Ninia BAEHR, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, Joseph Melilio, Plaintiffs-Appellants, v. John C. LEWIN, in his official capacity as Director of the Department of Health, State of Hawaii, Defendant-Appellee. No. 15689. Supreme Court of Hawaii. May 5, 1993.
Before MOON, Acting C.J., LEVINSON, J., Intermediate Court of Appeals Chief Judge BURNS, in place of LUM, C.J., Recused, Intermediate Court of Appeals Judge HEEN, in place of KLEIN, J., recused, and Retired Justice HAYASHI, [FN*]
Assigned by Reason of Vacancy.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. The duty of the appellate court is therefore to view the plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternative theory. For this reason, in reviewing an order dismissing the plaintiff's complaint for failure to state a claim, the appellate court's consideration is strictly limited to the allegations of the complaint, which must be deemed to be true.
Where suspect classifications or fundamental rights are not at issue, the appellate courts of this state have traditionally employed the rational basis test. Under the rational basis test, the inquiry is whether a statute furthers a legitimate state interest.
HRS s 572-1 establishes a sex-based classification.
Sex is a "suspect category" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution; HRS s 572-1 is therefore subject to the "strict scrutiny" test.
HRS s 572-1 is presumed to be unconstitutional unless it can be shown that the statute's sex-based classification is justified by compelling state interests and that it is narrowly drawn to avoid unnecessary abridgments of constitutional rights.
The plaintiffs-appellants Ninia Baehr (Baehr), Genora Dancel (Dancel), Tammy Rodrigues (Rodrigues), Antoinette Pregil (Pregil), Pat Lagon (Lagon), and Joseph Melilio (Melilio) (collectively "the plaintiffs") appeal the circuit court's order (and judgment entered pursuant thereto) granting the motion of the defendant-appellee John C. Lewin (Lewin), in his official capacity as Director of the Department of Health (DOH), State of Hawaii, for judgment on the pleadings, resulting in the dismissal of the plaintiffs' action with prejudice for failure to state a claim against Lewin upon which relief can be granted. Because, for purposes of Lewin's motion, it is our duty to view the factual allegations of the plaintiffs' complaint in a light most favorable to them (i.e., because we must deem such allegations as true) and because it does not appear beyond doubt that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to the relief they seek, we hold that the circuit court erroneously dismissed the plaintiffs' complaint.
Accordingly, we vacate the circuit court's order and judgment and remand this matter to the circuit court for further proceedings consistent with this opinion.
In addition to the necessary jurisdictional and venue-related averments, the plaintiffs' complaint alleges the following facts: (1) on or about December 17, 1990, Baehr/Dancel, Rodrigues/Pregil, and Lagon/Melilio (collectively "the applicant couples") filed applications for marriage licenses with the DOH, pursuant to HRS s 572-6 (Supp.1992); [FN3] (2) the DOH denied the applicant couples' marriage license applications solely on the ground that the applicant couples were of the same sex; [FN4] (3) the applicant couples have complied with all marriage contract requirements and provisions under HRS ch. 572, except that each applicant couple is of the same sex; (4) the applicant couples are otherwise eligible to secure marriage licenses from the DOH, absent the statutory prohibition or construction of HRS s 572-1 excluding couples of the same sex from securing marriage licenses; and (5) in denying the applicant couples' marriage license applications, the DOH was acting in its official capacity and under color of state law.
Based on the foregoing factual allegations, the plaintiffs' complaint avers that: (1) the DOH's interpretation and application of HRS s 572-1 to deny same-sex couples access to marriage licenses violates the plaintiffs' right to privacy, as guaranteed by article I, section 6 of the Hawaii Constitution, [FN5] as well as to the equal protection of the laws and due process of law, as guaranteed by article I, section 5 of the Hawaii Constitution; [FN6] (2) the plaintiffs have no plain, adequate, or complete remedy at law to redress their alleged injuries; and (3) the plaintiffs are presently suffering and will continue to suffer irreparable injury from the DOH's acts, policies, and practices in the absence of declaratory and injunctive relief.
On June 7, 1991, Lewin filed an amended answer to the plaintiffs' complaint.
