FN* Retired Associate Justice Hayashi, who was assigned by reason of vacancy to sit with the justices of the supreme court pursuant to article VI, s 2 of the Constitution of the State of Hawaii and HRS s 602-10 (1985), and whose temporary assignment expired prior to the filing of this opinion, would have joined in the dissent with Associate Judge Heen.

FN2. HRS s 572-1 provides:

Requisites of valid marriage contract. In order to make valid the marriage contract, it shall be necessary that:

HRS s 572-1 (1985) (emphasis added). In 1984, the legislature amended the statute to delete the then existing prerequisite that "[n]either of the parties is impotent or physically incapable of entering into the marriage state [.]" Act 119, s 11, 1984 Haw. Sess. Laws 238-39 (emphasis added).

Correlatively, section 2 of Act 119 amended HRS s 580-21 (1985) to delete as a ground for annulment the fact "that one of the parties was impotent or physically incapable of entering into the marriage state " at the time of the marriage. Id. at 239 (emphasis added). The legislature's own actions thus belie the dissent's wholly unsupported declaration, at 8 n.8, that "the purpose of HRS s 572-1 is to promote and protect propagation...."

FN3. HRS s 572-6 provides:

Application; license; limitations. To secure a license to marry, the persons applying for the license shall appear personally before an agent authorized to grant marriage licenses and shall file with the agent an application in writing. The application shall be accompanied by a statement signed and sworn to by each of the persons, setting forth: the person's full name, date of birth, residence; their relationship, if any; the full names of parents; and that all prior marriages, if any, have been dissolved by death or dissolution. If all prior marriages have been dissolved by death or dissolution, the statement shall also set forth the date of death of the last prior spouse or the date and jurisdiction in which the last decree of dissolution was entered. Any other information consistent with the standard marriage certificate as recommended by the Public Health Service, National Center for Health Statistics, may be requested for statistical or other purposes, subject to approval of and modification by the department of health; provided that the information shall be provided at the option of the applicant and no applicant shall be denied a license for failure to provide the information. The agent shall indorse on the application, over the agent's signature, the date of the filing thereof and shall issue a license which shall bear on its face the date of issuance. Every license shall be of full force and effect for thirty days commencing from and including the date of issuance. After the thirty-day period, the license shall become void and no marriage ceremony shall be performed thereon.

It shall be the duty of every person, legally authorized to issue licenses to marry, to immediately report the issuance of every marriage license to the agent of the department of health in the district in which the license is issued, setting forth all the facts required to be stated in such manner and on such form as the department may prescribe. HRS s 572-6 (Supp.1992).

HRS s 572-5(a) (Supp.1992) provides in relevant part that "[t]he department of health shall appoint ... one or more suitable persons as agents authorized to grant marriage licenses ... in each judicial circuit."

FN4. Exhibits "A," "C," and "D," attached to the plaintiffs' complaint, purport to be identical letters dated April 12, 1991, addressed to the respective applicant couples, from the DOH's Assistant Chief and State Registrar, Office of Health Status Monitoring, which stated:

This will confirm our previous conversation in which we indicated that the law of Hawaii does not treat a union between members of the same sex as a valid marriage. We have been advised by our attorneys that a valid marriage within the meaning of ch. 572, Hawaii Revised Statutes,P must be one in which the parties to the marriage contract are of different sexes.

In view of the foregoing, we decline to issue a license for your marriage to one another since you are both of the same sex and for this reason are not capable of forming a valid marriage contract within the meaning of ch. 572. Even if we did issue a marriage license to you, it would not be a valid marriage under Hawaii law. (Emphasis added.)

FN5. Article I, section 6 of the Hawaii Constitution provides: The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. Haw. Const. art. I, s 6 (1978).

FN6. Article I, section 5 of the Hawaii Constitution provides:

No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. Haw. Const. art. I, s 5 (1978).

FN7. Lewin's motion for judgment on the pleadings relied exclusively on the ground that the plaintiffs' complaint tailed to state a claim upon which relief could be granted, and the circuit court granted the motion and entered judgment in Lewin's favor on that basis alone. Accordingly, the merits of Lewin's other defenses are not at issue in this appeal, and we do not reach them.

FN8. In substance, HRS s 572-7(a) (Supp.1992) requires "the female" to accompany a marriage license application with a signed physician's statement verifying that she has been given a serological test for immunity against rubella and has been informed of the adverse effects of rubella on fetuses. The statute exempts from the examination requirement those females who provide proof of live rubella virus immunization or laboratory evidence of rubella immunity, "or who, by reason of age or other medically determined condition [are] not and never will be physically able to conceive a child." Id.

FN9. HRCP 12(h)(2) (1990) provides in relevant part that "[a] defense of failure to state a claim upon which relief can be granted ... may be made ... by motion for judgment on the pleadings...."

