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Doc 41 - Abercrombie's Excerpt of Record
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Case: 12-16995 Case: 12-16998

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Nos. 12-16995 & 12-16998 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai ‘i, Defendant-Appellant, and (caption continued on the next page) JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

GOVERNOR ABERCROMBIE’S EXCERPTS OF RECORD VOLUME 1 CERTIFICATE OF SERVICE GIRARDD.LAU 3711 ROBERT T. NAKATSUJI 6743 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau @hawaii.gov Robert.T.Nakatsuji @hawaii.gov • Attorneys for Defendant-Appellant NEIL S. ABERCROMBIE, Governor of the State of Hawai’i
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LORETTA J. FUDDY, Director of Health, State of Hawai ‘i, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor Defendant-Appellee.

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INDEX TO EXCERPTS OF RECORD VOLUME 1 CRIER Tab No. 117 Document Title Order Granting HFF’s Motion for Summary Judgment and Defendant Fuddy’s Motion for Summary Judgment, Denying Plaintiffs’ Motion for Summary Judgment and HFF’s Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie s Motion For Summary Judgment
‘ .

Document Date 08/08/2012

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NATASHA N. JACKSON, JANIN KLEID,) and GARY BRADLEY, ) Plaintiffs, v. NEIL S. ABERCROMBIE, Governor, ) State of Hawaii, and LORETTA J. ) FUDDY, Director of Health, State) of Hawaii, Defendants. and HAWAII FAMILY FORUM, Defendant— Intervenor. Civ. No.

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11-00734 ACK-KSC

) )

____________________________________________________________________________________)

ORDER GRANTING HFF’ S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FUDDY’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND HFF’S MOTION TO DISMISS DEFENDANT ABERCROMBIE, AND DENYING AS MOOT DEFENDANT ABERCROMBIE’S MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

PageD #:

SYNOPSIS PROCEDURAL BACKGROUND FACTUAL BACKGROUND I.
II.

11
..

Same—Sex Marriage in Hawaii Same—Sex Marriage Nationwide

.

III. Federal Defense of Marriage Act IV. The Parties in This Case

STANDARD DISCUSSION I. Defendant Abercrombie’s Status as a Party A. B. II. Sovereign Immunity Article III 28

Baker v. Nelson A. B. The Due Process Claim The Equal Protection Claim

III. The Merits of Plaintiffs’ Claims A. B. C. Perry v. Brown Romer v. Evans Plaintiffs’ Due Process Claim 1. 2. D. Description of the Asserted Fundamental Right •The Nation’s History and Tradition.. 57 59. 63 68 69 70

.

Plaintiffs’ Equal Protection 1. 2. Gender Discrimination Sexual Orientation Discrimination

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E. Rational Basis Review 1. 2. Standard Application a. Plaintiffs’ and Defendant Abercrombie’s Overarching Arguments i. ii. b. The Relevant Question Effect of the Civil Unions Law..
.

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79 79 86 88 88
.

90

Encouraging the Stability of Relationships that Have the Ability to Procreate Naturally 98 Promoting the Ideal, Where Possible, Children Are Raised by Their Mother and Father in a Stable Relationship Cautiously Experimenting With Social Change
.

c.

105 111 116

d. CONCLUSION

ii

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SYNOPSIS
This action is one of multiple lawsuits that have been filed in state and federal courts seeking to invalidate laws that reserve marriage to those relationships between a man and woman. Specifically, Plaintiffs’ complaint asserts that Article 1, Section 23 of the Hawaii Constitution, which provides that “[t]he legislature shall have the power to reserve marriage to oppositesex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violate the Due Process and Equal Protection Clauses of the United States Constitution. The Court is mindful of the Supreme Court’s cautionaty note that “{b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

Thus, “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” U.S. 115, 125 (1992)
. .

Collins v. City of Harker Heights, 503 “This note of caution is especially

important in cases

.

.

where moral and personal passions run

high and where there is great risk that ‘the liberty protected by the Due Process Clause [will] be subtly transformed into the Log Cabin Republicans

policy preferences’ of unelected judges.” v. United States, 658 F.3d 1162, 1174

(9th Cir. 2011)

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(O’Scannlain, J., concurring)

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(second alteration in original)
.

(quoting Glucksberg, 521 U.S. at 720)

In discussing the

importance of judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” 466 P.2d 429, 431 (Haw. 1970) Bissen v. Fujii,.

For the reasons set forth herein, Plaintiffs’ claims are foreclosed by the Supreme Court’s summary dismissal for want of a substantial federal question in Baker v. Nelson, 810 (1972) (mem.)
.

409 U.S.

In Baker, the Supreme Court dismissed an

appeal from the Minnesota Supreme Court’s decision holding that a Minnesota statute that defined marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. See Baker v. Nelson, dismissed, 409 U.S. 191 N.W.2d 185 810 (1972)
.

(Minn. 1971), appeal

Alternatively, Plaintiffs’

claims fail on the merits. The Court first notes that Perry v. Brown, 1052 (9th Cir. 2012), 671 F.3d

a case in which the Ninth Circuit held that

an amendment to the California Constitution that stated “[o]nly

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marriage between a man and a woman is valid or recognized in California” (“Proposition 8”) violated the Equal Protection

Clause of the United States Constitution, does not control this case. The Ninth Circuit repeatedly asserted that its holding was

limited to the unique facts of California’s same-sex marriage history, i.e., “California had already extended to committed

same—sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” Id. at 1064 (“We

need not and do not answer the broader question in this case [The] unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow’ grounds.”)
.

No same—sex couples have been married in Hawaii nor Thus the legislature’s

have ever had, the legal right to do so.

amendment to § 572-1 and Hawaii’s marriage amendment did not take away from same-sex couples the designation of marriage while leaving in place all of its incidents as Hawaii, unlike California, did not have a civil unions law at the time the legislature amended § 572-1 or when the people ratified the marriage amendment. Consequently, this case does not involve the

same unique facts determined dispositive in Perry. Carefully describing the right at issue, as required by both the Supreme Court and Ninth Circuit, the right Plaintiffs

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seek to exercise is the right to marry someone of the same-sex. See Glucksberg, 521 U.S. at 721; Raich v. Gonzales, 500 F.3d 850, 8 63—64 sex, (9th Cir. 2007) The right to marry someone of the same-

is not “objectively, deeply rooted in this Nation’s history See

and tradition” and thus it is not a fundamental right. Glucksberg, 521 U.S. at 720-21

(“[w]e have regularly observed

that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, this Nation’s history and tradition.’
. . .

‘deeply rooted in This approach tends

to rein in the subjective elements that are necessarily present in due-process judicial review”) Kandu, 315 B.R. 123, 140 (citations omitted); In re

(Bankr. W.D. Wash. 2004)

(holding that

because same—sex marriage is not deeply rooted in the history and tradition of our Nation, it is not a fundamental right)
.

Because

a fundamental right or suspect classification is not at issue, Plaintiffs’ due process claim is subject to rational basis review. Plaintiffs’ equal protection claim is aláo subject to rational basis review. Hawaii’s marriage laws do not treat males

and females differently as a class; consequently, the laws do not discriminate on the basis of gender. The United States Supreme

Court has never held that heightened scrutiny applies to classifications based on sexual orientation and every circuit that has addressed this issue, i.e., all circuits but the Second

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and Third Circuits, have unanimously declined to treat sexual orientation classifications as suspect. U.S. 620 (1996) See Romer v. Evans, 517

(applying rational basis review to a

classification based on sexual orientation); infra, n.25 (collecting circuit court cases)
.

Significantly, the Ninth

Circuit, which is binding authority on this Court, has affirmatively held that homosexuals are not a suspect class. High Tech Gays v. Defense Indus. Sec. Clearance Office, 563, 573—74 (9th Cir. 1990) See

895 F.2d

Rational basis review is the “paradigm of judicial restraint.” (1993)
.

F.C.C. v. Beach Cornmc’ns, Inc.,

508 U.S. 307, 313—14

Under rational basis review, a law is presumed

constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993)
.

(alteration in original)

(internal quotations omitted)

Rational

basis review does not authorize “the judiciary [to]

sit as a

superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” at 319 (alteration in original) (internal quotations omitted) Id.
.

Plaintiffs have failed to meet their burden. Specifically, the legislature could rationally conclude that

defining marriage as a union between a man and woman provides an

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inducement for opposite—sex couples to marry, thereby decreasing the percentage of children accidently conceived outside of a stable, long-term relationship. The Supreme Court has stated

that a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 382—83 (1974)
.

It is

undisputed opposite-sex couples can naturally procreate and samesex couples cannot. Thus, allowing opposite—sex couples to marry

furthers this interest and allowing same-sex couples to marry would not do so. The legislature could also rationally conclude that other things being equal, it is best for children to.be raised by a parent of each sex. Under rational basis review, as long as

the rationale for a classification is at least debatable, the classification is constitutional. Both sides presented evidence

on this issue and both sides pointed out flaws in their opponents’ evidence. Thus, the Court concludes this rationale is

at least debatable and therefore sufficient. Finally, the state could rationally conclude that it is~ addressing a divisive social issue with caution. In 1997, the

legislature extended certain rights to same-sex couples through the creation of reciprocaJ~-beneficiary relationships. In 2011,

the legislature passed a civil unions law, conferring all of the

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state legal rights and benefits of marriage marriage) (except the title

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on same-sex couples who enter into a civil union.

In

this situation, to suddenly constitutionalize the issue of samesex marriage “would short-circuit” the legislative actions with regard to the rights of same-sex couples that have been taking place in Hawaii. U.S. 52, 72—73 See Dist. Attorney’s Office v. Osborne, 557

(2009)

Accordingly, Hawaii’s marriage laws are not unconstitutional. Nationwide, citizens are engaged in a robust If the traditional

debate over this divisive social issue.

institution of marriage is to be restructured, as sought by Plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.
PROCEDURAL BACKGROUND

On December 7, 2011, Plaintiffs Natasha N. Jackson and Janin Kleid filed suit against Hawaii Governor Neil S. Abercrombie and Loretta J. Fuddy, Director of Hawaii’s Department of Health. Dcc. No. 1. On January 27, 2012, Plaintiffs filed a (“Am. Compl.”), adding Gary Bradley as a

First Amended Complaint plaintiff

(collectively with Jackson and Kleid, “Plaintiffs”) and Doc. No. 6. Specifically, Plaintiffs

expanding their claims.

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challenge Hawaii Revised Statutes (“H.R.S.”) § 572-1, which

Page ID

states that a valid marriage contract shall be only between a man and woman, and Article I, Section 23 of the Hawaii Constitution (the “marriage amendment”), which provides that “[t]he legislature shall have the power to reserve marriage to oppositesex couples.” Plaintiffs assert that these two laws (together,

“Hawaii’s marriage laws”) violate the Equal Protection and Due Process Clauses of the United States Constitution. ¶~ 94—104. On February 21, 2012, Defendant Fuddy and Defendant Abercrombie filed separate answers to the Amended Complaint. Doc. Nos. 9 & 10. In his answer, Defendant Abercrombie stated Am. Compl.

that he “admits that to the extent HRS § 572—1 allows opposite sex couples, but not same sex couples, to get married, it

violates the Due Process Clause and Equal Protection Clause of the United States Constitution.” Doc. No. 9, at 2. In Defendant

Fuddy’s answer, she denies that § 572-1 and the marriage amendment violate the Constitution. Doc. No. 10, at 6-7. filed a 15.

On Mai~ch 1, 2012, Hawaii Family Forum (“HFF”) motion to intervene in this case as & defendant.

Doc. No.

HFF also filed a proposed answer denying that Hawaii’s marriage laws are unconstitutional. Doc. No. 16. On May 2, 2012, the Doc. No. 43.

Court granted HFF’s motion to intervene.

On June 15, 2012, Defendant Fuddy filed a motion for

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summary judgment

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(“Defendant Fuddy’s Motion”), accompanied by a and a concise 63 & 64. The same

supporting memorandum (“Fuddy’s Mot. Mem.”) statement of facts (“Fuddy’s CSF”)
.

Doc. Nos.

day, Plaintiffs filed a motion for summary judgment Motion”), Mem.”)

(“Plaintiffs’

accompanied by a supporting memorandum (“Pis.’ Mot. (“Pis.’ CSF”)
.

and concise statement of facts

Doc. Nos.

65 & 66.

Also on June 15, 2012, HFF filed a motion for summary (“HFF’s Motion”),

judgment and to dismiss Defendant Abercrombie

accompanied by a supporting memorandum (“HFF’s Mot. Mem.”) and a concise statement of facts (“HFF’s CSF”)
.

Doc. Nos.

67 & 68.

On June 29, 2012, Defendant Abercrombie filed a countermotion for partial summary judgment Countermotion”)
.

(“Abercrombie’s

Doc. No.

92.

Defendant Abercrombie filed a

single memorandum in support of the Countermotion, in response to Plaintiffs’ Motion, and in opposition to HFF and Defendant Fuddy’s motions (“Abercrombie’s Mot. Mem.”)
.

Id.

Defendant

Abercrombie also filed a concise statement of facts in support of the Countermotion (“Abercrombie’s CSF”), a response to Defendant

Fuddy’s CSF, a response to HFF’s CSF, and a response to Plaintiffs’ CSF. Doc. Nos. 89—91, 93.

On June 29, 2012, Defendant Fuddy filed an opposition to Plaintiffs’ Motion (“Fuddy’s Opp’n”), a response to

Plaintiffs’ CSF, and a statement of no opposition to HFF’s Motion. Doc. Nos. 78-80. The same day, HFF filed an opposition

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to Plaintiffs’ Motion

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(“HFF’s Opp’n”), a response to Plaintiffs’

CSF, and a statement of no opposition to Defendant F’uddy’s Motion. Doc. Nos. 82, 84, & 85.

Plaintiffs filed a single memorandum in opposition to HFF and Defendant Fuddy’s motions on June 29, 2012 Opp’n”)
.

(“Pls.’

Doc. No. 86.

Plaintiffs also filed a combined response

to Defendant Fuddy’s CSF and HFF’s CSF (“Pis.’ Resp. to CSFs”) Doc. No. 87. On June 29, 2012, Equality Hawaii and Hawaii LGBT Legal Association (“Equality Hawaii”) filed a motion for leave to file Equality Hawaii submitted a

brief of amici curiae.

Doc. No. 83.

proposed brief in support of Plaintiffs’ Opposition (“Equality Hawaii’s Br.”)
.“

Id.

On July 2, 2012, the Court granted Doc. No. 94.

Equality Hawaii’s Motion.

On July 10, 2012, Defendant Fuddy filed a response to Defendant Abercrombie’s CSF and a combined memorandum in opposition to Defendant Abercrombie’s Countermotion and reply to Plaintiffs’ Opposition On July 10, (“Fuddy’s Reply”)
.

Doc. Nos.

99 & 100.

2~12, HFF filed a combined memorandum opposing

Defendant Abercrombie’s Countermotibn and replying to Plaintiffs’ Opposition (“HFF’s Reply”), along with a response to Defendant Doc. Nos. 101 & 102. Also on July 10, 2012,

Abercrornbie’s CSF.

“Plaintiffs joined the position set forth by Hawaii Equality in their brief. See Pls.’ Opp’n 4. 10

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Plaintiffs filed a reply to HFF’s Opposition
HFF”),

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(“Pls.’ Reply to

a reply to Defendant Fuddy’s Opposition (“Pls.’ Reply to

Fuddy’~), and a statement of no opposition to Defendant Abercrombie’s Countermotion. Doc. Nos. 103-05. On July 17,

2012, Defendant Abercrombie filed a reply in support of his countermotion (“Abercrornbie’s Reply”)
.

Doc. No.

108.

