A Circuit Court judge in Hawaii barred the state from denying marriage licenses to gay couples. An appeal, which is expected, would send the case back to the Hawaii Supreme Court, which ruled in 1993 that the denial of marriage licenses to same-sex couples amounts to gender discrimination under the state constitution's Equal Rights Amendment. In this Dec. 4, 1996 ruling, Judge Kevin Chang says that the state had not shown any compelling interest to deny gay and lesbian couples the right to marry.

 

Filed in the First Circuit Court, State of Hawaii



11:06 a.m., Dec. 3, 1996



R.S. Yamada, clerk



IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII



CIVIL NO. 91-1394



FINDINGS OF FACT AND

CONCLUSIONS OF LAW





NINIA BAEHR, GENORA DANCEL,

TAMMY RODRIGUES, ANTOINETTE

PREGIL, PAT LAGON, AND

JOSEPH MELILLO,



Plaintiffs,



vs .



LAWRENCE H. MIIKE, in his

official capacity as Director

of the Department of Health,

State of Hawaii,



Defendant.





FINDINGS OF FACT AND CONCLUSIONS OF LAW



This case came on for trial before the Honorable Kevin S.C.

Chang on September 10, 1996. Plaintiffs Ninia Baehr, Genora

Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and

Joseph Melillo were represented by attorneys Daniel R.

Foley, Evan Wolfson and Kirk H. Cashmere. Defendant

Lawrence H. Miike was represented by Deputy Attorney

Generals Rick J. Eichor and Lawrence Goya. The Court having

reviewed all the evidence admitted at the trial and having

considered the arguments and other written submissions of

counsel for the parties and the briefs filed by the amicus

curiae, hereby makes the following Findings of Fact and

Conclusions of Law.





FINDINGS OF FACTS



I. THE PARTIES



1. At all times relevant herein, Plaintiffs Ninia Baehr,

Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat

Lagon and Joseph Melillo (hereinafter collectively referred

to as "Plaintiffs") were or are residents of the City and

County of Honolulu, State of Hawaii.



2. Defendant Lawrence H. Miike ("Defendant") is a resident

of the City and County of Honolulu. State of Hawaii.

Defendant Miike is sued in his official capacity as

Director of Department of Health, State of Hawaii. [When

this lawsuit was commenced, John Lewin was the Director of

Department of Health, State of Hawaii. Thereafter, pursuant

to Rule 43(c) of the Hawaii Rules of Appellate Procedure,

Defendant Miike was automatically substituted for Defendant

Lewin when he assumed the position of the Director of

Department of Health, State of Hawaii. A Notice of

Substitution of Parties was also filed by defense counsel

on April 23, 1996.]





II. RELEVANT PROCEDURAL HISTORY



3. Plaintiffs filed their Complaint for Injunctive and

Declaratory Relief ("Complaint") on May 1, 1991.



4. In pertinent part, Plaintiffs' Complaint alleges that on

or about December 17, 1990, Defendant and his agent denied

the applications for marriage licenses presented by

Plaintiffs Baehr and Dancel, Plaintiffs Rodrigues and

Pregil and Plaintiffs Lagon and Melillo, respectively,

solely on the ground that the couples are of the same sex.

Plaintiffs sought a judicial declaration that the

construction and application of Hawaii Revised Statutes

("HRS") 572-1 to deny an application for a license to marry

because an applicant couple is of the same sex is

unconstitutional.



5. Defendant filed an Amended Answer to Complaint on June

7, 1991. In pertinent part, Defendant admitted that

Plaintiffs Baehr and Dancel, Plaintiffs Rodrigues and

Pregil and Plaintiffs Lagon and Melillo applied for

marriage licenses on December 17, 1990, and that the

couples applications for marriage licenses were denied by

Defendant through his agent on the ground that the couples

are of the same sex.



6. On July 9, 1991, Defendant filed a Motion For Judgement

on the Pleading which sought a dismissal of the lawsuit.

Defendant asserted, in pertinent part, that Plaintiffs in

their Complaint had failed to state a claim against

Defendant upon which relief could be granted.



7. A hearing was held on Defendant's Motion for Judgment on

the Pleadings on September 3, 1991.



8. An Order Granting Defendant's Motion for Judgment on the

Pleading was filed on October 1, 1991. A Judgment in favor

of Defendant and against Plaintiffs was also filed on

October 1, 1991. 9. Plaintiffs filed their Notice of Appeal

to the Supreme Court of the State of Hawaii on October 17,

1991.



10. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), the

Hawaii Supreme Court vacated the circuit courts order and

judgment in favor of Defendant and remanded the case to the

circuit court for further proceedings. In pertinent part,

the Hawaii Supreme Court directed the following.





On remand, in accordance with the "strict scrutiny"

standard, the burden will rest on [Defendant] to overcome

the presumption that HRS 572-1 is unconstitutional by

demonstrating that it furthers compelling state interests

and is narrowly drawn to avoid unnecessary abridgments of

constitutional rights.





Id., 74 Haw. at 583 (citations omitted).



11. On May 17, 1993, Defendant filed a motion for

reconsideration or clarification to the Hawaii Supreme

Court.



12. On May 27, 1993, the Hawaii Supreme Court granted

Defendant's motion for reconsideration, or, in the

alternative, for clarification in part, and clarified the

mandate on remand as follows.





Because, for the reasons stated in the plurality opinion

filed in the above-captioned matter on May 5, 1993, the

circuit court erroneously granted Lewin's motion for

judgment on the pleadings and dismissed the plaintiffs'

complaint, the circuit court's order and judgment are

vacated and the matter is remanded for further proceedings

consistent with the pluralitv opinion. On remand, in

accordance with the "strict scrutiny" standard, the burden

will rest on [Defendant] to overcome the presumption that

HRS 572-1 is unconstitutional by demonstrating that it

furthers compelling state interests and is narrowly drawn

to avoid unnecessary abridgments of constitutional rights.





Baehr v. Lewin 74 Haw. 530, 852 P.2d 44 (1993),

reconsideration and clarification granted in part, 74 Haw.

645, 852 P.2d 74 (1993) (citations omitted).



13. An Order of Early Assignment to Trial Judge was filed

on May 5, 1995.



14. On July 13, 1995, Defendant Director of Health's Motion

for Reservation of Questions to the Supreme Court of Hawaii

and for Stay Pending Appeal, or, in the alternative for

Stay Pendinq the Action of The Commission on Sexual

Orientation and the Law and of The Eighteenth Legislature

filed on July 5, 1995, was granted in part, and the trial

in the above-captioned case was rescheduled from September

25, 1995 to July 15, 1996. See Order Denying Defendant

Director of Health's Motion for Reservation of Questions to

the Supreme Court of Hawaii and for Stay Pending Appeal,

and Granting Alternative Motion for Stay of Trial Pending

the Action of The Commission on Sexual Orientation and the

Law and of The Eighteenth Legislature filed on September 7,

1995.



15. A Notice of Change of Responsible Deputy was filed on

April 18, 1996, which stated that responsibility for

handling of the case on behalf of the Defendant had been

changed to Deputy Attorney General Rick J. Eichor.



16. Following a status conference with counsel on April 19,

1996, a Stipulation to Continue Trial Date and Order was

filed on May 9, 1996. As a result, the trial in the

above-captioned case was continued from the week of August

1, 1996 to September 10, 1996.