FN10. HRCP 12(c) provides:

Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. HRCP 12(c) (1990).

HRCP 56 provides in relevant part:

(b) For Defending Party. A party against whom a claim ... is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.


(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in any affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits....

HRCP 56 (1990).

FN11. HRCP 12(b) provides in relevant part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted.... A motion making any of these defenses shall be made before pleading if a further leading is permitted.... If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. HRCP 12(b) (1990).

FN12. "Homosexual" and "same-sex" marriages are not synonymous; by the same token, a "heterosexual" same-sex marriage is, in theory, not oxymoronic. A "homosexual" person is defined as "[o]ne sexually attracted to another of the same sex." Taber's Cyclopedic Medical Dictionary 839 (16th ed.1989). "Homosexuality" is "sexual desire or behavior directed toward a person or persons of one's own sex." Webster's Encyclopedic Unabridged Dictionary of the English Language 680 (1989). Conversely, "heterosexuality" is "[s]exual attraction for one of the opposite sex," Taber's Cyclopedic Medical Dictionary at 827, or "sexual feeling or behavior directed toward a person or persons of the opposite sex."

Webster's Encyclopedic Unabridged Dictionary of the English Language at 667. Parties to "a union between a man and a woman" may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals.

FN13. Lewin is correct that the plaintiffs' complaint does not allege that the plaintiffs, or any of them, are homosexuals. Thus it is Lewin, who, by virtue of his motion for judgment on the pleadings, has sought to place the question of homosexuality in issue.

FN14. A final and appealable judgment in Lewin's favor and against the plaintiffs was filed contemporaneously with the order granting the motion for judgment on the pleadings.

FN15. For the reasons stated infra in this opinion, it is irrelevant, for purposes of the constitutional analysis germane to this case, whether homosexuality constitutes "an immutable trait" because it is immaterial whether the plaintiffs, or any of them, are homosexuals. Specifically, the issue is not material to the equal protection analysis set forth in section II.C of this opinion infra at 23-46. Its resolution is unnecessary to our ruling that HRS s 572-1, both on its face as applied, denies same-sex couples access to the marital status and its concomitant rights and benefits. Its resolution is also unnecessary to our conclusion that it is the state's regulation of access to the marital status, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution. See infra at 24-37. And, in particular, it is immaterial to the exercise of "strict scrutiny" review, see infra at 38-46, inasmuch as we are unable to perceive any conceivable relevance of the issue to the ultimate conclusion of law-- which, in the absence of further evidentiary proceedings, we cannot reach at this time--regarding whether HRS s 572-1 furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. See infra at 46-47.

In light of the above, we disagree with Chief Judge Burns's position that "questions whether heterosexuality, homosexuality, bisexuality, and asexuality are 'biologically fated' are relevant questions of fact." Concurring opinion at 3. This preoccupation seems simply to restate the immaterial question whether sexual orientation is an "immutable trait."

FN16. A "conclusion of law," for present purposes, is either:

(1) a "[f]inding by [the] court as determined through application of rules of law"; (2) "[p]ropositions of law which [the] judge arrives at after, and as a result of, finding certain facts in [the] case[;]" or (3) "[t]he final judgment or decree required on [the] basis of facts found[.]" Black's Law Dictionary 290 (6th ed.1990). The second category may constitute such "mixed questions of fact and law" as "are dependent upon the facts and circumstances of each individual case[.]" See Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991).

FN17. In Mueller, this court cited Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), for the proposition that only rights that are implicit in the concept of ordered liberty can be deemed fundamental. Pursuant to that standard, this court held that a prostitute did not have a fundamental right under article I, section 6 of the Hawaii Constitution to conduct business in her own home. 66 Haw. at 628, 630, 671 P.2d at 1359-60.

FN18. For the reasons stated infra in this opinion, it is irrelevant, for purposes of the constitutional analysis germane to this case, whether homosexuals constitute a "suspect class" because it is immaterial whether the plaintiffs, or any of them, are homosexuals. See supra note 14.

FN19. In Parke, a "common law" petitioner sought unsuccessfully to derive the benefits of inheritance rights unique to a married spouse, apparently having affirmatively chosen not to seek the state-conferred status of a lawful marriage "partner." Id. at 398, 405. A "same sex spouse" suffered the identical fate in De Santo v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952 (1984) (two persons of same sex cannot contract common law marriage, notwithstanding state's recognition of common law marriage between persons of different sex), a decision on which Lewin relies in his answering brief. It is ironic that, in arguing before the circuit court that Hawaii's marriage laws do not "burden, penalize, infringe, or interfere in any way with the [plaintiffs'] private relationships" and in urging before this court that their "relationships are not disturbed in any manner by" HRS s 572-1, Lewin implicitly suggests that the applicant couples should be content with a de facto status that the state declines to acknowledge de jure and that lacks the statutory rights and benefits of marriage. See infra, at 26-28.

