tourism. Dr. La Croix could not estimate whether the net
effect on tourism dollars would be positive or negative. Dr. Ghali and Dr. La Croix agreed that
it would take several years of research to answer the question.
The arguments for economic benefit is based on several other fallacious assumptions.
First, if Hawaii legalizes same-sex marital rights but no other state does, it will do no good for
same-sex couples from other states to come to Hawaii, get married or form domestic
partnerships, then return to their home states to live because their home states do not
recognize the marital rights. The "marital rights" would be a legal nullity. Why would people
incur substantial expense for a legal nullity? Second, if even just one other state legalizes
same-sex marital rights, Hawaii will lose the "only state" advantage and with it all the pie-inthe-sky economic benefits. If legalizing same-sex marital rights is economically so
advantageous, will all other states refuse to enter the same-sex marriage market? When they
do, what will happen to Hawaii? For example, who goes to Reno for divorce any more?
Would Hawaii have scared off the family vacation business only to find that the homosexual
vacation business is divided up among other states (more convenient for homosexuals on the
mainland to get married)? Third, if Hawaii is going to sell out its family values and moral
integrity for economic gain, there are a lot of other things it could "put on the market" that
would probably generate more money than merely legalizing same-sex marriage. For
example, if Hawaii is willing to legalize same-sex marriage, why not legalize prostitution,
gambling, marijuana, or even better, child prostitution? That would probably be even more
lucrative--in the short term. Fourth, the claims of economic benefit to Hawaii are based on
fantasized assumptions about the numbers of homosexuals, the number of same-sex couples
who would want to marry, how many of them would fly to Hawaii to marry, and how much they
would spend. Even the economic gains predicted by the pie-in-the-sky analysis are not very
great, especially if they are one-time, short-lived benefits. Fifth, the costs factor must be
considered. That is, what economic impact will result from the same-sex couples that come
to Hawaii to get married, and stay in Hawaii? With a domestic partnership status, they would
almost certainly have to reside here to benefit from the statute. Would Hawaii become a
haven for same-sex couples? If so, would the public health costs not rise?
If so, how
much financial burden will that impose on the families of Hawaii? For example, how many
new schools would not be built, and how many programs for needy women and children
would be sacrificed to pay for the increased public costs associated with luring the same-sex
179
178. Midge Decter, "The Boys on the Beach," Commentary, Volume 70, No. Three,
September, 1980, pg. 45.
179. See, "Hard-Hit Key West Combats AIDS With Community Effort," New York Times,
September 3, 1990, pg. 8; "In Key West, the Latest 'Invaders' Have Set Off a Backlash,"
NewYorkTimes, April 7, 1979, pg. 10; "Nights Are Long And Liquid at Key West" New York
62
�MINORITY OPINION
-affic to Hawaii? Who knows what these costs might be? The Commission certainly did not
investigate them, and no recommendation to legalize same-sex marital rights of any kind can
be taken seriously until these dimensions of the issue have been thoroughly considered.
fV.
The Majority of the Commission Refused to Examine Significant, Substantial Public
Policy Reasons Not to Extend Benefits in Part or in Total to Same-sex Couples
Although the majority and minority opinions appear to address the full range of public
policy issues related to homosexual marital rights, these issues were not discussed among
the Commissioners except in the drafting of the report language. As a draft of the report
became available, the minority discovered the majority's position on the public policy issues.
However, no discussion, debate or attempted resolution of apparently mutually exclusive
positions, was had. Instead, the reports present the opposing positions, and at that,
presented in a way which could lead the reader to assume that the points of view were
debated by the Commissioners without resolution of the differences. Nothing could be further
from the truth. In fact, not only did the Commission not discuss the minority's perspective,
but the majority precluded such testimony whenever possible.
A.
The Majority of the Commission Refused to Permit Testimony Via Long
Distance Telephone by National Traditionalist Experts on the Public Policy
Issues
Several nationally known experts on issues concerning social policy considerations
related to homosexual marital rights were invited by Commissioner Hochberg to testify at the
meeting of the Commission at which social policy matters were to be examined. Because
these experts live on the Mainland, they were not able to arrange to visit Hawaii on the short
notice permitted by the Commission meeting schedule. However, Dr. Dallas Willard,
Dr. Joseph Nicolosi, Roger M. Magnuson, Esq. and Richard Duncan, Esq. committed to be
available for telephone testimony on October 11, 1995, as follows:
1.
Testimony by Dallas Willard, Ph.D., Philosophy Professor at the University of
Southern California (USC), would have addressed the ethical and philosophical
issues attendant to recognition of homosexual relationships on par with
heterosexual marriage;
Times, January 24, 1977, pg. 12; "Island Town Weathers Storm in Mayoral Race," NewYork
Times, November 11, 1983, pg. A18; "Multiple Sclerosis Causing Concern In Key West,"
New York Times, November 20, pg. C13.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
2.
Testimony by Joseph Nicolosi, Ph.D., a clinical psychologist who has for more
than twenty years successfully treated homosexuals in psychotherapy, would
have addressed the psychoanalytical issues concerning homosexuality and the
impact thereof on recognition of homosexual relationships on par with
heterosexual marriage;
3.
Testimony by Roger M. Magnuson, Esq., author of many articles and books,
including Informed Answers to Gay Rights Questions, would have addressed
the legal and public policy issues attendant to making behavior-based
characteristics of homosexuality the basis for protected class status by
recognizing homosexual relationships on par with heterosexual marriage; and
4.
Testimony by constitutional law professor Richard Duncan, Esq., the Sherman
S. Welpton, Jr. Professor of Law, at the University of Nebraska College of Law,
would have addressed the constitutional law issues attendant to recognition of
homosexual relationships on par with heterosexual marriage.
The majority of the Commission voted not to extend to these nationally known experts
the opportunity to testify by telephone. No written basis for the refusal was given. However,
Winfred Pong, Esq., deputy attorney general, State of Hawaii, orally informed Ms. Martin of
the LRB that telephone testimony would not be permitted because Chapter 92 required
testimony in person.
180
Certainly the Commission's work would have been more complete had these experts
addressed the Commission, and perhaps the conclusions reached by the majority of the
Commission would have been different. This is not likely, based on the strong prohomosexual bias of the majority. However, Mr. Magnuson provided each Commissioner with
a copy of his book Informed Answers To Gay Rights Questions, Dr. Nicolosi provided
significant written materials concerning the psychological pathology of homosexuality, and
Professor Duncan suggested a sweeping religious exemption in a one-page letter which
referenced his Notre Dame Journal article on the religious freedom issues.
Only Dr. Willard
was able to send written testimony directed specifically to the Commission and its work.
181
180. However, Commissioner Hochberg later discussed this matter with Mr. Pong. Mr. Pong
stated that Chapter 92 permitted only written testimony or presence in the meeting in
person. Mr. Pong stated that telephonic presence did not constitute presence. Mr. Pong
informed Commissioner Hochberg that no research was conducted to make that
determination. Instead Mr. Pong simply read the section of Chapter 92 and made his
ruling. Mr. Pong was unaware of the fact that even corporation boards of directors,
although not permitted to vote by proxy, are permitted by law to have meetings via teleconference. Later, in November, 1995, it was revealed to the Commission that video
conferencing would be permitted but that there was then insufficient time to promulgate the
rules as required.
181. Magnuson, Roger. Informed Answers to Gav Rights Questions, Multnomah Books, Questar
Publishers (P.O. Box 1720, Sisters, Oregon 97759), 1994;
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�MINORITY OPINION
None of the written submissions from these experts was discussed or referenced by the
majority of the Commission.
B.
The Majority of the Commission Ignored Testimony and Information Concerning
the Negative Impact of Domestic Partnerships and/or Same-sex Marriage on
Children and the Family but Adopted the Sole Viewpoint of Dr. Bidwell, Known
to Support Same-sex Marriage
Although rejecting the overwhelming evidence to the contrary, the majority of the
Commission adopted Dr. Bidwell's testimony that no evidence exists to deny homosexual
parenting rights.
Dr. Bidwell admitted he was not trained in psychology or psychiatry but
was a developmental pediatrician. However, at the October 11, 1995 Commission meeting,
Dan Kehoe, Ph.D. (clinical psychologist) testified concerning his more than twenty years
experience as a school psychologist counseling school children. It is his professional opinion
that:
182
Homosexuality is in part a pathological condition and can derive directly from
disturbed childhood development. Homosexuality is often the result in large
measure of a flawed confusion regarding psychosexual cross identifications.
Clearly, a developing child will be deprived of this most elemental process when
reared by a homosexual couple... Social Science data has long documented
numerous studies showing detrimental effects of homosexual parenting on
children. These studies include but are not limited to Signers and Bozetts, 1990;
Riddle and Arguellis, 1981; Lewis, 1980; Bozett, 1980, 1981; Humphreys, 1979;
Spada, 1979; and Pennington's work in 1987 which was based on ten years of
clinical experiences.
183
The majority had invited the testimony concerning the impact of same-sex marriages
on children and the family from Robert J. Bidwell, M.D., a homosexual pediatrician who
advocates the homosexual lifestyle and the conferring of benefits on couples engaged in that
lifestyle. Dr. Bidwell is well-known in Hawaii as a homosexual activist.
184
Notwithstanding that Dr. Bidwell is not a psychologist or psychiatrist, he testified that
he had only been able to find one study which indicates anything negative regarding gay and
Duncan Richard, "Who Wants to Stop the Church: Homosexual Rights Legislation, Public
Policy, and Religious Freedom," Notre Dame Law Remew, Vol. 69, Issue 3, 1994, pgs. 393-445.
182. See, John Finnis, "Shameless Acts in Colorado: Abuse of Scholarship in Constitutional
Cases," Academic Questions, Vol. 7, No. 4, page 10, Fall, 1994. John Finnis is professor of
law and legal philosophy, Oxford University and Fellow of University College, Oxford.
183. See Minutes of October 11, 1995, for testimony of Dan Kehoe, Ph.D.
184. Dr. Bidwell has been instrumental in attempts to include the teaching of homosexuality as a
viable alternative lifestyle in Hawaii's public school system, and who played a leading roll in
placing the controversial Teen Line program in Hawaii's public schools. The Teen Line
program contained recordings which students could access to answer their questions on
65
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
lesbian parents. According to Dr. Bidwell, that study was conducted in 1973 and used only 16
subjects. However, when asked, Dr. Bidwell was unable to tell the Commission which
con-.outer word-search terms he used in his research, so no cross-checking was possible.
Alv.ough he acknowledged the fact that most current research into homosexuality issues is
done by homosexual scientists, and their work is criticized as biased, he was unable to say
whether the favorable studies he relied on for his opinions were conducted by homosexual or
heterosexual researchers. He did not have information about the testimony of Dr. Kehoe or a
widely published author named Paul Cameron who has written prolifically on many aspects of
homosexuality.
185
In addition, available to the Commission is a testimony by Lawrence Burtoft, Ph.D.,
reporting on Diana Baumrind's (University of California at Berkeley) review of a study by J.M.
Bailey on the sexual orientation of adult sons of gay fathers. She questioned Bailey's
conclusion that children of gay men and lesbians are not more likely than children of
heterosexuals to adopt a homosexual orientation:
I question their conclusion on theoretical and empirical grounds. Theoretically, one
might expect children to identify with lifestyle features of their gay and lesbian
parents. One might also expect gay and lesbian parents to be supportive rather
than condemnatory of their child's non-normative sexual orientation.
188
Baumrind addresses her empirical basis for her doubts, which concern the disproportionate
numbers of sons who were identified as homosexual compared to general population figures.
Repeated studies have placed the percentage of exclusive male homosexuals at
2-3%.
This would indicate that sons of gay parents are three times as likely to be
homosexual than those raised by heterosexual parents.
187
numerous subjects. The tape library included a recording which equated homosexuality
with being left handed.
185. See the following articles: Cameron, Paul; Playfair, William L., and Wellun, Stephen, "The
Homosexual Lifespan," paper prepared for Family Research Institute; Cameron, Paul and
Kirk Cameron, "Homosexual Parents" paper prepared for Family Research Institute;
Cameron, Paul "What Causes Homosexual Desire and Can I t be Changed?"; Cameron,
Paul and Kirk Cameron, "The Prevalence of Homosexuality," paper prepared for Family
Research Institute.
186. Lawrence F. Burtoft, Ph.D., Social Research Analyst Public Policy Division, Focus on the
Family, "Testimony on House Bill 1171" presented before The House Children and Family
Services Committee, State of Washington, February 14, 1995.
187. Lawrence F. Burtoft, Ph.D., Social Research Analyst Public Policy Division, Focus on the
Family, "Testimony on House Bill 1171" presented before The House Children and Family
Services Committee, State of Washington, February 14, 1995.
66
�MINORITY OPINION
Thus, according to Dr. Lawrence Burtoft, in testimony before the Washington
legislature, children raised by homosexual parents may have a disproportionate chance of
duplicating the statistical findings related to homosexuals' extremely high medical health
risks, relational instability and sexual promiscuity, elevated mental health risks, social
disapproval and ostracism and risk of molestation.
Homosexuals are found to be disproportionately more likely to be involved in child
molestation. Approximately 35% of child molesters are homosexual.
Depending
upon whether one accepts the 2% or 6% population figure, male homosexuals are
six to seventeen times more likely to be involved in child sexual abuse. ^
188
18
Dr. Burtoft's testimony addressed whether homosexual, bisexual, transsexual or
transvestites should be permitted to be adoptive, foster or placement parents. His opinion in
summary is that they should not because the homosexual family setting is harmful to children.
The state's primary concern is to do all within its power to seek the optimal family setting.
His opinion is that:
[g]iven that empirical research overwhelmingly identifies the biological family as
most suited to the well-being of children; given the large amount of research
indicating the negative factors associated with homosexuality; and given that even
the small amount of research on gay and lesbian parents points to an increased
likelihood of harm.
the best interest of children requires that homosexual, bisexual, transsexual or transvestites
should not be permitted to be adoptive, foster or placement parents. His reasoning applies
equally to the issue before the Commission because adoption and family rights accompany
legal recognition of the homosexual couple.
190
Further, despite Dr. Bidwell's testimony to the contrary, the overwhelming bulk of the
evidence indicates that homosexual relationships threaten the very core of our society--the
family. The following provide some of the most telling examples:
168. Freund et al., "Pedophilia and heterosexuality vs. homosexuality," Journal of Sex and Marital
Therapy 10:3 (Fall 1984) 197: Cameron, P., "Homosexual molestation of children/sexual and
interaction of teacher and pupil," Psychological Reports 57 (1985) 27-36. Cited in Schmidt,
Thomas E., Straight and Narrow? Compassion and Clarity in the Homosexuality Debate (Downers Grove,
II: InterVarsity Press, forthcoming May 1995). See also, Seymour L. Halleck, "Emotional
Affects of Victimization," in Sexual Behavior and the Law (ed. R. Slovenko, Springfield: Charles
C. Thomas, 1963). See, Lynda S. Doll, Dan Joy, et al., "Self-Reported Childhood and
Adolescent Sexual Abuse Among Adult Homosexual and Bisexual Men," Child Abuse &
Neglect, Vol 16, pgs. 855-86, 1992.
189. Lawrence F. Burtoft, Ph.D., Social Research Analyst Public Policy Division, Focus on the
Family, "Testimony on House Bill 1171" presented before The House Children and Family
Services Committee, State of Washington, February 14, 1995.
190. Lawrence F. Burtoft, Ph.D., Social Research Analyst Public Policy Division, Focus on the
Family, "Testimony on House Bill 1171" presented before The House Children and Family
Services Committee, State of Washington, February 14, 1995.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
a. Writing for the Alabama Journal of Medical Science in July, 1978, Harold M. Voth,
K. J., a senior psychiatrist and psychoanalyst at the Menninger Foundation in Topeka,
Kansas wrote:
The crucible from which all life springs is the family. The events within the
family can make or break the individual and, collectively, civilisation. This
fundamental unit is the building block and was the building block of all social
organizations from the tribe, village, and onto the most highly developed societies
and civilizations. Will Durant said the family can survive without the state, but
without the family all is lost Therefore, not only must the family survive, but its
internal workings must function in ways that turn out strong men and
women--not weak ones who eventually become casualties of one form or another
or who may work actively against the best values and traditions of our country.
The underpinnings of personality are biologic underpinnings. None are more
fundamental than the biologic imperatives which lead to the psychologic qualities
of maleness and femaleness.... One of the most fundamental functions of
parenting is to evoke, develop, and reinforce gender identity and then proceed to
shepherd the developing child in such a way as to bring his psychological side into
harmony with his biological side, and thereby develop a solid sense of maleness or
femaleness.
... Human beings are not biologically bisexual, despite what the gay liberationists
would have us believe. The human spirit is greatly impaired when childhood
development does not lead to fully developed masculinity or femininity. Fully
masculine men and feminine women are by definition mature, and that term
implies the ability to live out one's abilities. These include the capacity to mate,
live in harmony with a member of the opposite sex, and carry out the
responsibilities of parenthood. Mature people are competent and masterful; not
only can they make families but they can take hold of life generally and advance
it, and in particular they can replace themselves with healthy children who
become healthy men and women.... The fate of mankind depends on the
durability of the heterosexual relationship, and the stability and integrity of the
Family. (Emphasis added.)
191
Dr. Voth goes on to point out that homosexuality is on the increase, and is an
abnormal condition, the cause of which has been unequivocally traced to childhood
experiences within the family and to the personalities of parents and the nature of their
relationships.
One's biology does not cause the condition. The increase in this form of
psychopathology is directly related to the faulty psychological development of the
child within his disturbed family. It is an ominous fact that the gay movement is
191. Harold M. Voth, M.D., "The Family and the Future of America, The Alabama Journal of Medical
Sciences, Vol 15, No. 3, July 1978 at 310, 311.
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�MINORITY OPINION
having its way of life redefined as a simple variant of normal human sexuality and
woven into the fabric of society. (Emphasis added.)
192
Dr. Voth points out that Dr. Abram Kardiner, a distinguished physician, psychoanalyst
and anthropologist, notes that homosexuality reaches an epidemic level in societies in crises
or in a state of collapse. Says Dr. Voth: "I am vehemently opposed to having this condition
called normal. We are indebted to those persons who call a spade a spade on this issue."
Dr. Voth concludes:
193
The key link in the whole chain is the pivotal point around which all societies turn,
the family. Everyone must turn attention to the task of making it flourish.... We
must fight back against the social movements which are destructive to our way of
life.... This means, above all, preventing the passage of laws which ignore the
differences between a made and a female, and which undermine the security and
stability of the family and the nation. Strong pioneer families created this country,
strong families and strong leaders will save i t .
1 9 4
b. The social arrangement that has proved most successful in promoting the social
development of the child and ensuring his or her physical survival is the family unit of the
biological mother and father.
195
c. When children do not receive parenting from a masculine father and a feminine
mother who are firmly bonded together-when they do not grow up in a healthy family-their
own effectiveness is inevitably weakened and their identity may become blurred. Some
emerge with an identity of the opposite sex. Inevitably, a price is paid for these deviations
away from what might have developed. These individuals always lack the effectiveness they
might have had. "Hostility among the sexes, along with role blurring and identity confusion,
cost both the individual and society heavily." (Emphasis added.)
196
d. Throughout the history of Anglo-American jurisprudence, homosexual behavior has
been sometimes tolerated, but never legitimated. In part, this is because, as evidenced by
historical and sociological evidence, such behavior is incompatible with long-term societal
well-being. If what Hawaii citizens desire (though some may not) is a stable yet dynamic longlasting society, we must foster strong family units, effective education of the young, reduction
of sexual harassment and exploitation, and a decrease in sexual-behavior-related health
problems. These are all goals which are undermined by homosexual behavior. What is at
192. M. at 314.
193. li
194. Mat 315.
195. Barbara DaFoe Whitehead, "Dan Quayle Was Right," The Atlantic Monthly, April 1993 at 48.
196. Harold M. Voth, "The Future of America," Military Medicine, Vol 145, No. 3, March 1980 at
169, 173.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
issue in Hawaii today regarding dealing with homosexual behavior is not really a civil rights
discrimination issue but an issue of societal well-being. "Self-gratifying (homo) sexual
interests should not masquerade under the "rights" banner, but rather should always be
subordinated to the overall welfare of society."
197
The evidence about homosexuality shows that our society will be damaged by granting
homosexual marital rights. As Charles Socarides, M.D., a preeminent psychiatrist, wrote in
1995:
Homosexuality cannot make a society, nor keep one going for very long. It
operates against the cohesive elements of society. It drives the sexes in opposite
directions. And no society can long endure when either the child is neglected or
when the sexes war upon each other... Regarding homosexuality as a normal
variant of sexual activity... militates against the family and destroys the function
of the latter as the last place in our society where affectivity can still be
cultivated.
198
Vitality of society depends on the continued vitality of male/female relationships to
build family and community. Homosexuality operates against this, both because of the failure
to draw together partners of different sexes, and because of the effect on society of
segregation by sexes. In addition, throughout history, healthy civilization is found only when
society highly values preservation of sexual expression within the male/female marriage
partnership at the exclusion of all other sexual expression.
The scholar J.D. Uwin published his study of 86 different historical societies in Sex
and Culture, reviewed in Christianity Today by Philip Yancy in 1994. Mr. Yancy writes:
In human records there is no instance of a society retaining its energy after a
complete new generation has inherited a tradition which does not insist on prenuptial and post-nuptial continence'... [J.D. Unwin] found with no exceptions that
[Roman, Greek, Sumerian, Moorish, Babylonian, and Anglo-Saxon] societies
flourished during eras that valued sexual fidelity. Inevitably, sexual mores would
loosen and the societies would subsequently decline, only to rise again when they
returned to more rigid sexual standards.
199
According to David McWhirter and Andrew Mattison, the two most noted homosexual
researchers of homosexual psychology, the homosexual community does not define relational
fidelity as sexual exclusiveness.
197. Phillip Colton Smith, Ph.D., "Homosexuality".
195. Charles W. Socarides, M.D., Homosexualitx/ A FreedcmToc Far, Adam Margrave Books, 1995,
pg. 311, quoting Dr. Abram Kardiner, an expert in the psychoanalytic investigation of
cultures.
199. Philip Yancey, "The Lost Sex Study," Christianity Today, December 12, 1994 pg. 80.
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�MINORITY OPINION
Sexual exclusivity among [homosexual] couples is infrequent, yet their expectations
of fidelity are high. Fidelity is not defined in terms of sexual behavior but rather
by their emotional commitment to each other. Ninety-five percent of the couples
have an arrangement whereby the partners may have sexual activity with others
at some time under certain conditions... Stated another way, all [homosexual]
couples with a relationship lasting more than five years have incorporated some
provision for outside sexual activity in their relationships. {Emphasis added.)
200
Consequently, creating homosexual marital rights constitutes a loosening of sexual
mores which historically caused the decline of societies. Such a policy determination must
not be undertaken without the most serious analysis.