III. DEFENDANT'S POSITION



17. The directive of the Hawaii Supreme Court is clear.

Pursuant to the mandate of the Supreme Court, Defendant has

the burden of proof in this case. Id.



18. Defendant's First Amended Pretrial Statement was filed

on May 13, 1996. In pertinent part, Defendant stated the

following.





[A]ll that remains is for the State to show that there is

a compelling State interest to deny Plaintiff marriage

licenses because they are of the same sex and that this

compelling interest is narrowly drawn to avoid unnecessary

abridgments of constitutional rights.



The following substantial and compelling state interests

will he shown:



a. That the State has a compelling interest in protecting

the health and welfare of children and other persons. . . .



b. That the State has a compelling interest in fostering

procreation within a marital setting. . . .



c. That the State has a compelling interest in securing or

assuring recognition of Hawaii marriages in other

jurisdictions. . . .



d. That the State has a compelling interest in protecting

the State's public fisc from the reasonably foreseeable

effects of State approval of same-sex marriage in the laws

of Hawaii. . . .



e. That the State has a compelling state interest in

protecting civil liberties, including the reasonably

foreseeable effects of State approval of same-sex

marriages, on its citizens.





Defendant's First Amended Pretrial Statement at pages 2-4.



19. Defendant's Pre-Trial Memorandum was filed on September

6, 1996. In pertinent part, Defendant asserted the

following.





The State of Hawaii has a compelling interest to promote

the optimal development of children. . . . It is the State

of Hawaii's position that, all things being equal, it is

best for a child that it be raised in a single home by its

parents, or at least by a married male and female. . . .



The marriage law furthers the compelling state interest of

securing or assuring recognition of Hawaii marriages in

other jurisdictions. . . .



The marriage law furthers the compelling state interest in

protecting the public fisc from the reasonably foreseeable

effects of approval of same-sex marriage.





Defendant's Pre-Trial Memorandum at pages 1, 2 and 4.



20. Defense counsel acknowledged Defendant's burden of

proof and, in pertinent part, stated the following in his

Opening Statement. "The State has a compelling interest in

promoting the optimal development of children. . . . It is

the State's policy to pursue the optimal development of

children, to unite children with their mothers and fathers,

and to have mothers and fathers take responsibility for

their children." Trial Transcript ("Tr.") 9/10/96. pages

4-5.





IV. DEFENDANT'S WITNESSES



21. Defendant presented testimony from the following expert

witnesses: (1) Kyle D. Pruett, M.D.; (2) David Eggebeen,

Ph.D.; (3) Richard Williams, Ph.D.: and (4) Thomas S.

Merrill, Ph D.



22. Dr. Kyle Pruett is an expert in the field of

psychiatry, specializing in child development. Beginning in

1981 and continuing for a ten-year period, Dr. Pruett

conducted a longitudinal study of fifteen families with

young children with regard to the developmental competence

of children raised primarily by their fathers in intact

families. At the end of his study, Dr. Pruett found that

children raised by families with primarily paternal care in

the early months and years of life are competent and robust

in their development, and are not sources of clinical

concern.



23. In pertinent part, Dr. Pruett found that there were

unique paternal contributions made by a father which had a

positive effect on the following: (1) a child's self-esteem

and feelings of being loved and important to the family;

(2) a child's ability to cope with frustration and

discouragement; (3) a child's interest in generative or

creative matters; and (4) a child's gender flexibility.



24. However, Dr. Pruett also stated that the unique or

non-replicable contributions offered by a father (and the

unique contributions offered by a mother) are "small", in

comparison to the contributions that parents make together

to their children. Tr. 9/10/96, page 84. Dr. Pruett

conceded that the beneficial results described above are

not essential to being a happy, healthy and well-adjusted

child. Tr. 9/10/96, pages 86-87.



25. Dr. Pruett testified that biological parents have a

predisposition which helps them in parenting children. The

predisposition is based upon the following factors: (1)

chromosomal or genetic contributions; (2) the parents'

choice and timing of conception or procreation; (3) the

physical changes to the mother's body and the father's

observations and interaction with those changes; (4)

immediate bonding upon the child's birth; and (5) a

predisposition to sacrifice and make one's self secondary

to the needs of the child.



26. Dr. Pruett also expressed his belief that children

which are adopted or are the result of assisted

reproduction live in a "burden[ed] system." Tr. 9/10/96,

pages 58, 62.



27. Dr. Pruett stated that same-sex relationships do not

provide the same type of learning model or experience for

children as does male-female parenting, because there is an

overabundance of information about one gender and little

information about the other gender. Tr. 9/10/96, page 63.



28. Nevertheless, Dr. Pruett also stated that same-sex

parents can, and do, produce children-with a clear sense of

gender identity. Tr. 9/10/96, pages 106.



29. Dr. Pruett stated the following with respect to raising

children in a same-sex marriage environment.





Q. And in comparing same sex parenting with opposite sex

parenting, which is more likely to pose greater

developmental difficulties for children?



A. In terms of probability, same-sex marriages are more

likely to provide a more burdened nurturing domain.





Tr. 9/10/96, page 63.



30. It is Dr. Pruett's opinion that most children are more

likely to reach their optimal development being raised in

an intact family by their mother and father. According to

Dr. Pruett, this family configuration presents the fewest

burdens on child development. Tr. 9/10/96, page 63.



31. However, Dr. Pruett also stated that single parents,

gay fathers, lesbian mothers and same-sex couples have the

potential to, and often do, raise children that are happy,

healthy and well-adjusted. Tr.  9/10/96, page 69.



32. Dr. Pruett testified that single parents, gay fathers,

lesbian mothers, adoptive parents, foster parents and

same-sex couples can be, and do become, good parents. Tr.

9/10/96, page 71. Significantly, Dr. Pruett knows the

foregoing to be true based on his clinical experience. Tr.

9/10/96, page 72.



33. More specifically, Dr. Pruett stated that parents'

sexual orientation does not disqualify them from being

good, fit, loving or successful parents. Tr. 9/10/96, page

72.



34. Dr. Pruett agreed that, in general, gay and lesbian

parents are as fit and loving parents as non-gay persons

and couples. Tr. 9/10/96, page 73.



35. Same-sex couples have the same capability as

different-sex couples to manifest the qualities conducive

to good parenting. Tr. 9/10/96, page 75.





Dr. Pruett testified as follows.



Q. And you've seen same-sex couples that have those

qualities [to being good parents]?



A. Yes.



Q. And have made good parents?



A. And have made good parents, yes.



Q. And good parents as a couple?



A. Yes.





Tr. 9/10/96, page 75.



36. Dr. Pruett also agreed that same-sex couples should be

allowed to adopt children, provide foster care and to take

children in and raise and care for them. Tr. 9/10/96, page

73.



37. Importantly, Dr. Pruett testified that the quality of

the nurturing relationship between parent and child could,

and would, outweigh any limitation or burden imposed on the

child as a result of having same-sex parents. Tr. 9/10/96,

page 79.



38. Finally, when questioned regarding research performed

by Charlotte Patterson regarding children raised by

same-sex couples, Dr. Pruett expressed his agreement with

the general conclusions reached by Dr. Patterson. Tr.

9/10/96, pages 132-133.