FN20. For example, states, including Hawaii, may and do prohibit marriage for such "compelling" reasons as consanguinity (to prevent incest), see, e.g., HRS s 572-1(1), immature age (to protect the welfare of children), see, e.g., HRS ss 572-1(2) and 572-2 (1985), presence of venereal disease (to foster public health), see, e.g., HRS s 572-1(5), and to prevent bigamy, see, e.g., HRS s 572-1(3). See also Zablocki, 434 U.S. at 392, 98 S.Ct. at 684 (concurring opinion of Stewart, J.); Salisbury, 501 F.Supp. at 107.

FN21. That the legislature, in enacting HRS ch. 572, obviously contemplated marriages between persons of the opposite sex is not, however, outcome dispositive of the plaintiffs' claim. Legislative action, whatever its motivation, cannot sanitize constitutional violations. Cf. City of Cleburne v. Cleburne Living Center, Inc., 473 U. & . 432, 448, 105 S.Ct. 3249, 3259, 87 L.Ed.2d 313 (1985) ("It is plain that the electorate as a whole, whether by referendum or otherwise, could not order ... action violative of the Equal Protection Clause.")

FN22. The four decisions are Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct.App.1973); 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.2d 65 (1972); De Santo v. Barnsley, supra; and Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, review denied, 84 Wash.2d 1008 (1974).

FN23. See supra note 11.

FN24. Virginia's miscegenation laws "arose as an incident to slavery and [were] common ... since the colonial period." 388 U.S. at 6, 87 S.Ct. at 1820-21. It is noteworthy that one of the "central provisions" of the statutory miscegenation scheme automatically voided all marriages between "a white person and a colored person" without the need for any judicial proceeding. Id. at 4, 87 S.Ct. at 1820.

FN25. As of 1949, the following thirty of the forty-eight states banned interracial marriages by statute: Alabama; Arizona; Arkansas; California; Colorado; Delaware; Florida; Georgia; Idaho; Indiana; Kentucky; Louisiana; Maryland; Mississippi; Missouri; Montana; Nebraska; Nevada; North Carolina; North Dakota; Oklahoma; Oregon; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; and Wyoming. 388 U.S. at 6 n.5, 87 S.Ct. at 1820 n.5. When the Lovings commenced their lawsuit on October 28, 1964, sixteen states still had miscegenation laws on the books. Id. at 3, 6 n.5, 87 S.Ct. at 1819, 1820 n. 5. The first state court to recognize that miscegenation statutes violated the right to the equal protection of the laws was the Supreme Court of California in Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948). 388 U.S. at 6 n.5, 87 S.Ct. at 1820-21 n.5.

FN26. See Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966). The Virginia Supreme Court of Appeals, however, modified as "so unreasonable as to render the sentences void" the trial court's twenty-five year suspension of the Lovings' jail sentences "upon the condition that they leave the ... state 'at once and ... not return together or at the same time to [the] ... state for a period of twenty-five years.' " Id. at 930, 147 S.E.2d at 82-83. The Virginia high court deemed it sufficient that the Lovings be prohibited from "again cohabit[ing] as man and wife in [the] state" in order to achieve the objectives of "securing the rehabilitation of the offender[s and] enabling [them] to repent and reform so that [they] may be restored to a useful place in society." Id. at 930, 147 S.E.2d at 83.

FN27. As we have noted in this opinion, unlike the equal protection clause of the fourteenth amendment to the United States Constitution, article I, section 5 of the Hawaii Constitution, inter alia, expressly prohibits discrimination against persons in the exercise of their civil rights on the basis of sex.

FN28. Accordingly, but for the fact that the Singer court was unable to discern sexual discrimination in the state's marriage laws, it would have engaged in a "strict scrutiny" analysis. See infra at 38-39.

FN29. The presumption of statutory constitutionality, to which Judge Heen refers at 8 of his dissenting opinion, does not apply to laws, which, on their face, classify on the basis of suspect categories. Washington v. Fireman's Fund Ins. Cos., 68 Haw. 192, 1991 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 977 (1986) on which the dissent relies, is not authority to the contrary inasmuch as the statute in question did not involve any suspect categories and was reviewed under the "rational basis" standard.

FN30. In 1978, article I, section 4 was renumbered article I, section 5.

FN31. In 1978, article I, section 21 was renumbered article I, section 3.

FN32. In subsequent decisions, we have reaffirmed that sex-based classifications are subject, at the very least, to "intermediate scrutiny" under the equal protection clause of the Hawaii Constitution. State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 988 (1985); State v. Rivera, 62 Haw. 120, 123, 612 P.2d 526, 529 (1980).

