NO.20371

I. Defendant-Appelant's Uncontested Arguments Warrant Reversal Of The Circuit Court

Plaintiff-Appellees ("P1aintiffs") do not contest arguments II.A or II.B of Defendant-Appellant's ("Defendant") Supplemental Brief, either of which, standing alone, requires that the Circuit Court's judgment be reversed. Argument II.A makes clear that under the plain text of the Hawaii State Constitution, any law "in force at the time amendments to this Constitution take effect" shall remain in force if "not inconsistent with the constitution as amended." Haw. Const. art. XVIII, § 9 (emphasis added). As Hawaii Revised Statute ("HRS") § 572-1 is no longer even arguably inconsistent with the constitution "as amended," it therefore remains good law today. See Defendant's Supp. Br. at 6-7. Likewise, Defendant's argument II.B demonstrates that under the well-established case law of the United States Supreme Court and several state supreme
courts, regardless of whether a statute once was unconstitutional in some of its applications, the statute must be given its full force and effect where, as here, any arguable constitutional impediment is subsequently lifted. See Defendant's Supp. Br. at 7-14. Under either or both of these arguments, HR5 § 572-1, as currently written, is the operative law of Hawaii, and thus prohibits the issuance of marriage licenses to same-sex couples.

II. The Court Must Apply The Equal Protection Clause As It Exists Today To Plaintiffs' Claim For Prospective Relief.

    Plaintiffs nonetheless argue that even though the legislature is now free to reenact HRS § 572-1, the statute is, today, somehow in violation of the Hawaii State Constitution's Equal protection Clause, Haw. Const. art. 1, § 5. The aruments set forth in part I, supra, alone suffice to refute this claim. In addition, under well-established legal rules, this Court must apply the Equal Protection Clause as it currently stands, pursuant to which HRS § 572-1 is beyond constitutional reproach.
 

A. HRS § 572-1 Does Not Violate The Equal Protection Clause.

    In Plaintiffs' complaint, they ask the Court to enjoin the State from "deny[ing] an application for a marriage license solely because the applicant couple is of the same sex."  Complaint For Injunctive And Declaratory Relief at 4 (May 1,1991). Both this Court and the United States Supreme Court have made clear, however, that in
evaluating this claim, the Court is obliged to apply the Equal Protection Clause as it is currently written. SeeNuuanu Neighborhood Ass'n v. Department af Land Utilization, 63 Haw. 444, 446, 620 P.2d 107, 109 (1981); Landgraf v. USI Film Prods., 511 U.S. 244, 273-74 (1994).  As this Court explained in Nuuanu Neighborhood, "'[i]t is well-established that, absent special circumstances, an appellate court will decide an appeal on the law as it exists at the time of its decision.'" 63 Haw. at 446, 630 P.2d at 109 (citation omitted). See also Landgraf, 511 U.S. at 273-74. Thus, whether the Equal Protection clause did or did not prohibit same-sex marriages in the past is irrelevant: the only question is whether it does so today.

    In light of the marriage amendment, it simply cannot be argued that HRS § 572-1 conflicts with the Equal Protection Clause as it stands today. The marriage amendment,by expresS terms, provides that "the legislature shall have the power to reserve marriage to opposite-sex couples." Haw. Const. art. I, § 23. Thus, any interpretation of the Equal Protection Clause that invalidated HRS § 572-1 — that is, any interpretation of the Equal Protection Clause that prohibited the State from banning same-sex marriage - would bring that clause into direct conflict with the marriage amendment. It is axiomatic, however, that "constitutional provisions relating to the same subject matter must be construed together and harmonized if conflicts appear." Copeland v. State, 490 S.E.2d 68, 71 (Ga. l997); see also Stale v. Jumila, 87 Haw. 1, 11, 950 P.2d 1201, 1211 (1998)(quoting Kam v. Noh, 70 Haw. 321, 326-27, 770 P.2d 414, 417-18 (1989)("'[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'"). Accordingly, it simply cannot be maintained that HRS § 572-1 violates the Equal Protection Clause as it currently stands.

