Plaintiffs
Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and Joseph Melillo
Defendant
Lawrence H. Miike, Director of Hawaii Department of Health
Plaintiffs' Claim
That the use of a Hawaii statute to forbid marriages by partners of the samesex violated the Equal Protection Clause of the Hawaii Constitution.
Chief Lawyer for Plaintiffs
Daniel R. Foley
Chief Defense Lawyer
Rick J. Eichor, Deputy Attorney General of Hawaii
Judge
Kevin S. C. Chang, Judge of the First Circuit Court, State of Hawaii
Place
Honolulu, Hawaii
Date of Decision
3 December 1996
Decision
That the application of Hawaii Revised Statute 572-1 to deny a marriage contract to same-sex partners violated the Equal Protection Clause of the Hawaii Constitution, and was therefore invalid.
Significance
For centuries, societies throughout the world had operated on the assumptionthat the only valid legal marriage contract could be one between a man and awoman. Baehr v. Miike challenged this principle, and became a ruling with the potential to rival the impact of landmark U.S. Supreme Court decisions such as Brown v. Board of Education (1954) or Roe v. Wade (1973).
Same Sex Marriages
In December of 1990, three couples living in Honolulu, Hawaii applied for marriage licenses. But these were no ordinary couples. Ninia Baehr and Genora Dancel were both women; so too were Tammy Rodrigues and Antoinette Pregil--andthe third couple, Pat Lagon and Joseph Melillo, were both men. The state department of health denied their applications, citing Hawaii Revised Statute 572-1, which according to the department implicitly defines a legally binding marriage as one between a man and a woman. The three couples filed suit againstthe state, naming John Lewin, then director of the department, as defendant.The case thus began its life as Baehr v. Lewin, but in the course ofits long legal existence Baehr was replaced by Lawrence H. Miike, and the case was accordingly renamed as Baehr v. Miike on 23 April 1996. In any event, Miike was no more the target of this suit than had been Dallas County District Attorney Henry Wade in Roe v. Wade. In both instances, it wasnot the men themselves who were under challenge, but the laws which they upheld through their offices.
Under Hawaii law, the case went to a state circuit court. That court dismissed the suit in October of 1991, and the plaintiffs appealed to the Hawaii Supreme Court. The suit charged that the department's application of 572-1 violated the plaintiffs' rights under both the Right to Privacy and the Equal Protection Clauses of the Hawaii Constitution. The high court struck down the first of these challenges, but agreed with the plaintiffs on the second. "[B]y its plain language," the court held, "the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex." The court held that 572-1 presented a sex-based classification--which was prohibited under the Hawaii Equal Protection Clause--rather than a classification with regard to homosexuality, which was notspecifically addressed in the clause. Perhaps it was true that society defined marriage as being between a man and a woman, the court suggested, but until the Supreme Court struck it down in Loving v. Commonwealth of Virginia (1967), that Southern state had in place a law which held marriage betweenpeople of different races to be unnatural. If a race-based classification could be invalidated, so too could a gender-based rule.
The Burden of Proof Is on the State
Following its 1993 ruling, the state supreme court remanded the case to the circuit court. Because the high court had found reason to agree with the plaintiff's contentions regarding the unconstitutionality of 572-1's application in the present case, Hawaii law dictated that now it was incumbent on the defendant to prove its use of the statute constitutional. In other words, the burden of proof was on the director of the Department of Health to demonstrate that his forbidding any marriages other than opposite-sex unions "furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Originally scheduled for September of 1995, thecircuit court trial was postponed due to a vote on same-sex marriage laws inthe state legislature. The legislative session, however, failed to produce any changes in the laws, and the case finally came before Judge Kevin S. C. Chang of the First Circuit Court of Hawaii in September of 1996.
By now the case had generated considerable attention, and numerous entities filed amici curiae briefs. The lines were sharply drawn: on one side were the Christian Legal Society, the Hawaii Catholic Society, and the Mormon Church, which filed briefs for the defendant along with eleven states; on theother were the American Civil Liberties Union (ACLU), along with Lambda, a legal defense fund for gay rights. Several other groups filed briefs.
