The Nine States' Brief

No. 20371

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILLO,

Plaintiffs-Appellees,

LAWRENCE H. MIIKE, in his official capacity as Director of the Department of Health, State of Hawaii,

Defendant-Appellant.

Civil No. 91-1394-05

(Injunctions)

APPEAL FROM THE FINDINGS OF
FACT AND CONCLUSIONS OF LAW
FIRST CIRCUIT COURT
THE HONORABLE KEVIN S.C. CHANG

SUPPLEMENTAL BRIEF OF AMICI CURIAE STATES OF ALABAMA
CALIFORNIA, COLORADO, IDAHO, MISSISSIPPI,
NEBRASKA, SOUTH CAROLINA, SOUTH DAKOTA
AND UTAH

CERTIFICATE OF SERVICE
AND ATTORNEYS FOR AMICI CURIAE STATES

Don Sternberg Attorney General State of Nebraska	ASHFORD & WRISTON Robert Bruce Graham, Jr., #1305 1099 Alakea Street, 10 Floor Honolulu, HI 96813 Tel: (808) 539-0400
L. Steven Grasz^* ^{Deputy Attorney General} ^{State of Nebraska} ^{2115 State Capitol} ^{Lincoln, NE 68509} ^{Tel: (402) 471-2682}
Bill Pryor Attorney General of Alabama Office of the Attorney General State House 11 South Union Street Montgomery, AL 36130	Don Stenberg Attorney General of Nebraska Office of the Attorney General Department of Justice 2115 State Capitol Lincoln, NE 68509
Mike Moore Attorney General of Mississippi Office of the Attorney General Department of Justice Post Office Box 220 Jackson, MS 39205-0220	Mark Barnett Attorney General of South Dakota Office of the Attorney General 500 East Capitol Pierre, SD 57501-5070
Jan Graham Attorney General of Utah Office of the Attorney General State Capitol, Room 236 Salt Lake City, UT 84114-0810	Gale Norton Attorney General of Colorado Office of the Attorney General Department of Law 1525 Sherman Street Denver, CO 80203
Daniel Lungren Attorney General of California Office of the Attorney General 1300 I Street, Suite 1740 Sacramento, CA 95814	Charlie Condon Attorney General of South Carolina Office of the Attorney General Rembert C. Dennis Office Building Post Office Box 11549 Columbia, SC 29211-1549
Alan Lance Attorney General of Idaho Office of the Attorney General Statehouse Boise, ID 83720-1000	^* Counsel of Record (Admiited pro hac vice)

TABLE OF CONTENTS
TABLE OF AUTHORITIES
I. Statement of the Question Presented
II. Argument
II A. Introduction
II B. The Concept of "Prospective Application" is not Relevant in the Context of Voter Reaffirmation and Constitutional Codification of Existing Marriage Law.
II C. The Recognition of Even a Small Number of Same-Sex "Marriages" Would Offend Hawaii's Compelling Comity Interest in Maintaining a Definition of Marriage That is Consistent With That Accepted in all 49 Other States
Certificate of Service

TABLE OF AUTHORITIES

Cases

Parke v. Parke, 25 Haw. 397 (1920)

Other Authorities

Syposium on Interjurisdictional Marriage Recognition (multiple authors and articles), 32 Creighton L. Rev. 1-485 (Oct. 1998)

I. STATEMENT OF THE QUESTION PRESENTED

Whether Hawai'i has a compelling State interest in maintaining harmonious relations with other States concerning interjurisdictional marriage recognition regardless of whether the recent marriage amendment is deemed to be prospective, retrospective, or merely a reaffirmation of existing marriage law.

II. Argument

A. Introduction

The States of Nebraska, Alabama, California, Colorado, Georgia, Idaho, Michigan, Mississippi, Missouri, South Carolina, South Dakota and Utah submitted an amicus curiae brief in support of the Defendant-Appellant in this case. The brief of the amici curiae States focused on the comity interests of the States; the interest of Hawai'i in maintaining a definition of marriage that is consistent with that accepted in all 49 of Hawai'i's sister States; the interest in interjurisdictional recognition of marriages; and the interest in avoiding nationwide constitutional litigation.

On November3,1998, the voters of Hawai'i approved a constitutional amendment affirming the authority of the Hawai'i legislature to reserve marriage to opposite-sex couples. Nearly 70% of Hawai'i voters favored the amendment.

On November 23, 1998, this Court entered an order taking judicial notice of the election results and requesting supplemental briefing from the parties as to "the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal." The Court further ordered that any amicus curiae of record may file a supplemental brief on this issue.

This supplemental brief of amici curiae States will focus on the common interests of Hawai'i and its sister States concerning interjurisdictional marriage recognition in light of the question presented.

B. The Concept of "Prospective Application" is not Relevant in the Context of Voter Reaffirmation and Constitutional Codification Of Existing Marriage Law.

No State currently recognizes same sex "marriage", and no State ever has. In voting to amend the Hawai'i constitution on November 3, 1998, it seems clear that the voters of Hawai’i merely reaffirmed the authority of the Hawai'i legislature to reserve marriage to opposite-sex couples. This vote was a reaffirmation of longstanding precedence in the face of a possible radical departure from the understanding of "marriage" and "equal protection" by the case now before the Court. The result of the vote does not present the question of whether the amendment's application will be prospective or retrospective; it simply guides the Court's interpretation of the existing marriage law and further underscores the State's compelling interest in maintaining traditional marriage.

C. The Recognition of Even a Small Number of Same-Sex "Marriages" Would Offend Hawai'is Compelling Comity Interest in Maintaining a Definition of Marriage That is Consistent With That Accepted in all 49 Other States.

A finding by the Court that the amendment settles the questions raised in this proceeding would advance the interests of the State of Hawai'i and other States in the union. The amici States are concerned with the Court's ruling on this matter because the question presented for supplemental briefing raises the specter of the State of Hawai'i being forced to issue and recognize marriage licenses to the Plaintiff-Appellees, or perhaps certain other same-sex couples, despite the existing Hawai'i marriage law, and notwithstanding the recent constitutional amendment affirming the will of Hawai'i voters on this issue. Such a result would not only be an affront to democratic government, but would have other serious consequences that would offend compelling interests of the State of Hawai'i. By recognizing even a small number of same-sex "marriages", the State of Hawai'i would be jeopardizing its comity interests vis a vis the other 49 States because same-sex couples with Hawai'i marriage licenses would have the potential to instigate disruptive and resource consuming constitutional litigation throughout the United States over the interjurisdictional recognition of their "marriage."

Hawai'i continues to have a compelling interest in "mak[ing] of marriage a homogenous, stable and certain institution." Parke v. Parke, 25 Haw. 397, 404 (1920). It would be contrary to this compelling State interest to adopt a drastic redefinition of marriage, even for a limited number of couples, that would cause significant strains on interjurisdictional marriage recognition in the United States. See Syposium on Interjurisdictional Marriage Recognition, 32 Creighton L. Rev. 1-485 (Oct. 1998) (multiple authors and articles).

Respectfully submitted this 23^rd day of December, 1998.

                                                            ROBERT BRUCE GRAHAM, JR.
                                                            BY     DON STENBERG
                                                                      Attorney General of Nebraska

                                                                                BY     L. Steven Grasz
                                                                                          Deputy Attorney General
                                                                                       State of Nebraska
                                                                                          2115 State Capitol
                                                                                          Lincoln, NE 68509
                                                                                          Tel: (402) 471-2682

Counsel for Amici States

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