    Plaintiffs' argue that future law banning same-sex marriage could not apply to this case because such application would opcrate "retroactively to validate [a] previous (and then-unconstitutional) denial of a marriage application."  Plaintiffs' Supp. Br. at 13.  This, of course, is irrelevant. It cannot be disputed that current law prohibits the State from issuing plaintiffs a marriage license. Moreover, this application of current law is not retroactive. Notwithstanding Plaintiffs' strident arguments to the contrary, see Plaintiffs' Supp. Br. at 10, they are seeking prospecttve relief in the form of an injunction and a declaratory judgment. Indeed, their complaint is entitled a "Complaint For Injunctive And Declaratory Relief." And as Landgraf and Nuuanu Neighborhood make crystal clear, "relief by injunction operates in futuro,'" and, therefore, "is not retroactive." Landgraf, 511 U.S. at 273-74 (citation omitted).

    The issue, in other words, is not whether the State lawfully denied plaintiffs a marriage license in the past, but whether this Court can compel the State to issue them a marriage license in the future. Plaintiffs are in no different position than a same-sex couple that, today, files suit for an injunction ordering the issuance of a marriage license:  Both couples seek an order awarding prospective relief. And as to the question whether either couple is entitled to such relief, Landgraf and Nuuanu Neighborhood are dispositive: Because the Equal Protection Clause as it currently stands does not grant same-sex couples a right to a marriage license, this Court is simply without authority to order the State to issue one.

    That such an application of current law is not retroactive can be illustrated by a simple example. Suppose that a state initially required applicanis for a marriage license to be fourteen years of age; that state officials erroneously denied a license to two fourteen-year-old applicants; and that, while the couple, now fifteen-years-old, was suing to force the state to issue a license, the state changed the law to require applicants to be sixteen-years-old. Landgraf and Nuuanu Neighborhood make clear that in light of the new law, this couple would not be entitled to a marriage license, notwithstanding that they were wrongfully denied one in the first place. Whether or not they once had a right to a license is irrelevant; the only question is whether the court has the authority to compel the state to issue them a marriage license today - an authority that can only be derived from current law. To be sure, a fourteen-year-old couple that had 1awfully obtained a marriage license under the old law could not, under the new law, be deprived of that license without the new law applying retroactively.  Such an application of the new law would deprive the couple of something that they already had - a marriage license.¹Absent this, however, the couple is not deprived of a marriage license but, at best, of the mere expectation of one. The new law simply has not, in the words of Justice Story, "take[n] away or impair[ed] vested rights acquired under existing laws, or create[d] a new obligation, impose[d] a new duty, or attache[d] a new disability, in respect to transactions or considerations already past," Employees Retiremeni Sys. v. Chang, 42 Haw. 532, 535 (1958), and therefore, has not operated retroactively.² So too here, regardless of whether PlaintiffS previously had a constitutional right to a marriage license, they do not have one today, and the Court is therefore without authority to force the State to issue one.³

In sum, the issue before the Court is whether HRS § 572-1 conflicts with the Equal Protection Clause today. It does not. Nor does it apply retroactively in this case.  Therefore, the judgment of the Circuit Court must be reversed.
 

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1.  To the extent that Plaintiffs argue that they have a vested right to a marriage license because they received a favorable ruling in the court below, see Plaintiffs' Supp. Br. at 12, they are simply wrong. Such a rule would, of course, effectively mean that erroneous lower court decisions could never be reversed, as the party that prevailed in the lower court would always have a vested right to
judgment in his or her favor. This, however, would be fundamentally
inconsistent with the notion of "de novo" review. Thus, as far as this appeal is concerned, Plaintiffs are in no different a position than if they had lost in the court below.