More specifically, Dr. Pruett agreed with the following

conclusions, that gay and lesbian parents "are doing a good

job" and that "the kids are turning out just fine." Tr.

9/10/96, pages 133-134.



Dr. Pruett was not surprised by Dr. Patterson's

conclusions. In fact, they are what he expected to see, and

although Dr. Pruett questions Dr. Patterson's research

methodology, he is not aware of any data, research or

literature which disputes Dr. Patterson's findings and

conclusions. Tr. 9/10/96, pages 132-134.



39. Dr. David Eggebeen is an expert in the field of

sociology with a special emphasis in demographics related

to family and children.



40. In pertinent part, Dr. Eggebeen testified regarding

changes or trends which have occurred in partnering, child

bearing and labor force behavior in the United States. For

example, Dr. Eggebeen testified regarding the following

facts: (1) the marriage rate in the U.S. population has

declined over the past twenty years; (2) the median age of

marriage for women in the U.S. population has risen over

the past twenty years; (3) the annual divorce rate in the

U.S. population has increased over the past approximate

thirty years; (4) the number of young adults currently

cohabiting has increased over the past eight years; (5) the

birth rate for women in the U.S. population has decreased

over the past twenty years; (6) the number of proportionate

births to non-married women in certain racial groups has

increased over the past thirty years; and (7) the number of

women in the labor force in the U.S. population and the

number of working mothers with children under the age of

six has increased dramatically over the past thirty years.



41. Based on his studies of the changes referred above, Dr.

Eggebeen testified as follows.





[C]hildren are going through fundamental changes in the

structure of childhood and what we're seeing today is

children today are living in very different circumstances

than was evident or the case in the past. It's common today

to find children in single parent families. It's common

today to find children in single parent families. It's

common today to find children living with a mother who

never married. It's common today to find children in

remarried families. It's common today to find children in

dual earner families where both parents participate in the

type of work. It is common or getting common to find

children whose parents never married and they're

cohabiting.





Tr. 9/11/96, pages 32-33.



42. However, Dr. Eggebeen also testified that, as of 1990,

almost six out of ten children in the United States are

living in families where their parents are married and both

of the parents are biological parents of the child.



43. Dr. Eggebeen explained further that ". . . children

have gone through substantial changes in their lives. . .

[T]here is greater diversity in living arrangements and

family --- in families that children live today in the

'9Os. However, a substantial percentage of children remain

or will spend their childhood in . . . traditional kinds of

family structures." Tr. 9/11/96, page 38.



44. Based on his research, Dr. Eggebeen concluded that

marriage is a "gateway to becoming a parent," and marriage

is synonymous with having children. Tr. 9/11/96, page 42.



45. However, Dr. Eggebeen also testified that individuals

get married without intending to have children, or marry

and are biologically unable to have children. Further, the

absence of the intent or the ability to have children does

not weaken the institution of marriage.



In fact, Dr. Eggebeen recognized that people marry and want

to get married for reasons other than having children; that

those reasons are valuable and important; and that

regardless of children, it is beneficial to society for

adults to marry. Dr. Eggebeen testified that individuals

should not be prohibited from marriage simply because they

cannot have children. Tr. 9/11/96, pages 55-57.



46. Dr. Eggebeen testified that children raised in a single

parent home are at a "heightened risk", as compared to

children raised in a married couple family. Tr. 9/11/96,

page 43. According to Dr. Eggebeen, children in a single

parent family are at greater risk  for the following: (1)

poverty or economic hardship; (2) poor academic

performance; (3) behavior problems and conduct disorders;

and (4) premarital or teenage birth for girls.



47. Dr. Eggebeen stated that remarriage or cohabiting with

a step-parent does not lessen or eliminate the risks to

children from single parent families. "[C]hildren in a

remarriage family. . . do not seem to perform any

differently than children who remain in single parent

families and therefore their performance or the risk of

poor outcomes is about the same as is for children in

single parent families." Tr. 9/11/96, page 46.



48. Dr. Eggebeen suggested that the lack of improvement in

risk factors in remarriage or step-parent families may be

attributable to "the role ambiguity of step parent

relationships," characteristics which a step-parent brings

to the family and which adversely affect the children or

the absence of a biological relationship with the children.

Tr. 9/11/96, pages 46-48. With respect to the latter, Dr.

Eggebeen related the story of Cinderella and her evil

stepmother. Tr. 9/11/96, page 48.



49. Dr. Eggebeen equates a same-sex couple with children to

a step-parent situation with all of the above-described

risk factors. Specifically, Dr. Eggebeen testified that

"same-sex marriages where children [are] involved is by

definition a step parent relationship," because there is

one parent who is not the biological parent of the child.

Tr. 9/11/96, pages 49.



50. However, Dr. Eggebeen conceded that there are some

situations involving a same-sex couple which would not fit

the classic step-parent scenario. For example, a situation

involving a same-sex couple that sought and received

reproductive assistance and in which the non-biological

parent was fully involved from the beginning of the

planning process, was present throughout the nine month

period and at birth, and thereafter, raised the child as

though they were the biological parents of the child. Tr.

9/11/96, pages 114-115.



51. Dr. Eggebeen also testified that single parents,

adoptive parents, lesbian mothers, gay fathers and same-sex

couples can create stable family environments and raise

healthy and well-adjusted children. Tr. 9/11/96, page 82.



52. It is Dr. Eggebeen's opinion that gay and lesbian

couples can, and do, make excellent parents and that they

are capable of raising a healthy child. Tr. 9/11/96, page

83.



53. Dr. Eggebeen agrees that gay and lesbian parents should

be allowed to adopt children and serve as foster parents.

Tr. 9/11/96, page 85.



54. Dr. Eggebeen testified that cohabiting same-sex couples

are less stable than married couples. However, the sole

basis for Dr. Eggebeen's conclusion is a chart taken from

the book entitled American Couples, co-authored by Pepper

Schwartz, Ph.D. The chart which summarizes approximately

twenty year old information is Defendant's Exhibit Q, and

depicts a comparison of the percentages of married, gay and

lesbian couples, respectively, which had stayed together or

broken up over periods of time.



Dr. Eggebeen testified that Exhibit Q is the best data that

he could find which proves that gay and lesbian couples

have substantially higher break up rates over time than

married different sex couples. Tr. 9/11/96,-pages 73-74.

Dr. Eggebeen admitted that he has done limited research on

the subject of same sex couples and gay and lesbian

parenting, and agrees that Charlotte Patterson and Pepper

Schwartz are experts in the fields. Tr. 9/11/96, pages

131-132.



55. Finally, and importantly, Dr. Eggebeen stated that

children of same-sex couples would be helped if their

families had access to or were able to receive the

following benefits of marriage: (1) state income tax

advantages; (2) public assistance; (3) enforcement of child

support, alimony or other support orders; (4) inheritance

rights; and (5) the ability to prosecute wrongful death

actions. Dr. Eggebeen also agreed that children of same-sex

couples would be helped if their families received the

social status derived from marriage. Tr. 9/11/96, pages

89-92.



56. Dr. Richard Williams is an expert in the field of

psychology with special expertise in qualitative and

quantitative research and research methods, statistical

analysis and construction of research studies.



57. Dr. Williams was asked by defense counsel to review and

analyze studies of children raised by gay and lesbian

parents. He reviewed approximately twenty to thirty

studies, and eventually selected nine studies to critique.



