Case Summaries

Baehr v. Miike (Baehr II),
994 P.2d 566 (Haw. 1999)(unpublished)

(Hawaii Supreme Court, Dec. 9, 1999)

On November 3, 1998, Hawai`i voters passed a Marriage Amendment to their Constitution. This Amendment reads as follows: “The legislature shall have the power to reserve marriage to opposite-sex couples.” It passed by a margin of 69 to 31 percent. The goal of the Amendment was to overturn the efforts of Hawaii courts to mandate the legalization of same-sex “marriage.”

In 1996, a Circuit Court had declared the marriage law unconstitutional. But the trial court had put a stay on its ruling, pending appeal back to the Hawai`i Supreme Court. The Court had continued that stay, and did not act on the appeal before the Amendment was ratified. Shortly thereafter, the Supreme Court invited all the parties and amici to submit supplement briefs which would explain the meaning of the Amendment and how it should apply to the Baehr case.

The supplemental briefs were filed on December 23, 1998. The Court was silent until this week.

The Decision of the Supreme Court

The Court issued a four-page summary disposition signed by three Justices (Moon, Levinson, Nakayama) and one Judge (Burns, sitting in for Justice Klein, who had earlier recused himself). The Court announced it was taking “judicial notice” of the Marriage Amendment (at 1). It then announced that in light of the passage of the Marriage Amendment, the case was moot. It reversed the Circuit Court’s decision and directed it to enter judgment in favor of the State (at 4). Justice Ramil joined in the result, and offered a separate concurrence (for summary, see below).

The Reasoning of the Summary Disposition

The Text. According to the Court, the passage of the Marriage Amendment took the marriage statute out of “the ambit of the equal protection clause . . . insofar as the statute” limited marriage to opposite-sex couples (at 2). “Whether or not” the statute was constitutional in the past, the law had been given “new footing” by the Amendment, and therefore it “must be given full force and effect” (at 3). The Court characterized the plaintiffs’ case as “limited” inasmuch as they were only seeking a marriage license and the resultant marital status. Since the Amendment made the marriage license statute valid, this very specific relief was not available to plaintiffs (at 3). The Court concluded by issuing its order reversing the Circuit Court’s decision (at 4).

The Footnote. In an extended footnote on page 3, the Court responded to Justice Ramil’s concurrence in two respects. First, the Disposition disagreed with Ramil’s view that the Court’s original 1993 decision (Baehr I) redefined marriage to include same-sex unions. Second, the Court argued that even if the statute classified on the basis of “sexual orientation” rather than “sex” (as Ramil argued), the statute would still merit strict scrutiny. This is so, the Disposition opined, because the proceedings of the 1978 Constitutional Convention indicated that the Hawai’i equal protection clause’s use of the term “sex” included “sexual orientation.”

The Reasoning of the Concurrence

Justice Ramil concurred in the result of the Court but wrote separately to criticize the Baehr I decision. He also took issue with the Disposition’s reasoning as to the meaning of their decision.

First, Ramil argued that in Baehr I the Court wrongly inserted itself into the marriage debate by defining marriage to include same-sex couples, despite the plain meaning of marriage as the union of a man and a woman (at 1). He also argued that the marriage statute classified not on the basis of “sex,” as Baehr I had claimed, but on the basis of “sexual orientation” (at 1, note 1). Nothing in the history of the Constitution or society of Hawai’i supported the Court’s decision, and Baehr I was decided without considering the intent of the Constitution’s framers (at 3-4). The decision whether or not to recognize same-sex “marriage” is a policy decision that should be left to the people. In Baehr I, the Court usurped the authority of the people of Hawai’i (at 2).

Second, Ramil criticized the Disposition in several respects. He disagreed that the Marriage Amendment put the marriage statute on “new footing,” arguing that the statute had always been constitutional. He also criticized the Court for not explicitly overruling Baehr I.

Good News, Bad News: Some Observations

The good news about the Disposition is that it does what it needs to do: it ends the Baehr case.