2.  Justice Story's definition of "retroactivity" likewise illustrates why plaintiffs' theory that they have been retroactively deprived of a "non-vested privilege," purportedly based on Graham Constr. Supply v. Schrader Constr., 63 Haw. 540, 632 P.2d 649 (19S1), is specious. Contrary to Plaintiffs' patent misrepresentation, Graham did not "hold[] that a law would have unpermissible retroactive effect if it infringed on plaintiff's 'non-vested privilege[.]'" Plaintiffs' Supp. Br. at 13; see also id. at 14. To the contrary, the only mention of the notion of a "non-vested privilege" came in the Court's characterization of the defendant's argument, see 63 Haw. at 545,632 P.2d at 652, and not in anything that could, in good faith, be construed as the Court's holding. More importantly, however, Graham addressed a new law that, unlike this one, would obviously have operated retroactively. There, the new law eliminated plaintiff's pre~existing right to payment for transactions that had already been completed prior to the enactment of the new law, and, as a result, attached a "new disability" to transactions "already past." Id. at 545-46. Here, there is simply no past transaction that is affected by the change in law: the only issue is whether current law can compel a future transaction, i.e., the issuance of, a marriage license. Finally, if Plaintiffs have an inviolable "non-vested privilege" to a same-sex marriage license, then so does every other citizen of Hawaii — a result that would render the marriage amendment an absolute nullity.

3.  Because application of current law to this case has no retroactive effect at all (much less an impermissible one), Plaintiffs' citation of cases that prohibit "harsh and oppressive" retroactive laws as a matter of due process is irrelevant. See Plaintiffs' Supp. Br. at 14.
 

B. The Intent Of The Framers In Drafting And Of The People In Ratifying The Marriage Amendment Was Not To Require The Reenactment Of HRS § 572-1.

    In light of these well-established principles, Plaintiffs bear the enormous burden of showing that in enacting the marriage amendment, the voters and legislators intended to reverse settled legal rules and, instead, adopt a strange theory of constitutional interpretation under wbich an identically worded statute would violate the Equal Protection Clause if passed on one day but not if passed on the next.  The sole evidence upon which they rely in order to advance this theory are the words "shall have" in the marriage amendment and a publication put out by the Office of Elections explaining that amendment.⁴ Neither of these sources, however, even remotely satisfy Plaintiffs' burden of demonstrating such a counterintuitive intention on the part of the electorate.  To the contrary, as Defendant demonstrated in its opening supplemental brief, the evidence of the framers' and voters' intent (largely ignored by Plaintiffs) is unequivocal: the purpose of the marriage amendment is to validate current law. See Defendant's Supp. Br. at 14-18.

    The phrase "shall have" does not even begin to prove that in enacting the marriage amendment, the People of Hawaii intended that HRS § 572-1 would have to be reenacted. Indeed, it cannot even support Plaintiffs' more limited (and irrelevant) assertion that the legislatLire "lacked [the power to limit marriage to opposite-sex couples] at the time [they) were improperly denied marriage licenses."  Plaintiffs' Supp. Br. at 4.  It is far more likely given the context in which the marriage amendment was enacted, that this language was meant to clarify explicitly a power that the legislature already had implicitly. Even more fundamentally, however, it seems obvious that the legislature chose the phrase "shall have" not to endorse the bizarre theory advanced by Plaintiffs, but because that is the language of constitutions. Indeed, the phrase "shall have" appears over 50 times in the Hawaii Constitution (and the word "shall" approximately 530 more times), frequently in precisely the same context as it appears in the marriage amendment.⁵ See,e.g., Haw Const. art. III, § 19 {"The house of representatives Shall have the sole power of impeachment"); Haw. Const. art. V, § 1 ("The executive power of the State Shall be vested in a governor"); Haw Const. art. VI, § 1 ("The judicial
power of the State Shall be vested in one supreme court"); Haw. Const. art. IX, § 8 ("The State Shall have the power to promote and maintain a healthful environment"). The same is true of the United States Constitution. See, e.g.. U.S Const. art. I, § 8 ("The Congress Shall have Power To lay and collect Taxes."); U.S. Const. art. II, § 2 (The President "shall have Power . . . to make Treaties"); U.S. Const. art. Ill, § 2 ("In all Cases affecting Ambassadors . . . the supreme Court shall have original jurisdiction."). It is simply fanciful, then, to argue that the phrase "shall have" carries the enormous significance which Plaintiffs ascribe to it.