Finally, what is very enlightening and should serve as a real warning of things to come
should this legislature decide to legitimize homosexual marriages and/or domestic
partnerships is the fact that homosexual activists themselves espouse the destruction of the
family unit. Some of the most "salient" examples are:
a. Paula Ettelbrick, a Lesbian activist and former director of the Lambda Legal
Defense and Education Fund and now the policy director for the National Center for Lesbian
Rights, supports the "right" of homosexuals to marry, but opposes marriage as oppressive in
and of itself. According to Ms. Ettelbrick, homosexual marriage does not go far enough to
transform society.
Being queer is more than setting up house, sleeping with a person of the same
gender, and seeking state approval for doing so... Being queer means pushing the
parameters of sex, sexuality, and family, and in the process, transforming the very
fabric of society.... As a lesbian, I am fundamentally different from non-lesbian
women.... In arguing for the right to legal marriage, lesbians and gay men would
be forced to claim that we are just like heterosexual couples, have the same goals
and purposes, and vow to structure our lives similarly... We must keep our eyes on
the goals of providing true alternatives to marriage and of radically reordering
society's views of reality.
201
b. In April 1994, Genre, a homosexual-oriented magazine, examined current practices
among male homosexuals who live with partners. According to the article, the most
successful such relationships are possible largely because the partners have "outside
affairs." The article went to say that in 1993, David P, McWhirter and Andrew M. Mattison,
authors of The Male Couple, reported that in a study of 156 males in loving relationships
202
200. McWhirter & Mattison, The Male Couple; Haw Relationships Develop, Prentice-Hall, 1984, pg. 252.
201. Knight, Robert H , "How Domestic Partnerships and "Gay Marriage" Threaten the
Family," Insight, Family Research Council, Washington, D.C, at 4 (quoting Paula
Ettelbrick, "Since When is Marriage a Path to Liberation?", in Rubenstein, op. cit., pgs. 383395).
202. H at 8 (quoting Doug Sadownick, "Open Door Policy," Genre, April 1994, pg. 34).
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
lasting from one to 37 years, only seven couples considered themselves to have been
consistently monogamous... It should be recognized that what has survival values in a
heterosexual context may be destructive in a homosexual context,... Life-enhancing
mechanisms used by heterosexual men and women should not necessarily be used as a
standard by which to judge the degree of a homosexual's adjustment. In other words, to
adapt heterosexual models to homosexual relations is more than just foolhardy; it's an act of
oppression."
203
C.
The Majority of the Commission Refused to Discuss the Impact of Same-Sex
Marriage or Domestic Partnerships on the Overall Health of the Community
In recent years, rising health care costs attracted and maintained the attention of the
media, politicians, as well as people in the public and private sectors. Much discussion has
occurred generally on how to reduce rising health care costs in order to gain control over
growing government budgets in times of shrinking public funds. However, the majority
refused to address these issues in relation to homosexual marital rights, notwithstanding the
significant health care issues in the homosexual community. Some salient examples are:
1.
The weight of evidence of widespread health problems in the homosexual
community appears as robust as is that against smoking. "Medical
specialists have long known the disproportionate impact on the homosexual
population of diseases like gonorrhea, syphilis, Hepatitis A, Hepatitis B,
cytomegalovirus, amoebic bowel disease ('gay bowel syndrome), and
herpes."
204
205
2.
Based on obituary information collected from 947 obituaries published "The
Blade," a homosexual-oriented magazine, 804 (87%) of the 947-person sample
died of AIDS or AIDS-related illness, only 123 died of other causes. Of those
who died of AIDS, 361 had a long-time sex partner, and the median age of
death was 37. Of the 947-person sample, 426 did not have a long-time sex
partner, and their median age of death was also 37. Fifteen died married to a
wife, and their median age of death was 44. Of those who die of AIDS, 49 had
long-time sex partners, and their median age of death was 41. Seventy-five did
not have long-time sex partners, and their median age of death was also 4 1 .
2 0 6
203. Id. at 8-9 (quoting Doug Sadownick, "Open Door Policy," Genre, April 1994, pgs. 35, 36).
204. Cameron, Paul, "EfTect of Homosexuality Upon Public Health and Social Order,"
Psychological Reports, 1989, 64, 1177.
:
'.. Roger J. Magnuson, "Declaration of Roger J. Magnuson," Civil No. 91-00712 ACK, United
States District Court For the District of Hawaii, pg. 9. See also, Paul Cameron, Ph.D.,
"Sexual Orientation and Sexually Transmitted Disease".
206. Paul Cameron, et al., "The Homosexual Lifespan".
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�MINORITY OPINION
3.
The primary sexual activity of gay males is, without reference to disease,
anatomically unhealthy.
207
4.
Taking disease into consideration, the primary sexual activity of gay males is
well known to result in AIDS. Specifically, as of June 30, 1993, 315,390 cases
of AIDS had been reported. Of those cases, 191,642 were homosexual and
bisexual men. In other words, homosexual and bisexual men account for 61%
of all AIDS cases. Since homosexual males make up approximately 2% of the
population, this means they are 30 times more likely to contract HIV.
208
Common sense dictates that extending marriage benefits to individuals that comprise
such an inordinate health risk will cause the cost of health care to escalate for heterosexual
families. Moreover, extending such benefits punishes those who do not condone homosexual
activity for religious or moral reasons, by requiring those individuals to pay the cost for 2% of
the population's aberrant behavior. In fact, the lower health insurance premiums available to
families but not homosexuals, cited by the majority as a desired homosexual marital benefit,
would be negatively impacted by any increased cost of providing medical treatment once
homosexuals were permitted to obtain that reduced premium medical coverage. Is it
appropriate to increase the cost of health care for families in order to give family health care
premium rates to 2% of the population? Such an issue should have been debated by the
Commission, however, it was not discussed.
D.
The Majority of the Commission Refused to Consider Any Reasons for Not
Extending the Benefits Afforded Opposite Sex Married Couples to Same-Sex
Couples
The majority refused to permit the minority to have any input whatsoever in the
Commission's findings and recommendations. At the October 26, 1995 continuation of the
October 25, 1995 meeting, the Commissioners first discussed the content of the
Commission's proposed work. Commissioners Hochberg and Sheldon attempted to suggest
opposing viewpoints. However, the Chairman refused to permit any such minority input to be
included in the working draft and required the minority to simply write their own report.
Honest debate on both sides of all the issues did not occur.
207. Larry Burtoft, Ph.D., The Social Significance of Homosexwliti/, Questions and Answers, also
distributed as Setting the Record Straight, 1994, pgs, 33, 34.
208. Id.
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E.
Homosexuality is a Psychological Pathology Which is Not Equivalent to
Heterosexuality; Many Homosexuals are Cured of Their Homosexual Desires
Every Year, and Therefore, Homosexuality is Not an Immutable Trait, but is
Instead a Conduct-Based Psychological Disorder
1.
Homosexuality is Not Equivalent to Heterosexuality and Homosexuality
Should not Receive the Benefits and Protection Afforded
Heterosexuality
The majority of the Commission failed to consider whether homosexuality and
heterosexuality are so distinctly different that the two cannot be equivalents. However,
significant evidence of that fact was available to the Commission, but ignored. The interests
of society in marriage and family have justified substantial regulation of marriage throughout
history. Aristotle taught that it was the first duty of legislators to establish rules regulating
entrance into marriage.
Throughout history societies have given unique and special
preference to heterosexual marriage because of the benefits that those relationships provides
for society in general, and for individual women, men, and children.
209
To justify giving similar preferred legal protection to same-sex couples, it is necessary
to consider the social purposes of marriage, and to compare heterosexual unions with samesex unions in terms how each relationship furthers those purposes.
It is important to not oversimplify and distort the heterosexual-marriage position. We
acknowledge that two men or two women may share a deep, meaningful personal relationship
with each other (usually called "friendship"), support each other, develop and pursue
mutually-fulfilling, socially beneficial common interests, make strong commitments to each
other, and in many ways be as good citizens as persons in heterosexual marriages. However,
we believe that same-sex unions simply do not equate with heterosexual union of husband
and wife in terms of the purposes of marriage.
We believe that the majority's Commission Report denies and devalues the unique
strengths and social contributions of heterosexual marriage, and that legalization of same-sex
marriage or domestic partnership would put the state in the position of presenting a false
image of both marriage and of same-sex unions. We agree with Governor Pete Wilson of
California who said, when he vetoed a much narrower, much more modest domestic
partnership proposal last year: "Government policy ought not to discourage marriage by
offering a substitute relationship that demands much less - and provides much less than is
needed by the children...and ultimately much less than is needed by society."
He also
210
209. See Aristotle, Politica, in 10 The Works of Aristotle, 1334-1335 (W. Ross ed. 1921).
210. See "Wilson's Veto Kills Domestic Partnership Bill," San Francisco Examiner, Sept. 12, 1994,
at A l .
74
�MINORITY OPINION
stated that government has an obligation to "encourage and reward marriage and the
formation of strong families."
He added: "A society that devalues marriages, and which
accepts illegitimacy as commonplace, encourages the explosion of teenage out-of-wedlock
births that California has in fact experienced."
211
212
There are numerous social purposes of marriage as to which heterosexual marriages
provide tremendous benefits to society that are unequaled by homosexual unions. They are:
(1) protecting safe sexual relations, (2) social concerns regarding procreation and childrearing, (3) protecting the status of women, (4) fostering marital stability, (5) promoting
economic security for parents and children, (6) providing for recognition of Hawaii marriages
in other jurisdictions, and (7) protecting the foundations of self-government. Clearly, the
marriage statute itself regulates who may marry in order to prevent incest (HRS 572-1(1)), to
protect children (HRS 572-1(2) and 572-2), to prevent the spread of venereal disease on public
health grounds (HRS 572-1(5)) and to prevent bigamy (HRS 572-1(3)).
First, sexual behavior is a central concern in marriage and marriage regulation. Samesex marriage is, by definition, homosexual marriage because sexual relations between the
spouses is an integral part of marriage. Thus, it is disingenuous (and simply erroneous) to
suggest, as a plurality of the Hawaii Supreme Court did in Baehr v. Lewin, that not all samesex marriages will be homosexual marriages. If, however, homosexual marital rights are
extended to all unmarried people, then marriage would be stripped of all of its value to society
and simply reduced to a vehicle for obtaining benefits from government without contributing to
society those benefits which were historically given by marriage to society. Moreover, in
these days of sex-saturated entertainment, when the exploitation of children in pornography is
such a severe problem that Congress has had to pass laws to try to restrain it, when incidents
of forcible rape and "date rape" are skyrocketing, when American servicemen incite an
international incident bringing dishonor on the nation they serve because of their callous rape
of a pre-teen girl in another nation in which they were guests, when children are receiving less
sex-education in the home and more on the street, when rates of adolescent sexuality,
pregnancy, and even abortion are at near-disaster levels, it would be an act of unforgivable
irresponsibility to brush aside the tremendous social interest in regulating sexual behavior.
Moreover, it is the very nature and acts of homosexual behavior that are the core and
identifying feature of homosexual relations. It is not friendship between persons of the same
gender, or mere cohabitation of persons of the same gender that creates social concern, but
the acts of homosexual sexual relations that is at the core of the moral concern. Thus, to try
to evade that issue, to refuse (as the majority) to investigate it or even to listen to witnesses
discuss it is to evade a critical dimension of the marriage issue.
211. Id.
212. Id.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Second, marriage has long been favored because it is the most favorable setting in
which to bring children into the world and to raise them. If anything is clear in social science,
it is that conventional male-female marriage provides the best environment for the nurture,
care, training, education and responsible socialization of children. It is equally clear that
children suffer most from the creative "alternative" relationships that adults sometimes pursue
for their own adult self-interest. Children are the most numerous (and most innocent) victims
of the disintegration of marriage. The impoverishment of children has been shown repeatedly
and irrefutable to be a direct result of the change in family structure in the past three
decades. Yet, incredibly, the majority of the Commission blithely ignores the suffering of
children and proposes yet another radical destructuring of marriage. Why must Hawaii's
children pay and suffer for the faddish social experimentation of same-sex marriage or
domestic partnership?
The concern for our children is not limited to specific children living with specific
parents. Undoubtedly, one can find conscientious and devoted adults caring for children
under any kind of family structure. Rather, the greater concern is that children generally will
suffer from the message that homosexual marital rights send to all prospective parents--the
message that a mother and a father are not both optimally necessary for the raising of
children. In a time when fathers are abandoning their children's lives in record numbers, it
would be irresponsible to adopt a marriage or domestic partnership reform that sent the false
message that same-sex marriage and domestic partnership clearly convey about the
disposability of two-gender parenting. A state and society that cares for its children and its
future will not be so reckless when the interests, futures and lives of its children are at risk.
The law should emphatically model, support, and encourage two-parent, mother-father
parenting rather than create yet another ill-considered alternative to that institution that will
impose untold misery on yet another generation of Hawaii's children.
Third, studies repeatedly have shown that wives and mothers make the greatest
investment in marriage and children, and suffer the greater economic disadvantage when
marriage is undermined. Marriage is the one institution which historically has recognized the
indispensable equality of women because a man could not have a marriage without a woman.
It is the oldest equal rights relationship in law and society. Since male homosexuals
outnumber female homosexuals, even this new domestic institution will become just another
male-dominated institution. How many mothers in Hawaii will lose custody to their "gay"
former husband and his same-sex partner if same-sex marriage or domestic partnership is
legalized? The message of same-sex marriage and domestic partnership trivializes the
contributions of tens of thousands of Hawaii wives and mothers and says to them, "your
contributions to your children, your family, and our society are no different, no better than
those of a homosexual partner."
Fourth, fostering marital stability is a great concern of the State. Given the
indisputable evidence (summarized elsewhere in the Minority Opinion) of the unavoidably
promiscuous, fleeting nature of most same-sex relationships it is facetious to compare the
76
�MINORITY OPINION
stability of same-sex marriage with conventional male-female marriage-even in these days of
high divorce rates marriages are as solid as the Rock of Gibraltar compared to same-sex
liaisons. While one might shrug and say it is up to the adults to choose for themselves
whether they want one stable relationship or many temporary relationships, that is simply
irresponsible when one is talking about marriage, the basic unit of society. Male-female
relations are complementary in ways that same-sex relations are not.
The law should not
pretend otherwise and send false messages about reality simply because that happens to be
the popular political fashion of the day. And, again, the people who suffer the most from
unstable families are children. Their interest must not be sacrificed to the instability of samesex relationships.
213
Fifth, marriage has been repeatedly shown to promote economic security for parents
and children. Marital instability is associated with poverty for women and children. Again, the
concern is not so much for particular couples because undoubtedly exceptional cases can be
found in any family form. The greater concern is for the impact on society and the children of
society generally if the law presents unstable unions as the equivalent of and as socially as
valuable as real heterosexual marriage. The law should not engage in false advertising.
Equating same-sex unions with conventional male-female marriage would clearly send a false
message which would hurt untold thousands of individuals and their families when the bitter
realities of the instability of same-sex unions set in. Not only are unstable marriages
impoverishing for the individuals involved, but they impose heavy costs on society, ranging
from the costs to the state (for the agencies typically involved in dealing with family
instability-courts, social work agencies, domestic violence, welfare, etc.) but also many great
indirect costs resulting from lowered productivity of the individuals involved in the unstable
relationship, stress, emotional problems, etc.
Sixth, Hawaii, like all states, has an important interest in providing for recognition of
Hawaii marriages in other jurisdictions. Hawaii has an interest in not creating a form of
marriage that will not be recognized elsewhere. Indeed, if Hawaii legalizes same-sex
marriage or domestic partnership and that new institution is not recognized, persons who rely
on the legality of the marriage in Hawaii may find that their rights in other jurisdictions are
severely curtailed or rejected. Again, this would do a great disservice to many people. Rights
derived from lawful marriages (including inheritance rights, insurance rights, pension rights,
property rights, etc.) may be denied in other states and other nations. Spouses and children
of a person who once entered into a same-sex marriage and later entered into a conventional
marriage could find their marriage-derivative rights were challenged or not recognized in other
jurisdictions.
Seventh, the state has a profound interest in preserving society from disintegration.
Dr. Socarides opined in 1994:
213. See Minutes of October 11, 1995, for testimony of Dallas Willard, Ph.D.
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�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
As regards the creation of a new psychosexual institution (i.e., homosexual
"marriage") alongside that of heterosexual marriage, I submit the following. The
institutions of heterosexuality and heterosexual marriage are created for family
structure. To introduce homosexuality as a valid psychosexual institution is to
destroy the function of heterosexuality as the last place in our society where
affectivity can still be cultivated. Homosexuals cannot make a society, nor keep
ours going for very long. It operates against the cohesive elements of society in the
name of a fictitious freedom. It drives the opposite sex in a similar direction and no
society can long endure when the child is neglected or when the sexes war upon
each other.
214
The adoption of children by homosexual couples is a serious issue. A child should
be brought up with a mother and a father, in order to develop appropriate genderdefined self identity. If he does not do so, severe individual problems will occur.
The matter should be approached with great caution for the child has no voice in
this matter and he may be unfortunately consigned to a pathological family setting
from which he can not escape without serious psychological damage... The
negative effect on children who are adopted into homosexual "family" structure can
be profound. I believe that:
(1) a normal environment provides a child with the opportunity to utilize his
capacities in order to further the promotion of a sense of autonomy and
identity, to enhance and affirm ego-boundaries between himself and other
family members, and to promote a healthy self-esteem as a member of his
own sex;
(2) the parents' function is to promote the child's separation from the mother into
an independent entity, all the while supplying physical and emotional security
needs;
(3) both mother and father are models for identification toward the assumption of
appropriate sexual identity and sexual role in accordance with anatomy;
(4) the alleviation of conflicts, especially those involving distortion of roles during
the earliest years, help the child to channel his drives, energy, and rolelearning in the proper direction...
The families of homosexual patients I have treated are markedly deficient in
carrying out many of the functions necessary for the development of an integrated
heterosexual child. Distorting influences are very profound in families in which the
child is not helped to develop the appropriate gender-identity... The disturbance in
gender-defined self-identity sets the stage for the development of all sexual
deviations and many of the neurotic conditions.
215
214. Charles W. Socarides, M.D., "Roundtable on Homosexuality," 1994.
215. Charles W. Socarides, M.D. "Roundtable on Homosexuality," 1994.
78
�MINORITY OPINION
Not all marriages and families "work," but it is unwise to let pathology and failure,
rather than a vision of what is normative and ideal, guide us in the development of social
policy.
2.
Homosexuality was Removed as a Pathology from the American
Psychological Association in 1973 as a Result of Political, Not Medical
or Psychological Considerations
The majority relies on the removal of homosexuality from the list of psychological
disorders in 1973 to support its rejection of the overwhelming opposition to homosexual
marital rights.
However, in 1973, homosexuality was removed from the category of
aberrancy by the American Psychiatric Association as a direct result of relentless intimidation
and pressure from gay rights group activists and mistaken beliefs by the few that they were
doing a kindness to the homosexual community, although it was not based upon
psychoanalytic knowledge of human sexual behavior and no new scientific or clinical findings
gave credence to this political act
The quoted and referenced materials in subsections 4.
and 5. below, are subsequent to that de-listing, and validate the medical, scientific and
psychoanalytic bases for maintaining homosexuality as a psychopathology.
216
2 1 7
According to Dr. Socarides, "The new position [in 1973] favoring deletion of
homosexuality was obviously clinically untenable and scientifically fallacious, even to a firstyear resident in psychiatry. There was no scientific explanation for this deletion except the
statement that the homosexual did not experience 'suffering'; those who disliked being
homosexual and 'suffered over it' or 'complained' were to be considered to have a
'disorder'. 8 He also writes:
n21
Homosexuality is a psychiatric psychopathological condition. I t is acquired, not
innate, and is a consequence of a disturbed family constellation: an interaction
between parents and their children, resulting in a certain abnormal and deviant
sexual behavior. It can be treated or even cured when the patient is motivated to
change by professionals who understand this condition and know how to treat
it."
2 1 9
216. See, John Finnis, "Shameless Acts in Colorado: Abuse of Scholarship-in
Cases," supra.
Constitutional
217. Charles W. Socarides, M.D., "Sexual Politics and Scientific Logic: The Issue Of
Homosexuality," The Journal of Psychohistory, 19(3), Winter, 1992, pg. 307. See also, Roger
Magnuson, Informed Answers to Gay Rights Questions, Multnomah Books, 1994, pg. 74. See also,
R. Bayer, Homosexuality and American Psychiatry, New York: Basic Books, 1981) pg. 102 ff. See
also Charles W. Socarides, M.D., Homosexuality A Freedom Too Far, Adam Margrave Books,
1995, chapter six.
218. Wat 312.
219. Charles W. Socarides, "Roundtable on Homosexuality" 1994.
79
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Based upon this psychological nature of homosexuality, the state should not designate
homosexual coupling as one of the alternatives for our society to choose from in the
maturation process.
3.
Homosexuality Is Still Listed In The International Diagnostics Manual As
A Psychological Pathology
Although the American Psychiatric Association de-listed homosexuality as a
psychological pathology in 1973 on political grounds, the World Health Organization still
catalogues homosexuality as a disorder. The International Classification of Diseases, 9th
Revision (ICD-9) published by the World Health Organization, contains a chapter on "Mental
Disorders" including "Section 302, Sexual Deviations and Disorders." Section 302.0 deals
with homosexual conflict disorder and lesbianism.
220
Homosexuality is an abnormal condition caused by childhood experiences within the
family and by personalities of the parents and the nature of the relationship. It is directly
related to faulty psychological development of the child within his disturbed family
It is not
caused by biologic or genetic factors, but is clearly environmental in source
The majority
incorrectly states that the minority presumes that homosexuality is completely voluntary.
To the contrary, all the psychological and psychiatric evidence cited in this minority opinion
2 2 1
2 2 2
223
220. Manual of the Inlemaiional Statistical Classification of Diseases, Injuries, and Causes of Death, 9th
Revision, World Health Organization, Geneva, Switzerland; Section 302 also deals with
Section 302.1 entitled Zoophilia deals with bestiality; Section 302.2 entitled Pedophilia deals
with sex with children; Section 302.3 entitled Transvestism; Section 302.4 entitled
Exhibitionism; Section 302.5 entitled Trans-sexualism; Section 302.6 entitled Disorders of
psychosexual identity dealing with feminism in boys and gender identity disorder of
childhood; Section 302.7 entitled Psychosexual dysfunction dealing with psychosexual
dysfunction, unspecified (302.70), with inhibited sexual desire (302.71), with inhibited
sexual excitement (302.72), with inhibited female orgasm (302.73), with inhibited male
orgasm (302.74), with premature ejaculation (302.75), with functional dyspareunia
(302.76), and with other specified psychosexual dysfunctions (302.79). DO WE INTEND
TO GRANT CIVIL RIGHTS ON THESE GROUNDS AS WELL? See the story of Marline
Rothblatt, a lawyer who views the world without borders. She is legally married to her
lesbian lover (the only ones in the U.S. because she used to be a man when she married her
wife, and then after years of marriage the two decided it would be fun for them to spend the
rest of their lives as lesbians. Martine received a sex change operation.) The story is a
cover story to the National Law Journal, June 12, 1995.