58. At trial, Dr. Williams presented commentary regarding

nine research studies which defense counsel anticipated

that Plaintiffs' expert witnesses would rely upon for their

testimony and opinions in this case.



Dr. Williams' general criticism of the nine studies

included the following: (1) there was non-representative

sampling of heterosexual, gay and lesbian parents; (2)

inadequate sample size was employed; and (3) comparison

groups used in the studies were not comparable in terms of

household make up. Dr Williams also presented specific

criticism as to each of the nine referenced studies .



59. The testimony of Dr. Williams is not persuasive or

believable because of his expressed bias against the social

sciences, which include the fields of psychology and

sociology.



For example, Dr. Williams believes that a majority of the

studies in the social sciences have theoretical or

methodological flaws. Tr. 9/12/96, pages 71-72. According

to Dr. Williams, modern psychology is so flawed that no

fix, reconciliation or overhaul can correct it. Tr.

9/12/96, page 70.



60. Further, even assuming that research studies are

conducted properly, Dr. Williams still doubts the ultimate

value of psychology and other social sciences. Tr. 9/12/96,

page 73.



61. At times, Dr. Williams expressed severe views. For

example, Dr. Williams believes that there is no scientific

proof that evolution occurred. Tr. 9/12/96, page 80.



62. Finally, Dr. Williams admitted that his critique of

studies regarding gay and lesbian parenting is a minority

position. Tr. 9/12/96, pages 74-75.



63. Defendant's last witness was Thomas Merrill, Ph.D. Dr.

Merrill is an expert in the field of psychology, including

the areas of human development, gender development and

relationships relative to children and their development.



64. Dr. Merrill is a psychologist in private practice in

Honolulu, Hawaii. His clinical experience with families

involving one or two gay or lesbian parents is limited. Dr.

Merrill has not testified as an expert in Family Court

cases which involved the sexual orientation of a parent or

a same-sex couple and the custody of a child. He has not

participated in or conducted any study which focused on the

children of gay and lesbian parents. Tr. 9/13/96, page 36.



65. Dr. Merrill examined the issue of same-sex versus

opposite sex parent and child development for the first

time as a result of his retention in this case. Tr.

9/13/96, page 35.



66. In pertinent part, Dr. Merrill testified that the

parental relationship is an important learning model for

children and that it is significant to have opposite sex

parents for a child's learning. Tr. 9/13/96, pages 12-13.



67. Dr. Merrill stated that different-sex parents are

important because both parents serve as models and as

objects for a child's learning and development. Dr. Merrill

explained as follows:





We interact with -- and when I say identify, we measure and

develop ourself in relationship to our same gender parent.

We also identify our relationship with our opposite sex

parents and there are different developmental stages where

that relationship with the opposite sex parent is equal to

or more important than our development -- our relationship

at the moment with the same gender parent.





Tr. 9/13/96, page 13.



68. According to Dr. Merrill, although replacement of a

biological parent is certainly possible, as in the case of

remarriage and adoption, it would result in the presence of

a different influence on the child and the child's

developmental outcome may be different. Tr. 9/13/96, pages

20-21.



69. Dr. Merrill testified that same-sex parents do provide

a learning experience for a child. However, Dr. Merrill

stated that there is insufficient information regarding the

effects of being raised by gay or lesbian parents on the

development of a child. Tr. 9/13/96, page 22.



As a result, Dr. Merrill has no opinion regarding the

development of children in a family with same-sex parents.

Specifically, he cannot say whether or not children raised

in a same-sex family environment will develop to be

healthy, well-adjusted adults. Tr. 9/13/96, page 38.



70. At the close of his direct examination, Dr. Merrill

presented the following opinions.





Q. In your opinion, to a reasonable degree of psychological

probability, in what family structure are children most

likely to reach their optimal development?



A. Children are most apt to reach their optimal level of

development as exhibited in terms of their adjustment as

adults in a family in which there is a limited amount of

strife, a maximum amount of nurturing, a maximum amount of

support, a maximum amount of guidance, a maximum amount of

leadership, and a very strong and intimate bond between

parents and child.



Q. And does the presence of the mother and father improve

the likelihood that there will be a strong bond?



A. That would be a significant part of the maximum optimum

environment in which to raise a child, yes.





Tr. 9/13/96, pages 32-33.



71. Dr. Merrill testified that the sexual orientation of a

parent is not an indication of parental fitness. Tr.

9/13/96, page 46.



72. Dr. Merrill also agreed that gay and lesbian couples

with children do have successful relationships. Tr.

9/13/96, page 46.



73. On one occasion, Dr. Merrill was retained by two

attorneys to do a custody evaluation in a case involving a

same-sex relationship on the mother's side. In part, he was

asked to address children's development issues. Dr. Merrill

testified that the fact that there was a same-sex

relationship on the mother's side was not an issue and did

not affect his evaluation in the case. Tr. 9/13/96, page

34.



74. Finally, and in pertinent part, Dr. Merrill testified

as follows.





Q. Now, doctor, do you think the children, regardless of

whether they have a mother and a father, male-female

parents, single parents, adoptive parents, gay and lesbian

parents, same gender parents, should have the same

opportunity in society to reach their optimum development,

each child?



A. Yes, I do.





Tr. 9/13/96, page 45.



Dr. Merrill further stated that children should not be

denied benefits, such as health care, education and housing

based on the status of their parents. Opposite-sex,

same-sex, single and adoptive parent status should not be

a basis to deny benefits to children. Tr. 9/13/96, page 46.





V. PLAINTIFFS' WITNESSES



75. Although Plaintiffs do not have the burden of proof in

this case, they nevertheless presented testimony from the

following expert witnesses: (1) Pepper Schwartz, Ph.D; (2)

Charlotte Patterson, Ph.D.; (3) David Brodzinsky, Ph.D; and

(4) Robert Bidwell, M.D.



76. The court found the testimony of Dr. Schwartz and Dr.

Brodzinsky to be especially credible.



Dr. Schwartz and Dr. Brodzinsky are well-qualified

individuals. See Plaintiffs' Exhibits 1 and 2,

respectively.



At trial, each of them testified in a knowledgeable,

informative and straightforward manner worthy of belief. In

general, the expert opinions of Dr. Schwartz and Dr.

Brodzinsky appear to be well-founded based on their

significant research and analysis, and their clinical and

professional experience, respectively.



77. Dr. Schwartz is an expert in sociology and

interdisciplinary studies of sexuality with a special

expertise in gender and human sexuality, marriage and the

family, and same-sex relations in parenting and research.

She testified, in pertinent part, to the following.



78. Initially, Dr. Schwartz discussed her book, American

Couples. Dr. Schwartz specifically addressed a chart taken

from the book and relied upon by Defendant. According to Dr

Schwartz, the data contained in Defendant's Exhibit Q

represents the following: (1) that there is a substantially

higher break up rate for all three kinds of couples (gay

men, lesbian and cohabitors) than there is for married

couples; and (2) married couples have an advantage that

keeps them together longer than other kinds of couples. Tr.

9/16/96, pages 47-48.



79. Dr. Schwartz noted that the data presented in American

Couples was collected in the late '70s and up until 1980 or

1981. Since that time, there have been significant changes

in society. For example, the entry of AIDS into gay male

life and society, has made people more cautious and less

likely to have multiple partners and more desirous of

settling down. Gay men, in particular, have been hardest

hit by the disease and it has made monogomy and couplehood

more attractive.