As the trial began, Miike held that he would prove five "compelling state interests" behind 572-1:
Both Sides Marshal Their Experts
The first of the state's four expert witnesses was Kyle D. Pruett, M.D., a psychiatrist specializing in child development. Pruett had conducted a ten-yearstudy, beginning in 1981, in which he assessed the development of children raised primarily by their fathers in an intact, two-parent household of the traditional kind. His study produced significant findings to uphold the notionthat the best possible environment in which to raise a child was one in whichtwo biological parents remained married. Yet he also stated that same-sex parents can and do raise emotionally healthy children, an observation garneredfrom his own clinical experience, and he believed that same-sex couples should be able to adopt children. If two parents provided a child with a nurturingenvironment, he indicated, this was a more important factor in their development than the genders of the two parents in question.
The state next called David Eggebeen, Ph.D., a sociologist whose work focusedon demographic issues relating to families and children. Families were changing, Dr. Eggebeen testified: the marriage rate was going down, along with thebirth rate; but the median age of marriage for women was rising, as was thedivorce rate, the number of young adults living together outside of marriage,the birth rate for unwed mothers, and the number of women in the labor force. Nonetheless, six out of ten children were still being raised in homes withboth biological parents, and Eggebeen testified that children raised in a single-parent home are at a "heightened risk" for problems such as poor grades and teenage pregnancy. Step-parents were no substitute for biological parents,he held, and a same-sex marriage--where obviously at least one of the parents had no biological relation to the child--was equivalent to a step-parent situation. Yet there were exceptions to this proposition, and Eggebeen agreed that same-sex parents ought to be able to adopt children. He also testified that children of same-sex marriages would benefit if their parents received thelegal privileges that went with legal union, including income tax advantages, public assistance, enforcement of alimony and child support, inheritance rights, and the right to prosecute wrongful death actions.
Judge Chang found the third witness to be problematic. Richard Williams, Ph.D., was a psychologist specializing in statistical analysis, but he questionedmany of the basic precepts governing the discipline of psychology. He held that the majority of studies in the social sciences had inherent flaws of theory and methodology, and therefore Judge Chang did not place much weight on his contentions regarding studies of same-sex parents. "At times," Chang wrote,"Dr. Williams expressed severe views. For instance, Dr. Williams believes that there is no scientific proof that evolution occurred." Moreover, Williams"admitted that his critique of studies regarding gay and lesbian parenting isa minority position."
Finally, the state called Thomas S. Merrill, Ph.D., a psychologist whose areas of expertise included human development, gender development, and relationships relevant to the development of children. Merrill had limited clinical experience with gay and lesbian parents, however, and he offered no opinion as to the development of children in families with parents of the same sex. However, he did testify that the sexual orientation of a parent is not an indicator of that person's fitness as a parent, and that same-sex couples with children do manage to be successful parents.
Given that the burden of proof was on the defendant, the plaintiffs were under no requirement to produce experts of their own. Nonetheless, they called four as well: Pepper Schwartz, Ph.D.; Charlotte Patterson, Ph.D.; David Brodzinsky, Ph.D.; and Robert Bidwell, M.D. The court cited the testimonies of Drs.Schwartz and Brodzinsky as "especially credible." The former, a sociologist with expertise in the areas of gender, sexuality, and the human family, held that the nurturing relationship between parent and child was more important tothe child's development than either the parenting structure or biology. Brodzinsky, a psychologist whose focus was on adoption and other forms of non- biological parenting, Judge Chang wrote, "expressed his strong view regarding the issue of whether there is a best family environment [in which] to raise children." Answering a question on his view' regarding the state's position that "we somehow need to identify a best family for children," Brodzinsky replied, "I find that offensive truthfully." He called this idea "a distortion of the research literature."