221. Harold M. Voth, M.D., "The Family And the Future of America," Alabama Journal of Medical
Sciences, Volume 15, Number 3, July 1978 page 310. Dr. Voth is the Senior Psychiatrist
and Psychoanalyst at the Menninger Foundation, Topeka, Kansas, a Rear Admiral in the
U.S. Naval Reserve and author of many articles published in professional journals.
222. See "Chromosomal Differences in Gays?", July-August 1993 issue of Family Research Report of
the Family Research Institute, a nonprofit, educational and scientific corporation. See also
"What Causes Homosexual Desire and Can It Be Changed?", Dr. Paul Cameron, Chairman,
Family Research Institute, Inc., 1991.
223. See Chapter 6.B. of this report.
80
�MINORITY OPINION
evidences that the root of the compulsion to engage in homosexual acts lies in deep
emotional disturbance.
Contrary to the majority citation to the 1994 work by Friedman and Downy for the
proposition that the "jury is still out" concerning this issue, a biologic source for
homosexuality has not been found. Several studies were conducted which neither proved the
genetic basis for homosexuality, nor, more importantly, were replicated by peer review.224
The jury in scientific research is nothing like our criminal jury system where the defendant is
innocent until proven guilty.
The biologic base for homosexuality must be proved
scientifically, and until it is, it is not scientific truth. On the other hand, the psychological
basis has been proved for a hundred years. A 100% success rate is never expected with
treatment of psychological disorders. On the other hand, a genetic base for a trait would
result in a 100% occurrence rate, occasional recessive genes aside.
In any event, when some scientific evidence suggests a genetic predisposition for
homosexual orientation, the case is not significantly different from evidence of predispositions
toward other traits - for example, alcoholism or violence. In each instance we must still ask
whether such a predisposition should be acted upon or whether it should be resisted.
Consequently, the failure of the Commission to discuss these issues when recommending
homosexual marital rights is inexcusable.
225
4.
Mental Health Professionals Say that Homosexuals Can Change
Dr. Gerard van den Aardweg (Ph.D in psychology from University of Amsterdam;
taught in universities in Netherlands and Brazil) writes:
...Indeed since relatively few homosexuals seriously try to change and few
therapists encourage them to do so, the notion that homosexuality is irreversible is
a self-fulfilling prophecy. If nobody tries, nobody will succeed....Why would we take
a fatalistic attitude toward the possibilities of improvement of homosexuality when
an acceptable percentage improves substantially?
225
Dr. Ruth Tiffany Barnhouse (M.D. from Columbia University College of Physicians and
Surgeons; clinical assistant psychiatrist at Harvard University; member of the Ethics
Committee of the Massachusetts Psychiatric Society) writes:
224. See, Cal Thomas, "The Gay Gene, Not-so-Straight News; 'Reporting on Genetic Research
Tells Only Half the Story." World, Nov. 11, 1995, pg. 18, attached in Appendix F.
225. The Ramsey Colloquium, "The Homosexual Movement, A Response by the Ramsey
Colloquium," First Things, March 1994.
226. Homosexuality and Hope: A Psychologist Talks About Treatment and Change (Ann Arbor, MI; Servant
Books, 1986, pg. 107); see also the following, excerpted on Appendix G: How To Be Your Oum
Best Friend (New York: Lark Publishing Company, 1971, pgs. 22-23); Comprehensive Group
Psychotherapy, edited by Harold I . Kaplan and Benjamin J. Saddock (Baltimore: The Williams
81
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
The frequent claim by "gay" activists that it is impossible for homosexuals to
change their orientation is categorically untrue. Such a claim accuses scores of
conscientious, responsible psychiatrists and psychologists of falsifying their data.
227
Dr. Reuben Fine (Ph.D in clinical psychology from USC; Director of the New York
Center for Psychoanalytic Training; visiting professor at Adelphi University) writes:
I have recently had occasion to review the results of psychotherapy with
homosexuals, and been surprised by the findings. It is paradoxical that even
though the politically active homosexual group denied the possibility of change, all
studies from Schrenck-Notzing on have found positive effects, virtually regardless
of the kind of treatment used... (p. 84)
Whether with hypnosis....psychoanalysis of any variety, educative psychotherapy,
behavior therapy, and/or simple educational procedures, a considerable percentage
of overt homosexuals became heterosexual.... I f the patients were motivated,
whatever procedure is adopted a large percentage will give up their homosexuality.
In this connection public information is of the greatest importance.
The
misinformation spread by certain circles that "homosexuality is untreatable by
psychotherapy" does incalculable harm to thousands of men and women. (Pgs. 8586.)2 8
2
Dr. Robert Kronemeyer (studied at Amherst College; Ph.D. in Psychology from Columbia
University; served as Adjunct Professor at New York University; developed Syntonic Therapy)
writes:
With rare exceptions, homosexuality is neither inherited nor the result of some
glandular disturbance or the scrambling of genes or chromosomes. Homosexuals
are made, not born "that way." From my 25 years' experience as a clinical
psychologist, I firmly believe that homosexuality is a learned response to early
and Wilkins Company, 1971, pg. 521); Dr. Charles Socarides, "Homosexuality," American
Handbook of Psychiatry, 2nd edition, Vol. 3 (New York: Basic Books, Inc., 1974, pg. 308);
Samuel B. Hadden, "Treatment of Male Homosexuals in Groups," The International Journal of
Group Psychotherapy, XVI, No.l (January 1966, pg. 14); "A Way Out for Homosexuals,"
Harper's Magazine (March 1967, pg. 107); Changing Homosexuality in the Male (New York:
McGraw-Hill Book Company, 1970); The Primal Scream (New York: Dell Publishing Company,
1970); Father John F. Harvey, The Homosexual Person New Thinking in Pastoral Care (San
Francisco: Ignatius Press, 1987, pg. 76); "Homosexuality and Sexual Orientation
Disturbances," Comprehensive Textbook of Psychiatry I I , second edition, edited by Alfred M.
Freedman, Harold I . Kaplan, and Benjamin J. Sadock (Baltimore: The Williams & Wilkins
Company, 1975, og. 1519); Homosexuality in Perspective (Boston: Little, Brown 251);
Homosexualitv (New York: Jason Aronson, 1978); What You Should Know About Homosexuality,
edited by Charles W. Keysor (Grand Rapids: Zondervan Publishing House, 1979, pg. 167)."
227. "What Is a Christian View of Homosexuality?", Circuit Rider, February, 1984, pg. 12.
228. "Psychoanalytic Theory," Male and Female Homosexuality: Psychological Approaches (Washington,
D.C: Hemisphere Publishing Corporation, a subsidiary' of Harper and Row Publishers, Inc.,
1987).
82
�MINORITY OPINION
painful experiences and that it can be unlearned. For those homosexuals who are
unhappy with their life and find effective therapy, it is 'curable.'
229
And finally:
Treatment using dynamic individual psychotherapy, group therapy, aversion
therapy, or psychotherapy with an integration of Christian principles will produce
object-choice reorienution and successful heterosexual relationships in a high
percentage of persons.... Homosexuals can change their orientation.
What You Should Know About Homosexuality, edited by Charles W. Keysor (Grand Rapids:
Zondervan Publishing House, 1979, pg. 167).
5.
Studies Show That Homosexuality Can Be Cured By Psychoanalysis.
230
Houston Macintosh, M.D., reporting a recent survey of 285 psychoanalysts who had
analyzed 1215 patients found that:
*23% of their patients changed to heterosexuality;
*84% received significant therapeutic benefit.
This cure rate is comparable to the 27% cure rate reported by Bieber in 1962
addition, the recent NARTH Bulletin (September 1994) reported:
2 3 1
In
A review of the literature from the past reveals an interesting tidbit from
behavioral psychologist Joseph Wolpe. Wolpe once reported an unexpected cure in
a case of homosexuality. No-not with electric prods or lobotomy. In fact, his
original therapeutic goal was to reinforce and affirm the 32-year-old patient's
homosexual orientation and desensitize his Catholic guilt. This strategy, Wolpe
229. Overcoming Homosexuality (New York: Macmillan Publishing Company, Inc. 1980, pg. 7).
230. See Appendix F for list of quotes from the following publications:
Ruth Tiffany Barnhouse, Homosexuality: A Symbolic Confusion (New York: The Seabury Press,
1977, pg. 97); Dr. Irving Bieber, Homosexuality: A Psychoanalvtic Study (New York: Basic Books,
1962, pg. 301); Charles W. Socarides, M.D. Homosexuality (New York: Jason Aronson, 1978,
pg. 405-406.); Morey, Tom, Committee to Study Homosexualitv of the United Methodist
Church, General Conference of Ministries, Chicago Meeting on the Sciences, August 1990,
p. 19.; Robert Kronemeyer, Overcoming Homosexuality (New York: Macmillan Publishing
Company, Inc., 1980, pg. 135); Dr. Toby Bieber, "Group Therapy with Homosexuals,
Comprehensive Group Psychotherapy edited by Harold I . Kaplan ana Benjamin J. Saddock
(Baltimore: The Williams ana Wilkins Company, 1971,); E. Mansell Pattison and Myrna
Loy Pattison, " 'Ex-Gays': Religiously Mediated Change in Homosexuals," American foumalof
Psychiatry (December 1980); Gerald van den Aardweg, Homosexuality and Hope: A Psychologist
Talks About Treatment and Change (Ann Arbor, MI: Servant Books, 1986.); Homosexuality: Disease or
Way of Life (New York: Collier Books, 1962).
231. Houston Macintosh, M.D., wrote in "Attitudes and Experiences of Psychoanalysts in
Analyzing Homosexual Patients," foumal of the American Psychoanalytic Association (Vol. 42, No.
4, pgs. 1183-1207).
83
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
later explained, was due to his belief at the time that homosexuality was
biologically determined.
To the surprise of both the patient and Wolpe, the man gave up his homosexual
lifestyle and relationship and began to date women. Wolpe explained this
spontaneous reversal as a consequence of the patient's feeling more socially
assertive, independent and accepted by men for the first time in his life. Four
years later, a follow-up showed that the patient had gotten married, was reporting
a very satisfactory sex life, and his wife was expecting a baby.232
F.
The Majority of Commissioners Refused to Discuss the Necessity for a Very
Broad Religious Freedom Exemption Covering Religious Institutions and
Individuals Who have Religiously Motivated Objections to Accepting
Homosexual Couples as Marriage-equivalents
233
Many of the people who testified before the Commission expressed opposition to
homosexual marital rights on the basis of their religious beliefs. The majority dismisses all
of these arguments based on an extreme view of the doctrine of separation of church and
state
This view has, as recently as 1986, been rejected by the U.S. Supreme Court. In
upholding criminal punishment for sodomy in Georgia, the Supreme Court relied on "the
millennia of moral teaching" in opposition to homosexuality.
Clearly, in Hawaii, our
common law restricting same-sex couples from marrying reflects that same moral teaching.
In addition, looking to the sometimes-cited ancient Hawaiian cultural view of homosexuality in
reference to the Aikane and the Mahu, cannot support same-sex marriage in light of the fact
that before going to war, the Hawaiians would purge all the Mahus, including in many
instances, killing them. Abandoning such Hawaiian traditions was a great improvement in
Hawaiian society.
234
2 3 5
236
232. Dr. Joseph Wolpe, The Practice of Behavior Therapy (Pergamon Press, 1969, pg 255-262).
NARTH Bulletin (September 1994).
233. See Richard Duncan letter of October 9, 1995 and his article in 69 Notre Dame Law Review 393
(1994).
234. The following churches or denominations expressed such opposition: The Roman Catholic
Church of the State of Hawaii; The Charismatic Episcopal Church of North America
Christian Voice Hawaii; Hawaii Association of Evangelicals; Christians for Responsible
Leadership; Kalihi Union Church; Oahu Christian Center and the Great Commission
Fellowship as well as other individual members of the public who spoke in opposition based
on their religious beliefs. See Minutes of October 11, 1995.
2^
This is not surprising in light of the fact that Tom Gill, the Commission Chairman, is listed
as a member of the Board of Directors of the A.C.L.U. of Hawaii, on a press release dated
October 27, 1993, announcing the formation of a coalition to support same-sex marriage in
Hawaii. See Appendix F attached.
236. Bowers v.Hardwick, 478 U.S. 186 (1986) reh. denied, 478 U.S. 1039 (1986).
84
�MINORITY OPINION
The majority also find that no one should "impose" his religious or moral views on
others. Yet, that is precisely what the majority seeks to do with homosexual marital rights to
more than two-thirds of the Hawaii population for the benefit of some portion of 2% of the
population. The majority goes so far as to report in Chapter 2, section D, page 33, of the draft
of the report that the religious groups opposed to homosexual marriage will be able to refuse
to solemnize homosexual marriages, but that the pressure which will be exerted on these
traditional religious people and their churches will force them to abandon their religious
objections to homosexuality. It is for exactly these reasons that the religious exemption
must be as broad and sweeping as possible.
237
Richard Duncan, Esq., Constitutional Law Professor, University of Nebraska, College
of Law, desired to discuss the critical need for a religious exemption via telephone with the
Commission. He was not permitted; however, he did send written suggestions to adopt a very
broad religious exemption. Even Dan Foley, Esq., the lawyer for the Plaintiffs in Baehr,
supports a religious exemption.
If homosexual marital rights are recognized in Hawaii, either in the form of domestic
partnership, homosexual marriage, or otherwise, a very broad religious exemption is
necessary for many reasons. Parents of public school students, teachers in the public
schools, people who are licensed to solemnize marriages, owners of rental housing, and
employers who object to homosexual marriage rights on religious grounds should be
protected from government forced acknowledgement of homosexual marriage rights.
One of the serious consequences of including homosexual coupling in the marital
partnership will occur in the public school setting. If homosexual coupling is acknowledged
on the same level with heterosexual marriage, the public schools will be forced to teach
children that homosexual coupling is equivalent to marriage. Since as many as two-thirds of
the people polled in Hawaii do not support homosexual marriage rights
it is safe to
assume that a great majority of parents and teachers also do not agree with homosexual
marriage rights.
2 3 8
Public anxiety about homosexuality is preeminently a concern about the
vulnerabilities of the young. This, we are persuaded, is a legitimate and urgent
public concern.
239
237. When this statement appeared in the Minority Opinion, the majority dropped the phrase
related to pressuring traditional religious people to abandon their religious objections.
238. See "Five Hawaii Polls on Legalizing Same-Sex 'Marriage'" attached in Appendix G.
239. The Ramsey Colloquium, "The Homosexual Movement, A Response by the Ramsey
Colloquium," First Things, March 1994.
85
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Indeed, we do not think it a bad thing that people should experience a reflexive recoil
from what is wrong. To achieve such a recoil is precisely the point of moral education of the
young.
240
Those parents who on religious grounds object to the school teaching their children that
homosexual coupling is equivalent to heterosexual marriage, must be given the express
statutory right to remove their children from such school lessons. However, the difficulty in
enforcing such a right counsels the legislature to prohibit such teaching in any public school
by teachers or invited speakers. The ongoing dispute in Pahoa concerning Project 10 is a
prime example. One parent from Pahoa testified before the Commission that she was greatly
concerned by the possibility of homosexual marital rights specifically because of the negative
impact on her community's fight to keep Project 10 out of their schools.
241
Teachers who, for religious reasons, do not desire to teach that homosexual coupling
is on par with heterosexual marriage must be protected by express statutory provisions as
well. Their religious freedom must be protected by specifically creating in the homosexual
marriage rights legislation their freedom to oppose the teaching of homosexual marriage
rights as equivalent to heterosexual marriage. At least one of the Commissioners, Morgan
Britt, desires to ensure that schools are forced to teach, and children forced to learn, that
homosexuality and heterosexuality are equivalent.
Any legislation creating homosexual marriage rights must expressly state that no
person shall be subject to fine, loss of license, liability for damages, or other punishment or
penalty for rejecting homosexual marriage rights on religious grounds.
In addition, religious people who are authorized to solemnize marriages based upon
licensing from the State Health Department must not be required to solemnize homosexual
couples, and must not be in any manner punished for refusing to do so. The legislation
creating homosexual marriage rights must expressly state that no person licensed to
solemnize marriages in Hawaii shall be subject to fine, loss of license, liability for damages, or
other punishment or penalty for rejecting homosexual marriage rights on religious grounds.
Furthermore, people who on grounds of religious belief oppose homosexual coupling
must not in any manner be forced to acknowledge homosexual coupling, either as a landlord
renting a house or apartment, as an employer extending spousal benefits, or otherwise. The
legislation creating homosexual marriage rights must expressly state that no person shall be
subject to fine, liability for damages, or other punishment or penalty for rejecting homosexual
marriage rights on religious grounds.
240. Id.
241. See Minutes of November 8, 1995, for testimony of Diane Sutton. See also correspondence
from Diane Sutton, both attached in Appendix I.
86
�MINORITY OPINION
The religious freedom of the U.S. Constitution and the Constitution of the State of
Hawaii must be fully protected in the event homosexual couples are extended any marriage
benefits.
VI.
The Majority of the Commissioners were Biased in Favor of Homosexuality and the
Desires of the Homosexual Community
The results reached by the majority of the Commission were long anticipated even
before the first meeting. Each successive meeting reinforced the expectation that the
majority would demand homosexual marriage rights in order to assist the plaintiffs in the
Baehr v. Miike litigation.
A.
Prior to Conducting the First Meeting, the Commissioners were Provided with
Proposed Legislation Creating Domestic Partnerships in the State of Hawaii
Prior to the first meeting, Chairman Gill provided the Commissioners with a packet of
materials. His memorandum accompanying the materials indicated that they were being
furnished "so that we can familiarize ourselves with some of the issues and points of view we
will need to consider." The materials concerning the "issues and points of view" consisted
of fully drafted, proposed legislation creating domestic partnerships in the State of Hawaii;
three separate, legally comprehensive articles advocating domestic partnerships and/or same
sex marriage; and two short articles (collectively encompassing three pages) containing
information opposing the legalization of such relationships--a two-page religious dissertation,
void of any legal arguments whatsoever and a one-page article opposing government
recognition of homosexual relationships which had been published in the February 1995
Hawaii Bar Journal.
In other words, the materials offered for review and consideration by
the Commissioners were facially unbalanced and prejudicial from the outset. The fully drafted
proposed legislation was provided as a starting point for discussion and negotiation because
the make-up of the Commission ensured a recommendation of homosexual marital rights of
some kind.
242
243
244
245
242. Memorandum to Members, Commission on Sexual Orientation and the Law from Thomas
P. Gill, Chairman, dated August 31, 1995, attached in Appendix H.
243. August 1995 Special Report of the Spectrum Institute "Legalization of Same-Sex Marriage
is Sure Bet in Hawaii-Or is it?"; the New Mexico "gender neutral" marriage law (N.M.
Stat. Ann. Sec. 40.1.1) with subsequent sections and annotations; Special Report, Spectrum
Institute "An Analysis of Domestic Partnership Ordinances in Existence; and Proposed
Draft Legislation for a Domestic Partnership Law in Hawaii.
244. Woodward, C.F., Evangelist, "God's Way," unsolicited, undated statement received by
Chairman Thomas Gill.
245. Dunn, Sandra, "Same Sex Marriage," HowoiiBar Journal, February, 1995.
87
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
B.
The Majority of Commissioners Opposed and Deliberately Thwarted any
Discussion of Homosexuality in Connection with the Work of the Commission
At the first meeting on September 13, 1995, the majority agreed that no discussion of
homosexuality should be permitted in connection with the Commission's work since the
majority found any such discussion inflammatory or offensive. Specifically, Commissioner
Stauffer recommended that because he believed there is no reason to discriminate against
someone on the basis of their sexual orientation, the Commission should prohibit any
discussion or testimony addressing homosexuality and concentrate its efforts solely on legal
and economic issues. The other members of the majority agreed that discussion concerning
homosexuality was generally offensive.
However, the two minority Commissioners raised
the issue of how the Commission could perform the legislative charge to examine policy
issues without discussing homosexuality. They also raised First Amendment freedom of
speech rights, and the discussion culminated in no formal resolution or motions being
made.
246
247
Also, at the first meeting on September 13, 1995, Mr. Jonathan C. Cuneo and
Ms. Karyn Tiedeman of He Kanaka Hou attempted to testify before the Commission
concerning their respective personal experience of being healed from homosexuality.
Mr. Cuneo testified first, introducing himself as the Executive Director of He Kanaka Hou.
Commissioner Gomes interrupted him and ridiculed him for mispronouncing the Hawaiian
name of his organization. When Ms. Tiedeman began testifying, she attempted to obtain the
correct pronunciation from Commissioner Gomes, but her efforts were met with rude disdain.
In addition, these speakers had provided the Commissioners with handouts concerning their
organization which counsels homosexuals who seek to come out of that lifestyle. As they
were leaving, Commissioner Gomes was observed literally shoving the handouts back into
their hands.
248
At the October 11, 1995 meeting, the majority of the Commissioners refused to receive
expert testimony via telephone from Joseph Nicolosi, Ph.D. concerning his long use of
reparative therapy in successfully treating homosexuals through psychoanalysis. Also on
October 11, 1995, Loree Johnson, a mother and grandmother, testified before the
Commission in opposition to homosexual marital rights. In her personal testimony as a
member of the public, she characterized homosexual activity as "repugnant, disgusting, selfindulgent, exploitative, addictive, and dangerous."
Commissioner Morgan Britt interrupted
249
246. See Minutes of September 27, 1995.
247. See Minutes of September 13, 1995, at 4.
248. See Minutes of September 13, 1995.
249. See Minutes of October 11, 1995 for testimony of Loree Johnson.
88
�MINORITY OPINION
Ms. Johnson's testimony at least twice, demanding that she not be permitted to continue
because he found her testimony offensive.
At the November 1, 1995 continuation of the October 25, 1995 regularly held meeting,
a member of the public wearing a priest's collar attended and requested five minutes to
testify. The person indicated that he could not return at the next scheduled meeting on
November 8, 1995, and this would be his only opportunity to testify. Chairman Gill refused to
permit his testimony.
250
At the November 8, 1995, meeting, Mrs. Diane Sutton, a resident from the Big Island,
attended the meeting and testified.
Mrs. Sutton presented testimony concerning the
adverse effect of same sex-marriage on public policy from the public school curricula and
misleading of adolescents concerning the homosexual lifestyle.