In his amended answer, Lewin asserted the defenses of failure to state a claim upon which relief can be granted, sovereign immunity, qualified immunity, and abstention in favor of legislative action. [FN7] With regard to the plaintiffs' factual allegations, Lewin admitted: (1) his residency and status as the director of the DOH; (2) that on or about December 17, 1990, the applicant couples personally appeared before an authorized agent of the DOH and applied for marriage licenses; (3) that the applicant couples' marriage license applications were denied on the ground that each couple was of the same sex; and (4) that the DOH did not address the issue of the premarital examination required by HRS s 572-7(a) (Supp.1992) [FN8] "upon being advised" that the applicant couples were of the same sex. Lewin denied all of the remaining allegations of the complaint.
Indeed, the record in this case suggests that the parties have not conducted any formal discovery.
In his memorandum, Lewin urged that the plaintiffs' complaint failed to state a claim upon which relief could be granted for the following reasons: (1) the state's marriage laws "contemplate marriage as a union between a man and a woman"; (2) because the only legally recognized right to marry "is the right to enter a heterosexual marriage, [the] plaintiffs do not have a cognizable right, fundamental or otherwise, to enter into state-licensed homosexual marriages"; [FN12] (3) the state's marriage laws do not "burden, penalize, infringe, or interfere in any way with the [plaintiffs'] private relationships"; (4) the state is under no obligation "to take affirmative steps to provide homosexual unions with its official approval"; (5) the state's marriage laws "protect and foster and may help to perpetuate the basic family unit, regarded as vital to society, that provides status and a nurturing environment to children born to married persons" and, in addition, "constitute a statement of the moral values of the community in a manner that is not burdensome to (the] plaintiffs"; (6) assuming the plaintiffs are homosexuals (a fact not pleaded in the plaintiffs' complaint), [FN13] they "are neither a suspect nor a quasi-suspect class and do not require heightened judicial solicitude"; and (7) even if heightened judicial solicitude is warranted, the state's marriage laws "are so removed from penalizing, burdening, harming, or otherwise interfering with [the] plaintiffs and their relationships and perform such a critical function in society that they must be sustained."
The plaintiffs filed a memorandum in opposition to Lewin's motion for judgment on the pleadings on August 29, 1991. Citing Au v. Au, 63 Haw. 210, 626 P.2d 173 (1983), and Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887 (1962), they argued that, for purposes of Lewin's motion, the circuit court was bound to accept all of the facts alleged in their complaint as true and that the complaint therefore could not be dismissed for failure to state a claim unless it appeared beyond doubt that they could prove no set of facts that would entitle them to the relief sought. Proclaiming their homosexuality and asserting a fundamental constitutional right to sexual orientation, the plaintiffs reiterated their position that the DOH's refusal to issue marriage licenses to the applicant couples violated their rights to privacy, equal protection of the laws, and due process of law under article I, sections 5 and 6 of the Hawaii Constitution.
The plaintiffs' timely appeal followed.
An HRCP 12(c) motion serves much the same purpose as an HRCP 12(b)(6) motion, except that it is made after the pleadings are closed. Marsland, 5 Haw.App. at 474, 701 P.2d at 186. " 'A Rule 12(c) motion ... for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.' " Id. at 475, 701 P.2d at 186 (citing 5 Wright and Miller, Federal Practice and Procedure: Civil s 1357 (1969)).
Based on the foregoing authority, it is apparent that an order granting an HRCP 12(c) motion for judgment on the pleadings must be based solely on the contents of the pleadings. A claim that is evidentiary in nature and requires findings of fact to resolve cannot properly be disposed of under the rubric of HRCP 12(c). Cf. Nawahie v. Goo Wan Hoy, 26 Haw. 111 (1921) ("Only such facts as were properly before the court below at the time of the rendition of the decree appealed from and which appear in the record ... on appeal will be considered. All other matters will be treated as surplusage and of course will be disregarded.") We have recognized that consideration of matters outside the pleadings transforms a motion seeking dismissal of a complaint into an HRCP 56 motion for summary judgment. See Au, 63 Haw. at 213, 626 P.2d at 176; Del Rosario v. Kohanuinui, 52 Haw. 583, 483 P.2d 181 (1971); HRCP 12(b) (1990); cf. HRCP 12(c) (1990). But resort to matters outside the record, by way of "[u]nverified statements of fact in counsel's memorandum or representations made in oral argument" or otherwise, cannot accomplish such a transformation. See Au, 63 Haw. at 213, 626 P.2d at 177; cf. Asada v. Sunn, 66 Haw. 454, 455, 666 P.2d 584, 585 (1983); Mizoguchi v. State Farm Mut. Auto. Ins. Co., 66 Haw. 373, 381-82, 663 P.2d 1071, 1076-77 (1983); HRCP 56(e) (1990).