Nor does the Office of Elections publication support Plaintiffs' theory. The portions of the publication cited by plaintilfs do not clearly addess whether HRS § 572-1 need be reenacted, and other portions not cited by Plaintiffs actually undermine the assertion. For example, in its "EXPLANATION OF PROPOSED AMENDMENT," the publication states that "[t]he proposed amendment is intended to make it absolutely clear that the State Constitution gives the Legislature the power and authorit to reserve marriage to opposite-sex couples." plaintiffs' Supp. Br., Appendix A-5 (emphasis added). The only reason for this statement, particularly the phrase "absolutely clear," is to explicitly clarify a power that the legislature already had (albeit perhaps not "clearly").  Otherwise, it would have sufficed to say that the proposed amendment is intended "to add," or "to grant," or to "confer upon the legislature," the power the prohibit same-sex marriages.

    In contrast to this equivocal evidence, every other source of the meaning of the marriage amendment -- including the well-publicized debates, newspaper articles, and a publicly enacted law —- conveys unambiguously that the purpose of the marriage amendment is to validate existing law.⁶ These sources are reviewed in detail in Defendant's opening supplemental brief, see Defendant's Supp. Br. at 14-18) and that analysis will not be repeated here. But suffice it to say that on this question, even Senators Chumbley and Matsunaga, upon whom Plaintiffs heavily rely in other portions of their brief, see Plaintiffs' Supp. Br. at 20-23, spoke precisely and without contradiction. Thus, in a published newspaper article that they co-authored, tellingly titled "Marriage Amendment Not Meant To Mislead," they explained to the public the meaning of the version of the marriage amendment passed by the legislature and later ratified by the voters:
 

A "yes" vote supports allowing the Legislature to restrict marriage to opposite-sex couples. In 1994, the Legislature passed such a law; therefore, if the amendment passes, the 1994 law becomes valid.

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4.  Plaintiffs actually go so far as to assert that, under this Court's decision in Kahlekai v. Doi, 60 Haw. 324, 590 P.2d 543(1979), this is the only evidence that the Court can consider in evaluating the meaning of the marroage amendment. See plaintiffs' Supp. Br. at 5. Kahlekai, however, does not even arguably support this assertion. Indeed, that case had absolutelynothing to do with the substantive meaning of an amendment, but instead addressed the completely distinct (and, for purposes of the current case, irrelevant) question of whether an amendment was validly enacted at all. See, e.g., 60 Haw. at 345-46, 590 P.2d at 557.

5.  In contrast, Defendant could not locate a single grant of power to any division or branch of government that used the terms that Plaintiffs would require in order to validate existing law, i.e., "'does have,' 'has,' 'has had,' or 'is empowered.'" Plaintiffs Supp. Br. at 7-8.

6.  Plaintiffs purport to cite "language contained in the Senate draft (but deleted from the conference draft)" that, they claim, would have shown an "express intent" to validate existing marriage law. See PlaintiffS' Supp. Br. at 9 (emphasis added). This language, however, was not "deleted from" the conference draft. Rather, the referenced Senate draft was never even considered by the House, presumably because it contained a clause that would arguably have undermined the very purpose of the amendment that ultimately passed, see H.B. No. 117, 19th Legis., Reg. Sess. (1997) (providing that the State's power to prohibit same-sex marriage "shall be effective only if the laws of the State ensure that the application of this reservation does not deprive any person of civil rights on the basis of sex.") (attached to Plaintiffs' Supp. Br. as Appendix A-3). See Rep. Terrance W.H. Tom, Press Release, Re: Same-Sex Marriage (Feb. 6, 1997) ("The measure passed by the Senate[,] . . . [i]f anything[,] . . . will place a right to same-sex marriage in the Hawaii Constitution."); Editorial, Same-Sex Marriage, Star Bulletin, Mar. 15, 1997, at B2 ("The Senate version... conceivably could nullify the objective of banning same-sex marriage."). The only draft from which there were any "deletions" was that offered by the House on April 9, 1997, which, with minor changes, ultimately became the law. Compare H.B. 117 C.D. 1 Proposed 2, l9th Legis., Reg. Sess. (Apr. 9, 1997), with Conference Comm. Report No. 1, re: H.B. 117, S.D. 1, CD. 1 19th Legis., Reg. Sess. (Apr. 18, 1997). See generally David Orgon Coolidge, The Hawai`i Marriage Amendment: Its Origins, Meaning, and Constitutionality (fortbcoming in the University of Hawai`i Law Review) (manuscript at 27-81, on file with author) (reviewing legislative history in detail).  What the Senate draft does show, however, is that the Senators themselves understood that, at the very least, the phrase "shall have the power" would serve to validate Hawaii's existing marriage law. See Defendant's Supp. Br. at 17-18 n.7.