Commissioner Morgan
Britt interrupted Mrs. Sutton, virtually shouting his objections to her being permitted to
present the matters in her testimony. Commissioner Britt's conduct was so disruptive that
Mrs. Sutton actually skipped a portion of her written testimony. Indeed, at one point
Commissioner Britt described Mrs. Sutton's testimony as factually inaccurate. Mrs. Sutton
was literally stopped from speaking due to Commissioner Britt's harassment. Mrs. Sutton
was so outraged by her treatment that she subsequently wrote to the Commission to formally
complain of her treatment as a member of the public and what she perceived to be Mr. Britt's
inference that she was a liar.
251
252
253
Ms. Loree Johnson again attempted to present public testimony at the November 8,
1995 meeting, and was again rudely interrupted by Commissioner Britt with the assistance of
Commissioner Gomes. So disruptive were these Commissioners' vocalized objections to
Ms. Johnson's testimony that she was forced to bring her testimony to an abrupt close.
254
C.
The Official Record of the Meetings Failed to Accurately Reflect the Content of
the Meetings, and the Majority of the Commissioners Voted Down Attempts to
250. See Minutes of October 25, 1995.
251. See Minutes of November 8, 1995.
252. See Minutes of November 8, 1995, for testimony of Diane Sutton dated November 7, 1995,
attached in Appendix I .
253. See Minutes of November 8, 1995 and letter from Diane Sutton to Chairman and All
Commissioners dated November 9, 1995, attached in Appendix I .
254. See Minutes of November 8, 1995.
89
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Have the Record Correctly Reflect What Actually Occurred at the Meetings
At the first meeting, Commissioner Hochberg moved to have a licensed court reporter
transcribe the meeting if he could find one who would volunteer to provide the services
without cost to the State, and have transcripts prepared within the Commission's time limits.
The motion failed 2-4.255
Although Commissioner Hochberg brought a formal motion to correct the Minutes of
the September 13, 1995, to accurately reflect the opinions of the guests who testified in
opposition to homosexual marital rights, the majority voted against the motion, refusing to
permit the Minutes--the official record of the Commission's work-to accurately reflect what
actually occurred at the meeting.
256
At the September 27, 1995 meeting, Commissioner Hochberg brought several motions
in an attempt to amend the proposed September 13, 1995 record to accurately reflect what
occurred at the meeting. The most significant of those motions include the following:
1. First, Commissioner Hochberg sought to have the minutes of the first meeting
(September 13, 1995) accurately reflect the Commission's deliberation concerning discussion
of homosexuality. Nevertheless, Commissioner Hochberg's motion failed 2-4, effectively
destroying the credibility of the September 13, 1995 minutes.
2. At the October 26 session which was a continuation of the October 25, 1995
meeting, the Chairman refused to permit discussion of proposed corrections to the
October 11, 1995 minutes and insisted that the meeting proceed without approving the record
of the hotly debated prior meeting of economists.
3. Significantly, at the October 11, 1995 meeting, both economists testified. From
the time the dispute arose over how the record would reflect the economists' testimony, up to
the time of writing the draft of this report November 24, 1995, no record of the Commission's
actions was made although minutes of these meetings are cited and even quoted throughout
the majority report.
D.
The Majority of the Commissioners Consistently Voted in a Block to Thwart the
Attempts of the Two Other Commissioners To Insist That the Commission
255. See Minutes of September 13, 1995.
256. See Minutes of September 27, 1995.
90
�MINORITY OPINION
Conduct its Work in a Fair and Balanced Manner
As discussed above in this minority opinion, the first meeting on September 13, 1995,
the LRB attorney informed the Commissioners that she had compiled the LRB List based on
the definition of legal benefits in Act 217. The Commissioners then discussed the legislative
modification set out in Act 5, but no working definition of "major" legal and economic benefit
was determined.
At the next meeting on September 27, 1995, Commissioner Hochberg moved that the
Commission adopt a definition of "major legal and economic benefits". Chairman Gill ruled
Commissioner Hochberg out of order. The Chairman, supported by the usual majority of the
Commissioners, refused to entertain Commissioner Hochberg's motion. Commissioner
Hochberg renewed his motion concerning a working definition of "major legal and economic
benefits" at the end of the meeting. The motion failed 2-4.
257
Despite repeated attempts by Commissioner Sheldon to bring motions to the floor
concerning: (1) neighbor island participation; (2) the credentials of the alleged expert whose
work Commissioner Stauffer primarily relied on for his proposed "findings of the
Commission"; (3) the Chairman's responses to Commissioner Sheldon's specific concerns
regarding the manner in which the Commission was proceeding with its work; (4) the review
and approval of the Minutes of October 11, 1995; and the (5) adoption of Robert's Rules of
Order for the conduct of Commission meetings, the Chairman consistently refused to
entertain any of Commissioner Sheldon's motions until Commissioner Stauffer finally
suggested to the Chairman on November 2, 1995 that Commissioner Sheldon's motions
should be addressed. Each of the above-referenced motions failed, by a vote of 2-4 or 2-3
with one abstention. The Chairman did not vote as a general rule, and when he did vote, it
was always with the majority which advocates special rights for homosexual couples.
While the failure to pass the above motions evidences the imbalance on the
Commission, the refusal by the majority to undertake to travel to the neighboring islands is
especially significant since those citizens living on those islands who cannot afford to travel to
Oahu were deprived of their right to participate in the process.
See the letters between Chairman Gill, Commissioner Hochberg and Commissioner
Sheldon attached hereto as Appendix H.
E.
In His Quest to Submit a Report to the Legislature, the Chairman Selectively
Stifled Substantive Discussion and Demanded that the Commission Vote on
Crucial Matters Before the Record of Meetings Containing Indispensable Expert
257. See Minutes of September 27, 1995.
91
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
Testimony Were Corrected and/or Approved
On Octobers, 1995, two days before the third regularly scheduled Commission
meeting, the Chairman dispatched a memorandum to all Commissioners with a "Resolution of
the Commission on Sexual Orientation and the Law" attached. The resolution proposed
that the Commission adopt the statutes on the LRB List as the major legal and economic
benefits extended to married opposite-sex couples
The next day, October 10, 1995,
Commissioner Hochberg wrote to Chairman Gill with copies to all Commissioners expressing
his concerns that the list Chairman Gill sought to adopt had not been discussed or analyzed,
but was based on work done by the previous Commission which was operating under different
instructions than the present Commission.
Commissioner Sheldon delivered a similar
letter at the October 11, 1995 meeting. TV and print reporters attended the October 11,
1995 meeting and as a result, voting on this resolution was delayed.
258
2 5 9
260
261
The October 25, 1995 meeting began with a review of the Minutes of October 11,
1995. Commissioner Stauffer presented a one-page list of his proposed amendments which
was distributed to the Commissioners at the meeting. Chairman Gill insisted that the
Commission vote on these proposed changes with little opportunity to actually review them,
and without any discussion. Thereafter, Chairman Gill refused to entertain any oral
corrections proposed by Commissioner Hochberg, and required that Commissioner Hochberg
submit his proposed changes to the minutes in writing for consideration at a later time.
262
Thereafter, the Chairman proceeded with the guest speaker portion of the meeting.
The Commission heard from three speakers regarding public policy implications and concerns
associated with extending benefits to same-sex couples. Among those professionals was
Thomas F. Coleman of the Spectrum Institute. Mr. Coleman stated that he is homosexual.
He purported to be a legal expert on sexual orientation and marital status discrimination, the
definition of family, and domestic partnership issues.
Mr. Coleman was afforded
uninterrupted, virtually carte blanche time to deliver his presentation which included visual
aids. Commissioner Hochberg inquired of Mr. Coleman for information concerning the
"Spectrum Institute" because Mr. Hochberg's research indicated that Spectrum Institute was
263
258. See Memorandum to Commission Members from Thomas P. Gill, Chairperson, Re Decision
Making, October 11 Meeting, dated October 9, 1995, attached in Appendix H.
259. Id.
260. See letter attached in Appendix H.
261. See letter attached in Appendix H.
262. Commissioner Hochberg complied with the Chairman's request for written corrections to the
minutes of the economists' testimony. Nonetheless, the Chairman refused to consider them
over the minority's vigorous objection.
263. See letter from Thomas F. Coleman to Hon. Tom Gill dated September 26, 1995.
92
�MINORITY OPINION
264
really the alter-ego of Mr. Coleman.
At the conclusion of Mr. Coleman's presentation,
Chairman Gill asked Mr. Coleman to provide the Commission with a draft comprehensive
domestic partnership legislation. He has done so.
Another invited expert at the October 25, 1995 meeting, Fritz Rohlfing, Esq., was not
given the opportunity to fully present his opposition to homosexual marital rights. He was
rudely rushed to finish by the Chairman without objection from the majority
The majority
simply did not desire to hear testimony with which they disagreed.
2 6 5
When the October 25, 1995 meeting reconvened on October 26, 1995, Chairman Gill
announced that the Commission would finish its report by the end of November "come hell or
high water". He then refused to permit the Commission to resolve the disputed record of the
economists' testimony October 11, 1995 testimony. The majority upheld the Chairman's
position by a vote of 5-2. Moreover, the Chairman rudely chastised Commissioner Hochberg,
forbid him to put any motions on the table, stifled his attempts at discussion and continuously
demeaned his efforts to make a viable contribution to the Commission's work. Indeed, at the
close of this session, Chairman Gill inquired as to whether Commissioner Hochberg would
"gas everybody next week to stop the proceedings".
266
The Chairman's attitude and insistence that we forge ahead was particularly
disconcerting because the October 11, 1995 Minutes and Commissioner Hochberg's written
but unreviewed suggested corrections thereto concerned the testimony of expert economists.
That testimony is crucial to the Commission's consideration of Commissioner Stauffer's
proposed report sections which Chairman Gill insisted the Commission vote on beginning at
the October 26 session. As a result of the Chairman's actions, which were unopposed by the
majority of the Commissioners, the Commission proceeded to vote on the substantive content
of those portions of the report dealing with "major legal and economic benefits" without any
recourse to the minutes which contained the very essence of the information required to
264. Computer databases and traditional print sources were searched for information on
Spectrum Institute and Thomas F. Coleman. Looking to see if there have been published
books or journal articles under either name, Books in Print, Reader's Guide to Periodical Literature,
and computer databases on Westlaw and the Legal Infotrack CD-ROM at the Supreme
Court Law Library were searched. No listings with either name as an author were found.
The only listing found was Thomas F. Coleman as a subject; The Los Angeles Daily Journal
published an interview with Coleman (39 column inches) in the September 21, 1981 issue.
The last 10 years of the San Francisco Chronicle and the Los Angeles Times indexes were searched
but not a single reference to either name was found. Traditional directories at the State
Library were searched to find a descriptive listing of Spectrum Institute. There was no
listing found at all in publications like Encyclopedia of Associations and directories of
foundations, non-profit organizations, and education^ organizations.
265. Mr. Rohlfing was also a Commissioner under Act 217, Session Laws of Hawaii 1994,
representing the Church of Jesus Christ of Latter Day Saints.
266. The significance of these and other matters concerns the manner in which the Commission
purported to address the tasks before it is fully documented in Commissioner Sheldon's
October 27, 1995 letter to Chairman Gill which was copied to all Commissioners and which
discusses with particularity monumental concerns regarding the manner in which the
93
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
267
reach a fair and honest conclusion concerning such alleged benefits.
The majority report
cites and quotes from these minutes although at the time those portions of the majority report
were written, the Commission did not have the minutes to cite or quote.
Chairman Gill permitted no business to take place at that meeting other than
considering the draft report containing Commissioner Stauffer's proposed Commission
findings regarding "major legal and economic benefits" as interpreted by Commissioner
Stauffer's definition which he calls "Terminology". In essence, through the forced vote on
Commissioner Stauffer's First Memo representing a portion of the ultimate Commission
Report, the majority adopted Commissioner Stauffer's "Terminology" as the definition of
"major" legal and economic benefit long sought by the minority. As discussed above, this
"Terminology" essentially exchanged the Legislature's language of "major" for the Hawaii
Supreme Court's language of "salient" as used in the Baher v. Lewin decision rendered two
years before the legislation establishing this Commission was crafted. This is interesting in
that Commissioner Stauffer's "Terminology" was, for all intents and purposes, "railroaded"
through as a definition under another name while Commissioner Hochberg's efforts to discuss
and arrive at a definition were ridiculed, found out of order and banished from discussion.
268
The October 25, 1995 meeting was continued in various sessions through
November 6, 1995. During that time, although Commissioner Hochberg sought to include in
the draft report opposing viewpoints, Chairman Gill demanded that opposing information not
be addressed until after Commissioners Stauffer and Britt's material were completed on
behalf of the majority. The minority has never been given that opportunity except in writing
this minority opinion.
Virtually none of the matters covered by either Commissioner Stauffer's proposed
findings concerning "major" or "salient" legal and economic benefits or Commissioner Britt's
proposed findings concerning "substantial public policy reasons" to extend benefits to
homosexuals were discussed in any form whatsoever before the so called "findings" were
drafted. Moreover, discussion concerning those "findings" was severely limited by the
Chairman once the associated motions were placed on the floor. Nevertheless, the imaginary
"findings of the Commission" as determined by Commissioners Stauffer and Britt were forced
to a vote and passed 4-2 with little or most often no changes from their submitted form. This
was the case even where the "findings" were facially erroneous and/or legally incorrect.
Commission was proceeding. Attached in Appendix H. See also Chairman Gill's letter to
Marie A. Sheldon, Esq. dated October 31, 1995 which purports to answer Ms. Sheldon's
October 27, 1995 inquires.
267. Id.
268. See letter from Marie A. Sheldon to Thomas P. Gill, Esq., dated October 27, 1995, in
Appendix H.
94
�MINORITY OPINION
VII.
Recommendations to Legislature
A. In light of the damage done to the Attorney General's ability to win the Baehr
litigation as a result of the recommendations of the majority, the legislature should adopt a
Constitutional Amendment preserving marriage and the marital partnership as between one
man and one woman as husband and wife.
B. The legal and economic benefits conferred on married couples in the State of
Hawaii should not be extended to homosexual and/or "common law marriage" couples
without determining the cost of doing so.
C. The legal and economic benefits conferred on married couples in the State of
Hawaii should not be extended to homosexual and/or "common law marriage" couples in
order to preserve and protect children, families, and society because homosexuality is a
psychological pathology and should not be encouraged or equated with heterosexuality.
D. Rather than legalize homosexual marriage or domestic partnership, or otherwise
adopt a broad extension of derivative rights to homosexual couples, the State should identify
specific, particular rights which might be extended to homosexual couples without
undermining the institution of heterosexual marriage or imposing unreasonable costs upon the
State. To make that determination, further study is necessary because this Commission
failed to undertake that kind of examination. It may be that defining "family" to include "all
persons who share a household" in some statutes would provide fair and appropriate
protection without undermining the basic unit of society or imposing inordinate risks on
children and marriage.
E. The legislature must create a very broad religious freedom exemption covering
religious institutions and individuals who have religiously motivated objections to treating
same-sex partnerships as marriage-equivalents.
95
�Chapter 6
MAJORITY RESPONSE TO MINORITY OPINION
I.
Introduction
Because of the strict time limitations on the Commissions' work and the obvious
differences between the majority and the two minority members, it became obvious that there
would be two opinions: one of the majority of the Commissioners and one for the minority.
The minority members invited witnesses, participated in the examination of all witnesses,
introduced copious amounts of material in support of their position, and participated at great
length in the discussion of items proposed by the majority to be included in the report. Since
the minority's basic position was that the Commission should "do nothing" which would
extend any marital rights and obligations to same-gender couples, the Chair suggested, and
the majority agreed, that the minority should prepare their own chapter without input or
interference from the majority.
However, the majority reserved the right to comment on the basic points raised in the
minority opinion and point out any errors or misrepresentations. That is the purpose of this
Response.
H.
Majority Comment on Points Raised
A.
The Underlying Position of the Minority is Based on the Religious Doctrine of
Certain Churches or Groups
Many minority witnesses, and their testimony made it clear, consider homosexual
marriage immoral and completely unacceptable under their religious doctrines or beliefs.
However, testimony and written statements from various Christian churches and
Buddhist groups made it clear that the minority position was by no means universal in the
religious community.
The basic position of the minority then becomes that their religious-based position
should determine the marriage law of the State of Hawaii, regardless of other religious beliefs
or the civil rights of the individuals involved.
This is, of course, unacceptable to the majority, which seeks to protect the right of
every church or religious group to believe and preach as they wish. But such groups have no
right under our constitution to impose their beliefs on others through state law.
97
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
B.
The "Moral" Position of the Minority is Based on the Presumption that
Homosexuality is Completely Voluntary on the Part of the Individuals Involved
and Therefore They are Intentionally Committing an "Immoral" Act and Should
be Sanctioned
The minority opinion quotes selectively and at great length, from various sources in
Section E of the minority opinion, which supposedly upholds its position. However, reading
the statements selected is instructive: many of them point out that psychological "treatment"
fails about as often as it succeeds. See particularly pages 82 and 83 of chapter 5 and quotes
in Appendix F from one of the minority's main authorities, Dr. Socarides, which claims
success with "nearly fifty percent." See also Dr. Hatterer in Appendix F where he states that
he, over a period of years, treated some two hundred homosexual patients and of this group
"...forty-nine patients recovered, nineteen partially recovered, seventy-six remained
homosexual."
So what happens to the roughly half who do not "recover"? Are their actions purely
"voluntary," and therefore "immoral"?
An article in the New England Journal of Medicine, published on October 6, 1994, and
written by Richard Friedman, M.D. and Jennifer Downey, M.D., discusses the multitude of
issues resulting from, and the possible causes of, homosexuality at length and from an
objective viewpoint. They state on page 926: "the origins of sexual orientation appear to be
multifactorial and diverse." On page 928 the authors state:
269
Preliminary evidence suggests that to some extent sexual orientation is influenced
by biological factors, although the intermediate mechanisms remain to be
described.
270
The minority does not cite opposing view points in the psychological literature or the
official positions of the professional associations that do not mesh with their position.
In
assessing the credibility of the "experts" cited and quoted by the minority, the majority noted
that both the American Psychological Association and the American Psychiatric Association
hold different or opposite positions (see Appendix F). It should also be noted that one of the
minority's most important "experts," Paul Cameron, has been expelled from the American
271
269. Friedman, Richard and Jennifer Downey. "Homosexuality," New England Journal of
Medicine, October 6, 1994, Vol. 331, No.14, pgs. 923-930. Excerpts of the article appear in
Appendix F.
270. Id.
271. "...The American Psychiatric Association, since 1973 and the American Psychological
Association has been on record since 1975 that "homosexuality per se implies no
impairment of judgment, stability, reliability, or general social and vocational capabilities;"
APA Policy Statements on Lesbian and Gay Issues, Committee on Lesbian and Gay
Concerns, American PsychologicaJ Association, 750 First Street, NE, Washington, DC
20002-4242.
98
�MAJORITY RESPONSE TO MINORITY OPINION
272
Psychological Association. The minority claims that the contrary position taken by the
American Psychiatric Association was based on "political grounds" (minority opinion of this
report, page 79). This might be called "symptomatic"--to borrow a phrase of the minority in
claims of abuse and mistreatment by the majority of the Commission. At the very least the
jury is still out on the question of the causes of homosexual behavior.
The majority is not trapped in this long continuing argument. Whether the behavior is
voluntary or not, the individual concerned is entitled to equal rights under the law.
C.
The Minority's Basic Tactic to Achieve the End They Desired Was to Claim
There Were No "Benefits" from Marital Status and Therefore Nothing to Extend
to Same-Sex Couples
The first step was to get the Commission to adopt a definition of benefits which, when
applied to various items, including those mentioned by the Supreme Court in Baehr, would
show that they were not benefits. This attempt, described more completely in the majority
report, was rejected twice
Commissioner Hochberg, the main proponent of this device,
was asked by the chair to apply his definition to benefits mentioned by the Court and others;
he did so, and as expected, they turned out not to be benefits.
2 7 3
274
The second and major attempt to eliminate benefits was the misapplication of an
economic theory supported by the minority witness, Dr. Moheb Ghali. This theory apparently
values a benefit on the basis of some value to the community and not to the individual who
received it.
Chapter 1 contains a more complete explanation of Dr. Ghali's approach, but in simple
terms, it would value a given benefit by dividing the value to the individual by the probability
of someone taking advantage of it. For example, if a given benefit is worth $500 to the
individual who received it, but only one person in a thousand is likely to take advantage of it,
then $500 is divided by 1000 and the value is fifty cents.
See also Watson, Traci and Joseph P. Shapiro, "Is there a 'gay gene'?, U.S. News & World
Report, November 13, 1995, pgs. 93-96 citing a study published in the November issue of
Nature Genetics of biologists from the National Institutes of Health who located a region on
the X chromosome that is tied to homosexuality. This research supports earlier studies
published in 1993.
272. Los Angeles Times, February 22, 1993.
273. See Minutes of September 27, 1995, pgs. 4 and 12, and Minutes of October 11, 1995, pg.
18.
274. See memo dated October 18, 1995 from Chairperson Gill to the Commissioners and
Commissioner Hochberg's letter to Chairperson Gill dated October 25, 1995, in response.
99
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
The majority report found this concept rather difficult to apply when we are trying to
determine benefits to individuals, but the minority would hang most of its case on this rather
tenuous hook.
D.
Another Basic Minority Argument Against Extending Marital Rights to SameGender Couples Might be Called the "Ultimate Disaster" Approach
Basically, this argument is that legalizing same-gender marriage would cause a flood
of homosexuals to come to Hawaii which would not only damage our society but also repel
other tourists. The minority presented no hard evidence to support this claim. Some of their
witnesses did present very emotional statements based on their individual or religious beliefs.
Interestingly this predicted flood is not consistent with the minority position that there are no
benefits to be gained by marriage.
Related to this argument is the controversial estimate of an increase in gay tourists
who would come here to be married, given in the recent Southern California Law Review in
May 1995.
The author, Ms. Brown, estimated that each same-gender marriage could
generate about $6,000, and this could increase tourist revenue by some $153 million per year.
Both economists who testified-Dr. Ghali and Dr. La Croix-discounted or did not agree
with-the methodology and some of the assumptions used by Ms. Brown.
275
However, after noting some assumptions, Dr. La Croix along with Dr. Mak, both of
whom are professors of economics at the University of Hawaii, estimated that legalizing
same-gender marriage could generate some $127 million per year over a period of five
years.
Dr. La Croix also gave his opinion that the number of same-gender couples who
might respond to the legalization of same-gender marriage would not be so substantial when
compared to the number of other tourists, to cause a "tipping" or loss of such tourists. We
should also note a subsequent letter from Dr. La Croix which points out various distortions of
his position by the minority (see Appendix I).
276
277
The protection of family values is another reason claimed by the minority and their
witnesses for the banning of same-gender marriages. When you consider the high proportion
of divorces, teenage pregnancies, single parent families, and the not uncommon practice of
couples living together without marriage, it would seem a bit ironic that the minority and their
supporters would seek to prevent one group that wishes to promote marriage from doing so.