Although not expressly denominated as such, the circuit court's order also contained a number of conclusions of law. [FN16] These included: (1) "[t]he right to enter into a homosexual marriage is not a fundamental right protected by [a]rticle I, [s]ection 6 of the Hawaii State Constitution"; (2) the right to be free from the denial of a person's civil rights or from discrimination in the exercise thereof because of "sexual orientation [is] ... covered under [a]rticle I, [s]ection 5 of the State Constitution"; (3) HRS s 572-1 "permits heterosexual marriages but not homosexual marriages" and "does not violate the due process clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (4) HRS s 572-1 "represents a legislative decision to extend the benefits of lawful marriage only to traditional family units which consist of male and female partners"; (5) "[b]ecause [entering into a] homosexual marriage [is not] a fundamental [constitutional] right .... the provisions of section 572-1 do not violate the due process clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (6) "[h]omosexuals do not constitute a 'suspect class' for purposes of equal protection analysis under [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (7) "a group must have been subject to purposeful, unequal treatment or have been relegated to a position of political powerlessness in order to be considered a 'suspect class' for the purposes of constitutional analysis"; (8) "[a] law which classifies on the basis of race deserves the utmost judicial scrutiny because race clearly qualifies as a suspect classification. The same cannot be convincingly said with respect to homosexuals as a group"; (9) "the classification created by section 572-1 must meet only the rational relationship test"; (10) "[t]he classification of section 572-1 meets the rational relationship test"; (11) "[s]ection 572-1 is clearly a rational, legislative effort to advance the general welfare of the community by permitting only heterosexual couples to legally marry"; and, finally, (12) Lewin "is entitled to judgment in his favor as a matter of law[.]"
We conclude that the circuit court's order runs aground on the shoals of the Hawaii Constitution's equal protection clause and that, on the record before us, unresolved factual questions preclude entry of judgment, as a natter of law, in favor of Lewin and against the plaintiffs. Before we address the plaintiffs' equal protection claim, however, it is necessary as a threshold matter to consider their allegations regarding the right to privacy (and, derivatively, due process of law) within the context of the record in its present embryonic form.
By amending the Constitution to include a separate and distinct privacy right, it is the intent of your Committee to insure that privacy is treated as a fundamental right for purposes of constitutional analysis.... This right is similar to the privacy right discussed in cases such as Griswold v. Connecticut, (381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 1965) ], Eisenstadt v. Baird, [405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) ], Roe v. Wade, etc. It is a right that, though unstated in the federal Constitution, emanates from the penumbra of several guarantees of the Bill of Rights. Because of this, there has been some confusion as to the source of the right and the importance of it. As such, it is treated as a fundamental right subject to interference only when a compelling state interest is demonstrated. By inserting clear and specific language regarding this right into the Constitution, your Committee intends to alleviate any possible confusion over the source of the right and the existence of it.
Accordingly, there is no doubt that, at a minimum, article I, section 6 of the Hawaii Constitution encompasses all of the fundamental rights expressly recognized as being subsumed within the privacy protections of the United States Constitution. In this connection, the United States Supreme Court has declared that "the right to marry is part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978). The issue in the present case is, therefore, whether the "right to marry" protected by article I, section 6 of the Hawaii Constitution extends to same-sex couples. Because article I, section 6 was expressly derived from the general right to privacy under the United States Constitution and because there are no Hawaii cases that have delineated the fundamental right to marry, this court, as we did in Mueller, looks to federal cases for guidance. The United States Supreme Court first characterized the right of marriage as fundamental in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). In Skinner, the right to marry was inextricably linked to the right of procreation. The dispute before the Court arose out of an Oklahoma statute that allowed the state to sterilize "habitual criminals" without their consent. In striking down the statute, the Skinner court indicated that it was "dealing ... with legislation which involve(d] one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." Id. at 541, 62 S.Ct. at 1113 (emphasis added). Whether the Court viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental. This is hardly surprising inasmuch as none of the United States sanctioned any other marriage configuration at the time. The United States Supreme Court has set forth its most detailed discussion of the fundamental right to marry in Zablocki, supra, which involved a Wisconsin statute that prohibited any resident of the state with minor children "not in his custody and which he is under obligation to support" from obtaining a marriage license until the resident demonstrated to a court that he was in compliance with his child support obligations. 434 U.S. at 376, 98 S.Ct. at 675. The Zablocki court held that the statute burdened the fundamental right to marry; applying the "strict scrutiny" standard to the statute, the Court invalidated it as violative of the fourteenth amendment to the United States Constitution. Id. at 390-91, 98 S.Ct. at 683. In so doing, the Zablocki court delineated its view of the evolution of the federally recognized fundamental right of marriage as follows*
It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illigitimacy brings.... Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.