Additionally, there is now a trend in which people

contemplate and want to be more serious, to make families

and to engage in long-term committed relationships. This is

a large change from the attitudes of the late '70s and

early '80s. Tr. 9/16/96, page 54-56.



80. Dr. Schwartz testified that heterosexual and homosexual

people want to get married. Tr. 9/16/96, pages 58-59, 65.

The doctor stated specifically:





[T]hey want companionship, they want love, they want trust,

they want someone who will be with them through thick and

thin. They're looking for a live and a love partner. . . .

[I]n our own [culture] it's an aspiration for --- for

intimacy and security. And that is the definition of

marriage as people first and primarily think of it."





Tr. 9/16/96, page 59.



81. Dr. Schwartz stated that same-sex couples can, and do,

have successful, loving and committed relationships. Tr.

9/16/96, page 129.



82. Dr. Schwartz also identified practical, economic,

legal, social and psychological benefits of marriage and

reasons for people to marry. Tr. 9/16/96, pages 59-65.



83. Dr. Schwartz testified that the sexual orientation of

parents is not an indicator of parental fitness. Tr.

9/16/96, page 128.



84. Dr. Schwartz also testified that gay and lesbian

parents and same-sex couples are as fit and loving parents,

as non-gay persons and different-sex couples. Tr. 9/16/96,

page 127.



85. Dr. Schwartz believes that the primary quality of

parenting is not the parenting structure, or biology, but

is the nurturing relationship between parent and child. Tr.

9/16/96, page 129.



86. Dr. Schwartz also believes that children should not be

denied benefits and protections because of the status of

their parents. Tr. 9/16/96, pages 129-130.



87. Dr. Schwartz has the following opinions.



First, there is no reason related to the promotion of the

optimal development of children why same-sex couples should

not be permitted to marry. Tr. 9/16/96, page 130.



Second, allowing same-sex couples to marry would not have

a negative impact on society or the institution of

marriage. Dr. Schwartz testified, "[T]here would be no

dishonor and no ultimate fragility to the institution [of

marriage] by including gays and lesbians." Tr. 9/16/96,

pages 130-131. Third, allowing same-sex couples to marry

would have a positive impact on society and the institution

of marriage. Dr. Schwartz stated the following.





I think that marriage is really a high state of hope and

effort for people. I think when we deny it to people we say

that --- that there's some other location for love and

raising children and that we're not as concerned about

these kids' welfare or in some ways we don't think it would

be good for them to be in a married home. It's not that

those children don't exist, it's not that those families

don't exist, they do.



To me, I think that most Americans believe in marriage

strongly. I believe by taking other people into the fold

and asking that they behave as responsible to their

children to give them support to have both rituals to enter

into their relationships and legal complications by exiting

them, that we shore up how important we think marriage is.

I think it --- I think it in no way undermines it and I

think it strengthens it by our insistence about how

important it is and why we hope this will be available for

all families.





Tr. 9/16/96, pages 131-132.



88. Dr. Charlotte Patterson is an expert in the field of

psychology of child development with a special expertise in

lesbian and gay parenting and the development of children

of lesbian and gay parents. She testified, in pertinent

part, to the following.



89. Dr. Patterson is a professor at the University of

Virginia. She has completed two studies regarding the

children of lesbian and gay parents.



90. The first study is known as the Bay Area Family Study.

The study involved thirty-seven families, all of which had

at least one child between the ages of four and nine. In

every case, the children had either been born to women who

identified themselves as lesbian at the time of the study,

or who adopted children early in life. Data in the Bay Area

Family Study was collected in 1990 and 1991.



91. According to Dr. Patterson, the main result of the Bay

Area Family Study was a conclusion that the particular

group of children, when compared to available norms,

appeared to be developing in a normal fashion. Tr. 9/17/96,

pages 23-24.



However, Dr. Patterson also noted a finding that the

children of the lesbian mothers sample were more likely to

express that they felt (within a normal range) symptoms of

stress in their lives, as compared to children in the

normal sample. The children who described symptoms of

stress also said that they felt an overall sense of

well-being about themselves in their lives. Although she

has two plausible explanations, Dr. Patterson does not have

a definitive interpretation or explanation for the above

finding. Tr. 9/17/96, page 25.



Dr. Patterson agreed that the sample group of lesbian

mothers in the Bay Area Family Study, when considering

ethnic background, education, income, and other

socioeconomic factors is not representative of women and

all mothers in America. Tr. 9/17/96, pages 81-84.



92. Dr. Patterson's second study is known as the

Contemporary Family Study. The study involved eighty

families who conceived a child using the resources of the

Sperm Bank of California. and all of which had at least one

child that was at least five years old at the time of the

study. Fifty-five of the families were headed by lesbian

mothers. The remaining twenty-five families were headed by

heterosexual parents. Most of the data for this study was

collected in 1994 and 1995.



93. The three main conclusions of the Contemporary Family

Study are as follows: (1) as a group, the children born as

a result of donor insemination were developing normally;

(2) sexual orientation of the parents was not a good

predictor of how well children do in terms of a child's

well-being and adjustment; and (3) irrespective of their

parents' sexual orientation, children who live in a

harmonious family environment had better reports from

parents and teachers. Tr. 9/17/96, pages 36-37.



94. Based on her studies and review of other research, Dr.

Patterson testified as follows. A biological relationship

between parent and child is not essential to raising a

healthy child. The quality of parenting which a child

receives is more important than a biological connection or

the gender of a parent. Tr. 9/17/96, pages 42-43.



95. According to Dr. Patterson, there is no data or

research which establishes that gay fathers and lesbian

mothers are less capable of being good parents than non-gay

people and which supports denying gay people the ability to

adopt and raise children. Tr. 9/17/96, page 52.



96. Dr. Patterson believes that gay and lesbian people and

same-sex couples are as fit and loving parents as non-gay

people and different-sex couples. Further, sexual

orientation is not an indicator of parental fitness. Tr.

9/17/96, pages 53-54.



97. Dr. Patterson testified that same-sex couples can, and

do, have successful, loving and committed relationships.

Tr. 9/17/96, pages 54.



98. Dr. Patterson presented the following opinion. There is

no reason related to the promotion of the development of

children why same-sex couples should not be permitted to

marry. Tr. 9/17/96, page 55.



99. Dr. David Brodzinsky is an expert in the fields of

psychology and child development with a special expertise

in adoption and other forms of nonbiological parenting and

the development of children raised by nonbiological

parents.



100. Dr. Brodzinsky counsels children and families in a

clinical setting and also has an academic appointment at

Rutgers University. In the academic setting, Dr. Brodzinsky

does research, teaches, directs a program on counseling

foster children and does clinical supervision. He has been

at Rutgers University since 1974.



Dr. Brodzinsky serves as a consultant to several adoption

agencies in New Jersey and New York and is a founding

director of the Adoption Institute, a newly formed

nonprofit organization, whose mission is to provide

information and education and promote research regarding

adoption and adoption practices. In the past ten to fifteen

years, he has conducted research and written extensively on

the psychology of adoption, foster care, stress and coping

in children.



101. In his clinical practice, Dr. Brodzinsky has worked

with gay and lesbian parents. He has provided counseling

over the years to approximately forty families headed by

same-sex parents and same-sex couples. In pertinent part,

Dr. Brodzinsky testified as follows.