On July 24, 2012, the Court held a hearing on Plaintiffs’ Motion, Defendant Fuddy’s Motion, HFF’s Motions, and Defendant Abercrombie’ s Countermotion. FACTUAL BACKGROUND I. Same-Sex Marriage in Hawaii In Hawaii, same-sex marriage has been the subject of In May 1991, several same-

litigation and legislation for years.

sex couples filed a lawsuit seeking a declaration that § 572-1 violated the equal protection, due process, and privacy components of the Hawaii Constitution in so far as it had been interpreted and applied by the Hawaii Department of Health to deny marriage licenses to same-sex couples. See Baehr v. Lewin, 852 P.2d 44, 48—49 (Haw. 1993)
.

The trial court rejected the

plaintiffs’ claims and granted a motion for judgment on the pleadings in favor of the defendants. See id. at 52.

On appeal, the Hawaii Supreme Court, relying on federal case law, held that there is no fundamental right to marriage for same—sex couples under the Hawaii Constitution “arising out of

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the right to privacy or otherwise.” Id. at 57.

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A plurality of

the Hawaii Supreme Court held that the Hawaii statute restricting marriage to opposite-sex couples discriminates on the basis of sex, which constitutes a suspect category for purposes of equal protection analysis under the Hawaii Constitution.2’ 67. Id. at 63-

Because the trial court had reviewed the marriage laws for a

rational basis, the Hawaii Supreme Court remanded to the trial court to review it under the strict scrutiny standard that applies to suspect categories. On December 3, 1996, Id. at 68-69. on remand, the trial court ruled

211n explaining its decision that statutes discriminating on the basis of sex are subject to strict scrutiny, the plurality in Baehr stated that: The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state may not ‘deny to any person within its jurisdiction the equal protection of the laws.’ Hawaii’s counterpart is more elaborate. Article I, section 5 of the Hawaii Constitution provides in relevant part that ‘[nb person shall be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry.’ (Emphasis added.) Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.
. . .

Baehr,

852 P.2d at 59—60

(alteration in original) 12

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that § 572-1 violated the equal protection component of the Hawaii Constitution. WL 694235 See Baehr v. Miike, Civ. No. 1996)
.

91—13945,

1996

(Haw. Cir. Ct. Dec. 3,

Consequently, the court

ordered that the state could not deny an application for a marriage license solely because the applicants were the same sex. Id. at *22. The trial court suspended the implementation of his

decision, however, to provide time for the case to be reviewed by the Hawaii Supreme Court. Doc. No. 190 See Baehr v. Miike, Civ. No. 91-13945,

(Dec. 12, 1996)

Meanwhile, in 1994, the legislature responded to the Hawaii Supreme Court’s remand in Baehr by amending § 572-1 to clarify the legislature’s intention that marriage should be limited to those of the opposite-sex. 217, 1994 Raw. Sess. Laws 526
.

Act of June 22,

1994, No.

(codified as amended at Raw. Rev.

Stat. § 572—1)

The legislature did so by adding the following

underlined language to § 572-1: “In order to make valid the marriage contract, which shall be only between a man and a woman.
.“

Id.

The preface to the House bill, H.B. No. 2312,

set

forth the legislature’s findings and purpose.

The legislature

stated that the Hawaii Supreme Court’s Baehr opinion “effaces the recognized tradition of marriage in this State and, in so doing,

impermissibly negates the constitutionally mandated role of the legislature as a co—equal, coordinate branch of government.” 1994 Hawaii Laws Act 217, H.B. 2312, § 1. Specifically, it

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states that “[p]olicy determinations of this nature are clearly for nonjudicial discretion, and are more properly left to the legislature or the people of the State through a constitutional convention.” Id. The legislature additionally found that

Hawaii’s marriage licensing statutes “were intended to foster and protect the propagation of the human race through male-female marriages.” Id.

In 1997, the legislature passed a proposed amendment to the Hawaii Constitution to include a new section titled “Marriage” that states “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” Laws 1247, H.B. 117, § 2. See 1997 Haw. Sess.

The statement of intent in the final

form of the bill for the marriage amendment provided: “[T]he unique social institution of marriage involving the legal relationship of matrimony between a man and a woman is a protected relationship of fundamental and unequaled importance to the State, the nation, and society.” Id. at 1246. It reasserted

that marriage should be dealt with by the legislature, not the courts: “[T]hequestion of whether or not to issue marriage licenses to couples of the same sex is a fundamental policy issue to be decided by the elected representatives of the people.” at 1246—47. Finally, Id.

it noted that the proposed amendment would

not impose a permanent bar to same-sex marriage: “This constitutional measure is
. . .

designed

.

.

.

to ensure that the

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legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” Id. at 1247.

During the same legislative session, in April 1997, the legislature passed H.B. No. 118, the Reciprocal Beneficiaries Act, which granted persons who are legally prohibited from marrying the ability to register as reciprocal beneficiaries and obtain certain rights associated with marriage. See Hawaii (codified

Reciprocal Beneficiaries Act, 1997 Haw. Sess. Laws 383 in part at H.R.S. § 572C)
.

The findings under the Act state:

The legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other. However, the legislature concurrently acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by such legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son, or two individuals who are of the same gender. Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two
. . .

15

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individuals who are legally prohibited from marrying one another~ H.R.S. § 572C—2. In November 1998, the people of Hawaii ratified the marriage amendment. See Flaw. Const. art. I, § 23. Sixty-nine twenty-nine

percent of the electorate voted for the amendment,

percent voted against the amendment, and two percent left their ballots blank. See David Orgon Coolidge, The Hawaii Marriage

Amendment: Its Origins, Meaning and Fate, 22 U. Haw. L. Rev. 19, 101 (2000) Thereafter, on December 9, 1999, the Hawaii Supreme

Court issued a four-page unpublished summary disposition of the appeal of the trial court’s decision finding § 572-1 violated the Hawaii Constitution. 391 (Haw. Dec. 9, Baehr v. Miike, No. 20371,
.

1999 Haw. LEXIS

1999)

The Hawaii Supreme Court held that the Id. at *8.

case was moot in light of the marriage amendment.

Specifically, the court explained: “The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii 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.” Id. at *6. The court elaborated, that “whether or not

in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the

marriage amendment, HRS § 572-1 must be given full force and 16

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effect.”

Id. at. *6_7. After several failed attempts, in 2011, the legislature On February 23,

passed a civil unions bill.

See H.R.S. § 572B.

2011, Governor Abercrombie signed the bill into law (the “civil unions law”)
.

See B.J. Reyes, Hawaii Now Seventh State to (Feb. 23, 2011, 2:10 PM

Legalize Civil Unions, Star Advertiser

HST), www.staradvertiser.com/news/breaking/116776119.htrni?idi~~7 76119. Pursuant to H.R.S. § 572B-2, which took effect on January

1, 2012, a person is eligible to enter into a civil union if the person is: (1) Not a partner in another civil union or a spouse in a marriage (2) At least eighteen years of age; and (3) Not related to the other proposed partner in the civil union, as provided in section 572B—3. H.R.S. § 572B—2, as amended by 2012 Haw. Laws Act 267 2569)
.~“

(H.B.

The civil unions law gives partners to a civil union

all of the same state legal rights granted to married couples.4’

3”On July 6, 2012, the legislature passed amendments to the civil unions law for “additional clarification to minimize confusion and aid in the proper interpretation of” the civil unions law. See 2012 Haw. Laws Act 267, § 1 (H.B. 2569) 4”The civil unions law states: Partners to a civil union lawfully entered into pursuant to this chapter shall have all the same rights, benefits, protections, and responsibilities under law, whether derived (continued...) 17

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See H.R.S. § 5723—9. II. Same-Sex Marriage Nationwide Hawaii is not alone in the political and legal debate over official recognition of same-sex relationships. The right

to same-sex marriage has been established through litigation in Iowa, Connecticut, Massachusetts, and California. Brien, 763 N.W.2d 862 (Iowa 2009) See Varnum v.

(holding state statute limiting

civil marriage to opposite-sex couples violated the Iowa Constitution’s equal protection clause); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) (holding Connecticut laws

restricting civil marriage to opposite-sex couples violated the equal protection rights of the Connecticut Constitution); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)

(holding that licensing statute which did not provide for samesex marriage violated the equal protection and due process liberty principles of the Massachusetts Constitution); Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (holding California’s

constitutional amendment banning same—sex marriage violated the United States Constitution in the unique circumstances of same

4/(~

.continued) from statutes, administrative rules, court decisions, the common law, or any other source of civil law, as are granted to those who contract, obtain a license, and are solemnized pursuant to chapter 572.

H.R.S. § 5723-9. 18

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sex marriage in California)

.~“

New York, Washington D.C., New Hampshire, and Vermont, recognize same—sex marriage through legislative enactment. N.Y. Dom. Rel. Law § 10-a See

(McKinney 2011); D.C. Code § 46-401

(2010); N.H. Rev. Stat. Ann. § 457:1-a (2010); Vt. Stat. Ann. tit. 15, § 8 (2009)
.

Washington recently passed legislation See Act of Feb. 13, 2012, 2012 Wash. (West)
.

allowing same—sex marriage. Legis. Serv. ch. 3

(S.S.B. 6239)

In March 2012,

Maryland’s governor signed a measure legalizing same-sex marriage. See John Wagner, Md. Marriage Petitioners Told of

Success, The Washington Post (July 10, 2012, 4:23 PM ET), http:// www.washingtonpost. com/blogs/maryland-politics/post/md_marrjage -petitioners-told-of—success/2012/07/10/gJQAqvBIbwblog. html. The law is scheduled to take effect in January 2013. See id.

The laws in Washington and Maryland are subject to voter referendum in November 2012. See Id.; Michael Winter, November

referendum blocks Wash. same-sex marriage law, USAToday (June 6, 2012, 10:28 PM), http://content.usatoday.com/communjtjes/

ondeadline/post/2Q12/Q6/november-referendum_blocks_wash.samesex

5”The Court notes that in Perry, the Ninth Circuit stayed its decision pending issuance of the mandate. See Perry, 671 F.3d at 1098 n.27. On June 5, 2012, the Ninth Circuit denied a petition for rehearing en banc. See Perry v. Brown, 681 F.3d 1065 (9th Cir. 2012) The proponents of Proposition 8 filed a petition for certiorari with the Supreme Court on July 30, 2012. See Perry, No. 10—16696, Doc. No. 427 (9th Cir.)
.

19

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marriage-law/l# T3ekRehQWI.
.

The New Jersey legislature recently adopted legislation to legalize same—sex marriage, but Governor Chris Christie vetoed the legislation and there were insufficient votes to override the veto. n.8 See Garden State Equality v. Dow, 2012 WL 540608, at *9 (unpublished)
.

(N.J. Super. L. Feb. 21, 2012)

Governor

Christie called for the legislature to put a referendum on samesex marriage on the ballot in November 2012, stating: “An issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide.”

Kate Zernike, Christie Keeps His Promise to Veto Gay Marriaqe Bill, The New York Times (February 17, 2012), http://www.nytimes.

com/2Ol2/O2/l8/nyregibn/christie—vetoes_gay_marriage_~i11.htm1. Shortly after Governor Christie’s veto, Garden State Equality, an advocacy organization, seven same-sex couples, and ten of the couples’ children filed suit against state officials asserting that the New Jersey Civil Union Act violates the Fourteenth Amendment. See Garden State Equality, 2012 WL 540608, at *2, 10. In addition to Hawaii, states that recognize civil unions (or their equivalent) and Oregon.6’ are Delaware, Illinois, Rhode

Island, Nevada,

See Del. Code Ann. tit. 13 §~ 201-

61Same-sex couples in Nevada have filed suit against state officials asserting that Nevada’s marriage laws violate the United States Constitution. A defendant, the Nevada Governor, has filed a motion to dismiss which is scheduled to be heard on August 10, 2012. See Sevcik v. Sandoval, Civ. No. 12—00578 (D. (continued...) 20

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217

(2011); 750 Ill. Comp. Stat. Ann. 75/1

(West 2011); R.I. Gen. (2009); Or.

Laws § 8—3-~19

(2009); Nev. Rev. Stat. § 122A.010—.510 (2008)
.

Rev. Stat. § 106.300, et seq.

Maine provides for limited

domestic partnerships without clearly granting marital privileges to partners. See Me. Rev. Stat. tit. 22 § 2710 (2009)
.

In

Maine, voters will vote on an initiative to approve same-sex marriage in November 2012. See Katharine Q. Seelye, Gay Marriage (June 24, 2012),

Again on Ballot in Maine, The New York Times

http://www.nytimes.com/2012/06/25/us/po1jtics/second_tjrne_aro~fl~_ hope-for-gay-marriage-in-maine html.
.

Thus, thirty-eight states have a statute and/or constitutional provision limiting marriage to relationships between a man and woman. See National Conference of State

Legislatures, Defining Marriage: Defense of Marriage Acts and Same—Sex Marriage Laws (June 2012), http://www.ncs1.org/issuesOf

research/human-services/same—sex-marriage—overview. aspx.

these states, twenty-nine have placed the limitation in their state constitutions the limitation)
.

(twenty-six of these have statutes adopting jç~ A further nine states have statutory See id.

language restricting marriage to opposite—sex couples.7’

.continued) Nev. April 10, 2012) 71These calculations do not include Washington and Maryland, where the laws adopting same-sex marriage will be put before voter referendum in November 2012 or California, where the Ninth Circuit invalidated Proposition 8 in Perry. 21

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III. Federal Defense of Marriage Act The Federal Government has also been involved in the social and political dispute over same—sex marriage. In 1996,

Congress passed, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”)
.

DOMA has two basic provisions.

One provision is that no state is required to give effect to a relationship between same-sex individuals that is treated as marriage under the laws of another state U.S.C. § 1738C. (“Section 2”)
.

28

The other is that in determining the meaning of

any federal law or federal administrative decision, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife” (“Section 3”)
.

1 U.S.C. § 7.

The General

Accounting Office estimated in 2004 that DOMA affects the implementation of 1,138 federal laws. See Letter from Dayna K.

Shah, Assoc. Gen. Counsel, GAO, to Bill Frist, Majority Leader, U.S. Senate r.pdf. Challenges to the constitutionality of DOMA have been filed in several courts. In the midst of this DOMA litigation, (Jan. 23, 2004), http://www.gao.gov/new.items/d04353

in February 2011, Attorney General Eric Holder announced that the government would no longer defend Section 3 of DOMA. from Eric H. Holder, See Letter

Jr., Att’y Gen., to Rep. John A. Boehner,

Speaker of the House, Letter to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www.justice. Attorney General Holder

gov/opa/pr/2011/February/11—ag-223.html. 22

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stated that the Executive Branch would, however, continue to enforce Section 3. Id.

Only one Court of Appeals, the First Circuit, has ruled on the constitutionality of DOMA. of Health & Human Servs., In Massachusetts v. U.S. Dep’t (1st Cir. 2012) (“Mass. v.

682 F.3d 1

HHS”), the First Circuit held Section 3 of DOMA violated the Equal Protection Clause.81 Three DOMA cases are currently on

appeal, two in the Ninth Circuit and one in the Second Circuit, from decisions holding Section 3 is unconstitutional.9’ See

Golinski v. U.S. Office of Pers. Mgmt., Nos. 12—15388 & 12—15409 (9th Cirj;’°’ Dragovich v. U.S. Dep’t of the Treasury, No. 1216461 2435 (9th Cir.); Windsor v. United States, Nos. 12—2335 & 12(2d Cir.)
.“

Four district courts have held that Section 3 is constitutional. See Lui v. Holder, Civ. No. 11—01267, Doc. No.