Id. at 384-86, 98 S.Ct. at 680-81 (citations and footnote omitted). Implicit in the Zablocki court's link between the right to marry, on the one hand, and the fundamental rights of procreation, childbirth, abortion, and child rearing, on the other, is the assumption that the one is simply the logical predicate of the others.
The foregoing case law demonstrates that the federal construct of the fundamental right to marry--subsumed within the right to privacy implicitly protected by the United States Constitution--presently contemplates unions between men and women. (once again, this is hardly surprising inasmuch as such unions are the only state-sanctioned marriages currently acknowledged in this country.)
Therefore, the precise question facing this court is whether we will extend the present boundaries of the fundamental right of marriage to include same-sex couples, or, put another way, whether we will hold that same-sex couples possess a fundamental right to marry. In effect, as the applicant couples frankly admit, we are being asked to recognize a new fundamental right. There is no doubt that "[a]s the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, we are free to give broader privacy protection (under article I, section 6 of the Hawaii Constitution] than that given by the federal constitution." Kam, 69 Haw. at 491, 748 P.2d at 377 (1988) (citations omitted). However, we have also held that the privacy right found in article I, section 6 is similar to the federal right and that no "purpose to lend talismanic effect" to abstract phrases such as "intimate decision" or "personal autonomy" can "be inferred from [article I, section 61, any more than ... from the federal decisions." Mueller, 66 Haw. at 630, 671 P.2d at 1360.
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 or otherwise.
Our holding, however, does not leave the applicant couples without a potential remedy in this case. As we will discuss below, the applicant couples are free to press their equal protection claim. If they are successful, the State of Hawaii will no longer be permitted to refuse marriage licenses to couples merely on the basis that they are of the same sex. But there is no fundamental right to marriage for same-sex couples under article I, section 6 of the Hawaii Constitution.
In other words, marriage is a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship. This court construes marriage as " 'a partnership to which both partners bring their financial resources as well as their individual energies and efforts.' " Gussin v. Gussin, 73 Haw. 470, 483, 836 P.2d 484, 491 (1992) (citation omitted); Myers v. Myers, 70 Haw. 143, 154, 764 P.2d 1237, 1244, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1988); Cassiday v. Cassiday, 68 Haw. 383, 387, 716 P.2d 1133, 1136 (1986). 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 Hawaii. Parke v. Parke, 25 Haw. 397,, 404-05 (1920). [FN19]
Indeed, the state's monopoly on the business of marriage creation has been codified by statute for more than a century. HRS s 572-1(7), descended from an 1872 statute of the Hawaiian Kingdom, conditions a valid marriage contract on "[t]he marriage ceremony be[ing] performed in the State by a person or society with a valid license to solemnize marriages[.]" HRS s 572-11 (1985) accords the DOH sole authority to grant licenses to solemnize marriages, and HRS s 572-12 (1985) restricts the issuance of such licenses to clergy, representatives of religious societies (such as the Society of Friends) not having clergy but providing solemnization by custom, and judicial officers. Finally, HRS ss 572-5 and 572-6 vest the DOH with exclusive authority to issue licenses to marriage applicants and to ensure that the general requisites and procedures prescribed by HRS chapter 572 are satisfied.
