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.


Syllabus by the Court



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 him or her to relief. Ravelo v. County of Hawaii, 66 Haw. 194, 198, 658 P.2d 883, 886 (1983) (quoting Midkiff, 45 Haw. at 414, 368 P.2d at 890); Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 185-86, cert. denied, 67 Haw. 686, 744 P.2d 781 (1985). We must therefore view a 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. Ravelo, 66 Haw. at 199, 658 P.2d at 886. For this reason, in reviewing the circuit court's order dismissing the plaintiffs' complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true. Au, 63 Haw. at 214, 626 P.2d at 177 (1981).

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).

A. The Circuit Court Made Evidentiary Findings of Fact.

B. The Right to Privacy Does Not Include a Fundamental Right to Same-Sex Marriage.

It is now well established that " 'a right to personal privacy, or a guarantee of certain areas or zones of privacy,' is implicit in the United States Constitution." State v. Mueller, 66 Haw. 616, 618, 671 P.2d 1351, 1353 (1983) (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 1973)). And article I, section 6 of the Hawaii Constitution expressly states that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Haw. Const. art. I, s 6 (1978). The framers of the Hawaii Constitution declared that the "privacy concept" embodied in article I, section 6 is to be "treated as a fundamental right[.]" State v. Kam, 69 Haw. 483, 493, 748 P.2d 372, 378 (1988) (citing Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 1024 (1980)). When article I, section 6 of the Hawaii Constitution was being adopted, the 1978 Hawaii Constitutional Convention, acting as a committee of the whole, clearly articulated the rationale for its adoption:

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.

C. Inasmuch as the Applicant Couples Claim That the Express Terms of HRS s 572-1, which Discriminates against Same-Sex Marriages, Violate Their Rights under the Equal Protection Clause of the Hawaii Constitution, the Applicant Couples Are Entitled to an Evidentiary Hearing to Determine Whether Lewin Can Demonstrate that HRS s 572-1 Furthers Compelling State Interests and Is Narrowly Drawn to Avoid Unnecessary Abridgments of Constitutional Rights.

In addition to the alleged violation of their constitutional rights to privacy and due process of law, the applicant couples contend that they have been denied the equal protection of the laws as guaranteed by article I, section 5 of the Hawaii Constitution. On appeal, the plaintiffs urge and, on the state of the bare record before us, we agree that the circuit court erred when it concluded, as a matter of law, that: (1) homosexuals do not constitute a "suspect class" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution; [FN18] (2) the classification created by HRS s 572-1 is not subject to "strict scrutiny," but must satisfy only the "rational relationship" test; and (3) HRS s 572-1 satisfies the rational relationship test because the legislature "obviously designed [it] to promote the general welfare interests of the community by sanctioning traditional man-woman family units and procreation."


Because, for the reasons stated in this opinion, the circuit court erroneously granted Lewin's motion for judgment on the pleadings and dismissed the plaintiffs' complaint, we vacate the circuit court's order and judgment and remand this matter for further proceedings consistent with this opinion. on remand, in accordance with the "strict scrutiny" standard, the burden will rest on Lewin to overcome the presumption that HRS s 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. See Nagle, 63 Haw. at 392, 629 P.2d at 111; Holdman, 59 Haw. at 349, 581 P.2d at 1167.

click here for footnotes.

click here for concurring opinion written by Justice Burns.

click here for dissenting opinion.