81BLAG filed a petition for certiorari in Mass. v. HHS on June 29, 2012. See Fuddy’s Response to Abercrombie’s CSF, Ex. 5. 9~The Court notes that on July 31, 2012 a district court in the District of Connecticut held Section 3 of DOMA was unconstitutional. See Pedersen v. U.S. Office of Pers. Mgmt., Civ. No. 10-1750, Doc. No. 116. No party has appealed thus far. ‘°1On July 16, 2012, the plaintiff in Windsor v. United States, Nos. 12—2335 (2d Cir.), who won at the district court, filed a petition for certiorari before judgment to the Supreme Court. See id. at Doc. No. 89. “1On July 3, 2012, the Solicitor General filed a petition for certiorari before judgment in Golinski v. United States Office of Personnel Managment, Nos. 12-15409, Doc. No. 77 (July 3, 2012) 23

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38 No. Ake,

(C.D. Cal. Sept. 28, 2011); Torres-Barragan v~ Holder, Civ. 09—08564, Doc. No. 24 354 F. Supp. 2d 1298 (C.D. Cal.Apr. 30, 2010); Wilson v. (M.D. Fla. 2005); Hunt v. Ake, No. 04.

1852, Doc. No. 35

(M.D. Fla. Jan. 20, 2005)

One bankruptcy

court in the Ninth Circuit has held Section 3 is constitutional, see In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004), and one See In re Balas, 449 B.R. 567

has held DOMA is unconstitutional. (Bankr. C.D. Cal. 2011)
.

There are several other DOMA cases

pending in district courts around the country.

IV.

The Parties in This Case Plaintiffs Natasha N. Jackson and Janin Kleid are. two

women in a relationship together who sought an.d were denied a marriage license from the Department of Health, State of Hawaii. Am. Compi. ¶91 3-4. Plaintiff Gary Bradley is a man who entered

into a civil union with his male partner under the civil unions law. Id. ¶ 9. Bradley asserts that he entered into a civil

union and did not seek a marriage license because it was futile forhim to do so under § 572-1. ~ ¶ 10. Plaintiffs challenge

§ 572—1 and the marriage amendment as unconstitutional under the federal Constitution, asserting inter alia, that “Hawaii’s ‘solution’ of the problem of giving legal recognition to the relationships of same-sex couples without permitting them to marry, has not created equality but a system as pernicious and damaging in its effects as any system of segregation.” Id. ¶ 78.

Plaintiffs seek summary judgment on their federal equal 24

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protection violation claim.

Defendant Fuddy and HFF seek summary

judgment in their favor on Plaintiffs’ federal equal protection and due process claims. HFF also seeks to dismiss Defendant Defendant Abercrombiè seeks a

Abercrombie from this action.

summary judgment that heightened scrutiny should apply to Plaintiffs’ claims and argues that § 572-1 violates the Constitution
~12,’

SThNDARD

In general, the purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. (1986)
.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323—24 Summary judgment is therefore appropriate if “the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” R. Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” U.s. 242, 247—48 (1986) Anderson v. Liberty Lobby, Inc., 477 Fed.

‘21Defendant Abercrombie states that he “defends the constitutionality (but not the wisdom) of Article I, Section 23, of the Hawaii Constitution, because [he] construes that section as establishing only that nothing in the Hawaii’State Constitution requires the Legislature to allow same sex marriage.” Abercrombie’s Mot. Mem. 4. 25

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“A fact is

‘material’ when, under the governing A

substantive law, it could affect the outcome of the case.

‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”3’ Ass’n, Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Say. (9th Cir. 2003) (quoting Anderson, 477

322 F.3d 1039, 1046
.

U.S. at 248)

Conversely, where the evidence dould not lead a

rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. (1986) (citing First (1968)).

v. Zenith Radio Corp., 475 U.S. 574, 587

Nat’l Bank v. Cities Serv. Co., 391 U.s. 253, 289

When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., F.2d 626, 630-31 Inc. v. Pac. Elec. Contractors Ass’n, 809
.

(9th Cir. 1987)

The moving party has the

burden of persuading the court as to the absence of a genuine issue of material fact. Glenn Miller Prods., Celotex, 477 U.S. at 323; Miller v. 987 (9th Cir. 2006). This is

454 F.3d 975,

‘31Disputes as to immaterial facts do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986) As explained in more detail infra, because of the deferential nature of the applicable rational basis reviewS, and the fact that the state is not required to produce any evidence under such review, disputes of fact that might normally preclude summary judgment in other civil cases, will generally not be substantively material in such review. See Vance v. Bradley, 440 U.S. 93, 110—11 (1979) 26
.

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true even when a court is presented with cross-motions for summary judgment; each party must meet this burden. Gays v. Defense Indus. Sec. Clearance Office, (9th Cir. 1990)
.

High Tech

895 F.2d 563, 574

The moving party may do so with affirmative

evidence or by “‘showing’— that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. Elec., See id. at 324; Matsushita

475 U.S. at 586; Cal. Architectural Bldg. Prods., Inc. v. Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).

Franciscan Ceramics,

Rather, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”4” 477 U.S. at 250. Anderson,

Summary judgment will thus be granted against a

party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion,” and can do so in either of two ways: by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”; or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c) (1). 27
“h’

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bear the burden of proof at trial.

See Celotex, 477 U.S. at 322.

DISCUSSION The issue in this case is whether Hawaii’s marriage laws, which define marriage as a union between a man and woman, vio1~te the Due Process and Equal Protection Clauses of the United States Constitution. As an initial matter, the Court will

discuss HFF’s argument that Defendant Abercrombie is not a proper party to this case and must be dismissed. The Court will then

discuss the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.), which remains binding authority and The

dictates that Hawaii’s marriage laws are constitutional. Court then conducts an alternative analysis on the merits,

concluding that Hawaii’s marriage laws do not violate the Equal Protection or Due Process Clauses. I. Defendant P~bercrombie’s Status as a Party HFF a.sserts that Defendant Abercrombie is not a proper party to this case and must be dismissed on Eleventh Amendment Sovereign Immunity and Article III standing grounds. Mem. 37. HFF’s Mot.

Specifically, HFF contends that the Governor does not

administer Hawaii’s marriage laws or maintain any control over the county clerks who issue marriage licenses, and accordingly the Governor is not a proper party in this case. Id. HFF also

asserts that courts have routinely dismissed governors and other high level officials from lawsuits due to the lack of a sufficient connection to the alleged injury. 28 Id. at 38.

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A.

Sovereign Immunity Defendant Abercrombie is sued in his official capacity

as Governor of Hawaii.

Suits against a state officer in his

official capacity, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham,
.

473 U.S. 159, 165

(1985)

(internal in all

quotations omitted)

Thus, “an official-capacity suit is,

respects other than name, to be treated as a suit against the entity.” Id. at 166 (internal quotations omitted)
.

Eleventh

Amendment Sovereign Immunity applies to bar claims brought against a state in federal court unless the state consents or Congress unequivocally, abrogates the immunity under its Fourteenth Amendment authority. Halderman, 465 U.S. 89, 99, 104 Pennhurst State Sch. (1984)
.

& Hosp. v.

Eleventh Amendment

immunity is treated as an affirmative defense and can be expressly waived or forfeited if the State fails to assert it. See ITSI T.V. Prods., (9thCir. 1993) Defendant Abercrombie has explicitly waived Eleventh Amendment immunity with respect to prospective injunctive relief barring enforcement of § 572-i’s ban on same-sex marriage. Abercrombie’s Mot. Mem. 86. HFF argues that Defendant Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291

Abercrombie has not shown that he has the authority to waive the state’s sovereign immunity. HFF’s Reply 39-40. The Supreme

Court has noted that regardless of an official’s authority with 29

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respect to waiving sovereign immuriity under state law, it “has consistently found waiver when a state [official] voluntarily invoked th[e] court’s jurisdiction.” 535 U.s. 613, 514
. . .

has

Lapides v. Bd. (2002)
.

of Regents of Univ. Sys. of Ga.,

Here,

Defendant Abercrombie has expressly waived sovereign immunity and sought summary judgment in Plaintiffs’ favor. “voluntarily invoked” the Court’s jurisdiction. Thus, he has Moreover, HFF

has given the Court no reason to question the power of the sitting governor, sued in his official capacity as head of the state executive, to waive Hawaii’s sovereign immunity. In any event, the decision to invoke sovereign immunity belongs to the state. Difava, State Police for Automatic Ret. Ass’n v. 147 (ID. Mass. 2001)
.

138 F. Supp. 2d 142,

(citing Clark v.

Barnard, 108 U.S. 436, 447 Intervenor,

(1883))

Thus, HFF, a Defendant

cannot force the state, th-rough the governor sued in see

his official capacity, to invoke its sovereign immunity. Howard v. Food Lion, 2002) Inc., 232 F. Supp. 2d 585, 593

(M.D.N.C.

(determining that the plaintiff could not assert an

Eleventh Amendment immunity defense on behalf of a state official because “[t]he decision to invoke sovereign immunity belongs to the state Difava,
-. . .

and cannot be made by the opposing party”); (holding that a retirement

138 F. Supp. 2d at 147

association could not force the State to invoke its Eleventh

30

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Amendment immunity) B.

~

Article III Article III provides that federal courts have the power

to resolve “Cases” or “Controversies.” Tuition Org. v. Winn, 131 S. Ct. 1436,

Arizona Christian Sch. 1441 (U.S. 2011)
.

“To

obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution.” standing, at a minimum, (1) Id. at 1440. To satisfy Article III

the party seeking relief must have (2) there must be “a causal

suffered an injury in fact,

connection between the injury and the conduct complained,” and (3) it must be likely the injury will be redressed by a favorable Lujan v. Defenders of Wildlife, 504 U.S. 555, 560—61

decision. (1992)

In Citizens for Equal Protection v. Bruning, 859

455 F.3d

(8th Cir. 2006), the Eighth Circuit held that advocates for

gay marriage had standing to challenge a state constitutional amendment stating that only marriage between a man and a woman was valid against the Attorney General and Governor of Nebraska.

‘5~Because HFF may not assert the state’s sovereign immunity, the Court need not consider whether the exception to sovereign immunity for state officials sued in their official capacity for declaratory and injunctive relief set forth in Ex Parte Young, 209 U.S. 123 (1908), applies to Defendant Abercrombie. See, e.g., Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (explaining that for the Ex Parte Young exception to sovereign immunity to apply, there must be “‘some connection’ between a named state officer and enforcement of a challenged state law”) 31

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Id. at 863-64.

It determined that “when the government erects a

barrier making it more difficult for members of a group to obtain a benefit, ‘[t]he “injury in fact”
. . .

is the denial of equal Id. at

treatment resulting from the imposition of the barrier.’” 863 (8th Cir. 2006) (alteration in original)

(quoting N.E. Fla.

Chapter of the Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993)). The Eighth Circuit then addressed the

connection of the injury to the Attorney General and Governor and explained that they both had broad powers to enforce the State’s Constitution and statutes, which includes policing compliance with the constitutional amendment at issue. Id. The Eighth

Circuit thus concluded that the Governor and the Attorney General had “some connection with the enforcement” of the amendment, which satisfied Article III standing requirements. Here, Id.

Plaintiffs assert that Hawaii’s marriage laws are Plaintiffs Kleid and Jackson applied for and Plaintiff Bradley entered into a

unconstitutional.

were denied a marriage license.

civil union with his same-sex partner and did not apply for a marriage license because it was futile in light of § 572—1. injury

This

the inability to obtain marriage licenses available to

opposite-sex couples

is causally related to Hawaii’s

restriction of marriage to unions between a man and a woman. Defendant Abercrombie, as chief executive of Hawaii, is

“responsible for the faithful execution of [Hawaii’s] laws.” Haw. Const. art. 5, §~ 1, 5. Plaintiffs’ injuries thus “have 32

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some connection” to Defendant Abercrombie.

In the event of a

favorable decision, Defendant Abercrombie can redress Plaintiffs’ injuries by ordering Defendant Fuddy to issue licenses to samesex couples or replacing her with a director who will do so. Accordingly, Plaintiffs have standing to seek relief from

Defendant Abercrombie. The Court further notes that to dismiss Defendant Abercrombie as an improper party on Article III grounds would call into question the jurisdiction of numerous cases challenging state laws and constitutional amendments that have been brought against a governor in his or her official capacity. Romer v. Evans, 517 U.S. 620 (1996) See, e.g.,

(determining merits of suit

against governor,

state attorney general, and state, challenging

the validity of an amendment to Colorado Constitution); Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2012) (determining merits of suit

against, inter alia, Arizona Governor, brought by lesbian and gay state employees challenging the constitutionality of an Arizona statute limiting eligibility for family health care coverage to married heterosexual employees)
.

Furthermore,

in a decision

involving whether the intervenors in Perry had standing to appeal, Judge Reinhardt, concurring, noted that “the problem of standing would have been eliminated had the Governor or the Attorney General defended the initiative, as is ordinarily their obligation.” Cir. 2011) Perry v. Schwarzenegger, 628 F.3d 1191, 1201 (9th

(Reinhardt, J., concurring).

In the decision striking

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Proposition 8, the Ninth Circuit again discussed Article III standing and noted that “[w]hether the defendant is the state or a state officer, the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch

the part of state government that is Perry,

usually charged with enforcing and defending state law.” 671 F.3d at 1071. Accordingly, the Court concludes that Defendant

Abercrombie is a proper party and thus denies HFF’s motion to dismiss him from this action. HFF further asserts in its reply that Defendant Abercrombie does not have standing to seek summary judgment and instead should have filed a “response” to Plaintiffs’ Motion. HEF’s Reply 46-48 & n.21. Defendant Abercrombie replies that he

does not seek affirmative relief against Defendant Fuddy but rather asks that strict or heightened scrutiny be applied to Plaintiffs’ due process and equal protection claims. Abercrombie’s Reply 38. He further argues that in any event,

there is nothing in Article III prohibiting him from seeking affirmative relief. Id. Specifically, he asserts that he has a

direct stake in the outcome of the case which provides concrete adverseness. Id.

The Court need not consider whether it has jurisdiction over Defendant Abercrombie’s Countermotion because it is rendered moot by the Court granting summary judgment in favor of Defendant 34

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Fuddy and HFF.

The Court thus denies it as moot.

Because the it

Court would like the broadest view of the issues possible,

will consider Defendant Abercrornbie’s Countermotion as a brief in support of Plaintiff’s Motion and in opposition to Fuddy’s Motion and HFF’s Motion just as it permitted HFF to intervene and Hawaii Equality to file an amici brief. II. Baker v. Nelson HFF and Defendant Fuddy assert that the questions presented by this case were decided by the Supreme Court in Baker, which they argue is binding precedent. In Baker, HFF’s~Mot. Mem. 4.

the Minnesota Supreme Court held that a Minnesota

statute that defined marriage as a union between persons of the opposite-sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. Nelson, 810 191 N.W.2d 185
.

See Baker v. 409 U.S.

(Minn. 1971), appeal dismissed,

(1972)

The Minnesota Supreme Court rejected the plaintiffs’

claims determining, inter alia, that a right to marry without regard to the sex of the parties is not a fundamental right. at 186—87. The court further determined that the Equal Id.

Protection Clause was “not offended by the state’s classification of persons authorized to marry” and that there was “no irrational or invidious discrimination.” Id. at 187. The United States

Supreme Court summarily dismissed the plaintiffs’ appeal “for want of a substantial federal question.” Baker, 409 U.S. 810.

Per procedural rules in effect at the time, the summary 35

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dismissal of a state supreme court decision constituted a decision on the merits. (1975)
.

See Hicks v. Miranda,

422 U.S. 332, 344

Such dismissals “prevent lower courts from coming to

opposite conclusions on the precise issues presented and necessarily decided by those actions.” U.S. 173, 176 (1977)
.

Mandel v. Bradley,

432

“[U]nless and until the Supreme Court

should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. quotations omitted) “Summary actions
. . . . . .“

Hicks,

422 U.S. at 344

(internal

should not be understood as

breaking new ground but as applying principles established by prior decisions to the particular facts involved.” U.S. at 176. Mandel, 432

“Questions which merely lurk in the record are not Ill. State 173, 182—83

resolved, and no resolution of them may be inferred.” Bd. of Elections v. Socialist Workers Party, (1979) 440 U.S.
.