275. See Brown, supra Note 113.
276. See Minutes of October 11, 1995, pgs. 9 and T-28 for testimony of Sumner La Croix, Ph.D.
and James Mak, Ph.D.
277. M note 253.
100
�MAjomry RESPONSE TO MINORITY OPINION
Is it possible that there are many more troublesome areas where the minority and its
supporters could productively promote family values than the one they have chosen here?
E.
Other Minority Positions Which Seem Questionable are the Rejection of the
Relevance of the Loving v. Virginia Case and the Claim that Homosexuals Are
Not a Suspect Class and Therefore-Like Criminals-Can be Subject to Legal
Discrimination
The United States Supreme Court some thirty years ago struck down a statute of the
State of Virginia that prohibited interracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)).
This case, which was cited by the Hawaii Supreme Court in its Baehr decision, raises the
question of equal protection of the law. The opposition to interracial marriage (called
miscegenation) was as emotional and passionate in the 1960's as the opposition to samegender marriage now. Many of the same reasons, including destruction of existing society,
were given then as they are now. The Loving case did not cause the collapse of society in
Virginia or elsewhere, and the arguments now seem ridiculous, particularly in Hawaii. The
minority apparently thinks our Supreme Court was misguided when it cited Loving. The
majority agrees with the Supreme Court.
The minority attempt to reduce the status of homosexuals to that of a group that is
somehow not entitled to certain constitutional rights deserves notice but not credence.
F.
A Final Argument by the Minority Is to Claim Mistreatment by the Majority
The Commission understood and agreed early on that it had to address the tasks
assigned to it by Act 5 with speed and decisiveness if it was to complete its work within the
limited time allowed. Minority Commissioner Hochberg was told clearly by the Chair, on more
than one occasion, that intentional delay would not be tolerated. It seemed obvious to all
concerned that if the minority could delay the work of the Commission to the extent that no
report would be issued, the minority would have achieved its end-to do nothing. In spite of
this, an inordinate amount of time at Commission meetings was consumed by Mr. Hochberg
picking over the details of the minutes, making repetitive motions, and trying to strike portions
of the proposed report. He consumed far more time than any other Commissioner.
Mr. Hochberg is entitled to speak his piece, and has been given a minority opinion in
which to do so, and he has. Each successive minority opinion grows longer and longer. The
November 27 draft had already exceeded the length of the majority's report.
In that draft, Commissioner Hochberg adopted a further variation to his claim of
"mistreatmenf-he now has also been "railroaded." If the reader will excuse a brief attempt
to inject a little humor into these rather vehement proceedings, we would suggest that
Mr. Hochberg's claim to having been "railroaded" is not a completely inept use of the
metaphor. While the use of steam locomotives in Hawaii as a means of transportation largely
101
�REPORT OF THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
id out in World War II, some may still remember how they worked and the impressive
.,oises they made.
In this context, we would note that early on, in September when the Commission
started work, self-appointed assistant engineer Hochberg jumped into the cab of the
locomotive and attempted to jam the throttle so the train wouldn't start. He did this by writing
self-serving letters to the Governor and others complaining about the Commission and its
procedures (see Appendix H). This didn't work and the train kept moving.
Undeterred, Mr. Hochberg attempted to stuff wet logs into the locomotive's fire box so
that the engine would never get up steam. Unfortunately, that didn't work either. (Some of
ther-e logs are cited or referred to in the minority opinion.)
Still determined, assistant engineer Hochberg attempted to either derail the train or at
least get it onto a dead-end track. This included jumping out of the cab at every whistle stop
to complain to the television cameras. However, that also failed. Now we have arrived at the
designated station, on time, with a little steam left!
Our train is now dragging a caboose (read Minority Opinion) which continually grows in
size and complexity. Commissioner Hochberg can now be expected to proclaim to any
available lens or forum that his is the real report and that the majority's efforts should be
disregarded because they are hopelessly prejudiced.
The majority appreciates Mr. Hochberg's persistent and single-minded efforts-they
have been more helpful than he might have intended!
III.
Conclusions
The majority of the Commission-while not all agree on every point-believe that they
have prepared a reasonable Report and suggested appropriate action to be taken by the
Legislature. The majority also is aware that its first recommendation-to allow same-gender
couples to marry under state law-is vehemently opposed by many people of certain religious
persuasions. The majority has also recommended the adoption of a comprehensive Domestic
Partnership law. This would apply to all couples, regardless of gender, and apply most of the
benefits and burdens of marriage to many in the community who do not only live together, but
also raise children without being married. We propose either of these solutions, or both.
The Legislature's job is to make tough decisions when required. We hope it can do
so.
102
�Appendix A
ACT 5
SESSION LAWS
OP
PASSED BY THE
EIGHTEENTH STATE LEGISLATURE
REGULAR SESSION
1995
CO
A Bill for in Acl Reltring to the Commlulon on Sexuil OrienUdon «nd the L»w.
Be It Enacltd by the Leglslatun of the State ef Hawaii:
SECTION I. The purpose of ihlf Acl Is to form • new commlulon on texutl
orientation and the law.
HAWAII
o
5.B. NO. USB
Cenrcmd on Wednodty. Itrmtry It. 1995
•nd
Myrnnei ihw « t on Moaitj. Mty I. 1993
SPECIAL SESSION
1995
CormTKx! oa Hombr. Am* 3. 1993
•nd
AtQaannd tine « • on Friday, loae 9. 1993
sn O W n
nT F w
ii
O T 0 9 W5
C
UGBUTWt RRREHa W .
W
fSitiflitMtf by Aflrttiority of tfts
RnrUor of Sumef
Honohila. Htwiil
SECTION 2. Act 217. Seiilon Laws of Hawaii 1994. aectlon 6. Il repe*'^
("SECTION 6. There it created, effective upon approval of thli Act. a
commission on Mxual orientation and the law. The commission shall consist of
eleven members, ten appointed by the governor of the Slate of Hawaii, of which two
shall berepresentativesfrom the Hawaii Civil Right! Commission; two (hall be
representatives from the American Friends Service Committee; two shall be repretenlatives from the Catholic Church diocese; two shall berepreaentativeafrom the
Church of Latter-Day SainU; two shall berepresentativesfrom the Hawaii Equal
Rights Marriage Project; and an eleventh member, who shall be the chairperson of
the family law section of the Hawaii State Bar Association ai of January I, 1994,
who shall serve at chairperson of the commission. Should the chaiiperson of the
family law section of the Hawaii State Bar Association decline to serve, the
president of the senate and the speaker of the house ofrepresentative*shall choose,
at their Joint discretion, a person with expertise In the law of domestic relations to
serve is chairperson of the commission. The members of the commission shall serve
without compensation and the commission shall be attached for administrative
purpose* to the legislativereferencebureau, which shall provide staff support to the
commission. The purpose of the commission shall be to:
(1) Examine the precise legal and economic benefits extended to oppositesex couples, but not to aame-aex couplet;
(2) Examine whether substantial public policy reason* existtoextend such
benefiu to same-sex couples and the reasons therefor, and
(3) Recommend appropriate "action which may be taken by the legislature
to extend such bene fits to same-sen couple*.
nuplet
The comrnlnkm shall submit areporton itsfinding*to the legislature no later than
twenty days prior to the convening of the 1993regularsession."]
SECTION 3. There is created, effective upon approval of Ms Act • commiaslon on sexual orientation and the law. The commlulon shall consist of seven
members of the general public, appointed by the governor, of whkh two shall be
appointed from a list of nominees submitted by the speaker of the house of
representatives and two shall be appointed from a list of nominees submitted by the
president of the senate. The governor shall designate the chair of the commission.
The member! of the commission shall serve without compensation and the commission shall be attached for administrative purposes to the legislativereferencebureau,
which shall provide stafT support to the commission. Hie purpose of the commission
shall be to:
(I) Examine the major let*! and economic benefit* extended to married
opposite-sex couples, but not to same-sex couple*;
(2) Examine the substantial public policy reasons to extend or not to extend
such benefits in part or In toul to same-sex couples; and
il
(3) Recommend appropriate action which may be taken by the legislature
to extend such benefits to tame-sex couples.
The commission shall submit a report of Itsfindingsto theteghlaturano later than
twenty days prior to the convening of the 1996regularsession. The commission
shall cease to exist after July I. 1996."
SECTION 4. Statutory material to be repealed it bracketed.
SECTION 5. This Act shall take effect upon Its approval.
(Appmrf Mintl 14. 1995 )
�Appendix B
STATUTE LIST
HRS 28-101 Attorney General. Part VII. Witness
Security; Witness security and protection
• Provides witness protection for state witnesses to
a witness and their family by default. "A person
otherwise closely associated with" the witness who
may be endangered is also included, but this
classification is uncertain
HHCA209 Successors to Lessee
• Allows husbands, wives, children or their widows
of widowers and other family members who are 1/4
Hawaiian or quality under section 3 01 Act ot May 16,
1934 (48 Stat. 777, 779) or section 3 Of Act of July 9,
1952 (66 Stat. 511, 513) to be successor lessees.
HRS 40-85(c) Audit and Accounting. Part IV
Miscellaneous Provisions. Imprest fund for
immediate welfare payments, emergency assistance,
and work-related expenses
• Authorizes the release of certain funds to welfare
recipients during "family" crises.
HRS M
Common Law; Construction of Law,
Common law of the State, Exceptions
• incorporates common law as the law of the State
and as that includes references to "tamily" and
"household" that may not be defined and because of
the traditional common law definition of those terms
there are benefits conlerred.
HRS 46-4 General Provisions. Part I. Generally
Jurisdiction and Powers. County Zoning
• Refers to single-'family" dwellings.
HRS 11-13
Elections, Generally; Rules for
determining residency
• Rules tor determining residency include undefined
term "family" when determining the default
residence of a person as that of the family residence,
and. therefore, a benefit is conferred.
HRS 46-6 General Provisions. Part I. Generally
Jurisdiction and Powers. Parks and playgrounds for
subdivisions
• Requires counties to zone parks and playgrounds
for subdivision. Defines "dwelling unit" and "lodging
unit" as an Independent housekeeping unit for a
•family."
HRS 1M4.5 Elections, Generally
• Authorizes a county clerk to keep a law
enforcement person's residence address and phone
number confidential if a life threatening circumstance
exists to that person of the person's family. "Family"
noi defined, and "immediate family" defined in HRS
11-191 does not include non-married partner.
HRS 46-15.3 General Provisions. Part I. Generally
Jurisdiction and Powers. Regulation of adult family
boarding home and care home.
• For purposes of fire and building codes, allows
operator and operator's family and up to five
boarders to be housed in an adult family boarding
home.
HRS 11-191 Elections, Generally
• includes "spouse" (and does not Include samegender partner) in definition of immediate family.
Detmition does not confer benefit; benefit conferred
by 11-204, HRS based on definition of "immediate
tamily."
HBS 53-5 Urban Renewal Law. Pari I. Urban
Redevelopment Act. Powers and duties of agency
• Defines powers and duties of redevelopment
agency to include relocation of displaced "families "
HRS 11-204 Elections; Generally
• Allows a candidate and immediate family to
contribute up to $50,000 per person rather than
S2.000 limit for other persons or entities
HRS 53-6 Urban Renewal Law. Part I. Urban
Redevelopment Act. Powers and duties of agency
• Defines powers and duties of redevelopment
agency to include relocation of displaced "families."
HRS 26-14
Executive and Administrative
Department. Part I. Organization Generally
• Defines purpose of DHS to improve and concern
itself with "family, child, and adult" welfare projects.h
105
�• Defines "dependent beneficiary" as spouse. All
benefits based on this definition do not apply to
same-gender partners
HRS 53-7 Urban Renewal Law Part I. Urban
Redevelopment Act. Urban renewal projects in
disaster areas
• initiation and approval of redevelopment plan
includes the provision of relocation of displaced
"families."
HRS 87-4 Public Employees Health Fund; Trust
Fund; State and county contribution to fund
• Authorizes state contributions of approximately
60% for health care premiums to employee
beneficiaries and their dependent-beneficiaries.
HRS 53-20 Urban Renewal Law. Part I. Urban
Redevelopment Act Auxiliary redevelopment area
• See HRS 53-5
HRS 87-4.5 Public Employees Health Fund, Trust
Fund
• Authorizes state contributions of 50% of health
care premiums for retire employee-beneficiaries with
less than ten years service and their dependentbeneficiaries, including spouses.
HRS 53-21 Urban Renewal Law. Part I. Urban
Redevelopment Act. Auxiliary redevelopment area;
displaced persons.
• See HRS 53-5
HRS 53-22 Urban Renewal Law. Part I. Urban
Redevelopment
Act. Governmental advances,
donations, and other appropriations
• Requires governor to submit budget to legislature
lo cover expenses of displaced families
HRS 87-6 Public Employees Health Fund; Trust
Fund
• Authorizes state contribution of 100% of health
care premium for retirees with more than ten years
service
HRS 53-56 Urban Renewal Law. Part II. Urban
Renewal Workable program, definition.
• Defines "workable program" to include a suitable
living environment for an adequate family life.
HRS 87-23.5
Public Employees Health Fund;
Powers and duties of the Board; Determination of
long-term care benefits plan; contract with carrier or
third party administrator
• Extends long-term care benefits to spouses of
employee beneficiaries
HRS 76-103 Civil Service Law. Part V. Employee
Organizations; Veteran's Preference, Other Rights;
Veteran's preference
• Extend veteran's preference to spouse of disabled
veterans and surviving spouses of deceased
servicemen.
HRS 87-25 Public Employees Health Fund; Powers
and duties of the Board Determination of eligibility of
employee, dependent of person
• Limits those who may receive health care benefits
to
employee-beneficiary
and
"dependentbeneficiary." See HRS 87-1.
HRS 79-7 Leave of Absence; Vacation allowances
on termination of employment
•
Benefit to spouse by default if no other
designation
HRS 79-32 Leave of Absence; Family leave
• Authorizes family leave as stated under HRS 398
HRS 87-27 Public Employees Health Fund; Powers
and duties of the Board Supplemental plan to federal
medicare
• Authorizes supplemental health care plan for
employee-beneficiaries
and
their
dependentbeneficiary spouse who participate In federal
medicare plan.
HRS 83-8 Temporary Intergovernmental Assignment
of Public Employees Travel and transportation
expenses
• Allows for moving expenses of spouse
HRS 88-1
Pension and Retirement System.
Restrictions
•
Allows spouse or designated beneficiary in
contributory plan to receive pension until remarriage
HRS 87-1
Definitions
HRS 88-4 Pension and Retirement System.
• Requires spousal income of less than $2,400 to
be eligible for free medical aid.
HRS 79-13 Leave of Absence; Funeral leave
• Authorizes family leave as stated under HRS 398
Public
Employees
Health
Fund;
106
�family to hospital or other place because of accident
or illness
HRS 88-5 Pension and Retirement System.
IS Autnorizes the department of each county to
determine who is entitled to benefits under HRS 88-4
and provide to government physician of county
hospital a current list of pensioners and their
spouses who are eligible for section 88-4 benefits.
HRS 111-2
Assistance of displaced persons;
Definitions
• Defines "family" as two or more persons living
together who are related by blood, marriage,
adoption or legal guardianship
HRS 88-11 Pension and Retirement System.
• Relates to pension bonuses to pensioners and
spouses
HRS 111-4(b) Assistance of displaced persons,
Replacement housing
• will make payments to an individual or family that
is displaced. See definition in 111-2 tat excludes
same-gender couples.
Although application of
statute may be equal.
HRS 88-84
Pension and Retirement System.
Ordinary Death Benefit
• Ordinary death and surviving benefits paid out of
contributory plan are by designation of member and
not limited to surviving spouse. But if member's
designation of beneficiary is void or member did not
make a designation then benefits for to surviving
spouse by default.
HRS 111-7
Assistance of displaced persons;
Assurance of availability of housing
• Requires any state agency to provide a feasible
method of relocation for individuals or families
HRS 88-85
Pension and Retirement System.
Accidental death benefit
• Accidental death benefits under the contributory
plan for to the surviving spouse if the designation is
declared void.
HRS 145-1 Regulation of Dealers In Farm Produce;
Definitions
• Defines purchasing farm products for the person's
"family use." "Family" is not defined.
HRS 88-93
Pension and Retirement System.
Named beneficiaries by active members; effect of
marriage, divorce, or death
• Voids written designation of beneficiary under
contributory plan if beneficiary dies before member,
member divorces beneficiary or member is single
and subsequently marries. Single gender couples
can not participate in legal divorce or marriage.
HRS 146-21
Slaughtering Operations and
Slaughterhouses; Retention of the hide of butchered
calf heifer, cow, steer and bull; subject to public
inspection
• Retention of hides not required if purpose of
slaughter is for "personal consumption" means for
one's own use or use by one's "tamily." "Family" Is
not defined.
HRS 88-286 Pension and Retirement System.
Death benefit
• Authorizes and defines death benefit and pension
for surviving spouse under the non-contributory plan
(80% of 87,000 current members) in the case of
accidental of ordinary death while in service after
accumulating ten years. Limits pension to surviving
spouse of depend children.
HRS 147-71
Grades and Standards; Words,
Phrases defined
• "Consumers" defined as a person purchasing
eggs for the person's "family use." "Family" is not
defined.
HRS 150A-5(2)(A) Plant & Non-Domestic Animal
Quarantine; Conditions of implementation
• Allows one person of a family to fill out a
declaration from for all members of a family. Does
not define family and in fact may be conferring a
benefit by requiring non-married partners actually
living together to each fill out a form. Practical
application Indicates that family is defined more in
term of "household."
HRS 88-Part III Pension and Retirement System.
• Establishes a special retirement program for
certain public employees and their spouses
HRS 105-2(6) Government Motor Vehicles; Public
properly, purchasing and contracting
B Allows personal use of government vehicle during
work hours to transport a member of immediate
HRS 157-32
Milk Control Act; Standards to
determine minimum prices
107
�HRS 186-34 Fishing in Honolulu harbor, Hilo harbor,
restricted
• Allows the use of a net smaller than fifty feet for
fishing in Hilo Harbor provided it is for family
consumption
• Requires the board to consider the cost ol the
producers' tamily labor when determining minimum
prices tor milk. Uncertain how the board would
consider same-gender couples' labor.
HRS 166-6(2) Agricultural Parks; Disposition
• One of the conditions for land disposed as
agricultural parks is that lessee shall derive the
major portion of income from the activities on the
premises, unless the failure to derive the major
portion of the income from on-premises activities
results from a physical or mental disability (SSI
payments) or the loss of a spouse (inheritance). The
branch chief Wilfred Muramoto says that the letter of
the law may project a benefit but in the application of
the spirit of the law the division has defined an
inheritance from a father to a single person as not
the kind ot "income" that could cause a breach or
default of an agricultural park lease.
HRS 188-45 Nehu and lao, taking prohibited;
exceptions
• Prohibits the catching of nehu and iao except for a
person's family consumption and with the use of nets
smaller than fifty feet.
HRS 200-39 Ocean Recreation
• Allows the transfer of permits for commercial
ocean activities in Kaneohe Bay to be made any time
between family members. Restricts other thrill craft
permit transfers to within five years of issuance.
HRS 201E-1 Finding and declaration of necessity
• Refers to family by stating "frustration in the
inability to obtain the basic necessity of decent
shelter and to provide a decent home for one's
family, provokes an unrest in our community that is
harmful to the overall fiber of our society." HFDC is
therefore indirectly promoting the development of
family.
HRS 171-74
Public Lands. Management and
Disposition; Residence lots, requirements
• Requires a lessee to have at least one person
related by blood or marriage or solely dependent
upon the lessee to qualify for a residential lease of a
public lands. Also requires reporting of spousal
income.
HRS 201E-62 Housing; Housing Loan and Mortgage
Programs; Rules; Eligible Borrower
• Allows HFDC to consider size of "family" when
determining qualifications for HFDC loans and
mortgages (presumably, the larger the family, the
higher the qualification)
HRS 171-84
Public Lands, Management and
Disposition, Leases to certain developers of housing
for low and moderate income families
• Gives priority to lease land to developers, who
develop project for low and moderate income
families through federal, state, and county programs
HRS 201E-130
Housing; Rental Assistance
Program; Purpose; findings and determination
• Lists "families" as a class of beneficiaries for the
program insofar as Its purpose is inter alia, to
provide "accommodations affordable to families . . .
of low and moderate income in the State."
HRS I7i-99(e) Public Lands, Management and
Disposition; Continuation of rights under existing
homestead leases, certificates of occupation, right or
purchase leases and cash freehold agreements
• Allows the descent of rights under existing
homestead leases and certificates of occupation to
go to the widow or widower and other related parties
then to the State.
HRS201E-131 Housing
• Allows a family or an Individual whose income
does not exceed 80% of the area median Income
determined by the U.S. Dept. of H.U.D., to be
eligible tenants . The eligibility is related to definition
of family which HFC employees say is alt members
of a household.
HRS 172-11 Land Commission
• Allows for the passing down of real property
interests, in the form of land commission awards, to
be inherited by heirs which would be spouses
HRS 183D-22 Hunting License; Application and
issuance of licenses; fees
• Resident license fee applies to spouse of active
duty military stationed in Hawaii
108
�person living in the home who is related to the
applicant by blood or marriage
HRS 201E-141
Housing; Housing Opportunity
Allowance Program; Definitions
K Defines "eligible borrowers" as (1) married
couples living together or (2) head of households
with at least one dependent
HRS 209-28 Disaster Relief and Rehabilitation: Part
III; Commercial and Personal Loans; Purpose of
loans
• Authorizes personal and commercial loans to
individuals and families affected by a natural disaster
as declared by the governor. (Chapter does not
define "family.")
HRS 201E-145
Housing, Housing Opportunity
Allowance Program; Eligibility of Spouse or
Dependents
• Transfers eligibility status upon death to surviving
spouse or dependent who inherits by devise or
descent
if
spouse/dependent
would qualify
individually.
HRS 209-29 Disaster Relief and Rehabilitation; Part
III; Commercial and Personal Loans; Eligibility for
loans
• Described eligibility standards for loans to include
a suitable program to meet necessary expenses and
satisfy the serious needs of the applicant and family.
HRS 201E-200 Housing Finance and Development
Corporation; Pan III; Housing Development; General
Provisions: Criteria
• When HFDC supplies housing or assistance in
obtaining housing, it shall consider the number of
dependents that the applicant has.
HRS 226-3 Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies;
Overall theme
• States overall theme of state planning that
includes individual and family self-sufficiency
HRS 201E-220.5
Housing
Finance
and
Development
Corporation; Pan III; Housing
Development; General Provisions; Co-Mortgagor
• Allows a co-mortgagor for the purposes of
qualifying for a mongage who is a family member as
defined by the HFDC. (No statutory definition given,
see HRS§20lE-2.)
