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

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

HEEN, J., dissenting.

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

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

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



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

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

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

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

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


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

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

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

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


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