(internal quotations and citation omitted)

Thus, a

summary dismissal is controlling precedent only if the issues in the two cases are sufficiently similar. 345 n.14. See Hicks, 422 U.S. at

The “precedential value of a dismissal for want of a

substantial federal question extends beyond the facts of the particular case to all similar cases.” 843, 848 (9th Cir. 1997) Bates v. Jones, 131 F.3d

(internal quotations omitted)

The following two questions were presented to the
-

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Supreme Court in Baker are relevant here: 1. Whether {Minnesota’s~ refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment. Whether [Minnesota’s] refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment. 10, Baker v. Nelson, Jurisdictional Stmt., No. 711971) [hereinafter Baker Jurisdictional

2.

HFF’s Mot. Ex. 1027, at 3 Stmt.].’6’

(Feb. 11,

Plaintiffs assert that because of doctrinal changes in the Supreme Court’s Due Process Clause analysis and factual differences between this case and Baker, this Court is not bound by the Supreme Court’s summary dismissal. Particularly, Pis.’ Opp’n 7-8.

Plaintiffs rely on the Supreme Court’s decision in 539 U.S. 558 (2003)

Lawrence v. Texas,

The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts with any reason to believe that the holding is invalid. 671 F.3d at 1099 n.l dissenting part) See Perry,

(N.R. Smith, J., concurring in part and

(concluding the Supreme Court cases following

‘61The third question, not at issue here, was: “[w]hether Minnesota’s] refusal to sanctify appellants’ marriagedeprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.” Baker Jurisdictional Stmt. 3. 37 CR117:40

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Baker do not suggest any doctrinal developments indicating Baker is no longer good law); 1305-06 138 (M.D. Fla. 2005) Wilson v. Ake, 354 F. Supp. 2d 1298, (same); but see In re Kandu, 315 B.R. at

(concluding Baker was not binding on a challenge to DOMA

because of different facts and “doctrinal developments” indicated it was no longer binding)
.

Lawrence had no such effect.

In Lawrence, the Supreme Court expressly stated that “[t]he present ~ase does not involve
. . .

whether the government

must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578. “In so

limiting the scope of its decision, the court in Lawrence implicitly recognized that it is one thing to conclude that criminalizing private, consénsual homosexual conduct between adults violates due process; it is entirely another matter to conclude that the constitution requires the redefinition of the institution of marriage to include same sex couples.” 957 A.2d at 513. Additionally, in concurrence, Kerrigan,

Justice O’Connor

stated that the sodomy law “as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review.” concurring)
.

Lawrence,

539 U.S. at 585

(O’Connor, J.,

She continued that Texas could not assert a
. . .

legitimate interest for the law, “such as traditional institution of marriage.” 38 Id.

preserving the

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Romer v. Evans,

517 U.S.

620

(1996), also does not

indicate that Baker is no longer valid because in Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual orientation. Id. at 631-35.

Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority. Thus, the binding effect of Baker hinges on whether the issues in this case were presented to and necessarily decided by the Supreme Court.’71 A. The Due Process Claim In Baker, two male. plaintiffs were not allowed to marry each other pursuant to Minnesota law solely because both were of the same sex. •See Baker 191 N.W.2d at 185. The Supreme Court

determined that the two plaintiffs’ claim that they had a fundamental right to marry each other did not raise a substantial federal question. Here, Plaintiffs also are not allowed to marry

their partners solely because they are of the same sex and

‘7”In Perry, the majority stated it was unnecessary to consider the binding effect of Baker because it was considering an entirely different issue “squarely controlled by Romer.” 671 F.3d at 1082 n.14. The First Circuit recently did consider the issue and recognized that “Baker does not resolve our own [DOMA] case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same sex marriage.” Mass. v. HHS, 682 F.3d at 8; see also Wilson, 354 F. Supp. 2d at 1304— 05 (holding Baker required dismissal of the plaintiffs’ claims that DOMA and a state law banning the recognition of same sex marriage violated the Constitution); Morrison v. Sadler, 821 N.E. 2d 15, 19-20 (md. App. 2005) (noting that Baker was binding precedent indicating that state bans on same-sex marriage do not violate the Cohstitution) 39 CR117:42

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Plaintiffs claim that they have a fundamental right to do so. Am. Compi. ¶ 61. Plaintiffs’ due process claim was thus

presented to and necessarily decided by the Supreme Court in Baker. See Perry, 671 F.3d at 1099 n.l (N.R. Smith, J., (“Whether prohibiting

concurring in part and dissenting part)

marriage by same—sex couples violates due process was an issue presented and decided in Baker.”)
.

Consequently, the Court is

bound by Baker and Plaintiffs’ due process claim fails. B. The Equal Protection Claim Defendant Abercrombie asserts that the Baker plaintiffs presented a claim of gender discrimination and thus denying marriage on account of sexual orientation was not the precise issue presented in Baker. Abercrombie’s Mot. Mem. 9. Plaintiffs

and Defendant Abercrornbie assert because Hawaii has a civil unions law in contrast to Minnesota at the time of Baker, the facts are sufficiently different such that their Equal Protection claim is not controlled by Baker. Abercrombie’s Reply 3. Defendant Abercrombie’s contention that Baker asserted solely a gender discrimination is belied by the jurisdictional statement. Although in the jurisdictional statement the Pis.’ Opp’n 16-17;

plaintiffs assert that “[t]he discrimination in this case is one of gender,” their claim is not limited to gender discrimination. Baker Jurisdictional Stmt. ‘16. The plaintiffs also relied on the

state’s differing treatment based on their sexual orientation. 40

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For example, the plaintiffs argued that “there is no justification in law for the discrimination against homosexuals”; that “prejudice~ against homosexuals
. .

is unlikely to be cured like all people,

until the public acknowledges that homosexuals,

are entitled to the full protection and recognition of the law”; and that “[c]hildless same sex couples
. . .

are ‘similarly Id. at 7, 10,

circumstanced’ to childless heterosexual couples.” 16-17 (emphasis added)
.

The First Circuit recognized that the

plaintiffs in Baker raised an equal protection claim based on sexual orientation discrimination, noting that holding that sexual orientation classifications are subject to heightened scrutiny would “imply[] an overruling of Baker.” 682 F.3d at 9. Although the facts in this case are not identical to those in Baker, the “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Dist. Court, 647 F.2d 940, 941 Wright v. Lane Cnty. (emphasis added) 424 U.S. Mass. v. HHS,

(9th Cir. 1981)

(citing McCarthy v. Philadelphia Civil Serv. Comm’n, 645, 646 (1976))
.

Both this case and Baker involve a challenge

to a state law that defines marriage as a union between a man and a woman. Hawaii’s civil unions law, enacted subsequent to Hawaii’s

Hawaii’s marriage laws, is not challenged in this case.

civil unions law did not take away any rights from same-sex

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couples.

Rather, it extended rights that they had never

previously possessed. The plaintiffs in Baker argued that the Equal Protection Clause was violated because Minnesota’s laws were based on invidious discrimination, arbitrary, unreasonable, interest. capricious,

and not rationally related to any governmental Plaintiffs make

See Baker Jurisdictional Stmt. 14-15.

the same arguments in this case.

The Baker plaintiffs argued

that the fact same-sex couples could raise children and that single persons could be adoptive parents supported their claims. Id. Plaintiffs in this case make similar arguments. Minnesota

•did not have an equivalent to Hawaii’s marriage amendment. Hawaii’s marriage amendment, however, commits the matter to the Moreover, the

legislature and does not forbid same-sex marriage.

marriage amendment did not “take away” a preexisting right as the Hawaii Supreme Court has never held that same—sex couples have the right to marry. Thus, this fact does not render Hawaii’s

marriage laws so different from Minnesota’s at the time of Baker that it can be said the issues in this case were not before the Supreme Court.’8”

‘81Judge N.R. Smith, concurring in part and dissenting in part in Perry, determined that the case “seem[ed] to be distinguishable from the precise issues presented and necessarily decided in Baker” for purposes of the Equal Protection Clause challenge. 671 F.3d 1052, 1099 (N.R. Smith, J., concurring in part and dissenting part) He explained: (continued...)
.

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Consequently, the relevant facts of this case are substantially similar to that raised in Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Equal Protection Clause. issue did not merely “lurk in the record,” but was directly before the Supreme Court. Baker is the last word from the This

Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court. In the alternative, Plaintiffs’ claims fail on the merits. III. The Merits of Plaintiffs’ Claims Civil marriage is a public institution, created by law See

to promote public policy and further social interest. Maynard v. Hill, 125 U.S. 190, 213—14 (1888)
.

“Because of its

.continued) Unlike Minnesota, California granted same—sex couples right to both the designation and the incidents of marriage, before withdrawing the right of access to the designation through Proposition 8. Therefore, the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.
1S/(
.

Id. at 1100 (emphasis added) As discussed above, Hawaii’s marriage laws did not take away the designation of marriage after granting it to same-sex couples. Additionally, Hawaii did not enact its civil unions law until years after § 572-1 was amended and the marriage amendment became operative. Thus, Judge N.R. Smith’s conclusion does not apply here.
.

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vital importance to society, while the people through their governments have always encouraged marriage, they have always regulated it. Generally that hasbeen at the state level.” 447 F.3d673, 680 (9th Cir. 2006).

Smelt v. Cnty. of Orange,

This state right to regulate marriage, “necessarily includes the power to classify those persons who may validly marry.” 455 F.3d at 867. right. Bruning,

The Supreme Court has long recognized this
. . .

In 1888, it stated: “Marriage

has always been That body prescribes

subject to the control of the legislature.

the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present

and prospective, and the acts which may constitute grounds for its dissolution.” Here, Maynard, 125 U.S. at 205.

Plaintiffs argue that Hawaii’s restriction on

same—sex marriage is outside the bounds of this longstanding prerogative of states to classify who may marry. The Court will

first discuss Plaintiffs, Defendant Abercrornbie, and Equality Hawaii’s arguments that this case is controlled by Perry v. Brown and Romer, followed by a discussion of the appropriate level of

scrutiny to apply to Plaintiffs’ due process and equal protection claims. Finally, the Court conducts the applicable rational

basis review. A. Perry v. Brown

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In Perry v. Brown,

671 F.3d 1052

(9th Cir. 2012),

relying exclusively on the history of same-sex marriage in California, the Ninth Circuit held that Proposition 8 violated Equality

the Equal Protection Clausd of the U.S. Constitution.

Hawaii asserts that Perry v. Brown controls this case and requires the Court to reject the rationales set forth for Hawaii’s marriage laws. Equality Hawaii’s Br. 2. Specifically,

Equality Hawaii asserts that Proposition 8 is “remarkably similar” to the marriage amendment, “which led to a similar two-

tiered scheme under Hawaii in which same-sex civil union partners have the identical benefits and burdens conferred upon married couples without the legal status of the term ‘marriage.’” 3. Equality Hawaii contends that as with Proposition 8, the marriage amendment “stripped same-sex couples” of the protection against invidious sex discrimination under the Hawaii Constitution and their resulting presumptive entitlement to the legal status of marriage. Id. at 3-4. Equality Hawaii further
Id.at

asserts that the marriage amendment,

like Proposition 8,

“‘constitutionalize[d]’ the disability it imposed upon same—sex couples by selectively altering the structure of government decision-making to make it far more difficult for same-sex couples to achieve equal access to the status of marriage.” at 6 (alteration in original)
.

Id.

Equality Hawaii contends that

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these alleged similarities render Perry as directly governing this case. Id. Defendant Abercrombie asserts that this is a “take away” case controlled by Perry. Abercrombie’s Not. Mem. 60. He

asserts that in Baehr, the Hawaii Supreme Court provided Hawaii same—sex couples “with the ‘right’ to same sex marriage absent the state’s ability to satisfy strict scrutiny.” Id. He states

that Hawaii took that right away through a combination of the marriage amendment and “its maintenance of HRS § 572-i’s man/woman requirement for marriage.” Id.

In Perry, the Ninth Circuit repeatedly asserted that its decision rested on the “unique and strictly limited effect of Proposition 8,” i.e., the California Supreme Court had extended the right to marry to same-sex couples, same-sex couples had

married, California had a domestic partnership law giving same— sex couples rights and responsibilities identical to married spouses, and then the people passed a constitutional amendment taking away solely the right to have the designation of marriage. See Perry, 671 F.3d at 1064, 1076-77. The Ninth Circuit

specifically declined to consider “the broader question

the

constitutionality of denying same-sex couples the right to marry.” Id. at 1064. Hawaii’s marriage laws do not have the A

same “unique and strictly limited effect” of Proposition 8.

brief history of California’s marriage laws sheds light on the

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differences. The California legislature made its understanding that marriage was limited to relationships between a man and a woman explicit by amending California’s marriage statute in 1977. at 1065; see Cal. Stats. 1977, ch. 339, § 1. Id.

In 2000, California

adopted Proposition 22, an initiative statute, which provided that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code § 308.5. California

had, however, created the designation “domestic partnership” for “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Stats. 1999, ch. 588, § 2 Cal.

(codified at Cal. Fam. Code § 297(a)).

In 200.8, the California Supreme Court, applying heightened scrutiny, held that California’s marriage statutes violated equal protection principles and the due process component of the California Constitution. (Cal. 2008) In response to this decision, California residents enacted Proposition 8, an initiative constitutional amendment, which would be equal in effect to other provisions of the California Constitution. majority of voters Perry, 671 F.3d at 1067. A slim See In re Marriage Cases, 183 P.3d 384

(52.3 percent)

approved Proposition 8, see

id., which added a new provision to the California Constitution’s Bill of Rights stating: “Only marriage between a man and a woman

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is valid or recognized in California.” § 7.5.

Cal. Const. art. 1,

The California Supreme Court subsequently rejected

a

challenge to Proposition 8 as an impermissible change to the California Constitution by an initiative measure, but held that the amendment was not retroactive and thus the approximately 18,000 same-sex marriages already performed in California before its enactment remained valid. 48, 121—22 (Cal. 2009)
.

See Strauss v. Horton, 207 P.3d

In making this determination, the

California Supreme Court noted that after same-sex couples were granted the right to marriage, but before Proposition 8 was adopted, same-sex couples who married “acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances.” Id. at 122.

There are several significant differences between California’s Proposition 8 and Hawaii’s marriage laws. Particularly, no same-sex couples ever had the right to marry in Hawaii. In Baehr, the Supreme Court held that strict scrutiny

applied to the state’s limitation of marriage to opposite-sex couples under the equal protection principles of the Hawaii Constitution, but remanded for the trial court to apply such scrutiny in the first instance. Baehr v. Lewin, 852 P.2d at 68.

Although the trial court found such limitation could not withstand heightened scrutiny on remand, relief was stayed

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pending appellate review. Doc. No. 190

Baehr v. Miike, Civ. No.

91-13945,

(Order Granting Defendant State of Hawaii’s Motion (Dec. 12, 1996)
.

to Stay Injunction Pending Appeal)

Under Hawaii

law, “where an appeal has been taken, a judgment of the trial court is not final, at least for purposes of res judicata.” Littleton v. State, 708 P.2d 829, 833 (Haw. 1985)

On appeal, the Hawaii Supreme Court held the plaintiffs’ claims had become moot before considering the trial See Baehr v. Miike, No. 20371, 9, 1999)
.

court’s ruling on the merits. 1999 Haw. LEXIS 391 (Haw. Dec.

In its unpublished

decision, the Hawaii Supreme Court declined to decide whether § 572—1 violated the Hawaii Constitution before the marriage amendment. See id. at *6 (“The marriage amendment validated HRS

§ 572—1 by taking the statute out of the ambit of the equal protection clause of the Hawaii 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. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is.”)
.

Thus, the Hawaii Supreme Court never determined

whether same-sex couples had a right under the Hawaii Constitution to enter into marriage. The Perry court explained

the importance of this difference as follows: “The context matters. Withdrawing from a disfavored group the right to obtain

49

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a designation with significant societal consequences is different from declining to extend that designation in the first place.” Id. at 1079-80. Equality Hawaii and Defendant Abercrombie assert that nonetheless because the marriage amendment took away same-sex couples’ right under the Hawaii Constitution to have § 572-1 reviewed under strict scrutiny, the facts in this case are sufficiently analogous to those in Perry such that it controls. Initially, the argument that the marriage amendment is

unconstitutional because it “took away” the judicial determination that state constitutional challenges to § 572-1 are reviewed under strict scrutiny conflicts with Crawford v. Board of Education, 458 U.S. 527 (1982)
.