III. The Court Should Not Address Whether Unmarried Same-Sex Couples Are Constitutionally Entitled To Marital Rights And Benefits.

    This court cannot address the issue to which plaintiffs devote a substantial portion of their brief, viz., that notwithstanding the marriage amendment, "it is sex discrimination under the equal protection clause of the Hawaii Constitution to deny same-sex couples access to the rights and benefits concomitant with marriage," Plaintiffs' Supp. Br. at 17. See also Brief of Amicus Curiae of the American Civil Liberties Union of Hawaii Foundation ("ACLU Br."). First of all, this issue is beyond the scope of the Court's supplemental briefing order, which ordered briefing only on "the retrospective and prospective effect, if any, of the marriage amendment upon the disposition of this appeal." Order, November 23, 1998. Indeed, Plaintiffs concede as much.  See Plaintiffs' Supp. Br. at 24 n.7 ("This is quite different from the question on whether or not the constitutional amendment is prospective or retrospective."). It would certainly be unwise for this Court to address this issue without the benefit of full briefing. More importantly, however, this issue has never been and is not now a part of this case.  Plaintiffs have never sought any of the marital "rights and benefits" of which they now complain. Nor, as far as the record shows, have they ever been denied any. Indeed, their complaint makes absolutely no mention of any such rights and benefits. See Complaint For Injunctive And Declaratory Relief (May 1, 1991). To the contrary, the only relief that Plaintiffs have sought is declaratory and injunctive relief prohibiting the State from denying "a marriage license solely because the applicant couple is of the same sex." Id. at 4.  Thus, the issue of the denial of anything other than a marriage license is simply not before the Court at this time.  In any event, in light of the marriage amendment, a hypothetical same-sex couple simply could not credibly argue that the State's refusal to confer upon them marital rights and benefits is unconstitutional discrirninafion on the basis of their sex.  This is so for the simple reason that the State's denial of such rights and benefits has absolutely nothing to do with the sex of the couple, but instead, with their marital status.  In other words, a same-sex couple would be denied marital rights and benefits for precisely the same reason as would an unrnarried opposite-sex couple, or for that matter, a parent and child living together: because they are not married. Nor could the hypothetical same-sex couple bootstrap a sex-discrimination argument through the statutory prohibition on same~sex marriages, for it can no longer be argued that that prohibition discriminates on the basis of sex. Indeed, such an interpretation of the Equal Protection Clause would render the marriage amendment a nullity, which this Court is bound not to do. See, e.g., Copeland, 490 S.E.2d at 71; Jumila, 87 Haw. at 1,950 P. 2d at l2ll.⁷

    In addition, the plain terms of the marriage amendment authorize the legislature to reserve marital rights and benefits to married couples. That amendment gives the legislature the power to "reserve marriage to opposite-sex couples."  Haw. Const. art. I, § 23. And as the plurality has already made clear (in the very opinion that prompted the drafting of the marriage amendment), the term "marriage" includes all of the rights and benefits incident to the marital relation:

    Marriage is a state-conferred legal partnership status, the existence of which gives rise to a multiplicity of rights and benefits reserved exclusively to that particular relation. . . .

     By its very nature, the power to regulate the marriage relation includes the power to determine the requisites of a valid marriage contract and to control the qualifications of the contracting parties, the forms and procedures necessary to solemnize the marriage, the duties and obligations it creates, its effect upon property and other rights, and the grounds for martital dissolution.