In his Specific Findings with regard to the case, Judge Chang found that thedefendant had failed to provide sufficient evidence to establish any of his claims. From the testimony of his experts--not to mention those of the plaintiffs--it seemed clear that the nurturing relationship was more important thanthe structure of the marriage; that a parent's sexual orientation was not necessarily an indicator of his or her ability to raise children; and that gay parents could raise children as happy and well-adjusted as those of their heterosexual counterparts. Furthermore, gay and lesbian couples in Hawaii were already allowed to adopt children and provide foster care. Far from proving thedefendant's contention that same-sex marriage would adversely effect children, Judge Chang held, the testimony had shown that those children would standto gain if their parents were accorded the benefits associated with traditional marriages.
A Landmark Ruling--And a Reaction
Judge Chang, as the sole judge and "trier of fact" in this case, had full power to decide its outcome. He held that the state department of health's use of 572-1 did establish a sex-based classification which denied gay and lesbiancouples the rights and privileges accorded to heterosexual couples. In Dean v. District of Columbia, a 1995 case in which the District of ColumbiaCourt of Appeals supported the District's refusal to issue a marriage license to a gay couple, one judge who dissented in part wrote that
Hence the circuit court ruled the sex-based classification in 572-1 unconstitutional under the Equal Protection Clause of Article I, section 5 of the Hawaii Constitution. The defendant and his agents were enjoined from denying anymarriage applications solely on the basis of the sex of both applicants. Finally, all costs of the trial were, to the extent permitted by law, imposed against the defendant and awarded in favor of the plaintiffs.
The victory for the plaintiffs in Baehr, however, was only another step in a long process. Because of the massive upheaval that would undoubtedly ensue from his ruling, Judge Chang stayed enforcement of the judgment pendingthe state's appeal to the Hawaii Supreme Court. The reason for this was thatif the high court reversed the ruling, marriages would be rendered at least temporarily invalid until the case could be decided. The fight continued in the legislature, where various measures both upholding and challenging gay marriages were raised, and in November of 1998, Hawaii voters were presented witha ballot for a proposed constitutional amendment which would allow the legislature to reserve legal marriages to opposite-sex couples. As for the state'sappeal in Baehr v. Miike, as of mid-1998, all briefs had been submitted to the state supreme court. People in Hawaii, and in the rest of the nation, awaited its ruling.
Impact
In his Conclusions of Law, Judge Chang had noted the possible ramifications of Baehr in light of Article IV, section 1 of the U.S. Constitution, which provides in part that states must recognize the "public acts, records andjudicial proceedings of every other State." The question of whether other states would recognize or refuse to recognize same- sex marriages made in Hawaii was an important one: if a couple were married in Hawaii, then moved to a state which did not recognize same-sex marriages, they would be denied the rights Hawaii had conferred on them. Such a controversy would undoubtedly require a decision by the Supreme Court. Throughout 1997 and 1998, a number of related issues arose across corners of the nation: Baker v. Vermont, a case in that state which became the second legal challenge to different-sex marriage laws; an action in a California federal court regarding a San Franciscodomestic partnership ordinance; and an Alaska court's decision to allow a same-sex marriage lawsuit to proceed. In mid-1998, the Baehr controversysimmered, with the ever-present potential to ignite into a legal battle in the nation's highest court. Both sides could at least agree on one thing aboutBaehr: it was, to borrow a term from television cliffhangers, "to be continued."
Related Cases
Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and Joseph Melillo
Defendant
Lawrence H. Miike, Director of Hawaii Department of Health
Plaintiffs' Claim
That the use of a Hawaii statute to forbid marriages by partners of the samesex violated the Equal Protection Clause of the Hawaii Constitution.
Chief Lawyer for Plaintiffs
Daniel R. Foley
Chief Defense Lawyer
Rick J. Eichor, Deputy Attorney General of Hawaii
Judge
Kevin S. C. Chang, Judge of the First Circuit Court, State of Hawaii
Place
Honolulu, Hawaii
Date of Decision
3 December 1996
Decision
That the application of Hawaii Revised Statute 572-1 to deny a marriage contract to same-sex partners violated the Equal Protection Clause of the Hawaii Constitution, and was therefore invalid.