HRS 226-4 Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies: State
goals
• Declares state goals and includes physical, social
and economic-well being for individuals and families
HRS 226-5
Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies;
Objective and policies for population
• Declares objective and policies for state planning
that includes encouragement of federal actions and
coordination of government agencies to promote a
more balanced distribution of Immigrants among
states, provided they don't prevent the reunion of
Immediate family members.
HRS 20iE-22l(b)
Housing
Finance
and
Development
Corporation; Pan III; Housing
Development; General Provisions; Real property;
restriction on transfer; waiver of restrictions
• Authorizes HFDC to waive restriction on the sale
of housing purchased through their programs If title
is transferred though laws of descent to a family
member who is otherwise qualified under the rules.
HRS 201F-3 Rental Housing Trust Fund; Purpose of
the fund
• The purpose of the chapter is to provide funds for
rental housing to needy persons and families
HRS 226-19 Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies,
Objectives
and
policies
for
socio-cuttural
advancement; housing
•
Declares that the plans for socio-cuttural
advancement regarding housing to include the
accommodation of the needs and desires of families,
and the stimulation and promotion of feasible
approaches to increase housing choices for lowIncome,
moderate-income
and
gap-group
households.
HRS 206E-10.5 Hawaii Community Development
Auihority; Part I General Provisions; Relocation
• Requires HCDA to adopt rules that provide for the
relocation of individuals and families who have been
displaced by government agencies
HRS 207-2 Mortgage Loans; Qualifications for loans
• To qualify for a loan for low income home buyer
on stare land, an applicant must have one additional
109
�• Application of stale Income taxes to residents,
nonresidents, corps., estates & trusts requires
nonresident spouses who file with resident spouses
to be taxed on entire income as it a resident.
HRS 226-22 Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies;
Objectives
and policies
for
socio-cuttural
advancement; social services
• Declares plans for social services to Include
promoting programs for tamily planning
HRS 235-5.5 Income Tax Law; Individual Housing
Accounts
• Provides that spousal transfers of these accounts
(upon death, total disability or divorce) are not
taxable. Maximum amount that can be accrued
under such accounts is $l0,000/yr. for married
couples and $5,000/yr. for unmarried individuals.
HRS 226-25 Hawaii State Planning Act; Part I;
Overall Theme, Goals, Objectives and Policies;
Objectives
and policies
for
socio-cuttural
advancement; culture
• Declares state plans for culture include supporting
activities and customs which are sensitive to family
and community needs
HRS 235-7 Income Tax Law; Other provisions as to
gross income, adjusted gross income, and taxable
income
• Deduction for expenses incurred as part of a legal
services plan for taxpayer and spouse
HRS 231-15.B Administration of Taxes; Time for
[.erforming certain acts postponed by reason of
service in combat zones
• A time allowance for filing taxes is given to the
spouse of an individual who has served in combat
duly
HRS 235-7.5 Income Tax Law
• Treatment of unearned Income of minor children
may include taxing at applicable parental (both
parents) tax. This has no direct reference to spouse
of family other than how a child's income relates to
their parents.
HRS 231-25 Administration of Taxes
• Sets out collection proceedings that exempts
certain items owned by taxpayer's "family" from
seizure
HRS 235-12 Income Tax Law
• Energy conservation income tax credit may be
taken on a joint return by a couple even if the one
making the Investment has no taxable income.
Otherwise, such a person must roll the credit over to
future years where the value of the credit over to
future years where the value of the credit is less due
to inflation.
HRS 231-57 Administration of Taxes; Apportionment
of joint refunds
• in a joint income tax return, either spouse may
request that the State make separate refunds If there
is a set-off against the joint income tax refund. Such
a refund will then be apportioned according to the
gross earnings of each as shown by information on
the returns.
HRS 235-16 Income Tax Law; County surcharge
excise tax credit
• Credit is based upon adjusted gross income of
Individual/married couple. The credit increases at a
greater rate at higher incomes (i.e. amount of credit
is not proportional to amount of income) and married
couples are allowed to aggregate income in
computing credit (so a married couple with two high
incomes gets a higher credit than an unmarried
couple with the same two high incomes)
H^S 235-1 Income Tax Law; Definitions
• Treats "husband and wife" as legal entity for tax
purposes (defined as that accorded by the Internal
Revenue Code) which the state income tax law
accords certain benefits/burdens.
HRS 235-2 4 Income Tax Law
• Operation of certain IRC provisions Including
amount of standard deduction ($1,900 for married,
$1,500 for single or surviving spouse HRS 2352.4(a)); and rollover gain on sale of principle
residence as it applies to taxpayers and their
spouses who are military and on active duty in
Hawaii, HRS 235-2.4(1)
HRS 235-51 Income Tax Law; Tax imposed on
individuals; rates
• Imposes different tax schedules for married
couples and unmarried individuals. The schedule for
married couples includes larger income brackets at
the lower tax rates
HRS 235-4 Income Tax Law; Operation of Certain
Internal Revenue Code provisions
110
�HRS 236A-5 Inheritance and Estate Taxes Law;
Allowance for exemptions, deductions and credits
• Provides for exemptions, deductions and credrts
In
calculating
estate/inheritance
tax
where
decedent's gift is made to, among others, his/her
spouse.
HRS 235-52 Income Tax Law; Joint Returns
E Tax imposed in the case of joint return for married
couples shall be as near as may be twice the tax
which could be imposed if the taxable income were
cut in half.
HRS 235-54 Income Tax Law; Exemptions
• Gives an additional exemption to a taxpayer's
spouse over the age of 65 (valued at $1,040).
HRS 237-24.3(10)
Use Tax Law; Definitions,
generally
• Exempts from the use tax household goods which
are imported, or purchased from an unlicensed
seller, for use in the state.
HRS 235-55.6 Income Tax Law; Expenses for
household and dependent care services necessary
for gainful employment
• Provides a tax credit for expenses incurred by a
taxpayer for household and dependent care services
for the taxpayer's spouse and dependents.
HRS 247-3(4), (10) Conveyance Tax; Exemptions
• Exempts transfers between husband and wife,
even after divorce
HRS 261-32 Transportation and Utilities; Airport
Relocation; Assistance for displaced person,
families, business and non-profit organization
• Allows state director of transportation to provide
assistance to any person or family that is relocated
due to airport land acquisitions program in the form
of actual and reasonable moving expenses, or $200
or moving expenses and $100 dislocation allowance.
Director may also provide relocation assistance and
enter into lease, license or other arrangements with
any displaced person or family granting the use or
occupancy of any lands or property under the
department's jurisdiction.
HRS 235-55 7 income Tax Law; Income tax credit
for low-income household renters
• Allows husband and wife to pool income and rent
in determining whether they qualify for the credit,
even if they file separate returns.
HRS 235-55.9 Income Tax Law; Medical services
excise tax credit
• Provides a higher tax credit for medical expenses
paid by an individual resident taxpayer where such
taxpayer is married and both are over 65 years of
age (S600) vis an unmarried taxpayer over 65 years
of age ($400)
HRS 261-33 Transportation and Utilities; Airport
Relocation; Relocation housing
• Provides a replacement housing payment to be
made to owners of real property improved by a
single-, or two-, or mutti-family dwelling under certain
circumstances
HRS 235-61 Income Tax Law; Withholding of tax on
wages
• Allows a married individual to claim a higher
deduction and an additional exemption in computing
taxable income subject to withholding.
HRS 261-34 Transportation and Utilities; Airport
Relocation; Not treated as income
• Exempts payments received under HRS 261-32
and HRS 261-33 from the state Income tax law
HRS 235-93 income Tax Law; Joint returns
• Allows husband and wife to file a joint return
HRS 235-97
Income Tax Law; Estimates; tax
payments; returns
• Allows husband and wife to submit a single
payment voucher for declarations of estimated tax:
HRS 261-3 Intoxicating Liquor; Illegal manufacture,
importation, or sale of liquor
• Exemption from the prohibition of the manufacture
of liquor without a license only applies to heads of
families who make liquor tor family use and not for
sale.
HRS 235-102.5 Income Tax Law; Income check-off
authorized
• Allows husband and wife filing a joint return to
pool income In determining whether they can each
claim a maximum $2 Hawaii election campaign fund
income tax check-off. (Aggregate check-off can not
exceed aggregate income).
HRS 286-107(g) Highway Safety; License renewals;
procedures and requirements
111
�• Requires confidentiality to mothers and families
who participation prenatal care programs.
• Authorizes an extended period for license renewal
by mail if a resident military person's immediate
family is out of State on official military orders.
HRS 321-351 Department of Health; Maternal and
Child Health Program; Definitions
• Uses the term "families" when discussing the
intended beneficiaries of the infant and toddler early
intervention program.
E.g. those who receive
counseling
HRS 301-2 Adult and Community Education; Scope
of adult and community education programs offered
• Scope of adult education courses includes training
in family life
HRS 304-4(b) University of Hawaii; General and
administrative provisions; Powers of regents; official
name
• Exempts a U.H. employee's spouse from the
nonresident tuition differential.
HRS 324-22 Medical Research; Morbidity and
Mortality Information; Cancer Studies; Identity of
person studies and material, restrictions.
• Requires researchers to receive permission from
the patient's immediate family when seeking to
provide additional information for research studies
approved by the cancer commission.
HRS 306-1 University Projects, Definitions
• Provides that health, dining and other UH facilities
shall be open to families of UH community members
HRS 327-3 Medical and research Use of Bodies;
(New) Uniform Anatomical Gift Act; Making, revoking
and objecting to anatomical gifts, by others
• Gives spouse first authorization to make, revoke,
or object to anatomical gifts, then children, then
parents, then siblings, then grandparents, then legal
guardian.
HRS 321-11.2 Department ol Health; General and
Administrative Provisions; Adult foster homes
• Prohibits an adutt foster home having more than
two adults with developmental disabilities at the
same time, who are unrelated to the foster family,
from being certified as an adutt foster home for
developmentally disabled individuals requiring such
care beyond the eighteenth birthday
HRS 327-5 Medical and research Use of Bodies;
(New) Uniform Anatomical Gift Act
• Requires certain people to make inquiry of the
patient and family, if appropriate, regarding organ
donations. Looks to HRS 327-3 for authority of
people to decide.
HRS 321-123 Department of Health; Chronic Renal
Disease; Financial assistance; eligibility standards
• The economic well-being of both the sufferer of
chronic renal disease and the sufferer's family is
considered in determining the sufferer's eligibility for
financial assistance to aid the cost of health acre
related to such disease.
HRS 329-1 Uniform Controlled Substances Act;
General Provisions; Definitions
• Defines "ultimate user" as a person who legally
possesses a controlled substance for their use of the
use of a member of the household
HRS 321-321 Department of Health; Maternal and
Child Health Program; Purpose
• Describes the purpose of the maternal and child
health program to promote the health of families
HRS 334-10 Mental Health, Mental Illness, Drug
Addiction,
and
Alcoholism;
General
and
Administrative Provisions; State Council on meal
heath
• States that the council shall include family
members of adults with serious emotional
disturbances.
HRS 321-322 Department of Health; Maternal and
Child Health Program; Administration of programs
• Describes the purpose of the maternal and child
health program to promote the health of families
HRS 321-323 Department of Health; Maternal and
Child Health Program; Definitions
• Describes the purpose of the maternal and child
health program to promote the health of families
HRS 334-6 Mental Health, Mental Illness, Drug
Addiction,
and
Alcoholism,
General
and
Administrative Provisions; Fees; payment of
expenses for treatment services
HRS 321-331 Department of Health; Maternal and
Child Health Program; Prenatal health care; authority
112
�HRS 335-5 Interstate Compact on Mental Health,
Consultation with transferee's family
• Requires compact administrator of proposed
transferee to consult with the proposed transferee's
"immediate family"
HRS 338-18 Vital Statistics; State Public Health
Statistics Act; Disclosure of records
• Allows disclosure of vital statistics of a person to
his or her spouse
• requires spouse to be responsible for any
payment due for expenses related to the care of a
hospitalized spouse
HRS 334-59 Mental Health, Mental Illness, Drug
Addiction, and Alcoholism; Admission to Psychiatric
Facility; Emergency examination and hospitalization
• Provides for notification of the patient's family if
the patient declines his or her right to make a phone
call, unless the patient has requested that no one be
called.
HRS 338-21 Vital Statistics
• Describes 3 methods of awarding children whose
parents are not married at birth, the birth rights of
those who were born with married parents, (1)
Parents marry, (2) natural parents acknowledge (3)
establishment of parent-child relationship under HRS
584 which would exclude birthrights to a child to a
second gay parent.
HRS 334-60.4 Mental Health, Mental Illness, Drug
Addiction, and Alcoholism; Admission to Psychiatric
Facility; Notice; waiver of notice; hearing on petition;
waiver of hearing on petition for involuntary
hospitalization.
• Requires notice or waiver of notice to spouse on
hearing tor involuntary hospitalization
HRS 346-10
Social Services and Housing;
Protection of records; Divulging confidential
Information prohibited
• The Aid to Families with Dependent Children
program is mentioned; also adoptive parents have
rights to certain information
HRS 334-60.5 Mental Health, Mental Illness, Drug
Addiction, and Alcoholism; Admission to Psychiatric
Facility; Hearing on petition
• Court may adjourn if spouse has not been
informed
HRS 334-125 Mental Health, Mental Illness, Drug
Addiction, and Alcoholism; Involuntary Outpatient
Treatment; Notice
• Notice of hearing for involuntary outpatients
treatment to spouse, parents, and children required.
HRS 346-14 Social Services and Housing, Duties
generally
• Assistance for families
HRS 346-l5(d) Social Services and Housing; Burial
of deceased public assistance recipients or
unclaimed corpses
• Permission to make arrangements for the burial or
cremation of the dead is given to relatives
HRS 334-134 Mental Health, Mental Illness, Drug
Addiction, and Alcoholism
• Requires same notice procedures as HRS 334125 for a petition for discharge from outpatient
treatment
HRS 346-17.4 Social Services and Housing; Foster
board allowances for students
• Allows for payments and reimbursements for
foster parents as part of foster family
HRS 334B-3 Utilization Review and Managed Care
ot Mental Health, Alcohol, or Drug Abuse Treatment;
Standards for review agents
• Requires that a representative of the review
agency is accessible to the patient's family five days
a week during normal business hours.
HRS 346-29
Social Services and Housing;
Applications for public assistance; manner, forms,
conditions
• (5) In determining the needs of an applicant for
medical assistance, guidelines are based on a family
of two persons and an additional $250 for each
additional person included in an application,
• (6) In determining the needs of an applicant, the
department cannot consider as income payment
which was made to eligible individuals, eligible
surviving spouses, surviving children or surviving
parents as specified under Title I of the Civil Liberties
HRS 335-1 Interstate Compact on Mental Health;
Enactment of compact
• States that a goal of the compact is to benefit the
families of the mentally ill. takes into consideration
the location of the family when transferring mental
patients to another state for care.
113
�Acl of 1988. Public Law 100-383 restitution to
individuals of Japanese ancestry who were interned
during WWII).
• (9) & (10) Special privileges are granted to an
individual whose spouse is committed or residing in
a medical instrtution.
• In a proceeding to establish a guardian ad litem,
the spouse and adutt children are entitled to notice
HRS 346-29 5 Social Services and Housing; Real
properly liens
• The department is authorized to place a lien on
a'iy real property owned by an applicant which will
have priority over all other debts. However, this
priority is subjugated by allowances made to the
surviving spouse and children for their support during
the administration of the estate.
HRS 346-261 through 272 Social Services and
Housing
• JOBS program gives benefits to families
HRS 346-261 Social Services and Housing: JOBS,
establishment; purpose
• JOBS program gives benefits to families.
HRS 346-301 through 305 Social Services and
Housing; Adoptive assistance program
• Although HRS §346-304 provides that eligibility of
adoption assistance shall not depend on income or
property of adoptive families, the question arises
whether same-gender parents could be accepted as
adoptive families as they presently cannot co-adopt
children
HRS 346-37 Social Services and Housing; Recovery
of ro /ments
• Allows the department to file a claim against the
estate of a recipient if he/she does not have a
surviving spouse
HRS 350C-1 through §350C-7 Adoption Assistance
Compact and Procedures for Interstate Services
Payments
• Provides assistance to adoptive families
HRS 346-37.1
Social Services and Housing;
Payment of public assistance for child constitutes
debt to department by natural or adoptive parents
• Both parents are responsible for bills to DHS
HRS 351-2
Criminal Injuries Compensation;
Definitions
• Defines "relative" who is eligible under this
provision as "victim's spouse"
HRS 346-53
Social Services and Housing;
Determination of amount of assistance
B The determination of the amount of assistance is
. ::sed on the size of the "family."
HRS 352-13 Hawaii Youth Correctional Facilities;
Evaluation, counseling, training
•
Provides for counseling services for the
committed person's family. "Family" is not defined.
-'PS 346-65 Social Services and Housing; Child
ajuse and neglect discretionary emergency
assistance
• Benefits for child abuse and neglect discretionary
emerpency assistance are available to assist
chit- sn and families
HRS 352-22 Hawaii Youth Correctional Facilities;
Periodic reexamination of status of persons
committed to the department •
•
• The family is to be check during the periodic
reviews which might lead to discharge of the child, (if
the 2nd spouse is counted as "family", it results in
two parents instead of one helping in the discharge)
HRS 346-71 Social Services and Housing; General
assistance
• Assistance is available to family groups and
assistance shall be based on the income and
resources of both parents
HRS 352-26 Hawaii Youth Correctional Facilities;
Taking into custody and detaining persons for
violations of terms and conditions of parole and
furlough and attempted escape
• For violations, parents/legal guardians have right
to notice If they wish to retain legal counsel and
appeal an order from the director.
HRS 346-82 Social Services and Housing; Purchase
of service
• Services to the elderly and disabled adults can
include some services to the participants' families.
HRS 346-237 Social Services and Housing; Notice
of proceedings
HRS 352-29 Hawaii Youth Correctional Facilities:
Termination of director's right to supervise person
114
�HRS 359-125 State Housing Projects; Determination
of eligibility of occupants and rental charges
• Establishes the qualifications for family to receive
housing benefits
H Director must notify parent/legal guardian when
supervision ot a minor is terminating.
HRS 352D-1 through 352D-10 OHice of Youth
Services
• Provides for assistance to families of youth at risk.
"Family" not defined
HRS 359-141 State Housing Projects; State sales
housing
• Sets out a guideline of contract terms for tenant
families that wish to sell home
HRS 353-17
Corrections; Committed persons,
furlough, employment
• Furlough rights are given tor the death or critical
illness or injury of an immediate family member.
"Family" not defined.
HRS 363-i
Veterans Rights and Benefits
Definitions
•
Defines "family* as the immediate family
members of a veteran.
HRS 353-25 Corrections; Powers and duties of
guardian
• A prisoner's wealth shall be invested and used for
the benefit of the prisoner's family upon his/her
death. "Family" not defined.
HRS 363-3 Veterans Rights and Benefits; Activities
of the department
• Confers benefits of counseling and assistance to
the veterans and their families
HRS 353-81; Corrections; Authorization; form of
compact
• Within the compact area, prisoners on parole or
.probation may move to be with family. "Family" not
defined.
HRS 363-5 Veterans Rights and Benefits; Council's
responsibility; burial of servicemen, veterans and
dependents
• Allows for the burial of resident veterans, their
spouses and minor children.
HRS 358D-2 through 358D-12, and HRS 358D-17,
Homeless Families Assistance Act
• Assistance to homeless families is provided.
"Family" not defined.
HRS 363-7 Veterans Rights and Benefits; Burial of
nonresident servicemen and dependents
• Allows lor the burial of nonresident veterans, their
spouses and minor children.
HRS 359-1 State Housing Projects; Findings and
Declaration
• Recognizes the need to confer housing benefits to
families. "Family" not defined
HRS 377-1(3) Hawaii Employment Relations Act;
Definitions
• "Employee" is defined to exclude employment by
parents and spouses
HRS 359-10; State Housing Projects; Housing,
tenants selection
• Confers benefits to families of veterans, families
of servicemen, person or families displaced by the
activities of a government. Also, first preference
priority is given to veterans with a permanent
disability and such deceased veteran's widow.
HRS 383-7(5)
Employment Security; Excluded
service
• "Employment" in this sections does not include
employment by parents, their children, or spouses
HRS 385-1 Additional Unemployment Compensation
Benefits Law
• Additional unemployment compensation benefits;
payable when the additional aid is targeted to help
families.
HRS 359-40; State Housing Projects; Housing,
tenant selection
• Confers benefits to families of veterans, families
of servicemen, person or families displaced by the
activities of a government.
HRS 359-123; State Housing Projects; Qualified
tenant defined
• Establishes the qualifications for family to receive
housing benefits
HRS 386-5
Worker's Compensation Law;
Exclusiveness of right to compensation
• Limits spouses to coverage under this law for
benefits.
115
�HRS 398-7 Family leave; Employment and benefits
protection
• Provides for the protection of the employee's
employment benefit during family leave
HRS 386-34(1); Worker's Compensation Law;
Payment after death
E in the event an individual's dies from causes other
than the compensable work injury, the surviving
spouse and dependent children are given the rights
to the unpaid balance of worker's compensation
benefits
HRS 398-8 Family leave; Prohibited acts
• Protects employee's right to exercise family
leave.
HRS 386-41
Worker's Compensation Law;
Entitlement to and rate of compensation
• In the event a work injury causes death, this
sections provides that the employer shall pay tor
funeral expenses and shall pay weekly benefits to
the surviving spouse and dependent children.
HRS 398-9
Family leave; Enforcement and
administration
• Protects employee's right to exercise family
leave.
HRS 398-10 Family leave; Applicability
• Protects employee's right to exercise family leave
HRS 386-42
Worker's Compensation Law;
Dependents
• A surviving spouse is listed as a dependent and
therefor entitled to the benefits of this chapter.
HRS 412-1-109 Financial Institutions
• Includes spouse share holdings when defining
"principal shareholder"
HRS 386-43 Worker's Compensation Law, Duration
of dependent's weekly benefits
• Said benefits continue for spouse until death, or
until remarriage, with two years' compensation in
one sum.
HRS 412-10-100 Financial Institutions
• Benefits for spouse and children
HRS 412-10-121 Financial Institutions
• Central credit union benefits for spouses
HRS 386-54
Worker's Compensation Law;
Commutation of periodic payments
• Allows commutation of periodic payments to lump
sum payment to spouse or dependent. Provides
rules for payments when there is probability of
remarriage of the spouse.
HRS 417E-1 Corporate Takeovers
• includes securities owned by spouse residing in
home of person when defining "beneficial owner"
HRS 4211-3 Cooperative Housing Corps.
• Allows members of the board of directors to be
spouse of shareholder
HRS 388-4 Wage and Compensation; Payment of
wages to relatives of deceased employees
• Wages, vacation, or sick leave pay due to the
deceased employees can be paid to the surviving
spouse.