The applicant couples correctly contend that the DOH's refusal to allow them to marry on the basis that they are members of the same sex deprives them of access to a multiplicity of rights and benefits that are contingent upon that status. Although it is unnecessary in this opinion to engage in an encyclopedic recitation of all of them, a number of the 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 HRS 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 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 s 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 s 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 or execution under HRS chapter 651 (1985); and (14) the right to bring a wrongful death action under HRS chapter 663 (1985 and Supp.1992). For present purposes, it is not disputed that the applicant couples would be entitled to all of these marital rights and benefits, but for the fact that they are denied access to the state-conferred legal status of marriage.
Notwithstanding the state's acknowledged stewardship over the institution of marriage, the extent of permissible state regulation of the right of access to the marital relationship is subject to constitutional limitations or constraints. See, e.g., Zablocki, 435 U.S. at 388-91, 98 S.Ct. at 682-83; Loving v. Virginia, 388 U.S. 1, 7-12, 87 S.Ct. 1817, 1821-24, 18 L.Ed.2d 1010 (1967); Salisbury, 501 F.Supp. at 107 (citing Johnson v. Rockefeller, 58 F.R.D. 42 (S.D.N.Y.1972)). It has been held that a state may deny the right to marry only for compelling reasons. Salisbury, 501 F.Supp. at 107; Johnson, supra. [FN20]
The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." Hawaii's counterpart is more elaborate. Article I, section 5 of the Hawaii Constitution provides in relevant part that "[n]o person shall ... 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." (Emphasis added.) Thus, by its plain language, 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 freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free [people]." Loving, 388 U.S. at 1 87 S.Ct. at 1824. So "fundamental" does the United States Supreme Court consider the institution of marriage that it has deemed marriage to be "one of the 'basic civil rights of [men and women.]" ' Id. (quoting Skinner, 316 U.S. at 541, 62 S.Ct. at 1113).
Black's Law Dictionary (6th ed.1990) defines "civil rights" as synonymous with "civil liberties." Id. at 246. "Civil liberties" are defined, inter alia, as "[p]ersonal, natural rights guaranteed and protected by Constitution; e.g., ... freedom from discrimination.... Body of law dealing with natural liberties ... which invade equal rights of others. Constitutionally, they are restraints on government." Id. This court has held, in another context, that such "privilege(s] of citizenship ... cannot be taken away [on] any of the prohibited bases of race, religion, sex or ancestry" enumerated in article I, section 5 of the Hawaii Constitution and that to do so violates the right to equal protection of the laws as guaranteed by that constitutional provision. State v. Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-50 (1990) (exclusion of female jurors solely because of their sex denies them equal protection under Hawaii Constitution) (emphasis added).
Relying primarily on four decisions construing the law of other jurisdictions, [FN22] Lewin contends that "the fact that homosexual (sic--actually, same-sex] [FN23] partners cannot form a state-licensed marriage is not the product of impermissible discrimination" implicating equal protection considerations, but rather "a function of their biologic inability as a couple to satisfy the definition of the status to which they aspire." Lewin's answering brief at 21. Put differently, Lewin proposes that "the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman." Id. at 7. We believe Lewin's argument to be circular and unpersuasive.
Two of the decisions upon which Lewin relies are demonstrably inapposite to the appellant couples' claim. In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed. 65 (1972), the questions for decision were whether a marriage of two persons of the same sex was authorized by state statutes and, if not, whether state authorization was compelled by various provisions of the United States Constitution, including the fourteenth amendment. Regarding the first question, the Baker court arrived at the same conclusion as have we with respect to HRS s 572-1: by their plain language, the Minnesota marriage statutes precluded same-sex marriages. Regarding the second question, however, the court merely held that the United States Constitution was not offended; apparently, no state constitutional questions were raised and none were addressed.
It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Clerk ... to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.
In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage. 501 S.W.2d at 589-90. Significantly, the appellants' equal protection rights federal or state--were not asserted in Jones, and, accordingly, the appeals court was relieved of the necessity of addressing and attempting to distinguish the decision of the United States Supreme Court in Loving. Loving involved the appeal of a black woman and a caucasian man (the Lovings) who were married in the District of Columbia and thereafter returned to their home state of Virginia to establish their marital abode. 388 U.S. at 2, 87 S.Ct. at 1819. The Lovings were duly indicted for and convicted of violating Virginia's miscegenation laws, [FN24] which banned interracial marriages. Id. [FN25] In his sentencing decision, the trial judge stated, in substance, that Divine Providence had not intended that the marriage state extend to interracial unions: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3, 87 S.Ct. at 1819 (quoting the trial judge) (emphasis added).