Significance
For centuries, societies throughout the world had operated on the assumptionthat the only valid legal marriage contract could be one between a man and awoman. Baehr v. Miike challenged this principle, and became a ruling with the potential to rival the impact of landmark U.S. Supreme Court decisions such as Brown v. Board of Education (1954) or Roe v. Wade (1973).
Same Sex Marriages
In December of 1990, three couples living in Honolulu, Hawaii applied for marriage licenses. But these were no ordinary couples. Ninia Baehr and Genora Dancel were both women; so too were Tammy Rodrigues and Antoinette Pregil--andthe third couple, Pat Lagon and Joseph Melillo, were both men. The state department of health denied their applications, citing Hawaii Revised Statute 572-1, which according to the department implicitly defines a legally binding marriage as one between a man and a woman. The three couples filed suit againstthe state, naming John Lewin, then director of the department, as defendant.The case thus began its life as Baehr v. Lewin, but in the course ofits long legal existence Baehr was replaced by Lawrence H. Miike, and the case was accordingly renamed as Baehr v. Miike on 23 April 1996. In any event, Miike was no more the target of this suit than had been Dallas County District Attorney Henry Wade in Roe v. Wade. In both instances, it wasnot the men themselves who were under challenge, but the laws which they upheld through their offices.
Under Hawaii law, the case went to a state circuit court. That court dismissed the suit in October of 1991, and the plaintiffs appealed to the Hawaii Supreme Court. The suit charged that the department's application of 572-1 violated the plaintiffs' rights under both the Right to Privacy and the Equal Protection Clauses of the Hawaii Constitution. The high court struck down the first of these challenges, but agreed with the plaintiffs on the second. "[B]y its plain language," the court held, "the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex." The court held that 572-1 presented a sex-based classification--which was prohibited under the Hawaii Equal Protection Clause--rather than a classification with regard to homosexuality, which was notspecifically addressed in the clause. Perhaps it was true that society defined marriage as being between a man and a woman, the court suggested, but until the Supreme Court struck it down in Loving v. Commonwealth of Virginia (1967), that Southern state had in place a law which held marriage betweenpeople of different races to be unnatural. If a race-based classification could be invalidated, so too could a gender-based rule.
The Burden of Proof Is on the State
Following its 1993 ruling, the state supreme court remanded the case to the circuit court. Because the high court had found reason to agree with the plaintiff's contentions regarding the unconstitutionality of 572-1's application in the present case, Hawaii law dictated that now it was incumbent on the defendant to prove its use of the statute constitutional. In other words, the burden of proof was on the director of the Department of Health to demonstrate that his forbidding any marriages other than opposite-sex unions "furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Originally scheduled for September of 1995, thecircuit court trial was postponed due to a vote on same-sex marriage laws inthe state legislature. The legislative session, however, failed to produce any changes in the laws, and the case finally came before Judge Kevin S. C. Chang of the First Circuit Court of Hawaii in September of 1996.
By now the case had generated considerable attention, and numerous entities filed amici curiae briefs. The lines were sharply drawn: on one side were the Christian Legal Society, the Hawaii Catholic Society, and the Mormon Church, which filed briefs for the defendant along with eleven states; on theother were the American Civil Liberties Union (ACLU), along with Lambda, a legal defense fund for gay rights. Several other groups filed briefs.
As the trial began, Miike held that he would prove five "compelling state interests" behind 572-1:
protecting the health and welfare of children and other persons . . . fostering procreation within a marital setting . .. securing or assuring recognition of Hawaii marriages in other jurisdictions . . . protecting the State's public fisc [treasury] from the reasonably foreseeable effects of State approval of same-sex marriage in the laws of Hawaii. . . [and] protecting civil liberties, including the reasonably foreseeableeffects of State approval of same-sex marriages, on its citizens.Most significant among these, from the defendant's pre-trial memorandum, was the first. To support his position that legalized same-sex marriages wouldhave an adverse effect on children, he presented testimony from four expertwitnesses.