HRS 425-4 Partnerships
• Continuation of rights under existing homestead
leases.
HRS 425-125 Partnerships
• Excludes a partner's right in specific partnership
properly from dower, curtesy, or allowances to the
surviving spouse
HRS 398-1 Family leave; Definitions
• Defines "immediate family" that includes spouse,
parent and in-laws and does not include samegender partner. For benefit see HRS 398-3, 4, 7, 8,
9, 10.
HRS 431:9-233
Insurance Code; Insurance
Licensing
• Allows commission to issue a temporary general
agent's, subagent's or solicitor's license to a
surviving spouse upon the death, disability or
drafting of a licensed agent or solicitor.
HRS 398-3 Family leave; Family leave requirement
• Entities an employee up to four weeks of family
leave to care for immediate tamily.
HRS 398-4 Family leave; Unpaid leave permitted;
relationship to paid leave
• Provides that family leave can be paid or unpaid,
or the combination of both.
HRS 431:10-203 Insurance Code; Power to contract
116
�• Allows a minor competent to contract tor lite or
disability insurance on the minor's own lite for the
benefit of the minor or the minor's spouse
• Provides that policy providing family coverage on
an expense incurred basis applicable for children
shall be payable for newborn infants.
HRS 431:10-206 Insurance Code; Application for
insurance: consent of insured required
I Allows pne spouse to contract for Hie or disability
insurance without the consent of the insured spouse
HRS 431:10A-116.5
Insurance Code; In vitro
fertilization procedure coverage
• Requires pregnancy related benefits to include a
one-time only benefit for all outpatient expenses
arising from vitro fertilization procedures performed
on the insured of the insured's dependent spouse;
provided the patient is the insured or covered
dependent of the insured; the patient's oocytes are
fertilized with the patient's spouse's sperm; the
patient's spouse have a history of infertility of at
least five year's duration. The term "spouse" means
a person who is lawfully married to the patient under
the laws of the State.
HRS 431.10-234 Insurance Code; Spouses' right in
Me insurance policy
• States that life insurance policies made payable to
or assigned, transferred, to or for the benefit of the
spouse of the insured, shall inure to the separate use
and benefit of such spouse. Allows a married person
to contract policies on the life or health of spouse or
children or against loss by such spouse or children,
without consent of one's spouse.
HRS 431:10A-103 Insurance Code; Family coverage
defined
• Defines family coverage to include a policy that
insures members of the family including spouse,
dependerrt children and any other person dependent
upon the policy holder.
HRS 431.10A-202 Insurance Code; Hearth care
groups
• State that policy of group disability insurance may
be issued to a corporation as policyholder, existing
primarily for the purpose of assisting individuals who
are It subscribers . . . for themselves and their
dependents.
HRS 43l :10A-104 Insurance Code; Form of policy
• A policy of accident and sickness insurance shall
neither be delivered nor issued for delivery to any
person unless it purports to insure only one person,
except that a policy may provide family coverage as
defined in Section 43t:10A-103.
HRS 431:10A-105
HRS 43i:l0A-206 Insurance Code; Coverage of
newborn children
• Requires all group or blanket policies providing
family coverage on an expense incurred basis
provide coverage for newborn children.
HRS 43l:10A-401
Extended Health Insurance;
Purpose
• States that the purpose ot the extended health
insurance is to more adequately meet the needs of
persons and their spouses who are 65 years or
older at lower cost.
Insurance Code; Required
provisions
• Subsection 9(A) and (B) requires "Payment of
Claims" clause to include the following language:
indemnity for loss of life payable in accordance with
the beneficiary designation or to the estate of the
insured, if no designation is effective at the time of
the payment, or at death of the insured. For the
indemnity of this policy payable to the estate of the
insured, or to an Insures of beneficiary who Is a
minor, the insurer may pay the indemnity, up to an
amount not exceeding $2,000 to any relative by
blood or connection by marriage of the insured or
beneficiary who is deemed by the insurer to be
equitable entitled. Such payment made by the
insurer in good faith shall fully discharge the insurer
to the extent of the payment.
HRS 431:10A-115
newborn children
HRS 43l:10A-403
Extended Health Insurance,
Association of insurers; policyholder; policy
• Authorizes Insurers to join together to provide
extended health insurance for persons and their
spouses 65 years and older.
HRS 431:106-105
Extended Health Insurance;
Amount of credit life insurance and credit disability
insurance
• Makes exception for limiting amount of credit life
insurance and credit disability insurance when
indebtedness Is for the sole purpose of providing
future advances or education expenses for the
debtor, debtor's spouse or other dependents.
Insurance Code; Coverage of
117
�of a spouse or dependent child based on evidence of
a nonsatisfactory individual insurability.
HRS 43i:iOC-l03
Extended Health Insurance;
Definitions
• Defines "No-fault insured" as the person identified
by name and includes the person's unnamed spouse
or relative while living in the same household.
HRS 431:10D-308
Life Insurance; Facility of
payment
• Authorizes the insurer to make payment under the
policy to . . . insured's relative by legal adoption or
connection by marriage . . H the designated
beneficiary in the policy failed to surrender the policy
within certain period, or if the beneficiary is a minor,
or incompetent to give a valid release, or dies before
the insured.
HRS 431:100-302
Auto Insurance; Required
optional additional insurance
• Requires the insurer to offer an option to allow
compensation to the insured's spouse or dependents
for damage not covered by no-fault benefits.
HRS 431.-100-305 Auto Insurance; Obligation to pay
no-fault benefits
• Requires the insurer to pay without regard to fault
for the benefit of the surviving spouse or dependent
an amount equal to the no-fault benefits
HRS 431:13-103 Unfair methods of competition and
unfair or deceptive acts or practices defined
• Declares that a insurer's refusing to insure,
refusing to continue to insure, or limiting the amount
of coverage available to an individual because of the
gender or marital status of the individual, constitutes
unfair discrimination. However, allows an insure
take marital status into account for the purpose of
defining persons eligible for dependent benefits.
HRS 43i:lOD-l04
Life Insurance; Standard
nonforfeiture law; life insurance contracts
• Standard Nonforfeiture Law of Life Insurance
defines rules for surrendering the cash value under a
family policy, which defines a primary Insured and
provides term insurance on the life of the spouse of
the primary insured.
HRS 431 N-1 State Health Insurance Program Act;
Findings and purpose
• States the purpose of this chapter is to establish a
program . . . to ensure that basic health insurance
coverage is available to medically uninsured and
who are defined as "gap group Individuals,"
including dependents, primarily children of insured
who are not covered by their parent's, guardian's or
spouse's policies
HRS 431.10D-114 Life Insurance; Miscellaneous
proceeds
• Authorizes the insurer to pay miscellaneous
proceeds to a surviving spouse, beneficiary or
person other than the insured's estate appearing to
the insurer to be equitably entitled to the payment.
HRS 432:1-104 Benefit Societies; Definitions
• Defines mutual benefit society (inter alia) as
making a provision for the payment of benefits in
case of sickness, disability or death of its members,
or members' spouses or children.
HRS 431:10D-201
Life Insurance; Groups life
insurance requirements
• Under this clause, contracts of life insurance
insuring only individuals related by marriage, by legal
adoption . . . or otherwise having an insurable
interest in each other's life, are exempted from
certain limitations on policy of group lite insurance.
HRS 432:1-602 Benefit Societies; Newborn children
coverage
• Requires all individual and group hospital and
medical service corporation contracts which provide
coverage for family member of the subscriber
provide for newborn children.
HRS 431 :lOD-203 Life Insurance; Debtor groups
• Limits the amount of life insurance offered to
individual debtors in a debtor group not to exceed
the unpaid indebtedness unless its for future
advances or educational expenses of debtor or
debtor's spouse or dependant.
HRS 432:1-604
Benefit Societies; In vitro
fertilization procedure coverage
• Requires all individual and group hospital or
medical service plans that offer pregnancy benefits
to provide a one time in vitro benefits . . for the
subscriber or the subscriber's dependent spouse.
HRS 431.10D-212 Life Insurance; Spouses and
dependents of insured individuals
• Allows insurers to extend group life insurance
policies to spouses and dependent children of the
insured Allows insurer to limit or exclude coverage
118
�HRS 510-23 Uniform Disposition of Community
Property Rights at Death Act; Disposition upon death
• Upon death of a married person, one-half of the
community property is attributed to the surviving
spouse and is not subject to testamentary
disposition.
HRS 443B-1 Collection Agencies; Definitions
E includes spouse of debtor in the definition of
"debtor"
HRS 453-15 Medicine & Surgery
• Gives authorization first to parents, spouse, child,
guardian next of kin, then friend for authorization of
postmortem examination
HRS 486H-9 Rights of dealer family member
• includes surviving spouse in definition of "dealer
family member" who may be designated to have
right to operate gas franchise
HRS 510-24 Uniform Disposition of Community
Properly Rights at Death Act; Perfection of title of
surviving spouse
• Allows perfection of surviving spouse's title to
community property held by the decedent at the time
of death, by order of circuit court
HRS 509-2 Creation of joint tenancy, tenancy by the
entirety, and tenancy in common
• Allows owners of property to convey directly to
themselves, to their spouses without the necessity of
first conveying through a third person or "straw
man."
HRS 510-25 Uniform Disposition of Community
Property Rights at Death Act; Perfection of title of
personal representative, heirs, or devisee
• Allows personal representative or an heir or
devisee of the decedent to perfect title to applicable
community properly held in surviving spouse's name
HRS 510-5 Community Properly
• Allows either spouse to manage properly
HRS 514A-43 Automatic expiration of public reports;
exceptions
• Authorizes commission to suspend expiration date
of public report for a two-apartment condominium,
provided, inter alia, that one or both of the
apartments is sold to an irrevocable trust to benefit a
spouse of family member.
HRS 510-6 Community Property; Incapacity of
spouse
• Allows either husband or wife to commence an
action in circuit court to manage community property
when the other spouse is non compos mentis,
Imprisoned for more than 1 year, a drunkard or
otherwise incapacitated.
HRS 514A-108 Inapplicability of pan of sections
• Horizontal Property Regime Law relating to sales
to Owner-Occupants does not apply to units
conveyed by the developer to the developer's
spouse or family members.
HRS 510-9 Divorce; division of property
• Provides for division of community property by
court decree in the event of divorce
HRS 516-71 Residential Leasehold
• Exempts from the plain language disclosure law
any transfer of a leasehold residential lot to a coowner or spouse
HRS 510-10 Death of husband or wife
• Provides that upon the death of the husband or
wife, one-half of the community properly shall
continue to belong to the survivor. The whole of the
community properly which at the time of the death of
the husband or wife is held by or is standing in the
name of the survivor who should have the power to
receive, manage, control, dispose of, and otherwise
deal with the properly until the property has been
reduced to possession or control by the personal
representative ot the decedent.
HRS 524-1 Facilities for Elders; Definitions
• Defines "facility" as a multi-unit residential
building where units are leased for a term to last the
lifetime of the lessee and the lessee's surviving
spouse and reverts back to the lessor upon their
deaths.
HRS 524-4 Facilities for Elders; Exclusions from
statutory rule against perpetuities
• Excludes from the statutory rule of perpetuities
(HRS 525-1) a property interest with respect to a
pension, or other deferred benefit plan for an
employee or their spouse.
HRS 510-22 Uniform Disposition of Community
Property Rights at Death Act; Rebuttable
presumptions
• Applies a rebuttable presumption that property
acquired during the marriage is community property.
119
�HRS 533-12 Dower & Curtesy; Barred by pecuniary
provision before marriage
• Same as HRS 533-1
HRS 531-15 Probate
• Determination of the bar to dower or curtesy shall
not operate except by order ol court on a proceeding
brought by a person claiming the estate and the
surviving spouse is notifies. A benefit based on the
dower or curtesy law
HRS 533-13 Dower & Curtesy; Election between
dower and jointure or pecuniary provision, when
• Same as HRS 533-1
HRS 533-1 Dower & Curtesy:
• Provides for dower and implies only for women
because rt uses the term "her husband." Note:
Webster's Dictionary defines "Dower" as "that part
of man's property which his widow inherits."
HRS 533-16 Dower & Curtesy; Curtesy; Election
between curtesy and will
• Same as HRS 533-1
HRS 551-2
Guardians and Wards, General
Provisions; Guardian ad litem; next friend;
appointment
• Excepts the power of a court to appoint a
guardian ad litem for either, although a minor, in all
proceedings for annulment, divorce, or separation,
except in the case of annulment on the grounds of
nonage
HRS 533-2 Dower & Curtesy; Election in case of
exchanged lands
• Same as HRS 533-1
HRS 533-3 Dower & Curtesy; In lands mortgaged
before marriage
• Same as HRS 533-1
HRS 553A-1
Uniform Transfers to Minors Act;
Definitions
• Defines "member of the minor's family" to include
brother, sister, uncle, or aunt by whole or half blood
or adoption
HRS 533-4
Dower & Curtesy; Not in lands
mortgaged for purchase money during coverture as
against mortgagee
• Same as HRS 533-1
HRS 533-5
Dower & Curtesy; In surplus after
purchase-money mortgage paid
• Same as HRS 533-1
HRS 554B-1
Uniform Custodial Transfer Act;
Definitions
• Defines "member of the beneficiary's family" to
include "spouse," as well as parent, step-parent,
grandparent, brother, sister, uncle, or aunt by whole
or half blood or adoption
HRS 533-6 Dower & Curtesy; Not in lands held by
husband as mortgagee
• Same as HRS 533-1
HRS 533-7 Dower & Curtesy; Widow's right to
occupy lands while dower unassigned
• Same as HRS 533-1
HRS 554-6 Uniform Custodial Transfer Act; Multiple
beneficiaries, separate custodial trusts, survivorship
•
Right of survival in a custodial trust is
automatically presumed for husband and wife
HRS 533-8 Dower & Curtesy; Widow's right to
remain in husband's house
• Same as HRS 533-1
HRS 560.1-201 Uniform Probate Code; General
Provisions, Definitions and Probate Jurisdiction of
Court, Definitions
•
Defines "heirs" as those person, including
surviving spouse, who are entitled under the statutes
of intestate succession to the property of a decedent
Also, specifically Includes spouse in definition of
"interested person," along with the
other
beneficiaries, devisees, creditors, and any others
having a property right in or claim against a trust
estate or estate of a decedent
HRS 533-9 Dower & Curtesy; Barred by divorce or
misconduct
• Same as HRS 533-1
HRS 533-10 Dower & Curtesy; Barred by deed
• Same as HRS 533-1
HRS 533-11 Dower & Curtesy; Barred by jointure
before marriage
• Same as HRS 533-1
120
�• Provides a homestead allowance of $5,000 lor a
surviving spouse
HRS 560:2-102 Unrtorm Probate Code; Intestate
Succession and Wills; Intestate Succession; Share ot
the spouse
• Spouse entitled to entire estate it no surviving
issue or parent and one-halt if there is. (Widow's
estate taken as dower does not pass to her by virtue
of intestate succession and is, therefore, not subject
to inheritance tax.) (Wife is immediately entitled to
insurance proceeds upon the death ot her husband.)
HRS 560:2-402 Uniform Probate Code; Exempt
Property and Allowances; Exempt property
• In addition to the homestead allowance, a
surviving spouse is entitled to $5,000 worth of
exempted properly from the estate.
HRS 560:2-403 Uniform Probate Code; Exempt
Property and Allowances; Family allowance
• Provides for a reasonable amount of money to
spouse for a family maintenance during the
administration period.
(Allowance provided for
anyone taking care of children.)
HRS 560:2-201 Uniform Probate Code; Elective
Share of Surviving Spouse, Right to elective share
• Authorizes and defines elective share of surviving
spouse as one-third of net estate. (This elective
share is not subject to inheritance tax.)
HRS 560:2-404 Uniform Probate Code; Exempt
Property and Allowances; Source, determination and
documentation
• Defines what property can be used to satisfy
homestead allowance and exempt property right.
Allows for personal representative.
Family
allowance limited to $6,000 If administered by
personal representative rather than spouse
Requires a non-spousal representative to petition the
court if this amount is deemed insufficient.
HRS 560:2-202 Uniform Probate Code; Elective
Share of Surviving Spouse; Net estate
• Defines net estate for the purposes of surviving
spouse's election
HRS 560.2-203 Uniform Probate Code; Elective
Share of Surviving Spouse; Right
of election
personal.to surviving spouse.
• Requires that elective share right is personal and
may be exercised only by a surviving spouse during
the surviving spouse's lifetime.
HRS 560:2-508
Uniform Probate Code; Wills;
Revocation by divorce; no revocation by other
change of circumstances
• Revokes gifts made in a will to a former spouse
after divorce
HRS 560:2-205 Uniform Probate Code; Elective
Share of Surviving Spouse; Proceeding for elective
share and dower; time limit.
• Explains procedure surviving spouse must take to
receive elective share and dower interest.
HRS 560.2-802 Uniform Probate Code; General
Provisions; Effects of divorce, annulment, and
decree separation
• Uses the terms husband and wife when referring
to the effect of divorce, annulment, or decree of
separation
HRS 560.2-206 Uniform Probate Code; Elective
Snare of Surviving Spouse; Effect of election on
benefits by will or statute
K Authorizes the surviving spouse to be entitled to
homestead allowance, exempt property, and family
allowance whether or not elective share is taken.
Provides that if elective share is taken, surviving
spouse is precluded from any testamentary bequest
unless testator spells out otherwise in will.
HRS 560.2-803 Uniform Probate Code; General
Provisions; Effects of homicide on intestate
succession, will, joint assets, life insurance and
beneficiary designations
• Provides that If a spouse kills the other spouse,
he/she will not be entitled to any of the above named
benefits
HRS 560:2-301 Uniform Probate Code; Spouse and
Children Unprovided for in Wills; Omitted spouse
• Allows a spouse who married after execution of
the will the right to inherit as if intestate, unless the
omission was intentional.
HRS 560:3-101 Uniform Probate Code; Probate of
Wills and Administration; General Provisions;
Devolution of estate at death; restrictions
• In defining the devolution of estate at death, the
rights of the surviving spouse have precedence
HRS 560 2-401 Uniform Probate Code; Exempt
Property and Allowances; Homestead allowance
121
�• Allows a spouse's allowance for exempt property
to prevail over an in kind distribution to a specific
devisee
HRS 560:3-203 Unilorm Probate Code; Probate ol
Wilis and Administration; Venue for Probate
Proceedings; Priority to Administer; Demand for
Notice; Priority among persons seeking appointment
as personal representative
• Prioritizes persons seeking appointment as
personal representative and places devisee surviving
spouse second to person determined by will and
non-devisee spouse as highest priority after all
devisees
HRS 560:3-1212 Uniform Probate Code: Article 3:
Probate of Wills and Administration; Collection of
Personal Property by Affidavit and Summary of
Administration Procedure for Small Estates; Estates
of persons leaving no known relatives
• In the event a person dies, leaving no known
spouse, issue, parents, grandparent, or issue of
grandparents over the age of majority, the coroner is
authorized to take charge of the decedent's personal
effects if valued over $1,000, the effects are turned
over to the court clerk; if under $1,000, the effects
are used to pay any expenses with the remainder
going to charity.
HRS 560 3-303 Uniform Probate Code; Probate of
Wills and Administration; Informal Probate and
Appointment Proceedings; Testate informal probate
proceedings proof and findings required
• Spouse authorized under Part 4 to petition for
rights due to denial of statutory allowances or
exempt property by registrar.
HRS 560:4-101 Uniform Probate Code: Article 4.
Foreign
Personal Representatives;
Ancillary
Administration; Definitions
• "Local personal representative" is defined as
anyone qualified under § 560:3-601 (resident or
resident corporation) or a spouse . . . of a decedent.
HRS 560:3-403 Unilorm Probate Code; Probate of
Wills and Administration; Formal Testacy and
Appointment Proceedings
• Requires explicitly that notice be given to the
surviving spouse as well as other heirs, devisees,
and personal representatives.
HRS 560:4-207 Unilorm Probate Code: Article 4:
Foreign
Personal Representatives;
Ancillary
Administration; Powers of Foreign Personal
Representatives;
Ancillary
administrations;
provisions governing
• A nonresident spouse is not disqualified form
serving as the personal representative of a
nonresident decedent
HRS 560:3-703 Unilorm Probate Code; Probate of
Wilis and Administration; Duties and Powers of
Personal Representative; General duties; relation
and liability to persons interested in estate; standing
to sue
• Excludes from limiting liability, the duty a personal
representative has in accordance with rights of a
claimant, the surviving spouse and children
HRS 560 3-902 Uniform Probate Code; Probate of
Wills and Administration; Special Provisions Relating
to Distribution; Distribulion, order in which assets
appropriated: abatement
• Excepts from rules of assets abatement property
in connection with the elective share of surviving
spouse
HRS 560:5-103 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Property; General Provisions; Facility of payment or
delivery
• A minor is allowed to receive payment or delivery
of properly owed to him/her under $1,000 if the
minor is married.
HRS 560:5-210 Uniform Probate Code. Article 5:
Protection of Persons Under Disability and their
Property; Guardians of the Person of Minors;
Termination of appointment of guardian of the
person; general
• A guardian of the person's authority terminates
upon the minor's marriage.
HRS 560.3-906 Uniform Probate Code; Probate of
Wills and Administration; Special Provisions Relating
to Distribution; Distribution in kind; valuation; method
HRS 560.5-301 Uniform Probate Code Article 5.
Protection of Persons Under Disability and their
Property; Guardians of the Person of Incapacitated
HRS 560:3-901 Uniform Probate Code; Probate of
Wills and Administration; Special Provisions Relating
to Distribution; Successor's rights
• Limits all distributions subject to claims of
creditors and allowances of surviving spouse
122
�HRS 560.6-107 Uniform Probate Code: Article 6:
Nonprobate Transfers. Multiple-Party Accounts;
Rights against muttiple-party accounts
• Allows transfers to survivors of multiple-party
accounts to be set aside if the estate has insufficient
funds, and requires multiple-party accounts to
account to the personal representative or spouse of
the decedent for the decedent's net contribution.
3
ersons. Testamentary nomination of guardian of
ine person for incapacitated person
S Authorizes a parent of a spouse to nominate a
guardian for an incapacitated person. Prioritizes
spouse's testamentary nomination before parent's.
HRS 560:5-309 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Propeny, Guardians of the Person of Incapacitated
Persons, Notices of guardianship proceedings
• Requires notice to be given to the person's or
ward's spouse in proceedings tor the appointment or
removal of a guardian
HRS 571-46 Family Courts: Part 5: Procedure and
Decree; Assignment by court order of future income
for payments of support
• Authorizes court to order assignment of future
income for payments due for support of spouse or
former spouse
HRS 560:5-311 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Property; Guardian of the Person of Incapacitated
Persons; Who may be guardian of the person;
priorities
• Prioritizes spouse of incapacitated person as
most eligible guardian before those nominated by
will of deceased spouse, an adult child, a parent, any
relative, or a person who is caring for the
incapacitated person.