In Crawford, the Supreme

Court rejected the contention that “once a State chooses to do ‘more’ than the Fourteenth Amendment requires, recede.” Id. at 539. it may never

Rather, after doing so, “the State was

free to return in part to the standard prevailing generally throughout the United States.”91 Id. at 542. The Supreme Court

‘97The Supreme Court noted in Crawford that “if the purpose of repealing legislation is to disadvantage a racial minority, the repeal is unconstitutional for this reason.” 458 U.s. at 539 n.21. It additionally noted: “[T]he Proposition only limits state courts when enforcing the State Constitution. Thus, the Proposition would not bar state-court enforcement of state statutes requiring busing for desegregation or any other purpose.” Id. at 436 n.12. Here, the classification at issue is not suspect like racial classifications. Additionally, Hawaii’s marriage amendment limits courts from determining that § 572-1 (continued...) 50

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explained that it “would not interpret the Fourteenth Amendment to require the people of a State to adhere to a judicial construction of their State Constitution when that Constitution itself vests final authority in the people.” Therefore, Id. at 540.

the Supreme Court held that an amendment to the

California Constitution, passed by the people, which repealed the California Supreme Court’s interpretation of the California Constitution as imposing broader desegregation obligations than those imposed by the federal Constitution, did not violate the Fourteenth Amendment. See id. at 535-37, 537 n.14.

In any event, the Court is not persuaded by this “takeaway argument” in light of the other major differences between Hawaii and California and the Ninth Circuit’s insistence that it was ruling on the “narrow grounds” of the “unique and strictly limited effect of Proposition 8.” (emphasis added)
.

See Perry,

671 F.3d at 1064

Beyond the fact that California had granted

continued) violates the state constitution and expressly leaves the determination of whether to allow same-sex marriage to the legislature. I.e., no legislation was repealed. Moreover, as explained below, the Court rejects that the purpose of Hawaii’s marriage amendment, which gave the legislature the authority to preserve the traditional definition of marriage, is to disadvantage same-sex couples. See, e.g., Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (“[u]nlike the moral disapproval of same—sex relations . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”) The Court notes that the Ninth Circuit, in Perry, pursuant to its narrow holding, rejected the argument that Crawford applied. See Perry, 671 F.3d at 1083-85.
‘~
(. . .
. -. .

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same-sex couples the legal right to marry, Proposition 8 was “enacted
. . .

after more than 18,000 couples had married (and
.“

remained married even after Proposition 8)

Id. at 1089.

In

Hawaii, no same-sex couples were married at the time § 572-1 was amended or the marriage amendment was passed, nor have any ever been married in Hawaii. Another major difference is that although California had its Domestic Partnership Act in effect before and after the adoption of Proposition 8, •Hawaii’s civil unions law was not enacted until over sixteen years after the legislature amended § 572—1 and over twelve years after the people ratified the marriage amendment. Although Hawaii did pass the Reciprocal

Beneficiaries Act around the time the marriage amendment was passed, this act did not provide substantially all of the incidents of marriage. The Perry court explained, “Proposition

8’s only effect was to take away th[e]

important and legally

significant designation [of marriage], while leaving in place all of its incidents.” ~ at 1063. Hawaii’s marriage laws did not

take away the designation of marriage while leaving in place all of its incidents. The later-enacted civil unions law also did Rather, it extended rights same-sex

not take any rights away.

couples had never previously enjoyed. Another difference is between the effects of Proposition 8 and Hawaii’s marriage amendment on the political

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process.

The Perry court explained that Proposition 8

“superseded [California’s] Marriage Cases and then went further, by prohibiting the Legislature or even the People constitutional amendment) (except by

from choosing to make the designation Id.

of ‘marriage’ available to same-sex couples in the future.” at 1089. Significantly, unlike Proposition 8, which took the

definition of marriage out of the legislative arena, Hawaii’s marriage amendment left the definition of marriage up to the legislature. Moreover, the legislature expressly stated that the

amendment was designed “to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” 1997 Haw. Sess. Laws 1247. and the Ninth Circuit’s

Given these differences,

express statement it was ruling solely on the narrow grounds of Proposition 8’s “elimination of the right of same—sex couples to marry,” Perry does not govern this case. B. Romer v. Evans Plaintiffs and Defendant Abercrombie also rely heavily on Romer. 45. See Abercrombie’s Mot. Mem. 64-68, 69, 75; Pis.’ Opp’n

Again, this reliance is misplaced.

Defendant Abercrombie

argues that the only conceivabl’e rationale for Hawaii’s marriage laws “is some form of animus or prejudice against, or moral

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disapproval of, gays and lesbians.”

Abercrombie’s Not. Mem.

64.

He argues, therefore, “Romer is particularly instructive here.” Id. In contrast to Amendment 2 in Romer, Hawaii’s marriage laws are not so unusual or unduly broad that they are “inexplicable by anything but animus” towards same-sex couples. see Romer, 517 U.s. at 632. Amendment 2 imposed a

“comprehensive” ban on all “legislative, executive, or judicial actions at any level of state or local government designed to protect the named class lesbians.” Id. at 624. [of] homosexual persons or gays and Amendment 2 effectively repealed

municipal ordinances and rescinded protections in the government sphere such as bans on employment discrimination and discrimination at state colleges. 517 U.S. at 629-30. if not The

Supreme Court also concluded that it was “a fair, necessary,

inference from the broad language of the amendment

that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Id. at 630.

Here, Hawaii’s marriage laws are not “inexplicable by anything but animus” towards homosexuals. The First Circuit

similarly rejected the argument that DOMA’s dominant purpose was hostility towards homosexuals. See Mass. v. HHS, 682 F.3d at 11.

It explained that the many legislators who supported the law

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“acted from a variety of motives,” including the “central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.” See id. The First Circuit determined that “[p]reserving th[e] is not the same as mere

institution [of traditional marriage]

moral disapproval of an excluded group, and that is singularly so in this case given the range of bipartisan support for [DOMA] Id.
.“

(internal citation omitted); see Windsor v. United States, 403 n.3 (S.D.N.Y. 2012) (same)
.

833 F. Supp. 2d 394,

The First

Circuit’s decision is consistent with Justice O’Connor’s concurrence in Lawrence. Justice O’Connor explained that
. . .

“[u]nlike the moral disapproval of same-sex relations

other

reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” 585 (O’Connor, J., concurring) In Romer, the Supreme Court explained that the “disqualification of a class of persons from the right to seek specific protection from the law [was] unprecedented.” at 633. 517 U.S. Lawrence, 539 U.S. at

The Supreme Court found the absence of precedent for

Amendment 2 instructive; “{d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” (internal quotations)
.

Id.

Here, in contrast, the definition of

marriage as a union between a man and woman is not without

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precedent or unusual.

In fact, it is the historically and

traditionally understood definition; while marriages between same-sex couples was first allowed by a state in 2004 and since then, only by a minority of states. See Smelt, 447 F.3d at 680—

81 & n.18; see also Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 239 (D. Mass. 2010). As Defendant

Fuddy explained, “to say that in preserving the traditional definition of marriage Hawaii

along with at least 41 other

states and not to mention numerous judges and justices who have upheld such laws bigotry,

has acted

.

.

.

absurdly, ignorantly, or with

such that the federal judiciary must take the

extraordinary step of-intervening and overthrowing the democratic process, is simply untenable.” Fuddy’s Mot. Mem. 29.

The actions of the state do not support that the legislature and people of Hawaii acted out of pure animus towards homosexuals in adopting Hawaii’s marriage laws. Specifically,,

during the same legislative session that the legislature passed the proposed amendment to the Hawaii Constitution, the legislature also passed the Reciprocal Beneficiaries Act. In the

findings under this act, the legislature specifically noted that through the act, certain rights and benefits previously available only to married couples would become available to certain individuals in same-sex relationships. Subsequently, See H.R.S. § 572C-2.

in 2011, the legislature passed the civil unions

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law, granting same-sex couples all of the state legal rights of marriage (except for the title marriage) Furthermore, in its forthcoming analysis, the Court

explains that there is a rational basis for the laws at issue. Thus, unlike in Romer, the classification is not “inexplicable by anything but animus” toward same-sex couples. F.3d at 868 See Bruning, 455

(determining that a state law limiting marriage to

opposite-sex couples was not “inexplicable by anything but animus towards same-sex couples” and thus Romer did not control) (internal quotations omitted) C. Plaintiffs’ Due Process Claim The “‘liberty” the Due Process Clause protects includes more than the absence of physical restraint. Glucksberg, .521 U.S. 702, 719 (1997)
.

Washington v.

In substantive due process laws implicating a Id. at

challenges in which this liberty is at issue,

fundamental right are subject to heightened scrutiny. 720.

A state law that does not implicate a fundamental right or

suspect classification, however, is subject to rational basis review. Id. at 722. It is undisputed that there is a fundamental right to marry. Defendant Abercrombie asserts that the fundamental right See

to marry includes the right of same-sex couples to marry. Abercrombie’s Mot. Mem. 27.

Plaintiffs state that the right they

seek is not “the right to same sex marriage” but the fundamental

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“right to marry the person of one’s choice.”

Pis.’ Opp’n 14.

In contrast, Defendant Fuddy and HFF state that the existing fundamental right to marry does not include a right to marry someone of the same-sex. Mem. 16. The Supreme Court has emphasized its “reluctan[ce] to See HFF’s Mot. Mem. 18; Fuddy’s Mot.

expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” quotations omitted)
.

Glucksberg, 521 U.S. at 720

(internal

“By extending constitutional protection to

an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Id. Consequently, “[t]he doctrine of

judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, (internal citations omitted) “Don’t Ask, Don’t Tell,”
.

503 U.S. 115, 125

(1992)

In considering a challenge to

(“DADT”), Judge O’Scannlain explained

that “[t]his note of caution is especially important in cases such as this one, where moral and personal passions run high and where there is great risk that ‘the liberty protected by the Due Process Clause preferences’ [will] be subtly transformed into the policy Log Cabin Republicans v. (9th Cir. 2011) (O’Scannlain,

of unelected judges.’” ~58 F.3d 1162, 1174

United States,

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J., concurring)

(quoting Glucksberg, 521

U.s.

at 720)

Accordingly, the established method of substantive due process analysis has two primary features: first, courts require a “careful description of the asserted fundamental liberty interest”; and second, the qourts consider whether the right is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty such

that neither liberty nor justice would exist if it were sacrificed.” Glucksberg, 521 U.s. at 720—21 (internal quotations

and citations omitted) 1. Description of the Asserted Fundamental Right

In describing the asserted fundamental right, the Supreme Court “has eschewed breadth and generality in favor of narrowness, delicacy, and precision.” F.3d at 1169 v. Flores, Log Cabin Republicans, 653

(O’Scannlain, J., concurring).

For example, in Reno

507 U.S. 292

(1993), the Supreme Court determined that

the right at issue in a challenge to a regulation governing release of detained alien juveniles was not the right to be free from physical restraint, but was “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of

a

willing—and-able private custodian rather than of a

government operated or government-selected child care institution.” Id. at 302.

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The Ninth Circuit followed suit in Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007), a case challenging the

constitutionality of the Controlled Substances Act as applied to users and growers of marijuana for medical purposes. The Ninth life-

Circuit explained that Raich’s asserted right to “mak[e]

shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life” does “not narrowly and accurately reflect the right that she seeks to vindicate.” original)
.

Id. at 862-64

(alteration in

“Conspicuously missing from Raich’s asserted

fundamental right is its centerpiece: that she seeks the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life..” Id. at 864. Similafly, missing from

Plaintiffs’ asserted “right to marry the person of one’s choice” is its centerpiece: the right to marry someone of the same gender. Defendant Abercrombie’s assertion that the right to marry someone of the same gender is contained in the existing “right to marry” is unsupported in case law. To credit this

argument would require ignoring that the term “‘marriage ordinarily contemplates a relationship between a man and a woman.’” Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir. 1982) (1971);

(citing Webster’s Third New International Dictionary 1384 Black’s Law Dictionary 876 (5th ed. 1979))
.

Significantly, the

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Supreme Court cases involving the fundamental right to marry all involved opposite—sex couples. Consequently, the Supreme Court, in discussing the fundamental right to marry, has had no reason to consider anything other than the traditional and ordinary understanding of marriage as a union between a man and a woman. Furthermore, in

discussing the importance of marriage, the Supreme Court has often linked marriage to procreation.20” 434 U.S. 374, 383 (U.S. 1978)
. .

See Zablocki v. Redhail, is the foundation of

(“[Marriage]
.

the family in our society.

[I]f appellee’s right to

procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic

civil rights of man,’ fundamental to our very existence and survival.”); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

20”Although same-sex couples now have the ability to procreate with the assistance of technology and third-parties, there is nothing in the aforementioned Supreme Court cases to indicate the Supreme Court was considering anything other than natural procreation. Furthermore, these cases were decided between 1885-1978, the latter being at the infancy of the introduction of artificial insemination as a viable option for women to conceive without engaging in intercourse. See Erica Davis, The Rise of Gestational Surrogacy and the Presiding Need for International Regulation, 21 Minn. J. Intl. L. 120, 122 (2012) (explaining that the advances in artificial insemination in the 1980s “opened the door to allowing single people and homosexual couples access to assisted reproductive technology, including the surrogacy market”)
. . .

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(“Marriage and procreation are fundamental to the very existence and survival of the race.”); Maynard, 125 U.S. at 211

(“[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the

foundation of the family and of society, without which there would be neither civilization nor progress.”); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (“[N]o legislation can be supposed more self-governing

wholesome and necessary inthe founding of a free, commonwealth
. . .

than that which seeks to establish it on the

basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.”) (emphasis added)
.

Thus, “in recognizing a

fundamental right to marry, the

[Supreme] Court has only

contemplated marriages between persons of opposite sexes

persons who had the possibility of having children with each other.” 1995)
21/

Dean v. Dist. of Columbia,

653 A.2d 307, 333

(D.C.

21”Other courts have also recognized that Supreme Court jurisprudence does not support a fundamental right to marry someone of the same sex. See In re Kandu, 315 B.R. at 140 (“Even if this Court believes there should be a fundamental right to marry someone of the same sex, it would be incorrect to suggest that the Supreme Court, in its long line of cases on the subject, conferred the fundamental right to marry on anything other than a traditional, opposite-sex relationship.”); Andersen v. King Cnty., 138 P.3d 963, 999 (Wash. 2006) (plurality) (“The fundamental right of a man and woman to marry is linked with the related fundamental right to procreate, as noted in Skinner. Every United States Supreme Court decision concerning the right (continued...) 62

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Other courts considering claims that same-sex couples have a fundamental right to marry, have concluded that the right at issue is not the existing fundamental “right to marry.” Wilson, 354 F. Supp. 2d at 1305; In re Kandu, Smelt, 619 See

315 B.R. at 140; 932 A.2d 571,

374 F. Supp. 2d at 879; Conaway v. Deane,

(Md. 2007)

(evaluating challenge under Maryland 908 A.2d 196, 210-211 (N.J. 2006)

Constitution); Lewis v. Harris,

(evaluating challenge under New Jersey constitution); Baehr v. Lewin, 852 P.2d at 56-57 (evaluating challenge under Hawaii 326 S.W.3d 654, 675

Constitution);

In re Marriage of J.B. & H.B.,

(Tex. App. 2010); but see Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2011)
.