Both Sides Marshal Their Experts
The first of the state's four expert witnesses was Kyle D. Pruett, M.D., a psychiatrist specializing in child development. Pruett had conducted a ten-yearstudy, beginning in 1981, in which he assessed the development of children raised primarily by their fathers in an intact, two-parent household of the traditional kind. His study produced significant findings to uphold the notionthat the best possible environment in which to raise a child was one in whichtwo biological parents remained married. Yet he also stated that same-sex parents can and do raise emotionally healthy children, an observation garneredfrom his own clinical experience, and he believed that same-sex couples should be able to adopt children. If two parents provided a child with a nurturingenvironment, he indicated, this was a more important factor in their development than the genders of the two parents in question.
The state next called David Eggebeen, Ph.D., a sociologist whose work focusedon demographic issues relating to families and children. Families were changing, Dr. Eggebeen testified: the marriage rate was going down, along with thebirth rate; but the median age of marriage for women was rising, as was thedivorce rate, the number of young adults living together outside of marriage,the birth rate for unwed mothers, and the number of women in the labor force. Nonetheless, six out of ten children were still being raised in homes withboth biological parents, and Eggebeen testified that children raised in a single-parent home are at a "heightened risk" for problems such as poor grades and teenage pregnancy. Step-parents were no substitute for biological parents,he held, and a same-sex marriage--where obviously at least one of the parents had no biological relation to the child--was equivalent to a step-parent situation. Yet there were exceptions to this proposition, and Eggebeen agreed that same-sex parents ought to be able to adopt children. He also testified that children of same-sex marriages would benefit if their parents received thelegal privileges that went with legal union, including income tax advantages, public assistance, enforcement of alimony and child support, inheritance rights, and the right to prosecute wrongful death actions.
Judge Chang found the third witness to be problematic. Richard Williams, Ph.D., was a psychologist specializing in statistical analysis, but he questionedmany of the basic precepts governing the discipline of psychology. He held that the majority of studies in the social sciences had inherent flaws of theory and methodology, and therefore Judge Chang did not place much weight on his contentions regarding studies of same-sex parents. "At times," Chang wrote,"Dr. Williams expressed severe views. For instance, Dr. Williams believes that there is no scientific proof that evolution occurred." Moreover, Williams"admitted that his critique of studies regarding gay and lesbian parenting isa minority position."
Finally, the state called Thomas S. Merrill, Ph.D., a psychologist whose areas of expertise included human development, gender development, and relationships relevant to the development of children. Merrill had limited clinical experience with gay and lesbian parents, however, and he offered no opinion as to the development of children in families with parents of the same sex. However, he did testify that the sexual orientation of a parent is not an indicator of that person's fitness as a parent, and that same-sex couples with children do manage to be successful parents.
Given that the burden of proof was on the defendant, the plaintiffs were under no requirement to produce experts of their own. Nonetheless, they called four as well: Pepper Schwartz, Ph.D.; Charlotte Patterson, Ph.D.; David Brodzinsky, Ph.D.; and Robert Bidwell, M.D. The court cited the testimonies of Drs.Schwartz and Brodzinsky as "especially credible." The former, a sociologist with expertise in the areas of gender, sexuality, and the human family, held that the nurturing relationship between parent and child was more important tothe child's development than either the parenting structure or biology. Brodzinsky, a psychologist whose focus was on adoption and other forms of non- biological parenting, Judge Chang wrote, "expressed his strong view regarding the issue of whether there is a best family environment [in which] to raise children." Answering a question on his view' regarding the state's position that "we somehow need to identify a best family for children," Brodzinsky replied, "I find that offensive truthfully." He called this idea "a distortion of the research literature."