102. Dr. Brodzinsky stated the following with respect to

the following question: "Are there advantages to being

raised by one's biological parents?"





The issue is not the structural variable, biological versus

nonbiological, one parent versus two parent. Those are kind

of --- they hide, I think, really what is going on. The

issue is really the process variables, how children are

cared for, is the child provided warmth, is the child

provided consistency of care, is the child provided a

stimulated environment, is the child given support. Those

are the factors we can call, for lack of a better way of

saying it, sensitive care-giving which transcend whether

you're a single parent, two parent, biological,

nonbiological. The research shows that --- that those are

the factors that carry the biggest weight. And when you

take a look at structural variables, there's not all that

much support that structural variable in and of themselves

are all that important.





Tr. 9/18/96, page 42.



103. Dr. Brodzinsky noted that same-sex parent adoptions

occur and it is his opinion that same-sex parent adoptions

should be allowed. Tr. 9/18/96, page 49. Dr. Brodzinsky

explained as follows.





Q. As an expert in adoption and as a psychologist, do you

believe that gay men and lesbians, same-sex couples, should

be continue to be allowed to adopt children?



A. Absolutely.



Q. Why?



A. Because they are able to provide, like heterosexual

couples or single parents, warm and loving environments.

They're --- they're adopting children now. They're doing a

good job of it. Obviously, you know, when we --- when a

person seeks to adopt, there is an evaluation. It would be

the same kind of an evaluation. We would exclude a gay or

lesbian individual for the same reason that we would

exclude a heterosexual individual. That is, if they had a

significant emotional problems or some other kind of factor

that we felt, as -- as, you know, agency consultants, you

know, would not -- would not predict well to a child's

well-being.





Tr. 9/18/96, pages 56-57.



104. Dr. Brodzinsky testified that the research shows that

same-sex couples and different-sex couples can be highly

competent care-givers. The sexual orientation of parents is

not an indicator of parental fitness. Tr. 9/18/96, page 50.



105. According to Dr. Brodzinsky, the primary quality of

good parenting is not the particular structure of the

family or biology, but is the nurturing relationship

between parent and child. Tr. 9/18/96, page 63.



106. Dr. Brodzinsky believes that children adopted by

same-sex couples are not at any increased risk for

behavioral or psychological problems. Tr. 9/18/96, page 50.



107. Dr. Brodzinsky expressed his strong view regarding the

issue of whether there is a best family environment to

raise children.





Q. Now, the State's arguments seem to suggest that we

somehow need to identify a best family for children, or as

between mothers and fathers, we have to pick a best parent.

What's your position on that?



A. I find that offensive truthfully. I find it offensive

because it tends to suggest that there's only one way of

being a parent. It excludes all nonbiological parenting

which would be adoptive parenting, stepparenting, foster

parenting, parenting by gay and lesbians. It suggests that

if there are some additional issues that come with some of

these nontraditional families that should be reason for

excluding rather than taking that information and using it

not in a punitive way but in a proactive, kind of

supportive way to help families deal with the inevitable

issues that come up in life. And there are going to be some

unique issues in varying forms of family. But to talk about

one form of family that is best, I find that, you know,

truthfully offensive and a distortion of the research

literature. And that's really why I'm here, you know, to

make sure that message comes across.





Tr. 9/18/96, pages 58-59.



108. Finally, it is Dr. Brodzinsky's opinion that there is

no reason related to the promotion of the development of

children why same-sex couples should not be permitted to

marry. Tr. 9/18/96, page 63.



109. Dr. Robert Bidwell is an expert in pediatrics with a

subspecialty in adolescent medicine. Dr. Bidwell is the

Director of Adolescent Medicine at Kapiolani Medical Center

and is also employed at the University of Hawaii Department

of Pediatrics with the John A. Burns School of Medicine.

Dr. Bidwell teaches medical students and pediatric

residents in training, provides patient care, and practices

adolescent medicine and general pediatrics at Kapiolani

Medical Center.



110. In his clinical practice, Dr. Bidwell has treated

children of same-sex parents. He has provided medical

services to hundreds of children with families which

included a single gay or lesbian parent or same-sex

parents. In pertinent part, Dr. Bidwell testified as

follows.



111. Dr. Bidwell described the best environment to raise a

healthy, well-adjusted child or adolescent as being one in

which "there's all those things that we associate with

family, which is love and nurturance and guidance,

protection, safety." Tr. 9/19/96, pages 27-28.



112. According to Dr. Bidwell, gay and lesbian parents and

same-sex couples can, and do, provide an environment for

their children. Tr. 9/19/96, page 29.



113. Dr. Bidwell testified that gay and lesbian parents and

same-sex couples raise children that are just as healthy

and well-adjusted as those raised by different-sex couples.

Tr. 9/19/96, page 38.



114. Dr. Bidwell conceded -- that he has worked with

adolescents and teen-aged children living in a same-sex

family environment that have experienced embarrassment,

distress or a "difficult time" because their family "is not

the same as the majority of families that surround them."

However, the doctor also described the situation as a phase

in the child's development. He said the following.





What's been reassuring to me is that -- that this has been

a phase in their development, that I do not know of any

teenager who has not gotten through this phase intact as a

healthy adolescent. And, yes, I think there was pain. I

think that there may have been tears from time to time,

wishing that things were different. But I think it's -- I

mean it's what we call growing up. I mean there are many

different kinds of families. And all of our parents are

different in some way from what we would like to see. . . .



So I think my experience has been for the same -- has been

the same for the children of gay and lesbian parents, is

that they may go through a rough time. And not all of them

do. Remarkably, most of them, they make their

accommodations. They find ways to deal with it. But they

get through these periods. And if anything, I think they

grow stronger through that experience. They learn about

life. They learn about diversity. And the research -- and

although I'm not a heavy-duty research person, I do look at

the research. The research confirms that --that teenagers

get through this period.



But I guess to get back to your question, yes, there is a

special experience for these young people, and sometimes

it's painful. But it doesn't do developmental damage to

these kids. If anything, it creates strength and promotes

growth.





Tr. 9/19/96, pages 30-32.



115. Finally, Dr. Bidwell believes that children of

same-sex parents would benefit, with respect to their

health, development and adjustment, if their parents were

married. Tr. 9/19/96, page 38.





VI. SPECIFIC FINDINGS



116. The following are specific findings of fact for this

case based on the credible evidence presented at trial.



117. Defendant presented insufficient evidence and failed

to establish or prove any adverse consequences to the

public fisc resulting from same-sex marriage.



118. Defendant presented insufficient evidence and failed

to establish or prove any adverse impacts to the State of

Hawaii or its citizens resulting from the refusal of other

jurisdictions to recognize Hawaii same-sex marriages or

from application of the federal constitutional provision

which requires other jurisdictions to give full faith and

credit recognition to Hawaii same-sex marriages. See

Article IV, Section 1 of the U.S. Constitution (The Full

Faith and Credit Clause).



119. Defendant presented insufficient evidence and failed

to establish or prove the legal significance of the

institution of traditional marriage and the need to protect

traditional marriage as a fundamental structure in society.



120. There is a public interest in the rights and

well-being of children and families. See H.R.S. Chapters

571 and 577.