    In other words, marriage is a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship.

    Nor is the legislative history of the amendment, upon which Plaintiffs so heavily rely, to the contrary. See Plaintiffs' Supp. Br. at 20-24. Indeed, the legislature actually rejected a senate draft that would have explicitly limited the marriage amendment to "the power to regulate the issuance of marriage licenses." Senate Judiciary Committee, "For Immediate Release" (Apr. 8, 1997). Instead, it adopted the broader "power to reserve marriage" (and, as discussed above, its incidental rights and benefits) "to opposite-sex couples." Haw. Const. art. 1, § 23. Moreover, the three statements cited by P1aintiffs are of senators who, from the beginning, were hostile to the marriage amendment and all of whom supported the rejected draft that would have been limited to "marriage hcenses;" Plaintiffs can cite no similar statements from other senators, or from any representatives, who might have had a more favorable view of the mamage amendment. In addition, Senator Matsunaga's statement, which is the only one of the three that actually addresses this issue, was not delivered orally to his colleagues, but rather, was inserted into the record in written form at the last possible moment —- April 29, 1997, the day upon which the marriage amendment was finally passed by the legislature. See 1997 Haw. Sen. J. at 764 (Inserted Statement of Sen. Matsunaga) (Apr.29, 1997). Thus, it should be viewed with skepticism. In any event, even if accepted, Senator Matsunaga's statement at most asserts the marriage amendment is silent on the question of marital rights and benefits; it does not purport to resolve the issue.

    In short, the Court should not reach this hypothetical question, but if it does, it should conclude that the marriage amendment forecloses an interpretation of the Equal Protection Clause that would require Hawaii to extend marital rights and benefits to married couples (whether or not they are of the same sex).
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7.  This alone suffices to refute amicus ACLU's argument that the so-called "preservation principle" warrants interpreting the word "marriage" in the marriage amendment to mean "status of marriage" and not the "host of benefits and responsibilities" incident to that status. See ACLU Br. at 7. Regardless of whether the term "marriage" includes "marital benefits" or just "marital status," the reservation of "marital benefits" to those who have attained "marital status" is not discrimination on the basis of sex, but, if anything, on the basis of "marital status." It makes no difference whether the unmarried couple is of the same or different sex: they are not entitled to benefits hecause they are not married. (Thus, neither is the denial of marital rights and benefits to unmarried same-sex couples discrimination on the basis of sexual orientation.). In addition, even as formulated by the ACLU, the "preservation principle" is inapplicable to this case. This canon, if it exists, requires a prior "express reservation of rights already . . . in the Constitution." ACLU Br. at 2 (emphasis added). Whatever else can be said of an unmarried same-sex couple's "right to marital benefits," it is difficult, if not impossible, to conclude that that right has been "expressly reserved" in Hawaii's Constitution. Finally, as discussed in text, the plain meaning of the word "marriage" includes all of tbe rights and benefits incident to marriage. See Baehr v. Lewin, 74 Haw. 530, 558-59, 852 P.2d 44, 58 1993 (plurality opinion). Any so-called "preservation principle," like any other canon of construction, does not authorize a court to depart from this plain meaning.

    For the foregoing reasons, as well as those set forth in Defendant's opening merits and supplemental briefs, the judgment of the Circuit Court should be reversed.
 
 
 

    I hereby certify that on this 1st day of February, 1999, two copies of Defendant-Appellant's Supplemental Reply Brief were served in the manner described on the following counsel of record:
 

By Facsimile and U.S, Mail, postage pre-paid:

Daniel R. Foley
Partington & Foley
Suite 2450, Pacific Tower
1001 Bishop Street
Honolulu, HI 96813

By U.S. Mail, postage pre-paid:

Kirk H. Cashmere
201 Merchant Street
2300 City Financial Tower
Honolulu, HI 96813

Evan Wolfson
Lambda Legal Defense
 and Education Fund, Inc.
120 Wall Street
Suite 1500
New York, NY 10005

/s/ Charles J. Cooper
(Admitted pro hac vice)
Counsel for Defendant-Appellant