In his Specific Findings with regard to the case, Judge Chang found that thedefendant had failed to provide sufficient evidence to establish any of his claims. From the testimony of his experts--not to mention those of the plaintiffs--it seemed clear that the nurturing relationship was more important thanthe structure of the marriage; that a parent's sexual orientation was not necessarily an indicator of his or her ability to raise children; and that gay parents could raise children as happy and well-adjusted as those of their heterosexual counterparts. Furthermore, gay and lesbian couples in Hawaii were already allowed to adopt children and provide foster care. Far from proving thedefendant's contention that same-sex marriage would adversely effect children, Judge Chang held, the testimony had shown that those children would standto gain if their parents were accorded the benefits associated with traditional marriages.
A Landmark Ruling--And a Reaction
Judge Chang, as the sole judge and "trier of fact" in this case, had full power to decide its outcome. He held that the state department of health's use of 572-1 did establish a sex-based classification which denied gay and lesbiancouples the rights and privileges accorded to heterosexual couples. In Dean v. District of Columbia, a 1995 case in which the District of ColumbiaCourt of Appeals supported the District's refusal to issue a marriage license to a gay couple, one judge who dissented in part wrote that
ifthe government cannot cite actual prejudice to the public majority from a change in the law to allow same-sex marriages . . . then the public majority will not have a sound basis for claiming a compelling, or even a substantial, state interest in withholding the marriage statute from same-sex couples; a mere feeling of distaste or even revulsion at what someone is or does . . . cannot justify inherently discriminatory legislation . . .The defendant, Judge Chang wrote, had failed in the present case to show compelling evidence that such "prejudice or harm" to the majority would result from allowing same-sex marriages. Even if he had established this, however, the defendant had not shown sufficient proof that 572-1 was "narrowly tailored to avoidunnecessary abridgements of constitutional rights."
Hence the circuit court ruled the sex-based classification in 572-1 unconstitutional under the Equal Protection Clause of Article I, section 5 of the Hawaii Constitution. The defendant and his agents were enjoined from denying anymarriage applications solely on the basis of the sex of both applicants. Finally, all costs of the trial were, to the extent permitted by law, imposed against the defendant and awarded in favor of the plaintiffs.
The victory for the plaintiffs in Baehr, however, was only another step in a long process. Because of the massive upheaval that would undoubtedly ensue from his ruling, Judge Chang stayed enforcement of the judgment pendingthe state's appeal to the Hawaii Supreme Court. The reason for this was thatif the high court reversed the ruling, marriages would be rendered at least temporarily invalid until the case could be decided. The fight continued in the legislature, where various measures both upholding and challenging gay marriages were raised, and in November of 1998, Hawaii voters were presented witha ballot for a proposed constitutional amendment which would allow the legislature to reserve legal marriages to opposite-sex couples. As for the state'sappeal in Baehr v. Miike, as of mid-1998, all briefs had been submitted to the state supreme court. People in Hawaii, and in the rest of the nation, awaited its ruling.
Impact
In his Conclusions of Law, Judge Chang had noted the possible ramifications of Baehr in light of Article IV, section 1 of the U.S. Constitution, which provides in part that states must recognize the "public acts, records andjudicial proceedings of every other State." The question of whether other states would recognize or refuse to recognize same- sex marriages made in Hawaii was an important one: if a couple were married in Hawaii, then moved to a state which did not recognize same-sex marriages, they would be denied the rights Hawaii had conferred on them. Such a controversy would undoubtedly require a decision by the Supreme Court. Throughout 1997 and 1998, a number of related issues arose across corners of the nation: Baker v. Vermont, a case in that state which became the second legal challenge to different-sex marriage laws; an action in a California federal court regarding a San Franciscodomestic partnership ordinance; and an Alaska court's decision to allow a same-sex marriage lawsuit to proceed. In mid-1998, the Baehr controversysimmered, with the ever-present potential to ignite into a legal battle in the nation's highest court. Both sides could at least agree on one thing aboutBaehr: it was, to borrow a term from television cliffhangers, "to be continued."
Related Cases
- Loving v. Commonwealth of Virginia, 388 U.S. 1 (1967).
- Dean v. District of Columbia, 653 A.2d 307 (1995).
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