121. A father and a mother can, and do, provide his or her

child with unique paternal and maternal contributions which

are important, though not essential, to the development of

a happy, healthy and well-adjusted child.



122. Further, an intact family environment consisting of a

child and his or her mother and father presents a less

burdened environment for the development of a happy,

healthy and well-adjusted child.



There certainly is a benefit to children which comes from

being raised by their mother and father in an intact and

relatively stress free home.



123. However, there is diversity in the structure and

configuration of families. In Hawaii, and elsewhere,

children are being raised by their natural parents, single

parents, step-parents, grandparents, adopted parents, hanai

parents, foster parents, gay and lesbian parents, and

same-sex couples.



124. There are also families in Hawaii, and elsewhere,

which do not have children as family members.



125. The evidence presented by Plaintiffs and Defendant

establishes that the single most important factor in the

development of a happy, healthy and well-adjusted child is

the nurturing relationship between parent and child.



More specifically, it is the quality of parenting or the

"sensitive care-giving" described by David Brodzinsky,

which is the most significant factor that affects the

development of a child.



126. The sexual orientation of parents is not in and of

itself an indicator of parental fitness.



127. The sexual orientation of parents does not

automatically disqualify them from being good, fit, loving

or successful parents.



128. The sexual orientation of parents is not in and of

itself an indicator of the overall adjustment and

development of children.



129. Gay and lesbian parents and same-sex couples have the

potential to raise children that are happy, healthy and

well-adjusted.



130. Gay and lesbian parents and same-sex couples are

allowed to adopt children, provide foster care and to raise

and care for children.



131. Gay and lesbian parents and same-sex couples can

provide children with a nurturing relationship and a

nurturing environment which is conducive to the development

of happy, healthy and well-adjusted children.



132. Gay and lesbian parents and same-sex couples can be as

fit and loving parents, as non-gay men and women and

different-sex couples.



133. While children of gay and lesbian parents and same-sex

couples may experience symptoms of stress and other issues

related to their non-traditional family structure, the

available scientific data, studies and clinical experience

presented at trial suggests that children of gay and

lesbian parents and same-sex couples tend to adjust and do

develop-in a normal fashion.



134. Significantly, Defendant has failed to establish a

causal link between allowing same-sex marriage and adverse

effects upon the optimal development of children.



135. As noted herein, there is a benefit to children which

comes from being raised by their mother and father in an

intact and relatively stress-free home.



However, in this case, Defendant has not proved that

allowing same-sex marriage will probably result in

significant differences in the development or outcomes of

children raised by gay or lesbian parents and same-sex

couples, as compared to children raised by different-sex

couples or their biological parents.



In fact, Defendant's expert, Kenneth Pruett, agreed, in

pertinent part, that gay and lesbian parents "are doing a

good job" raising children and, most importantly, "the kids

are turning out just fine."



136. Contrary to Defendant's assertions, if same-sex

marriage is allowed, the children being raised by gay or

lesbian parents and same-sex couples may be assisted,

because they may obtain certain protections and benefits

that come with or become available as a result of marriage.

See Baehr v. Lewin, 74 Haw. 530, 560-561, 852 P.2d 44, 59

(1993), for a list of noteworthy marital rights and

benefits.



137. In Hawaii, and elsewhere, same-sex couples can, and

do, have successful, loving and committed relationships.



138. In Hawaii, and elsewhere, people marry for a variety

of reasons including, but not limited to the following: (1)

having or raising children; (2) stability and commitment;

(3) Pmne1onal closeness (4) intimacy and monogamy; (5) the

establishment of a framework for a long-term relationship;

(6) personal significance; (7) recognition by society; and

(8) certain legal and economic protections, benefits and

obligations. See Baehr v. Lewin, 74 Haw. 530, 560-561, 852

P.2d 44, 59 (1993) for a list of noteworthy marital rights

and benefits.



In Hawaii, and elsewhere. gay men and lesbian women share

this same mix of reasons for wanting to be able to marry.



139. Simply put, Defendant has failed to establish or prove

that the public interest in the well-being of children and

families, or the optimal development of children will be

adversely affected by same-sex marriage.



140. If any of the above findings of fact shall be deemed

conclusions of law, the Court intends that every such

finding shall he construed as a conclusion of law.





CONCLUSIONS OF LAW



1. This Court has jurisdiction over the subject matter and

the parties to this action. Venue is proper in the First

Circuit Court. HRS 603-21.5 and 603-36.



2. The trier of fact determines the credibility of a

witness and the weight to be given to his or her testimony.

In pertinent part, the trier of fact may consider the

witness' demeanor and manner while on the stand, the

character of his or her testimony as being probable or

improbable, inconsistencies, patent omissions and

discrepancies in his or her testimony or between the

testimony of other witnesses, contradictory testimony or

evidence, his or her interest in the outcome to the case

and other factors bearing upon the truthfulness or

untruthfulness of the witness' testimony. Younq Ah Chor v.

Dulles, 270 F.2d 338! 341 (9th Cir., 1959); and Nani Koolau

Co. v. Komo Construction, Inc., 5 Haw. App. 137, 139-140,

681 P.2d 580, 584 (1984). In a non-jury trial, the

credibility of a witness is a matter for the trial court to

determine and the court can accept or reject the testimony

of a witness in whole or in part. Lee v. Kimura, 2 Haw.

App. 538, 544, 634 P.2d 1043, 1047-1048 (1981).



3. Defendant's burden in this case is to "overcome the

presumption that HRS 572-1 is unconstitutional by

demonstrating that it furthers a compelling state interest

and is narrowly drawn to avoid unnecessary abridgements of

constitutional rights." Baehr, 74 Haw. 530, 583, 852 P.2d

44, 74 (1993) citing Naqle v. Board of Education, 63 Haw.

389, 392, 629 P.2d 109, 111 (1987) and Holdman v. Olim, 59

Haw. 346, 349, 581 P.2d 1164, 1167 (1978).



4. There is no fundamental right to marriage for same sex

couples under article I, section 6 of the Hawaii

Constitution. Marriage is a state-conferred legal status

which gives rise to certain rights and benefits. Baehr v.

Lewin, 74 Haw. 530, 557 and 560-561, 852 P.2d 44, 57

(1993).



5. The Department of Health, State of Hawaii, has the

exclusive authority to issue licenses to marriage

applicants. Baehr v. Lewin, 74 Haw. 530, 560, 852 P.2d 44,

59 (1993).



6. There are certain rights and benefits which accompany

the state-conferred legal status of marriage See Baehr v.

Lewin, 74 Haw. 530, 560-561, 852 P.2d 44, 59 (1993) for a

list of noteworthy marital rights and benefits.



7. If Plaintiffs, and other same-sex couples, were allowed

the state-conferred legal status of marriage, they would be

conferred with these and other marital rights and benefits.



8. HRS 572-1, on its face and as applied, regulates access

to the status of marriage and its concomitant rights and

benefits on the basis of the applicants' sex. As such, HRS

Sec. 572-1 establishes a sex-based classification. Baehr v.

Lewin, 74 Haw. 530, 572, 852 P.2d 44, 64 (1993).



9. Sex is a "suspect category" for purposes of equal

protection analysis under article I, section 5 of the

Hawaii Constitution. Consequently, HRS 572-1 is subject to

the "strict scrutiny" test. Baehr v. Lewin, 74 Haw. 530,

580, 852 P.2d 44, 67 (1993).