HRS 572-21 Marriage: Part 2: Property Contracts,
Debts, and Liabilities; Presumption of separate
property
• There is a rebuttable presumption that all property
acquired in the name of the husband or wife without
regard to the time of the acquisition is the separate
property of the spouse.
HRS 572-22 Marriage: Part 2: Property Contracts,
Debts, and Liabilities; Contracts
• Married couples are allowed to make valid
contracts, including agreements as to spousal
support, the maintenance and education of their
children, atthough subject of court modification.
HRS 560:5-408 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Propeny, Protection of Persons under Disability and
Minors; Permissible court orders
• Allows the court to issue an order to exercise the
protected person's elective share in the estate of the
person's deceased spouse.
HRS 572-23 Marriage: Part 2: Property Contracts,
Debts, and Liabilities; Not liable for spousal debts
• A married person is not liable for the debts of a
spouse
HRS 560:5-410 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Property; Protection of Persons under Disability and
Minors, Who may be appointed guardian of the
property; priorities
• Prioritizes who may be appointed guardian of the
property of a protected person in order of (1)
Guardian ot the person; (2) an individual nominated
by a protected person over the age of 14, (3) the
spouse of the protected person.
HRS 572-26 Marriage: Part 2: Property Contracts,
Debts,
and
Liabilities;
May
be
personal
representative, guardian, trustee, or other fiduciary
• Authorizes a married person to become a
personal
representative,
guardian,
trustee,
custodian, or other fiduciary, without any act or
assent from that person's spouse.
HRS 560:5-601 Uniform Probate Code: Article 5:
Protection of Persons Under Disability and their
Property; Sterilization; Definitions
• 'interested person" is defined to include the
spouse that in § 560:5-603 is able to file with the
court, a petition for sterilization.
HRS 572D-1 Unilorm Premarital Agreement Act;
Definitions
• Defines a premarital agreement as an agreement
between prospective spouses made in contemplation
of marriage, to be effective upon the marriage
HRS 572D-3
Content
123
Uniform Premarital Agreement Act;
�HRS 576E-5 Administrative Process For Child
Support Enforcement
• Requires notice to deadbeat that child and
spousal support shall be payable by an order for
immediate income withholding
• Airthorizes the parties to a premarital agreement
to contract tor the modification or elimination of
spousal support.
HRS 572D-6 Uniform Premarital Agreement Act;
Enforcement
• in the event that the elimination of spousal
support causes a spouse to become eligible for
public assistance, the court may override the
agreement to provide the support for the spouse that
is necessary to the extent that is it necessary to
avoid public assistance
HRS 576E-10 Administrative Process For Child
Support Enforcement; Hearings officers
• Authorizes hearing officer to enter an order
enforcing the collection of spousal support for a
spouse or former spouse that is living with a subject
child.
HRS 572D-10 Uniform Premarital Agreement Act;
Prior agreements
• Validates all agreements prior to July 1. 1987, as
enforceable under statute if otherwise valid.
HRS 576E-16 Administrative Process For Child
Support Enforcement
• Authorizes income withholding in the case of
spousal support for the benefit of the child
HRS 574-1 Names; Married persons
• Allows each party of a marriage to declare the
name to be used as a married person.
HRS 577-25 Children
• Marriage officially emancipates a minor in the
eyes of the law except with respect to criminal law
and exclusive jurisdiction of the family court
HRS 574-5(3) Names: Change of name; procedure
• Reaffirms that marriage is one of the only ways in
which a valid change of name can be achieved.
HRS 577-26 Children
• Authorizes counselor to inform the spouse,
parent, custodian, or guardian of any minor who
requests of is referred to drug or alcohol abuse
counseling.
HRS 575-2 Uniform Desertion and Nonsupport Act
(Modified); Prima facie evidence; sequestration of
money for support of spouse or children
• Defines prima facie evidence of desertion as an
absence from, without providing support for, the
spouse for 3 months or more. Thereafter, upon a
finding of desertion by the court, that deserted
spouse is entitled to any money in the possession of
a third party that belonged to the deserting spouse.
HRS 577A-3 Medical Care/Minors
• Gives discretion to physicians who treat minors of
pregnancy or venereal disease to decide whether or
not to inform the spouse, parent, custodian or
guardian of the minor patient
HRS 577A-4 Medical Care/Minors
• Releases from financial liability a spouse, parent,
guardian, or custodian of a minor who consents to
receive medical care and services related to
pregnancy and venereal disease.
HRS 575-3 Uniform Desertion and Nonsupport Act
(Modified); Complaint
• Authorizes a deserted spouse to file a complaint.
HRS 576D-10.5 Child Support Enforcement; Liens
• Authorizes the placement of a lien on the personal
or real property of deadbeat spouses who are over 3
months delinquent in payment of any spousal
support that is in conjunction with child support.
HRS 578-2 Adoption
. • In order to grant the petition to adopt an adult, the
consent of the adult's spouse is required if adutt
adoptee is married.
HRS 578-16 Adoption
• An individual who is adopted by a natural parent,
grandparent, aunt, uncle, or sibling, or their spouse,
is deemed to be included in any determination of
heirs or members of any class, unless specifically
excluded.
HRS 576E-2
Administrative Process for Child
Support Enforcement; Attorney general; powers
• Authorizes the attorney general through the child
support enforcement agency, to establish, modify,
terminate, enforce and collect spousal support.
124
�HRS 584-6 Paternity
• Waives required notice to a natural father in
custodial proceedings when the adoptive parent is
the spouse of the child's parent and there is no
legitimate or court recognized father
HRS 580-9 Divorce
E Aoihorizes the court to award temporary support
nom either spouse after the filing of a complaint for
divorce
HRS 580-10 Divorce
• Authorizes the court to issue a temporary
restraining order against a spouse to prevent
physical damage.
HRS 584-24 Paternity
• Waives required notice to a natural father in
custodial proceedings when the adoptive parent is
the spouse of the child's parent and there is no
legitimate or court recognized father.
HRS 580-12 Divorce
• Allows the sequestration of property within the
State belonging to a party in a matrimonial action for
the support of either spouse.
HRS 586-1 Domestic Abuse
• Defines "family and household members" as
"spouses," and "persons jointly residing or formerly
residing in the same dwelling unit."
HRS 580-13 Divorce
• Authorizes court to obtain security for the
allowance to the other spouse
HRS 606-5 Courts
• Authorizes free copies of certain decrees to
veteran's spouse
HRS 580-15 Divorce
• Authorizes county attorneys to represent the court
in any contempt proceeding for the enforcement of
an order of support of a spouse or child
HRS 626-1-304 Rules of Evidence
• Ceremonial marriage is presumed to be valid
HRS 580-24 Divorce
• Allows deceived spouses who enter illegal
marriages unknowingly to a just allowance for
support
HRS 626-1-504 Rules of Evidence
• Extends physician-patient privilege to "family"
HRS 626-1-505 Rules of Evidence
•
Spousal privilege and confidential
communications
HRS 580-41.5 Divorce
• Excuses spouses from participating in mediation
programs for divorce settlement where there are
allegations of spousal abuse.
marital
HRS 651-91 Attachment
• Defines the term "head of family" to include an
individual living with a deceased spouse's child
HRS 580-47 Divorce
• Lists relevant facts the court shall consider when
ordering spousal support
HRS 651-92 Attachment
• Authorizes a head of family to keep a real
property interest with a value up to $30,000 exempt
from attachment, an individual gets to exclude only
$20,000
HRS 580-49 Divorce
• Allows the court to order support of an insane
spouse after divorce where the spouse was insane at
the time of the decree
HRS 651-93 Anachment
• Allows each spouse to claim a separate real
property exemption following the entry of a decree of
separate maintenance or divorce.
HRS 580-56 Divorce
• Limits the interest that can be obtained by a
spouse of a remarried party to a divorce action
where property interests are still pending after the
granting of the divorce
HRS 651-121 Attachment
• Uses the term household to describe the amount
of household property exempt from attachment
HRS 580-74 Divorce
• Allows the court to order child and spousal
support from either spouse upon a decree of
separation
HRS 651 C-l Fraudulent Transfer
125
�HRS 709-906 Otlenses Against the Family; Abuse of
family and household members penalty
"efines "relative" as a ". . . spouse, or an
!ual related to a spouse within the third degree
: j determined."
HRS801D-2 Victim's Rights
• Defines "Surviving immediate family members" as
. . . "spouse, . . . and any legal guardian of the
homicide victim."
HRS 663-1 Tori Actions
• Gives standing to sue in a tort action when
damage, trespass or injury occurs to the aggrieved
party's spouse inter alia.
HRS 801 D-4 Victim's Rights
•
Gives right of surviving immediate family
members of a crime to be informed of the
proceedings in trial and custodial care of the
offender of the crime.
HRS 663-3 Tort Actions
• Authorizes damages tor wrongful death for loss of
parental care . . . as a result of the death of a spouse
or persons wholly or partly dependent upon the
deceased person.
HRS 803-46 Search Warrants
•
Prohibits privileged conversation between
spouses from being taped or intercepted unless both
parties are named on the wiretap application order.
HRS 706-670.5 Criminal Disposition
• Requires notice to a victim or surviving immediate
family members of a criminal's parole or final
unconditional release. Defines "surviving immediate
family member" (inter alios) as spouse of a
deceased victim.
HRS 706-673 Criminal Disposition
• Requires notice to victim or surviving immediate
family members of criminal escape.
Defines
"surviving immediate family member" as spouse of a
deceased victim.
HRS 706-700
Offenses Against the Person;
Definitions
• Defines "married" to include "persons legally
married, and a male and female living together as
husband and wife regardless of their legal status, but
does not include spouses living apart "
HRS 706-769
Offenses
Defenses to extortion
Against
the
Person;
HRS 708-834 Offenses Against Property Rights;
Entry upon the premises of a sex, child, or spouse
abuse shelter
• Defines misdemeanor of a person who knowingly
enter or remain on premises after reasonable
warning to leave by staff
HRS 709-903
Offenses Against the Family;
Persistent non-support
• Defines misdemeanor of "persistent non-support"
as a person who fail to provide support to a spouse .
. . or other dependent.
126
�Appendix C
TESTIMONY RECEIVED BY
THE COMMISSION ON SEXUAL ORIENTATION AND THE LAW
September 13,1995
Public Comments
Jonathan Cuneo, He Kanaka Hou
Karyn Tiedeman, He Kanaka Hou
Bill Woods, Gay Marriage Project
September 27, 1995
Invited Guests
Steven Michaels, Esq., First Deputy Attorney General
Daniel Foley, Esq.
Sumner La Croix, Ph.D., Professor of Economics
Randy Roth, Esq., Professor of Law
David Shimabukuro, Employees Retirement System
Cenric Ho, Employees Health Fund
Public Comments
George Butterfield, former Trustee for Public Employees Health Fund Trust
(written only)
October 11,1995
Invited Guests
Steven Michaels,
Dan Foley
Dan Kehoe, Ph.D.
Sumner La Croix, Ph.D., joined by James Mak, Ph.D.
Moheb Ghali, Retired Professor of Economics
Robert Aiken
Diane Paw U
Joan Chatfield
127
�Rev. Dr. Donald K. Johnson
Charles Whitten
Rev. Jori Watland
Rev. Bob Nakata
William Woods
Kalei Puha
Invited Guests Postponed to October 11, 1995, 9:00 a.m.
Bishop Richard Lipka
Mike Gabbard
Rev. John Boaz, President, Hawaii Association of Evangelical
Mary Woodard, Head Chaplin, Great Commission Fellowship
Leon Siu, State Director, Christian Voice of Hawaii
Public Comments
Loree Johnson
Rodney Aiu
Pau Kamano
Ray Angelo
William Whittman
Mary Whittman
Rev. Gary Kutil
Written Comments
Church of the Crossroads
Catholic Diocese by Father Mark Alexander
Roger Magnuson
Richard F. Duncan, Sherman S. Welpton, Jr., Professor of Law, University of
Nebraska Lincoln, College of Law
Dallas Willard, Professor of Philosophy, University of Southern California
Charles W. Socarides, M.D.
Lawrence F. Burtoft, Ph.D., Social Research Analyst, Public Policy Division,
Focus on the Family
Joseph Nicolosi, Ph.D., Editor of the NARTH Newsletter
128
�October 25, 1995
Invited Guests
Jon Van Dyke, Esq., Professor of Law, William S. Richardson School of Law
Frederick Rohlfing III, Esq., Act 217 Commissioner
Thomas P. Coleman, Esq., Executive Director, Spectrum Institute, Los Angeles
Public Comments
Mely McGivern
Daniel P. McGivern
Laura McNamara
Sherri Silva
Written Comments
Quakers
Bruce Fernandes, Paia, Maui
Sandra Pelosi, Kihei, Maui
November 8,1995
Invited Guests
Robert Bidwell, M.D., Professor of Pediatrics, John Burns School of Medicine
Scott Makuakane, Esq., Beck and Taylor
Public Comments
Diane Sutton, Big Island resident
Martin Rice, Kauai resident
Janice Judd
Loree Johnson
129
�November 22, 1995
Public Comments
Rachelle Sebella
Written Comments
Unitarian Church
December 6, 1995
Public Comments
Amy Agbayani, Chairperson, Civil Rights Commission,
Donna Bryant, Steering Committee member of the Hawaii Equal Rights
Marriage Project
Tracey Bennett
Sue Reardon, Co-director of the Hawaii Equal Rights Marriage Project
Tom Ramsey
Barbara Chung
Julian Johnson
Rose Gibral Pires
Charles Woodard, Evangelist
David Bittner
Rick Nelson
Linda Borgia
Johnathan Borgia
Vanessa Y. Chong, Coalition for Equality and Diversity, through the American
Civil Liberties Union
Lisa Poulos
Charles McCrone
June Shimokawa, American Friends Service Committee
Claudio Borge, Jr.
Ron Arnold
Bill Woods, GLEA Foundation and Gay Marriage Project
Calvin N. Takara
Tom Conlon
Martin Rice, resident of Kauai
Lora Burbage,
David Mitchell,
Dawn V. Underwood,
130
�Rev. Fr. Norman T. Wesley his congregation & 300 churches of the
Episcopal/Angelican Church
Marc Breida
Jeff Cadavona
Robert Gibson
Wayne Akana
James F. Cartwright
Susan Brown
Rev. Mike Young, Minister of the First Unitarian Church in Honolulu
John A. Hoag
Ken Gibson
Isaah lumboa representing Gospel Temple
Elizabeth Lover
Reverend Tony Bacungua, Full Gospel Temple
Joe Ahuna
Sam Langi
Leon Siu, State Director of Christian Voice of Hawaii
Jeff Grey, from Maui
Amanda Dupont
Elizabeth Vellalos
Tiger Mosier
Diane Mosier
David Smith
Karen Smith
Don Fernandes
Nancy Greenwood
Melodie Asscentia
Sarah Banks for Julie and Paul Banks
Skip Burns from the Big Island
Troy Freitas
Peggy Y. Yorita
Rasika Gleason
Delpia Akiu
Mike Gabbard, President of Stop Promoting Homosexuality America
Dan Ditto
Harvey Alisa
Don Harriman
Philip Smith, Ph.D. in Sociology
Dale Hammond
Don Baldwin, Jr.
Dora Baldwin
Gracie Hemenway
Dennis Mau
Matte Teo
131
�Shane Cullen
Daryl Gerloff
Bette Gerloff
Michelle Umaki for First Assembly of God
Ward Stewart
Bonnie Warring
Skip McQueen
R.K. Lau
Margaret Talamantes
Cherry Patterson
Lori DeLuca
Carl Vannoh, Jr.
Pumehana Cobb-Adams
April English
Patrick Battista
Rodney Aiu
Chuck Brocka
Vernon Taa
John Kinyon
Scott Vanlnwagen
Kalei Puha
Noela Napoleaon
Navahine Dudoitt
Stratton Goodhugh
Debbi Hartmann
Enric Ortiz
Lori K.Fujimoto
Written Testimony
Petitions from Kauai submitted and dated DecmeberA, 1995,102 names
Maryann and Simi Mapu
Mitzi and Gordon Ledingham
Barbara Ruth Bishop
Bradley Scully
Terry Nakamura
L.M. Indy Schneider, L.Ac
Numerous written testimony was received by the Commission via fax and through the
mail. Copies of the public testimony will be available through the State Archives after August
1996.
132
�Appendix D
SUGGESTED LEGISLATION
D-l
Majority
A.
135
B.
D-2
Allow Marriage
Universal Comprehensive Domestic Partnership
139
Minority
A.
B.
Constitutional Amendment to Prohibit
Same-Sex Marriage
145
Expansion of Definition of Family
147
133
�Appendix D-l
A. ALLOW MARRIAGE
S.B.NO
THE SENATE
EIGHTEENTH LEGISLATURE, 1995
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO MARRIAGE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII
SECTION 1.
Section 572-1, Hawaii Revised S t a t u t e s , i s
amended to read as f o l l o w s :
"$572-1
Requisites of v a l i d marriage c o n t r a c t .
I n order t o
make v a l i d the marriage c o n t r a c t [ , which s h a l l be only between a
man and a woman,] between two persons i t s h a l l be necessary t h a t :
(1)
The respective p a r t i e s do not stand i n r e l a t i o n t o each
other of ancestor and descendant of any degree
whatsoever, brother [and] or s i s t e r of the h a l f as w e l l
as t o the whole blood, uncle [and niece,] or aunt [and
nephew,] whether the r e l a t i o n s h i p i s l e g i t i m a t e or
illegitimate;
(2)
Each of the p a r t i e s at the time of c o n t r a c t i n g the
marriage i s at l e a s t sixteen years of age; provided
that w i t h the w r i t t e n approval of the f a m i l y court of
the c i r c u i t w i t h i n which the minor resides, i t s h a l l be
l a w f u l f o r a person under the age of s i x t e e n years, but
135
�S.B. NO.
1
i n no event under the age o f f i f t e e n years, t o marry,
2
subject t o section 572-2;
3
(3) [The man] Either party t o the marriage does not a t the
4
time have any l a w f u l [ w i f e ] spouse l i v i n g [and t h a t the
5
woman does not a t the time have any l a w f u l husband
6
living];
7
(4) Consent of neither party t o the marriage has been
8 obtained by f o r c e , duress, or fraud;
9
(5) Neither of the p a r t i e s i s a person a f f l i c t e d w i t h any
10
loathsome disease concealed from, and unknown t o , the
11
other p a r t y ;
12
(6) The [man and woman] p a r t i e s t o be married i n the State
13
s h a l l have duly obtained a license f o r that purpose
14
from the agent appointed t o grant marriage l i c e n s e s ;
15
and
16
(7) The marriage ceremony be performed i n the State by a
17
person or society w i t h a v a l i d l i c e n s e t o solemnize
18
marriages and the [man and the woman] p a r t i e s t o be
19
married and the person performing the marriage ceremony
20
be a l l p h y s i c a l l y present a t the same place and time
21
f o r the marriage ceremony."
22
SECTION 2. Section 572-3, Hawaii Revised Statutes, i s
23 amended t o read as f o l l o w s :
24
"$572-3
Contracted without the State. Marriages between [a
25 man and a woman] two people, l e g a l i n the country where
136
�S.B.NO.
contracted^ s h a l l be held l e g a l i n the courts of t h i s State."
SECTION 3. Section 572-13, Hawaii Revised Statutes, i s
amended by amending subsection (a) t o read as f o l l o w s :
"(a)
Recordkeeping.
Every person authorized t o solemnize
marriage s h a l l make and preserve a record of every marriage by
the person solemnized, comprising the names of the [man and
woman] two people married, t h e i r place of residence, and the date
of t h e i r marriage.
Every person authorized t o solemnize marriage, who neglects
to keep a record of any marriage by the person solemnized s h a l l
be fined $50."
SECTION 4.
Section 572-21, Hawaii Revised Statutes, i s
amended t o read as f o l l o w s :
"[[]S572-21[]]
Presumption o f separate property.
There i s
a rebuttable presumption t h a t a l l property, both r e a l and
personal, acquired i n the name of [ t h e husband or of the w i f e , ]
one spouse, without regard t o the time of a c q u i s i t i o n t h e r e o f , i s
the separate property of the spouse i n the name of whom the same
has been acquired."
SECTION 5.
Statutory m a t e r i a l t o be repealed i s bracketed.
New s t a t u t o r y m a t e r i a l i s underscored.
SECTION 6.
This Act s h a l l take e f f e c t upon i t s approval.
INTRODUCED BY:
137
�
Dublin Core
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Title
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1996 Defense of Marriage Act (DOMA)
Creator
An entity primarily responsible for making the resource
White House Office of Records Management
Chief of Staff
Clerk's Office
Correspondence Office
Office of the Counsel to the President
Domestic Policy Council
Office of Intergovernmental Affairs
Office of Legislative Affairs
National AIDS Policy Office
Office of Oval Office Operations
Office of the Press Secretary
Office of Public Liaison
Office of Speechwriting
Automated Records Management System
Tape Restoration Project
Identifier
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2013-0028-F
Description
An account of the resource
President Clinton signed the Defense of Marriage Act (DOMA) into law on September 21, 1996. The Act declared that no state shall be required to recognize a same-gender marriage performed in another state. DOMA also defined marriage as only between a man and a woman for purposes of Federal law. This collection consists of files and email accounts from the White House staff related to The Defense of Marriage Act. The collection also contains records related to Hawaii Supreme Court’s Baehrs vs. Lewin, and California’s Proposition 22. The collection consists of clippings, emails, letters, memoranda, notes, press releases, and talking points concerning DOMA, same sex marriage, and domestic partnerships.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Office of Records Management
Clinton Presidential Records: White House Staff and Office Files
Clinton Presidential Records: Automated Records Management System
Clinton Presidential Records: Tape Restoration Project
Publisher
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William J. Clinton Presidential Library & Museum
Extent
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112 folders in 7 boxes
Is Part Of
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<a href="http://clinton.presidentiallibraries.us/items/show/36606">Collection Finding Aid</a>
Text
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Original Format
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Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Same Sex Marriage: Report of the Commission on Sexual Orientation and the Law [Folder 2] [1]
Creator
An entity primarily responsible for making the resource
Office of the Counsel to the President
Marvin Krislov
Steve Neuwirth
Identifier
An unambiguous reference to the resource within a given context
2013-0028-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 3
<a href="clinton.presidentiallibraries.us/items/show/36606" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/7408730" target="_blank">National Archives Catalog</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Medium
The material or physical carrier of the resource.
Preservation-Reproduction-Reference
Date Created
Date of creation of the resource.
5/19/2015
Source
A related resource from which the described resource is derived
7408730
42-t-20130028F-003-012-2015