The Court agrees that the right at

issue here is an asserted new right to same-sex marriage. 2. The Nation’s History and Tradition

It is beyond dispute that the right to same-sex marriage is not “objectively, deeply rooted in this Nation’s history and tradition.” See In re Kandu, 315 B.R. at 140

(“{T]here are no grounds to conclude objectively that same-sex marriages are deeply rooted in this Nation’s history and

continued) to marry has assumed marriage as the union of one man and one woman. Every party in every right to marrycase that the Supreme Court has ever decided included one man in union with one woman. Those decisions do not support any claim other than the right to marry a person of the opposite sex.”) (internal citations omitted); Dean, 653 A.2d at 333 (“{W]e cannot overlook the fact that the Supreme Court has deemed marriage a fundamental right substantially because of its relationship to procreation.”)
21/ (•~

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tradition.”); Hernandez v. Robles,

855 N.E.2d 1,
. .

10
.

(N.Y. 2006) is not ‘deeply

(“The right to marry someone of the same sex rooted.’”)
.

In fact, “it has not even been asserted until Hernandez, 855 N.E.2d at 10.

relatively recent times.” Furthermore,

as Defendant Abercrombie recognizes, it was 2004 See

before any state allowed same-sex couples to marry. Abercrombie’s Mot. Mem. 31; Massachusetts, 239.

698 F. Supp. 2d at

The Ninth Circuit has recognized that the definition of contractual personal relationship
.
. .

marriage as “a consensual, between a man and a woman. traditional.” Smelt,

is not peculiar; indeed it is (citing 2 Samuel (London, W. Strahan

447 F.3d at 680 & n.18

Johnson, A Dictionary of the English Language et. al. 1755)

(Marriage is: “The act of uniting a man and woman

for life.”

To marry is: “To join a man and woman.”); Noah

Webster, A Compendious Dictionary of the English Language 185 (1806) (Marriage is: “the act of joining man and woman.”); (3d ed. 1986)

Webster’s Third New International Dictionary 1384

(Marriage is: “the state of being united to a person of the opposite sex as husband or wife.”); Black’s Law Dictionary 972 (6th ed. 1990)
(Marriageis:

“Legal union of one man and one

woman as husband and wife.”); The Compact Oxford English Dictionary 1039 (2d ed. 1994)
. .

(Marriageis: “The condition of
.“))

being a husband or wife.

Defendant Abercrombie argues that the reliance on the

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history and tradition of the Nation is erroneous given the Supreme Court’s statement in Lawrence that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” 577-78)
.

Abercrombie’s Reply 6-7

(citing 539 U.s.

Defendant Abercrombie relies on the Supreme Court’s (1967), in which the

decision in Loving v. Virginia, 388 U.S. 1

Supreme Court struck Virginia’s anti-miscegenation statute as violating interracial couples’ fundamental right to marry.

Defendant Abercrombie asserts that there was no history and tradition of interracial marriage and yet the Supreme Court still analyzed the case as asserting a fundamental right. Abercrombie’s Reply 6-7. In Loving, however, the Supreme Court 388 U.S. at

was considering the long recognized right to marry. 12.

The case did not involve expanding the traditional This

definition of marriage as being between a man and a woman.

case presents a different right, the right to marry someone of the same sex. The fact that this right is not objectively rooted

in the Nation’s history does not prohibit statutes defining marriage as a union between a man and woman from constitutional attack. Instead, it precludes the right to marry someone of the

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same-sex from being a fundamental 315 B.R. at 140

right.22”23”

See In re Kandu,

(holding that because same-sex marriage is not

deeply rooted in the history and tradition of our Nation, it is not a fundamental right); Conaway, 932 A.2d at 619-28 (rejecting

Defendant Abercrombie’s asserted Loving analogy and holding that there is no fundamental right to marry someone of the same-sex under the Maryland Constitution because it is not deeply rooted in history and tradition); Lewis, 908 A.2d at 211 (rejecting

Defendant Abercrombie’s asserted Loving analogy and concluding that “[w]e cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right”) Defendant Abercrombie also relies on the Supreme Court’s statement in Lawrence that “[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Abercrombie’s Reply at 6-7

221Defendant Abercrombie and Plaintiffs’ further analogies to Loving are unpersuasive in this case. Loving involved an invidious discrimination on the basis of race, a suspect classification. See Loving, 388 U.S. at 8—9. 23”The Court recognizes that although the lack of history and tradition can prevent an asserted right from being fundamental, “[t]radition alone never can provide sufficient cause to discriminate against a protected class, for ‘[neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourt’s scrutiny.” Kerrigan, 957 A.2d at 479 (alterations in original) (citing Bowers v. Hardwick, 478 U.S. 186, 210 (1986) (Blackmun, J., dissenting)). 66

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(citing Lawrence, 539 U.s. at 572)

.

Defendant Abercrombie then

states that “by overruling Bowers, Lawrence made the recognition of a fundamental right to same sex marriage plausible.” 7. Id. at

Significantly, however, as Justice Scalia points out in

dissent, although there was discussion of fundamental propositions and fundamental decisions, “nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’” (Scalia, J., dissenting)
.

539

U.S. at 586

Second, the Supreme Court

never stated that history and tradition are not important in determining whether an asserted new right is fundamental. Finally, the Supreme Court explicitly stated that Lawrence did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” at 578. Id.

As the Eleventh Circuit explained, “it is a strained and

ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.” Lofton v. Sec’y of Dep’t of (11th Cir. 2004); see

Children & Family Servs., 358 F.3d 804, 817 also Wilson, 354 F. Supp. 2d at 1306

(“[T]he Supreme Court’s

decision in Lawrence cannot be interpreted as creating a fundamental right to same—sex marriage.”) Accordingly, the right to same-sex marriage is not a

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fundamental right.

Because Hawaii’s marriage laws do not

implicate a suspect classification, as discussed infra, Plaintiffs’ claim that Hawaii’s marriage laws violate •the Due Process Clause is therefore subject to rational basis review. D. Plaintiffs’ Equal Protection Claim Laws alleged to violate the Equal Protection Clause are subject to one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. 486 U.S. 456, 461 (1988)
.

Clark v. Jeter,

Strict scrutiny applies when a

classification is based on race, alienage, or national origin. City of Cleburne v. Cleburne Living Center, (1985)
.

473 U.S. 432, 440

Under strict scrutiny review, a state must show the

challenged classification is narrowly tailored to further a compelling governmental interest. 306, 326 (2003)
.

Grutter v. Bollinger, 539 U.S.

Intermediate scrutiny applies to Cleburne, 473

classifications based on illegitimacy and gender. U.S. at 441.

A classification fails intermediate scrutiny review

unless it is substantially related to a sufficiently important governmental interest. rational basis review. review, Id. Other classifications are subject to Under rational basis

See id. at 440-41.

a classification will be upheld as long as there is a

rational relationship between the disparity of treatment and some legitimate governmental purpose. 319 (1993) Heller v. Doe, 509 U.S. 312,

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1.

Gender Discrimination

Plaintiffs assert that § 572—1 discriminates on the basis of gender because it permits a man and a woman to marry but neither two men nor two women to marry. Am. Compi. ¶ 101.

Contrary to Plaintiffs’ assertions, however, the statute does not discriminate on the basis of gender. Section 572-1 does not treat males and females differently as a class. It is gender-neutral on its face; it

prohibits men and women equally from marrying a member of the same—sex. A facially gender-neutral statute may nonetheless

discriminate on the basis of sex if “the adverse effect reflects invidious gender-based discrimination.” Feeney, at 143 442 U.S. 256, 274 Personnel Adm’r v. 315 B.R.

(1979); see also In re Kandu,

(“The test to evaluate whether a facially gender-neutral

statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.”) omitted)
.

(internal quotations

There is nothing in the legislative history or

elsewhere that suggests that the purpose of § 572—1 is to discriminate against men or women as a class. The Court thus agrees with the vast majority of courts considering the issue that an opposite-sex definition of marriage does not constitute gender discrimination. See Smelt, 374 F.

Supp. 2d at 876—77; Wilson, 354 F. Supp. 2d at 1307—08; In re Kandu, 315 B.R. at 143; In re Marriage Cases, 183 P.3d at 439

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(“[D]iscriminati~n on the basis of sex, and discrimination on the basis of sexual orientation
. . .

traditionally have been viewed 932 A.2d at 599; Andersen v. (Wash. 2006) (plurality);

as distinct phenomena”); Conaway, King Cnty., Hernandez, 880 n.l3 138 P.3d 963, 987—89

855 N.E.2d at 10—li; Baker v. Vermont, 744 A.2d 864, 1999); Singer v. Hara, 522 P.2d 1187, 1192 (Wash.

(Vt.

Ct. App. 1974); but see Perry v. Schwarzenegger, 704 F. Supp. 2d at 996 (“Sexual orientation discrimination can take the form of 824 F. Supp. 2d at 982 n.4 (plurality) (concluding

sex discrimination.”); Golinski, (same); Baehr v. Lewin,

852 P.2d at 63

opposite-sex definition of marriage discriminated on the basis of sex) 2. Sexual Orientation Discrimination

Although the Supreme Court has never determined whether sexual orientation classifications should be subject to heightened scrutiny, the Ninth Circuit, in High Tech Gays v. 895 F.2d 563 (9th

Defense Industry Security Clearance Office,

Cir. 1990), held that homosexuality is not a suspect or quasisuspect classification.24’ See id. at 573-74. In making this

determination, the Ninth Circuit noted that the ruling in Bowers

241Although the Ninth Circuit was considering the equal protection component of the Fifth Amendment in High Tech Gays, it expressly noted that the Supreme Court’s approach to “‘Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.’” 895 F.2d at 571 (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)) 70

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v. Hardwick,

478 U.s. 186 (1986), that homosexual conduct could

be criminalized was “incongruous” with deeming homosexuals a suspect or quasi—suspect class. 74. High Tech Gays, 895 F.2d at 573—

The Ninth Circuit went on to analyze whether homosexuals

were a suspect class in light of the major considerations for such treatment

a history of discrimination, Id.

immutability, and

politically powerlessness.

The Ninth Circuit concluded that

although homosexuals have suffered a history of discrimination, sexual orientation is not immutable but behavioral and homosexuals are not without political power. Id.

The Ninth Circuit has not overruled High Tech Gays and has continued to cite it for the proposition that homosexuals are not a suspect class.25’ District, 324 F.3d 1130 In Flores v. Morgan Hill Unified School (9th Cir. 2003), the Ninth Circuit cited

High Tech Gays for its conclusion that “homosexuals are not a

25’The Ninth Circuit is not alone. The circuits that have addressed this issue, i.e., all circuits but the Second and Third Circuits, have unanimously declined to treat sexual orientation classifications as suspect. See Price-Cornelison v. Brooks, 524 F.3d 1103, 113—14 & n.9 (10th Cir. 2008); Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Bruning, 455 F.3d at 866—67; Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103—04 (D.C. Cir. 1987); see also Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (explaining outside the prison context, sexual orientation classifications are subject to rational basis review) 71

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suspect or quasi-suspect class, but are a definable group entitled to rational basis scrutiny for equal protection purposes.” (9th Cir. See id. at 1137. In Philips v. Perry, 106 F.3d 1420

1997), a case involving DADT, the Ninth Circuit, citing stated that “homosexuals do not constitute a

High Tech Gays,

suspect or quasi—suspect class entitled to greater than rational basis scrutiny.” Id. at 1425. In Witt v. Department of Air

Force, 527 F.3d 806

(9th Cir. 2008), the Ninth Circuit expressly

stated that “Philips clearly held that DADT does not violate equal protection under rational basis review, and that holding was not disturbed by.Lawrence, which declined to address equal protection.” added). Plaintiffs assert that this Court is nonetheless not bound by High Tech Gays, relying on the reasoning set forth by the district court in Golinski v. Office of Personnel Management, 825 F. Supp. 2d 968 (N.D. Cal. 2012)
.

Id. at 821

(internal citation omitted)

(emphasis

Both Defendant Abercrombie

and the court in Golinski contend that because Lawrence overruled Bowers, the Ninth Circuit’s decision is no longer good law. Golinski, 824 F. Supp. 2d at 984; Abercrombie Mot. Mem. See

42-43.

The court in Golinski further determined, and Defendant Abercrombie argues, that the Ninth Circuit had also relied on “the mistaken assumption” that sexual orientation is “merely behavioral,” rather than the type of immutable characteristic

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that warrants heightened scrutiny. at 984 46.

See Golinski, 824 F. Supp. 2d

(internal quotations omitted); Abercrombie’s Mot. Mem. 45-

Defendant Abercrombie further argues that “High Tech’s not-

politically—powerless conclusion is also not binding in light of subsequent factual developments
. . .,

including the overwhelming

nationwide backlash provided by Hawaii’s Baehr decision.” Abercrombie’s Mot. Mem. 48. If the Supreme Court or a Ninth Circuit en banc decision “undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” this Court is not bound by a Ninth Circuit panel decision. Miller v. Gammie,
. . .

335 F.3d 889,

900

(9th Cir. 2003)
.

(“In future cases of

clear irreconcilability,

district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.”); see Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010)

Putting aside the fact that the Ninth Circuit has continued to state that sexual orientation classifications are not suspect, no Supreme Court decision has undercut the entire reasoning of High Tech Gays in a way that is “clearly irreconcilable.” The reliance by Plaintiffs and Defendant Abercrombie on Lawrence is misplaced. The majority in Lawrence did not apply an Justice O’Connor did so in her

equal protection analysis.

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concurrence and determined that rational basis review was appropriate where “the challenged legislation inhibits personal relationships.” concurring)
.

Lawrence,

539 U.s. at 579—81

(O’Connor, J.,

Although Lawrence did nonetheless undercut the

reasoning that homosexual conduct could be criminalized, the decision is not “clearly irreconcilable” with the balance of the Ninth Circuit’s reasoning, i.e., homosexuality is not immutable but behavioral and that homosexuals are not without political power. Furthermore, post-Lawrence, in Witt, the Ninth Circuit

stated that Lawrence did not disturb the holding that DADT did not violate equal protection under rational basis review. 527 F.3d at 821. Defendant Abercrombie asserts that the Ninth’s Circuit immutability “finding” cannot be reconciled with “current empirical evidence,” the Ninth Circuit’s decision in Hernandez Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), and the Supreme 130 S. Witt,

Court’s decision in Christian Legal Society v. Martinez, Ct. 2971 (2010)
.

Abercrombie’s Mot. Mem. 44—47.

The Court first

notes that its determination of what current empirical evidence may dictate does not give it authority to disregard binding Ninth Circuit precedent. Defendant Abercrombie’s reliance on Hernandez-Montjel is also misguided. In Hernandez-Montiel, a Ninth Circuit panel

determined that gay men with female sexual identities in Mexico

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comprised a particular social group for purposes of an asylum statute. 225 F.3d at 1094. In reaching its conclusion, the

Ninth Circuit stated that “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” 1093. Id. at

This decision did not discuss suspect classifications or Thus, the Ninth Circuit did not overrule High
.

equal protection. Tech Gays Miller,

(nor could it, being only a three-judge panel)

See

335 F.3d at 900.

Because the Ninth Circuit has not regardless of whether the reasoning of

overruled High Tech Gays,

a later Ninth Circuit panel decision is inconsistent with the reasoning in High Tech Gays, High Tech Gays remains binding on this Court unless the reasoning of a Supreme Court or Ninth Circuit en banc decision is clearly irreconcilable. Brumsickle, 624 F.3d 990 at 1013 See

(“[I]n the face of intervening

Supreme Court and en banc opinions, a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.”) (alteration in original) (emphasis added)

(internal quotations omitted)

Defendant Abercrombie argues that the Ninth Circuit’s immutability finding improperly separated orientation from conduct and is thus irreconcilable with Christian Legal Society. Specifically, in High Tech Gays, the Ninth Circuit stated:

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“Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. The behavior of such already 895

recognized classes is irrelevant to their identification.” F.2d at 573. In Christian Legal Society, the Supreme Court

determined that excluding those students who engaged in “unrepented homosexual conduct” from affiliation with a student club was in effect discrimination based on sexual orientation. 130 5. Ct. at 2990. Specifically, the Supreme Court rejected the

argument that the policy at issue did not exclude individuals because of sexual orientation, “but rather ‘on the basis of a

conjunction of conduct and the belief that the conduct is not wrong.’” Id. In reaching this conclusion, the Supreme Court

stated that its “decisions have declined to distinguish between status and conduct in this context.” Id. (emphasis added)
.