The Lovings appealed the constitutionality of the state's miscegenation laws to the Virginia Supreme Court of Appeals, which, inter alia, upheld their constitutionality and affirmed the Lovings' convictions. Id. at 3-4, 388 S.Ct. at 1819. [FN26] The Lovings then pressed their appeal to the United States Supreme Court. Id.
[T]he Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination....
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races.... At the very least, the Equal Protection Clause demands that racial classifications ... be subjected to the "most rigid scrutiny," ... and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. ...
There is patently no legitimate overriding purpose independent of invidious discrimination which justifies this classification.... We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. Id. at 10-12, 87 S.Ct. at 1823 (emphasis added and citation omitted).
The facts in Loving and the respective reasoning of the Virginia courts, on the one hand, and the United States Supreme Court, on the other, both discredit the reasoning of Jones and unmask the tautological and circular nature of Lewin's argument that HRS s 572-1 does not implicate article I, section 5 of the Hawaii Constitution because same sex marriage is an innate impossibility. Analogously to Lewin's argument and the rationale of the Jones court, the Virginia courts declared that interracial marriage simply could not exist because the Deity had deemed such a union intrinsically unnatural, 388 U.S. at 3, 87 S.Ct. at 1819, and, in effect, because it had theretofore never been the "custom" of the state to recognize mixed marriages, marriage "always" having been construed to presuppose a different configuration. With all due respect to the Virginia courts of a bygone era, we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order. Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, review denied, 84 Wash.2d 1008 (1974), suffers the same fate as does Jones. In Singer, two males appealed from a trial court's order denying their motion to show cause by which they sought to compel the county auditor to issue them a marriage license. on appeal, the unsuccessful applicants argued that: (1) the trial court erred in concluding that the Washington state marriage laws prohibited same-sex marriages; (2) the trial court's order violated the equal rights amendment to the state constitution; and (3) the trial court's order violated various provisions of the United States Constitution, including the fourteenth amendment.
Nevertheless, the Singer court found no defect in the state's marriage laws, under either the United States Constitution or the state constitution's equal rights amendment, based upon the rationale of Jones: "[a]ppellants were not denied a marriage license because of their sex; rather, they were denied a marriage license because of the nature of marriage itself." Id. As in Jones, we reject this exercise in tortured and conclusory sophistry.
3. Equal Protection Analysis under Article I, Section 5 of the Hawaii Constitution "Whenever a denial of equal protection of the laws is alleged, as a rule our initial inquiry has been whether the legislation in question should be subjected to 'strict scrutiny' or to a 'rational basis' test." Nakano v. Matayoshi, 68 Haw. 140, 151, 706 P.2d 814, 821 (1985) (citing Nagle v. Board of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981)). This court has applied "strict scrutiny" analysis to " 'laws classifying on the basis of suspect categories or impinging upon fundamental rights expressly or impliedly granted by the [c]onstitution," ' in which case the laws are " 'presumed to be unconstitutional [FN29] unless the state shows compelling state interests which justify such classifications,' " Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978) (citing Nelson v. Miwa, 56 Haw. 601, 605 n.4, 546 P.2d 1005, 1008 n.4 (1976)), and that the laws are "narrowly drawn to avoid unnecessary abridgments of constitutional rights." Nagle, 63 Haw. at 392, 629 P.2d at 111 (citations omitted). By contrast, "[w]here 'suspect' classifications or fundamental rights are not at issue, this court has traditionally employed the rational basis test." Id. at 393, 629 P.2d at 112. "Under the rational basis test, we inquire as to whether a statute rationally furthers a legitimate state interest." Estate of Coates v. Pacific Engineering, 71 Haw. 358, 364, 791 P.2d 1257, 1260 (1990). "Our inquiry seeks only to determine whether any reasonable justification can be found for the legislative enactment." Id. As we have indicated, HRS s 572-1, on its face and as applied, regulates access to the marital status and its concomitant rights and benefits on the basis of the applicants' sex. See infra at 30-31. As such, HRS s 572-1 establishes a sex-based classification.