FN33. See, e.g., State v. Texeira, 50 Haw. 138, 142 n.2, 433 P.2d 39-3, 597 n.2 (1967); State v. Grahovac, 52 Haw. 527, 531, 533, 480 P.2d 148, 151-52 (1971); State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971); State v. Kaluna, 55 Haw. 361, 367-69, 372-75, 520 P.2d 51, 57-58, 60-62 (1974); State v. Manzo, 58 Haw. 440, 452, 573 P.2d 945, 953 (1977); State v. Miyasaki, 62 Haw. 269, 280-82, 614 P.2d 915, 921-23 1980); Huihui v. Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982); State v. Fields, 67 Haw. 268, 282, 686 P.2d 1379, 1390 (1984); State v. Wyatt, 67 Haw. 293, 304 n.9, 687 P.2d 544, 552 n.9 1984; State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 1985 State v. Kim, 68 Haw. 286, 289-90, 711 P.2d 1291, 1293-94 (1985); State v. Kam, 69 Haw. 483, 491, 748 P.2d 372, 377 (1988); State v. Quino, 74 Haw. ----, ---- n.2, 840 P.2d 358, 364 n.2 (1992) (Levinson, J., concurring).

FN34. Our holding in this regard is not, as the dissent suggests, "[t]hat Appellants are a 'suspect class.' " Dissenting opinion at 6.

FN35. Retired Associate Justice Yoshimi Hayashi, whose appointment as a substitute justice in this case expired before this dissent was filed, concurs with this dissent.

FN36. Since race has historically been considered a "suspect class," the Supreme Court applied the strict scrutiny standard of review to Virginia's statute. See note 6, infra, for the definition of suspect class.

FN37. Appellants' sexual preferences or lifestyles are completely irrelevant. Although the plurality appears to recognize the irrelevance, the real thrust of the plurality opinion disregards the true import of the statute. The statute treats everyone alike and applies equally to both sexes.

FN38. The plurality recognizes that the U.S. Supreme Court does not recognize sex or gender as a "suspect" classification, and thus gender has not historically been afforded the elevated "strict scrutiny" standard of review.

FN39. Indeed, it may be said that the statute establishes one classification: unmarried persons.

FN40. The plurality does not define "suspect class." A suspect classification exists where the class of individuals formed by a statute, on its face or as administered, has been " ... saddled with such disabilities, or subjected to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40, reh'g denied, 411 U.S. 959, 93 S.Ct.1919, 36 L.Ed.2d 418 (1973).

FN41. The apparent result of the plurality opinion is that Appellants do not have any burden of proof on remand. According to the plurality opinion, all Appellants need to do is appear in court and say, "Here we are. The statute discriminates against us on the basis of our sex (whether male or female) and sex is a suspect class." Even in cases alleging racial discrimination (a suspect class), "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose[,]" and the burden is on the plaintiff to prove that discriminatory purpose. Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct.2040, 2048, 48 L.Ed.2d 597, 607-08 (1976); see State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). The plurality opinion has eliminated the need for Appellants to prove purposeful discrimination.

FN42. Since, in my view, the purpose of HRS s 572-1 is to promote and protect propagation, the concern expressed in Chief Judge Burns' concurring opinion as to whether the statute discriminates against persons who may be genetically impelled to homosexuality does not cause the statute to be invidiously discriminatory.

FN43. In 1984, the state legislature amended HRS s 572 by deleting the requirement that marriage applicants show they are not impotent or that they are not physically incapable of entering into a marriage. Act 119, s 1, 1984 Haw. Sess. Laws 238. The plurality contends that the amendment refutes my assertion that the purpose of HRS s 572-1 is to foster and protect the propagation of the human race. I disagree.

A careful reading of the senate committee report on the amendment indicates that the amendment does not attenuate the fundamental purpose of HRS s 572-1. The intent of the amendment was to remove any impediment that may prevent persons who are "physically handicapped, elderly, or have temporary physical limitations from entering into a valid marriage relationship." Sen. Stand. Comm. Rep. No. 570-84, in 1984 Senate Journal, at 1284. The amendment accommodates only persons with physical limitations on their productive capacities. with respect to those persons, the legislature stated that the view that the primary purpose of marriage is to bear children is "narrow and outdated." That characterization should not be expanded to include the applicants in this case.

FN44. I note that a number of municipalities across the country have adopted domestic partnership ordinances that confer such benefits on the domestic partners as the municipalities have authority to grant. Note: A More Perfect Union: A Legal And Social Analysis Of Domestic Partnership Ordinances 92 Colum. L.Rev. 1164 1992).