In

Christian Legal Society, the Supreme Court was considering a First Amendment challenge to a university’s anti-discrimination policy, not an equal protection challenge, and significantly, did not discuss whether homosexuality was immutable. 2988—90. See id. at

Thus, Christian Legal Society is not “clearly

irreconcilable” with the Ninth Circuit’s determination that homosexuals are different from other suspect classes because homosexual behavior is not immutable in the sense that the

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class’s behavior is relevant to identifying homosexuals. With regard to the Ninth’s Circuit’s conclusion that homosexuals are not without political power, Defendant Abercrombie asserts that “[a] ruling resting on a particular

complex of facts cannot bind a subsequent court faced with a very different and novel set of facts.” Abercrombie’s Mot. Mem. 48.

In reaching its conclusion, the Ninth Circuit explained: “Legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation. Thus, homosexuals are not without political power;

they have the ability to and do attract the attention of the lawmakers, as evidenced by such legislation.” High Tech Gays,

895 F.2d at 574. First, the Court notes that homosexuals have continued to attract the attention of law makers and gain more rights. For

example, Hawaii has enacted the civil unions law and the Governor has moved for partial summary judgment in favor of Plaintiffs in this case. On a nationwide level, in Golinski, 132 democratic

members of Congress submitted an amicus brief to the Ninth Circuit detailing why they believe DOMA should be ruled unconstitutional. Cir.)
.

See Golinski, No. 12-5409, Doc. No.

87

(9th

President Obama and Attorney General Holder support gay See Letter from

marriage and refuse to defend Section 3 of DOMA.

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Eric H. Holder, Jr., Att’y Gen., to Rep. John A. Boehner, Speake± of the House, Letter to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www.justice.gov/ The Democratic National

opa/pr/2011/ February/1l-ag-223.html.

Committee recently announced it would add pro-gay marriage language into their official party platform. See Teresa Welsh,

Should Gay Marriage Be on the Democratic Party Platform, U.S. News (August 1, 2012) http://www.usnews.com/opinion/articles/2012

/ 08 / 01 / should-gay-marriage-be-on-the-democratic_party_platform.
Second, Defendant Abercrombie’s argument that this Court is not

bound by High Tech Gays because of the “novel” and “complex” set of facts in this case is without merit. Whether sexual

orientation classifications are suspect is a question that does not depend on the particular or “novel” facts of a case. the Court’s own conclusion about the political power of homosexuals does not give it authority to overrule binding Ninth Circuit precedent. In sum; the Court cannot conclude that the state of the law is such that the Supreme Court has eviscerated the holding that homosexuals are not a suspect class. B.R. at 143—44 See In re Kandu, 315 Third,

(concluding the court was bound by the Ninth

Circuit’s decision in High Tech Gays that homosexuals do not constitute a suspect or quasi-suspect class)
.

Consequently, the

Court does not have the power to overrule the Ninth Circuit’s

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determination that homosexuals do not constitute a suspect class.26” The Court therefore follows the precedent of the eleven

circuits that have addressed this issue, including binding Ninth Circuit precedent, that sexual orientation classifications are not suspect. See supra, n.25 (collecting cases) Accordingly,

rational basis review applies to Plaintiffs’ claim under the Equal Protection Clause. E. Rational Basis Review 1. Standard

A court applying rational basis review will uphold a law so long as the legislative classification bears a rational relationship to some legitimate end. Romer, 517 U.S. at 631. sit

Rational basis review does not authorize “the judiciary [to] as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Heller, 509 U.S. at 319 (internal quotations omitted)
.

Rather,

it is “a paradigm of judicial restraint.” Commc’ns, Inc., 508 U.S. 307, 314 (1993)

F.C.C. v. Beach

26”Because the Court is bound by Ninth Circuit precedent, the facts stated in Defendant Abercrombie’s CSF that are used to support his argument that homosexuals are a suspect class, including assertions related to the immutability and political power of homosexuals, are not material to the Court’s decision. Thus it is unnecessary for the Court to evaluate these highly controversial statements. Accordingly, the fact that Defendant Fuddy and HFF dispute these assertions does not render summary judgment inappropriate.• 79

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“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. This wide latitude

afforded to states is because “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Cleburne, 473 U.s. at 440.

Due to this wide latitude, under rational basis review, a law is presumed constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” 320 (internal quotations omitted)
.

Heller, 509 U.S. at

A state is not required to

produce evidence to sustain the rationality of a statutory classification and courts must “accept a legislature’s
V

generalizations even when there is an imperfect fi’t between means and ends.” Id. at 320-21. Furthermore, the judiciary does not

require a legislature to articulate its reasons for enacting a statute, and thus “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” 508 U.S. at 315. Plaintiffs argue that the Court should not apply this Beach Commc’ns,

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ordinary rational basis review.

Rather, they argue that the

Court should apply “a more searching form of rational basis review.” Pls.’ Opp’n 19. Plaintiffs rely on the First Circuit’s 682 F.3d 1 (1st Cir. 2012).

recent decision in Mass. v. HHS,

Both Plaintiffs and the First Circuit rely on City of Cleburne v. Cleburne Living Center, 473 U.s. 432, 440 (1985), Department of

Agriculture v. Moreno, 413 U.S. 528

(1973), and Romer, in

asserting the Court should apply this “more searching form” of review. In considering a challenge to DOMA, the First Circuit noted that the plaintiffs could not prevail under regular rational basis review. Mass. v. HHS, 682 F.3d at 9. The First

Circuit forecasted “that the extreme deference accorded to ordinary economic legislation by the Supreme Court.”
. . .

would not be extended to DOMA Thus, the First Circuit

Id. at 11.

applied an “intensified scrutiny” based on a combination of equal protection and federalism concerns. protection and federalism concerns
.

See id. at 8
. .

(“[E]qual

combine

not to create

some new category of ‘heightened scrutiny’ for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”)
.

As an obvious distinction with the First Circuit’s

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decision, this case does not involve the same federalism concerns.

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In Mass. v. HHS, a federal court was asked to strike a

federal statute that encroached on an area of law historically left to the states. Here, Plaintiffs ask a federal court to

strike down a state statute regulating an area of law historically within the prerogative of the states. Moreover, the First Circuit’s “intensified” standard is inconsistent with the Ninth Circuit’s decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). In Adams, the Ninth

Circuit held that a provision of the Immigration and Nationality Act denying spouses of homosexual marriages the preferences accorded to spouses of heterosexual marriages •did not violate the equal protection component of the Fifth Amendment. 43. Id. at 1041-

The Ninth Circuit applied ordinary rational basis review to ~ at 1042—43. It explained that “Congress

the provision.

manifested its concern for family integrity when it passed laws facilitating the immigration of the spouses of some valid heterosexual marriages,” and that “[i]n effect, Congress has determined that preferential status is not warranted for spouses of homosexual marriages.” Id. It upheld the statute,

explaining, “[pierhaps this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores.”27” Id.

271The Ninth. Circuit noted that “some lesser standard of (öontinued...) 82

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Plaintiffs’ proposed intensified review conflicts with the Eighth Circuit’s decision in Bruning. In Bruning, the Eighth

Circuit held that an amendment to the Nebraska Constitution prohibiting same-sex marriage and the equivalent of civil unions did not violate the Equal Protection Clause. ‘F.3d at 868-69. See Bruning, 455

After noting that the institution of marriage

has always been the predominant concern of state government in our federal system, the Eighth Circuit concluded that rational basis review must be “particularly deferential” in this area. Id. at 867. Finally, the cases relied upon by Plaintiffs do not support a new level of “intensified scrutiny.” In Romer, the

Supreme Court stated that Amendment 2 “fails, indeed defies, even thEe] conventional [rational basis] inquiry.”
.

517 U.S. at 631-32

(emphasIs added)

In Cleburne, the Supreme Court invalidated an

ordinance as applied to a permit denial for a group home for the mentally disabled. See Cleburne, 473 U.S. at 435. The Supreme

Court applied the “general rule” that “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440.. It concluded, however, that tbe municipality failed

to show how any legitimate concern applied particularly to

.continued) review” may apply to Congress’s immigration laws. Adams, 673 F.2d at 1042. The Ninth Circuit, found it unnecessary to make such a determination, however, because the statute survived ordinary iational basis review. Id.
27/(
. .

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mentally retarded residents and not to many other people who could occupy a group home without a permit, such as boarding houses, fraternity houses, hospitals, and nursing homes. 450.

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Id. at

The Court thus concluded the ordinance “appear[ed] to rest Id. In

on an irrational prejudice against mentally retarded.”

Moreno, the Supreme Court struck a statutory classification that rendered households containing unrelated individuals ineligible under the Food Stamp Act. See Moreno, 413 U.S. at 537—38. The

Supreme Court applied a “traditional equal protection analysis,” but concluded that..the classification was “not only ‘imprecise,’ it [was] wholly without any rational basis.” (emphasis added) The Supreme Court has directed that if Supreme Court pre~edent has direct application in a case, “yet appears to rest on reasons rejected in some other line of decisions,” the lower courts “should follow the case which directly controls, leaving to th[e] [Supreme] Court the prerogative of overruling its own Tenet v. Doe, 544 U.S. 1, 10-11
.

Id. at 533, 538

decisions.”

(2005)

(internal

quotations omitted) form of review.

These three cases do not establish a new

In these cases, the Supreme Court expressly

stated it was applying the “conventional,” “general,” and “traditional” rational basis analysis. Rather, these cases

dictate that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. See Romer,

517 U.S. at 634—35; Cleburne, 473 U.S. at 446—47; Moreno, 413 U.S. at 538. The Court has already concluded, however, that 84

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Hawaii’s marriage laws are not based on a bare desire to harm

Page ID

homosexuals and thus this case is not controlled by these three decisions. Under this conventional rational basis review, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.s. at 315. Again, the

question is not whether the rationales set forth actually mptivated the legislature (or people who ratified the marriage amendment), are supported by empirical evidence, or are wise. Instead, it is whether Hawaii could have reasonably believed, or rationally speculated, that Hawaii’s marriage laws furthered any legitimate interest. Here, the Court is faced with cross-motions for summary judgment. In a rational—basis challenge to a legislative

classification contained in a law, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionrnaker.” Id. Thus, if the evidence, viewed in the light

most favorable to HFF and Defendant Fuddy, shows that there is no conceivable rational basis for~Hawaii’s marriage laws, summary judgment in favor of Plaintiffs is appropriate. On the other

hand, if the evidence, viewed in the light most favorable to Plaintiffs, shows that there is any reasonably conceivable

rational basis for the policy, HFF and Defendant Fuddy are •85

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entitled to summary judgment.

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Disputes of fact that might normally preclude summary judgment in other civil cases, will generally not be substantively material in a rational basis review. Bradley, 440 U.S. 93, 110—11 (1979)
.

See Vance v.

That is, the question

before this Cou~t is not whether the legislative facts are true, but whether they are “at least debatable.” See Heller, 509 U.S. (9th Cir.

at 326; Lupert v. Cal. State Bar, 761 F.2d 1325, 1328 1985)

(“None of the factual issues raised at trial or on apibeal We need only examine

is relevant to the rational basis analysis.

whether the statute has a conceivable basis rationally related to a legitimate governmental purpose.”) 2. Application

Defendant Fuddy argues that there are at least two reasons that the legislature could rationally endorse the traditional view that marriage shall be only between a man and a woman. Fuddy’s Not. Mem. 29. First, she contends that the state

has a legitimate and rational interest in encouraging the stability of naturally procreative relationships. Id. She

states that opposite—sex couples are different from same—sex couples because of their “ability to procreate naturally,” and such difference rationally justifies their different treatment under Hawaii law. Id. at 35. Second, Defendant Fuddy contends

that Hawaii’s marriage laws support Hawaii’s interest in proceeding with caution when considering changes to the traditional definition of marriage. 86 Id. at 38.

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HFF argues that the following three interests

rationally relate to Hawaii’s opposite—sex definition of marriage: (1) “steering the natural procreative capacity of (2) “promoting the ideal

opposite—sex couples into marriage”;

that, wherever possible, children are raised by both their mother and father”; and (3) “reserving watershed changes to such a

fundamental and important social institution to the legislature as the policymaking branch.” HFF’s Mot. Mem. 20.

Plaintiffs and Defendant Abercrombje contend that these asserted interests are irrational.28’ Plaintiffs rely heavily on

the civil unions law, stating that none of the asserted rationales explain why the title “marriage” alone has been denied to same—sex couples. Pis.’ Opp’n 25. Plaintiffs assert that

denying the title marriage to same—sex couples does nothing to encourage opposite-sex couples to marry, negating the reasonableness of the asserted rationales. Id. at 28.

The Court will first discuss the overarching issues of the proper framing of the question at issue and the effect of the

281Plaintiffs and Defendant Abercrornbje assert that Perry precludes, the Court from crediting these rationales. As already discussed, Perry involved the unique circumstances of California in which Proposition 8 was passed after the state had already extended the right to marriage to same-sex couples, many same-sex couples had actually married, and the state had extended the incidents of marriage through the Domestic Partnership Act. Thus, P~roposition 8.’s only effect was to strip from same-sex couples solely the right to the designation of “marriage.” In analyzing similar rationales in Perry, the Ninth Circuit considered the rationales in’light of the “taking away” effect of Proposition 8. See Perry, 671 F.3d at 1086-95. As explained supra, this is not a taking away case like Perry. Thus, HFF and Defendant Fuddy’s asser.ted. rationales are not precluded by -Perry. 87

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civil unions law on its forthcoming analysis of each rationale. FIFE’s first and third rationales significantly overlaps with Defendant Fuddy’s two rationales, respectively, and thus the Court will discuss them together under the same two headings. a. Plaintiffs’ and Defendant ~bercrombje’s Overarching Arguments

Plaintiffs and Defendant Abercrornbje make two overarching arguments

(1) that allowing same—sex couples to

marry would not harm the interests identified by their opponents and (2) the civil unions law has rendered Hawaii’s marriage laws irrational. i. The Relevant Question

Plaintiffs and Defendant Abercrornbie ask this Court to consider whether expanding the line drawn by the state, i.e., expanding the definition of marriage to include unions between same—sex couples, would harm the state’s interests. They argue

that the state has failed to show that its interests are advanced by denying same-sex couples the ability to marry. Reply to HFF 16—19; Abercrombie’s Mot. Mem. 51—56. See Pis.’ Plaintiffs

additionally assert that if the name “marriage” is strong enough to induce opposite—sex couples to marry, then the denial of the name is also strong enough to cause same—sex couples continuing harm for which there is no rational justification. Reply to HFF 21. See Pis.’