This court has not [heretofore] dealt with a sex-based classification. In Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), a plurality of the United States Supreme Court favored the inclusion of classifications based upon sex among those considered to be suspect for the purposes of the compelling state interest test. However, subsequent cases have made it clear that the current governing test under the Fourteenth Amendment (to the United States Constitution) is a standard intermediate between rational basis and strict scrutiny.
"[C]lassifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197[, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397] (1976). Also see Califano v. Goldfarb, 430 U.S. 199, 2(10 n.8, 97 S. Ct. 1021, 1028, n.8, 51 L. Ed. 2d 2701 (1977) and Califano v. Webster, 430 U.S. 313, 316-17[, 97 S. Ct. 1192, 1194, 51 L. Ed. 2d 3601 (1977).
Dress standards are intimately related to sexual attitudes.... The dress restrictions imposed upon women visitors by the directive derived their relation to prison security out of the assumption that these attitudes were present among the residents. Whether or not this assumption was correct, it is manifest that the directive was substantially related to the achievement of the important governmental objective of prison security and met the test under the Fourteenth Amendment.
[Holdman's] challenge to the directive under the state constitution requires separate consideration. Article I, Section 4 [FN30] of the Hawaii Constitution declares that no person shall 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." Article I, Section 21 [FN31] provides: "Equality of rights under the law shall not be denied or abridged by the State on account of sex." We are presented with two questions, either of which might be dispositive of the present case. We must first inquire whether the treatment [Holdman] received denied to her the equal protection of the laws guaranteed by the Hawaii Constitution under a more stringent test than that applicable under the Fourteenth Amendment. If the more general guarantee of equal protection does not sustain [Holdman's] claims, we must then inquire whether the specific guarantee of equality of rights under the law contained in Article I, Section 21, has been infringed.
We need not deal finally with that issue, and reserve it for future consideration, since we conclude that the compelling state interest test would be satisfied in this case if it were to be held applicable ....
Survival under the strict scrutiny test places the directive beyond [Holdman's] challenge under her asserted ... right to equal protection .... It does not necessarily place the directive beyond challenge under the equal rights provision of Article I, Section 21.
Article I, Section 21, is substantially identical with the proposed Equal Rights Amendment of the United States Constitution.... The standard of review to be applied under an ERA has not been clearly formulated by judicial decision....
... Unless we are to attempt in this case to define the standard of review required under Hawaii's ERA, no purpose will be served by analysis of the considerable body of decisions which fall short of dealing with that question.... We have concluded that the treatment of which [Holdman] complains withstands the test of strict scrutiny by reason of a compelling State interest. we are not prepared to hold in this case that .... a more stringent test should be applied under Article I, Section 21.... Id. at 349-54, 581 P.2d at 1167-69 (emphasis added and citations and footnote omitted).
Our decision in Holdman is key to the present case in several respects. First, we clearly and unequivocally established, for purposes of equal protection analysis under the Hawaii Constitution, that sex-based classifications are subject, as a per se matter, to some form of "heightened" scrutiny, be it "strict" or "intermediate," rather than mere "rational basis" analysis. [FN32] Second, we assumed, arguendo, that such sex-based classifications were subject to "strict scrutiny." Third, we reaffirmed the longstanding principle that this court is free to accord greater protections to Hawaii's citizens under the state constitution than are recognized under the United States Constitution. [FN33] And fourth, we looked to the then current case law of the United States Supreme Court for guidance.
Of the decisions of the United States Supreme Court cited in Holdman, Frontiero v. Richardson, supra, was by far the most significant. In Frontiero, a married woman air force officer and her husband (the Frontieros) filed suit against the Secretary of Defense seeking declaratory and injunctive relief against enforcement of federal statutes governing quarters allowances and medical benefits for members of the uniformed services. The statutes provided, solely for administrative convenience, that spouses of male members were unconditionally considered dependents for purposes of obtaining such allowances and benefits, but that spouses of female members were not considered dependents unless they were in fact dependent for more than one-half of their support. The Frontieros' lawsuit was precipitated by the husband's inability to satisfy the statutory dependency standard. A three-judge district court panel denied the Frontieros' claim for relief, and they appealed.