The bad news is that it does so without explicitly resolving most of the issues presented to the Court in briefs, and, worse, it complicates the meaning and implications of Baehr I with its footnote. There were at least four issues presented to the Court in the briefs filed by both sides:

(1) Is the Marriage Amendment retroactive? The Court declined to explicitly answer the question. It said that the Marriage Amendment “validated” the statute and placed it “on new footing” (at 2). But it stopped there, stating that “whether or not” the statute was ever unconstitutional, given the Marriage Amendment, it no longer is, and plaintiffs claims are moot. The most one can say, evidently, is that for all practical purposes the statute was always valid.

(2) Is the Marriage Amendment self-executing, or must the Legislature re-pass the statute? This is the one question the Court appears to have answered, although it did not do so directly. It said, “In light of marriage amendment, [the statute] ‘must be given full force and effect’” (at 3). It also states that “Inasmuch as [the statute] is now a valid statute, the relief sought by the plaintiffs is unavailable” (at 3). So it would appear that the Amendment speaks for itself.

(3) Does the Marriage Amendment encompass both licenses and benefits? Here the language of the Disposition gets more slippery. On the one hand, the Court characterizes the plaintiffs’ claims as “access to applications for marriage licenses and the consequent legally recognized marital status” (at 3). This suggests that “status” is the consequence of a “license.” On the other hand, the Court states that “The plaintiffs seek a limited scope of relief in the present lawsuit,” which suggests a contrast with a “wider” scope of relief. It is hard to know what that “wider” scope might be, besides access to all the benefits that flow from marital status. The question becomes: is “status” inseparable from benefits (absent legislative action) or not? It is difficult to get the sense of the Court’s comments here.

(4) Is Baehr I overruled? One possible clue - but not a happy one - to answering (3) is to look at the question, “Does Baehr I live?” We have already seen that Justice Ramil seems convinced that the Disposition’s failure to overrule Baehr I means that the 1993 decision stands. Is that so?

In the text of the Disposition, not counting the footnote, there is no mention of Baehr I. (From the text, one would have no idea that the case existed prior to the lower court trial in 1996.)

In the footnote on p. 3, however, the Disposition strongly disputes Justice Ramil’s concurrence in confusing ways. First, the Court accuses Ramil of mis-reading the Baehr I opinion, and insists that the 1993 decision recognized that the marriage statute required a man and a woman. Since Ramil’s concern appears to be with the implications of their ruling, we could therefore see this as the Court’s way of denying that Baehr I was a straight path to same-sex “marriage.”

This is cold comfort, however, in light of their second point. They also state that if Ramil is correct that the statute classifies on the basis of “sexual orientation,” rather than “sex,” even so it would have been subject to strict scrutiny “prior to the ratification of the marriage amendment,” because the term “sex” includes “sexual orientation.” (For this dubious proposition, they offer only cites to the 1978 Constitutional Convention proceedings and a brief by Lewin in 1992.) This suggests that the Court may now view sexual orientation as a suspect classification for purposes of equal protection analysis under Art. I, Sec. 5 of the Hawai`i Constitution.

Granted, the Marriage Amendment took 572-1 “out of the ambit of the equal protection clause of the Hawai’i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples” (at 2). But what about all the other statutes which confer rights, duties and benefits based on marital status? Are these now subject to strict scrutiny because they, too Adiscriminate on the basis of sexual orientation”? If the Court also concludes that licenses are separable from benefits, then one can see where this leads.

Conclusion

Without question, the reversal of the Circuit Court’s 1996 opinion is a tremendous victory. The Court’s affirmation that the passage of the Amendment speaks for itself is also a great victory. However, there remain important outstanding questions about the continuing force of Baehr I and the Court’s future approach to licenses, benefits, and “sexual orientation.” Stay tuned!

 

The court’s full decision may be viewed at http://www.state.hi.us/jud/20371.htm

 

Date: December 1999