10. Defendant, rather than Plaintiffs, carries a heavy

burden of justification. Nachtwey v. Doi, 59 Haw. 430, 435,

583 P.2d 955, 959 (1978) citing San Antonio School District

v. Rodriquez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1288, 36

L.Ed.2d 16, 33 (1973).



11. Specifically, HRS 572-1 is presumed to be

unconstitutional and the burden is on Defendant to show

that the statute's sex-based classification is justified by

compelling state interests and the statute is narrowly

drawn to avoid unnecessary abridgments of constitutional

rights. Baehr v. Lewin, 74 Haw. 530, 583, 852 P.2d 44, 67

(1993), reconsideration and clarification granted in part,

74 Haw. 645, 646, 852 P.2d 74 (1993).



12. Article IV section 1 of the U.S. Constitution provides,

in pertinent part, that all states must recognize the

"public acts, records and judicial proceedings of every

other state."



Whether other states will recognize or avoid recognizing

same-sex marriages which take place in Hawaii and the

consequences to Hawaii residents of other states'

recognition or non-recognition of same-sex marriage (and

all of the rights and benefits associated with marriage) is

an important issue.



However, except for asking the court to take judicial

notice of the Defense of Marriage Act, P.L. 1-4-199

("DOMA"), Defendant introduced little or no other evidence

with regard to this significant issue of comity and

same-sex marriage, conflict-of-laws, and/or the effects, if

any, of the Full Faith and Credit Clause of the U.S.

Constitution.



13. Except for the affidavit testimony of Kenneth K. M.

Ling and Michael L. Meaney, which provided statistical,

budgetary and operational information regarding the Family

Court of the First Circuit Court and the Child Support

Enforcement Agency, State of Hawaii, respectively Defendant

presented little or no other evidence which addressed how

same-sex marriage would adversely affect the public fisc.

Defendant did not offer any testimony which explained the

significance of the above and Defendant did not

specifically explain or establish how same-sex marriage

would adversely impact the Family Court or the Child

Support Enforcement Agency.



14. Defendant presented meager evidence with regard to the

importance of the institution of traditional marriage, the

benefits which that relationship provides to the community

and, most importantly, the adverse effects, if any, which

same-sex marriage would have on the institution of

traditional marriage and how those adverse effects would

impact on the community and society. The evidentiary record

in this case is inadequate to thoughtfully examine and

decide these significant issues.



15. Finally, Defendant's argument that legalized

prostitution, incest and polygamy will occur if same-sex

marriage is allowed disregards existing statutes and

established precedent [for example, State v. Mueller, 66

Haw. 616, 671 P.2d 1351 (1983) (upholding ban on

prostitution)] and the Supreme Court's acknowledgment of

compelling reasons to prevent and prohibit marriage under

circumstances such as incest. Baehr v. Lewin, 74 Haw. 530,

562 n.19, 852 P.2d 44, 59 n.19 (1993).



16. In Dean v. District of Columbia, 653 A.2d 307 (D.C.App.

1995), two homosexual males filed a complaint against the

District of Columbia which sought an injunction to require

the Clerk of the Superior Court to issue them a marriage

license. The trial court granted summary judgment in favor

of the District of Columbia. On appeal, the District of

Columbia Court of Appeals affirmed the trial court's order

granting summary judgment.



In the Dean case, Judge Ferren wrote a lengthy opinion

concurring in part and dissenting in part, and in which the

majority joined in part.



Judge Ferren would have reversed summary judgment and

remanded the case for trial to decide (1) the level of

scrutiny constitutionally required, and (2) whether the

District of Columbia has demonstrated a compelling or

substantial enough governmental interest to justify

refusing plaintiffs a marriage license. The portion of

Judge Ferren's opinion which deals with the question of

whether the District of Columbia could demonstrate at trial

a substantial or compelling state interest is useful and

informative. In pertinent part, Judge Ferren wrote the

following.





[I]f the 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 else is or does, simply

because it offends majority values without causing concrete

harm, cannot justify inherently discriminatory legislation

against members of a constitutionally protected class -- as

the history of constitutional rulings against racially

discriminatory legislation makes clear.



Suppose, on the other hand, that scientifically credible

"deterrence" evidence were forthcoming at trial, so that

either the heterosexual majority or the homosexual minority

would be prejudiced in some concrete way, depending on

whether the marriage statute was, or was not, available to

homosexual couples. In that case, the ultimate question of

whose values should be enforced, framed in terms of what a

substantial or compelling state interest really is, would

pose the hardest possible question for the court as

majority and minority interests resoundingly clash.





Dean at 653 A.2d at 355-356 (1995) (footnotes omitted).



17. In this case, the evidence presented by Defendant does

not establish or prove that same-sex marriage will result

in prejudice or harm to an important public or governmental

interest.



18. Defendant has not demonstrated a basis for his claim of

the existence of compelling state interests sufficient to

justify withholding the legal status of marriage from

Plaintiffs.



As discussed hereinabove, Defendant has failed to present

sufficient credible evidence which demonstrates that the

public interest in the well-being of children and families,

or the optimal development of children would be adversely

affected by same-sex marriage. Nor has Defendant

demonstrated how same-sex marriage would adversely affect

the public fisc, the state interest in assuring recognition

of Hawaii marriages in other states, the institution of

traditional marriage, or any other important public or

governmental interest.



The evidentiary record presented in this case does not

justify the sex-based classification of HRS 572-1.



Therefore, the court specifically finds and concludes, as

a matter of law, that Defendant has failed to sustain his

burden to overcome the presumption that HRS 572-1 is

unconstitutional by demonstrating or proving that the

statute furthers a compelling state interest.



19. Further, even assuming arguendo that Defendant was able

to demonstrate that the sex-based classification of HRS

572-1 is justified because it furthers a compelling state

interest, Defendant has failed to establish that HRS 572-1

is narrowly tailored to avoid unnecessary abridgments of

constitutional rights. Nachtwey v. Doi, 59 Haw. 430, 435,

583 P.2d 955, 958 (1978) (citations omitted) (quoting San

Antonio School District v. Rodriquez, 411 U.S. 1, 16-17, 93

S.Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973).



20. If any of the above conclusions of law shall be deemed

findings of fact, the court intends that each such

conclusion be construed as a finding of fact.



21. Based on the foregoing, in accordance with the mandate

of the Hawaii Supreme Court, and applying the law to the

evidence presented at trial, judgment shall be entered in

favor of Plaintiffs Ninia Baehr, Genora Dancel, Tammy

Rodrigues, Antoinette Pregil, Pat Lagon and Joseph Melillo

as follows:





IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:



1. The sex-based classification in HRS 572-1, on its face

and as applied, is unconstitutional and in violation of the

equal protection clause of article I, section 5 of the

Hawaii Constitution.



2. Defendant Lawrence H. Miike, as Director of Department

of Health, State of Hawaii, and his agents, and any person

in acting in concert with Defendant or claiming by or

through him, is enjoined from denying an application for a

marriage license solely because the applicants are of the

same sex.



3. To the extent permitted by law, costs shall be imposed

against Defendant and awarded in favor of Plaintiffs.



DATED: Honolulu. Hawaii. December 3, 1996.



KEVIN S. C. CHANG

Judge of the Above-Entitled