The disagreement among the eight-justice majority lay in the level of judicial scrutiny applicable to instances of statutory sex-based discrimination. The Brennan plurality agreed with the Frontieros' contention that "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny." Id. at 683, 93 S.Ct. at 1768 (footnotes omitted). Thus, the Brennan plurality applied the "strict scrutiny" standard to its review of the illegal statutes. Justice Stewart concurred in the judgment, "agreeing that the statutes ... work[ed] an invidious discrimination in violation of the Constitution." Id. at 692, 93 S.Ct. at 1772-73. Particularly noteworthy in Frontiero, however, was the concurring opinion of Justice Powell, joined by the Chief Justice and Justice Blackmun (the Powell group). The Powell group agreed that "the challenged statutes constitute[d] an unconstitutional discrimination against servicewomen," but deemed it "unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding." Id. at 726-77, 93 S.Ct. at 1773 (emphasis added and citation omitted). Central to the Powell group's thinking was the following explanation:
There is another ... reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, ... the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems ... that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
The Powell group's concurring opinion therefore permits but one inference: had the Equal Rights Amendment been incorporated into the United States Constitution, at least seven members (and probably eight) of the Frontiero Court would have subjected statutory sex-based classifications to "strict" judicial scrutiny.
In light of the interrelationship between the reasoning of the Brennan plurality and the Powell group in Frontiero, on the one hand, and the presence of article I, section 3--the Equal Rights Amendment--in the Hawaii Constitution, on the other, it is time to resolve once and for all the question left dangling in Holdman. Accordingly, we hold that sex is a "suspect category" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution [FN34] and that HRS s 572-1 is subject to the "strict scrutiny" test. It therefore follows, and we so hold, that (1) HRS s 572-1 is presumed to be unconstitutional (2) unless Lewin, as an agent of the State of Hawaii, can show that (a) the statute's sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights.
4. The dissenting opinion misconstrues the holdings and reasoning of the plurality. We would be remiss if we did not address certain basic misconstructions of this opinion appearing in Judge Heen's dissent. First, we have not held, as Judge Heen seems to imply, that (1) the appellants "have a 'civil right' to a same sex marriage[,]" (2) "the civil right to marriage must be accorded to same sex couples[,]" and (3) the applicant couples "have a right to a same sex marriage[.]" Dissenting opinion at 1-3. These conclusions would be premature. We have, however, noted that the United States Supreme Court has recognized for over fifty years that marriage is a basic civil right. See supra at 29-30. That proposition is relevant to the prohibition set forth in article I, section 5 of the Hawaii Constitution against discrimination in the exercise of a person's civil rights, inter alia, on the basis of sex. See id. at 29.
Second, we have not held, as Judge Heen also seems to imply, that HRS s 572-1 "unconstitutionally discriminates against [the applicant couples] who seek a license to enter into a same sex marriage[.]" Dissenting opinion at 1. Such a holding would likewise be premature at this time. What we have held is that, on its face and as applied, HRS s 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits, thus implicating the equal protection clause of article I, section 5. See supra at 31.
We understand that Judge Heen disagrees with our view in this regard based on his belief that "HRS s 572-1 treats everyone alike and applies equally to both sexes[,]" with the result that "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." Dissenting opinion at 4-5 (emphasis in original). The rationale underlying Judge Heen's belief, however, was expressly considered and rejected in Loving:
As a final matter, we are compelled to respond to Judge Heen's suggestion that denying the appellants access to the multitude of statutory benefits "conferred upon spouses in a legal marriage ... is a matter for the legislature, which can express the will of the populace in deciding whether such benefits should be extended to persons in (the applicant couples'] circumstances." Dissenting opinion at 10. In effect, we are being accused of engaging in judicial legislation. We are not. The result we reach today is in complete harmony with the Loving Court's observation that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws. 388 U.S. at 7, 87 S.Ct. at 1821. If it should ultimately be determined that the marriage laws of Hawaii impermissibly discriminate against the appellants, based on the suspect category of sex, then that would be the result of the interrelation of existing legislation.
[W]hether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it ... work[s] well or work[s] ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413 (1934) (Sutherland, J., dissenting).
click here for footnotes.
click here for concurring opinion written by Justice Burns.
click here for dissenting opinion.