The Supreme Court, however, has held that a

classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate 88

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governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 382—83 (1974)

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Thus, the state is not required to show that denying marriage to same-sex couples is necessary to promote the state’s interest or that same-sex couples will suffer no harm by an opposite—sex definition of marriage.291 See Andersen, 138 P.3d at

29~’The Supreme Court’s Cleburne analysis, in which the Supreme Court considered whether the group home would harm the municipalities’s legitimate interest, is not irreconcilable with Johnson. The ordinance at issue in Cleburne broadly allowed many structures, such as apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sOrority houses and dormitories, apartment hotels, etc. It ~then singled out the mentally retarded who were required to obtain a permit for a group home. See Cleburne, 473 U.S. at 437. In Johnson, the statute at issue singled out veterans who had served on “active duty” in Vietnam and conferred a benefit on them to the exclusion of all others. 415 U.S. at 363. A conscientious objector challenged the provision, seeking to be included in the statutory scheme. Id. at 362-63. In Johnson, the statute was upheld because, inter alia, the government interest of “enhancing and making more attractive service in the Armed Forces” was furthered by the class receiving the benefit but would not be furthered by conscientious objectors. Id. at 382—83. In Cleburne, the municipality did not assert that allowing the many persons able to occupy structures similar to group homes advanced an interest that would not be advanced by allowing the mentally retarded to occupy a group home. Instead, the municipality argued the requirement advanced certain.interest such as, inter alia, protecting the residents from a nearby flood plain, reducing congestion in neighborhood streets, and avoiding fire hazards. Cleburne, 47.3 U.S. at 448—50. In other words, it argued that allowing the mentally retarded to occupy group homes would harm its. interest. There was thus no reason to consider the rationales under a ~phnson inclusion analysis. Here, Hawaii’s marriage laws single out, opposite-sex couples to the exclusion of all other potential relationship arrangements. One such potential arrangement, same—sex couples, seek to be included in those who may marry. HFF and Defendant Fuddy argue that the interests they assert support Hawaii’s marriage laws are furthered by allowing opposite-sex couples to marry but would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. It is therefore
.

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985 (plurality) (explaining the relevant inquiry is whether

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granting opposite-sex couples the right to marry furthers the state’s interest, not whether such interests are fi.irthered by denying same-sex couples the right to marry, and noting “the constitutional inquiry means little if. the entire focus, and perhaps outcome, may be so easily altered by simply rewording the question”)
.

Rather, the relevant question is whether an

opposite—sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. N.E. 2d 15, 23 (md. App. 2005) See Morrison v. Sadler, 821

(“The key question in our view is

whether the recognition of same—sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not,

then limiting the institution of marriage to opposite-sex couples is rational and acceptable under
. . .

the Indiana

Constitution.”); Standhardt v. Superior Court, 77 P.3d 451, 463 (Ariz. App. .2003). ii. Effect of the Civil Unions Law

Plaintiffs contend that because same—sex couples now have the right to the same benefits and burdens of marriage under the civil unions law, the heart of the asserted rationales has been taken away. Id. at 23—24. Citing Perry, In re Marriage
-

.continued) appropriate to consider the rationales in light of the Johnson inclusion analysis.
29/(

90

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Cases, 183 P.3d 384 957 A.2d 407

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V

(Cal. 2008), and Kerrigan v. Commissioner,

(Conn. 2008), Plaintiffs as~ert that every court

adjudicating a challenge to. a marriage law in a jurisdiction which has enacted a domestic partnership or civil unions law has taken that law into account.30’ Pls.’ Reply to HFF 5. Plaintiffs

and Defendant Abercrombie also assert that the fact that opposite-sex couples can also enter into a civil union “undermines both the rationale and the pr.eniise that the Legislature reserved the name, couples to marry.” ‘marriage,’ to induce opposite sex

Id. at 8; see Abercrombie’s Mot. Mem. 65; Plaintiffs and Defendant Abercrornbie do

Abercrombie’s Reply 33.

not challenge the constitutionality of the civil unions law,

301Among other reasons, because rational basis review applies in this case, Plaintiffs’ reliance on Kerrigan, and its decision holding a statute reserving marriage to opposite-sex couples but providing for, civil unions violated the Connecticut Constitution, is unavailing. See Kerrigan, 957 A.2d at 411-12. In Kerrigan, the Connecticut Supreme Court explained that the state constitution provides greater protection than that provided by the federal constitution in some instances, and “[t)herefore, although we may follow the analytical approach taken by courts construing the federal constitution, our use’ of that approach for purposes of the state constitution will not necessarily lead to the same result as that arrived at under the federal constitution.” Id. at 420. The court then, in the absenc~ of any binding precedent, determined that sexual orientation classifications are quasi-suspect under the Connecticut Constitution and thus subject to heightened scrutiny. Id. at 431-32. Likewise, in In re Marriage Cases, the California Supreme Court decided as a matter of first impression in California, that sexual orientation classifications are suspect for purposes of the California Constitution and applied strict scrutiny to California’s marriage laws. See In re Marriage Cases, 183 P.3d at 441-42. Here, however, the Court is bound by Ninth Circuit precedent that sexual orientation classifications are not suspect. As discussed supra, Perry is not controlling due to its narrow holding based on the unique facts in California.

91

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which was enacted after the marriage amendment was passed and § 572-1 was amended.

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Rather, they assert that in light of the

later-enacted civil unions law, § 572-1 is unconstitutional.31’ First, no party, nor anything in the legislative history indicates, that the civil unions law is meant to be completely equal tomarriage. See Abercrombie’s Mot. Mem. 62

(“The title ‘marriage’ carries with it significant psychological, sociological, and cultural meaning, and prOvides a state— sanctioned ‘stamp of approval’ on opposite sex relationships.”). That is, the civil unions law confers all of the state benefits and burdens of marriage on couples in a civil union, but the title “marriage” has social benefits and cultural meaning.. As

HFF explains, despite that same-sex couples can get the legal benefits of marriage through civil unions, the state’s purposes of inducing opposite—sex couples to marry are accomplished by the prestige of the institution of marriage. The fact that opposite—sex couples are not prohibited from entering into civil unions does not nullify the social significance or prestige of marriage such that there is no longer

31”Plaintiffs state they “do not concede that Section 572—1 was sound before the civil union bill, but neither do they contend that that is the relevant issue.” Pls.’ Reply to HFF 3. Plaintiffs’ arguments focus on the civil unions law and the fact that the legal benefits of marriage have been made available to same—sex cou~1es while the legal title of marriage has not. The Court notes that at the hearing on HFF’s motion to intervene, Plaintiffs’ counsel explicitly stated that its case did not depend on the civil unions law, which it referred to as ~añ absurd theory” and “fallacious.” Fuddy’s Mot. Ex. 4. 92

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an inducement for opposite-sexcouples to marry.32’

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In any event,

the legislature is not required to have a perfect fit between its means and ends. See Heller, 509 U.S. at 321. Under rational

basis review, the Court must accept the legislature’s generalizations, even if the legislature could have drafted a law different to better fulfill ità purposes. See id.

For example, in City of Dallas v. Stanglin, 490 U.S. 19 (1989), the Supreme Court held that a city ordinance restricting admission to certain dance halls to persons betweeh the ages of 14 and 18 survived rational basis review despite the fact that similar restrictions were not imposed elsewhere, including at skating rinks. Id. at 27-28. The Court explained that arguments

focused on this inconsistency “missapprehend[ed] the nature of rational-basis scrutiny.” Id. at 26. Specifically, the Supreme

Court stated that differences between dance halls and skating rinks “may not be striking, but differentiation need not be striking in order to survive rational—basis scrutiny.” 28. Second, there is a difference between the individual interests in marriage and the social or public interests in marriage. Although legal marriage also secures individual Id. at

32’HFF also argues that the legislature could conclude that the federal benefits available to married couples, but not partners in a civil union, provides an inducement for oppositesex couples to marry rather than enter a civil union. This argument is not persuasive because under DOMA, same-sex married couples cannot get federal benefits. The Court notes that, as discussed supra, the fate of DOMA is uncertain at this time. ~93

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interest, it is a public institution enacted for the benefit of society. See Maynard, 125 U.S. 190. In Kerrigan, Justice

Zarella, dissenting, determined that it was rational for the state to continue to promote the public’s interest by limiting marriage to opposite-sex couples “while enacting a civil union law in reco~nition of the legitimate interests of same-sex couples.” 957 A.2d at 530 (Zarella, J., dissenting). He

explained: “{T]he state reasonably could believe that limiting. marriage to a man and a woman accomplishes vital social goods, while the institution of civil union promOtes the legitimate interests of those who enter into it. Recognition of the latter

private interests does nbt necessarily entail abandonment of the former public interests.” The Court agrees. Id.
.

The legislature could rationally

speculate that by reserving the name “marriage” to opposite—sex couples, Hawaii’s marriage laws provide special promotion and encouragement to enter into those relationships advancing societal interests while the civil unions laws protects the individual interests of same-sex couples. In the absence of a

suspect or quasi—suspect classification or a restriction on a fundamental right, the Fourteenth Amendment, does not require Hawaii to endorse all intimate relationships on identical terms. See Johnson, 415 U.S. 361; Vance, 440 U.S. at 94-95, 109 (rejecting a challenge to a statutory requirement for retirement at 60 of federal employees covered by the Foreign Service retirement and disability system but not those covered by the 94

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Civil Service retirement and disability system and explaining

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that it was permissible under rational basis review for Congress to “dr[a]w a line around those pertinent to its objective”)
. . . .

it thought most generally

Thus, the civil unions law does If the state has a

not render Hawaii’s marriage laws irrational.

legitimate interest in defining marriage as between a man and woman that is rationally related to Hawaii’s marriage laws, such laws are not unconstitutional. The Court also finds it illogical and unwise to conclude that the passage of the civil unions law by the gay and lesbian community
— —

advocated for

renders Hawaii’s existing As Defendant

marriage laws irrational and unconstitutional.33’

Fuddy noted, this result would be “profoundly prejudicial to (ironically) same—sex couples on the one hand and core notions of federalism on the other.”34’ Fuddy’s Mot. Mem. 10. To embrace

331For example, inter alia, Honolulu Pride, Pride Alliance Hawaii, homosexuals, individuals in same—sex relationships, and parents of homosexuals submitted testimony to the Senate in favor of the civil unions law. See SB 232 Testimony 02-08-11, 02-08-11 LATE, 01—25--il, 02-08—11 LATE, available at http: //www. capitol hawaii gov/Archives/measure mdiv Archives asp ~ (lasti visited August 3, 2012)
. . .

341This case does not involve a fundamental right or suspect classification, such as the race-based classification at issue in Brown v. Board of Education, 347 U.S. 483 (1954) Thus, the analogy to Brown set forth by Plaintiffs and Defendant Abercrornbie is unpersuasive. See Abercrornbje’s Mot. Mem. 62 (“This two-tiered system is no better than the long discredited ‘separate but equal’ regime denounced in Brown v. Bd. of Educ.”) Moreover, unlike the Jim Crow laws and segregated school systems, the civil unions law was enacted not to perpetuate discrimination but to afford same-sex couples rights
. . . . .

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Plaintiffs’ argument that Hawaii’s marriage laws violate the Constitution based on a later enacted civil unions law would negate the ability of states to experiment with social change

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without fear of constitutionalizing this divisive social issue. Specifically, accepting Plaintiffs’ argumthit would provide a perverse incentive for states not to enact such civil union laws. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (Brandeis, J., dissenting) (1932)

(“There must be power in the States

and the Nation to remould, through experimentation, our economic practices and institutions to meet changing, social and economic needs.
. . .

To stay experimentation in things social and Denial of the right to

economic is a grave responsibility.

experiment may be fraught with serious consequences to the nation.”)
.

Moreover, it would punish those states that have

extended rights to same-sex couples while retaining the traditional definition of marriage. Again, the circumstances in

Hawaii are different than those in Califorr~iia, where Proposition 8 took away the title of marriage but leftin place all of its incidents, because the marriage amendment was passed and § 572—1 was amended when there was no civil unions law. Accepting the argument that the ability to enter into a civil union renders laws reserving marriage to opposite—sex couples unconstitutional would also force courts to act as policyrnakers. What about the states that confer only some of the

.continued) they had not previously had.
34/’(•
.

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rights and benefits of marriage on partners in civil unions?351 How many rights benefits would render a state’s marriage laws irrational? Courts would be required to usurp the typical This is particularly

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legislative function of drawing lines.

troublesome because “[tjhe problem of legislative classification is a perennial one, admitting of no doctrinaire definition.” Williamson v. Lee Optical of Okla., 348 U.s. 483, 489 (1955). Plaintiffs state that they “categorically reject the
• . .

premise that States should be encouraged to experiment even

where they do so on the basis of classificatory schemes that are unlawful.” Pis.’ Reply to HFF 16. The gay and lesbian

community, however, advocated for the civil unions law, which resulted in the “classificatory scheme” at issue. It is

unreasonable to conclude that Hawaii’s marriage laws are rendered unconstitutional by the state granting additional rights, without taking away anyrights, to same—sex couples. This is the type of

social and political decision within the province of the legislature. Accordingly, a state’s marriage

laws do not~ rise or fall with a later-conferred ability of same

35”As a recent article noted, “[w]hen civil union laws, designated beneficiary laws, reciprocal beneficiary laws, marriage laws limited to different—sex couples, and marriage laws that do not look to the sex of the parties are considered along with the various types of domestic partnership laws that exist, the results are quite chaotic.” See Edward Stein, The Topography of Legal Recognition of Same-Sex Relationships, 50 Fam. Ct. Rev. 181, 185 (2012) As just one example, Washington~. Maine, and Nevada all have domestic partnerships that were created by legislation but differ dramatically in scope of the rights they confer. See id. at 184-85.
.~

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sex couples to enter into civil unions relationships) b. (or equivalent

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Encouraging the Stability of Relationships that Have the Ability to Procreate Naturally

HFF asserts that throughout different societies, an overriding purpose of marriage “is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” HFF’s Mot. Mem. 21. HFF contends that

through the institution of marriage, societies seek to increase the likelihood that children will be born in stable and enduring family units by the mothers and fathers that conceived them. HFF states that because only sexual relationships between men and women can produce children, “such relationships have a potential to further

~

or harm

this interest in a way, Id.

and to an extent, that other types of relationships do not.” at 25. It adds that Hawaii’s marriage laws, through providing

special recognition to committed opposite—sex relationships, give “an incentive for individuals to channel potentially procreative conduct into relationships in which that conduct is likely to further, rather than harm, society’s interest in responsible procreation and childbearing.” Id. HFF asserts that same—sex

couples do not pose the same risk of irresponsible procreation because although they can and do raise children, “they cannot create them in the way opposite—sex couples do

as the often Id. at 28.

unintended result of even casual sexual behavior.” 98

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Defendant Fuddy asserts that Hawaii has a legitimate interest in encouraging the stability of naturally procreative relationships. Fuddy’s Mot. Mem. 29. Defendant Fuddy states

that this “responsible procreation” interest rests on two factual premises. Id. at 30. First,

“[ut

is an ‘inescapable fact that

only two people, not three, only a man and a woman, can beget a child’ without the intervention and assistance of third parties and as anordinary result. of their sexual union.” Id. (quoting

House Judiciary Committee, H.R. Rep. No. 104—664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917). Second, “[w]hen

procreation and childrearing take place outside stable family units, children suffer.” Id. Defendant Fuddy states that in

light of these two facts, “the state has an interest in encouraging opposite—sex couples to channel their sexual relations in a stable, long term relationship, an interest that does not apply as to same-sex couples.” Id. at 31.

Plaintiffs assert that the “responsible procreation” rationale is so attenuated as to be arbitrary and irrational. Pis.’ Mot. Mem. 20. Plaintiffs contend this argument has only

been successful in jurisdictions in which both the status and legal incidents of marriage have been reserved to opposite-sex couples. Pis.’ Opp’n 26. Plaintiffs assert that because the

legal incidents of marriage are available to same—sex couples who form civil unions, and opposite—sex couples can “opt out of marriage” and elect to form civil unions, it follows that “the name ‘marriage,’ in the State’s view, does nothing on its own to 99

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induce couples to marry and stay married.” Id. at 27.

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Plaintiffs assert that even if the word “marriage” would be a reason for maintaining it as the title for the opposite—sex union, it would not be a reason for denying that title to same— sex couples unless doing so promoted “responsible procreation.” Id. Defendant Abercrombie asserts that “banning same sex couples from getting married will have no impact upon whether heterosexual coupfes get married or not, procreate or not, and raise their children well or not.” 52. Abercrombie’s Mot. Mem. 51-

He contends that reserving marriage to opposite-sex couples

defeats the goal of r~sponsible procreation by denying the children of same-sex couples the possibility of having legally married parents. Id. at 55. He states that although same-sex

couples generally do not accidently procreate, “if the goal is to lessen the risk that children will be born out of wedlock; the ban is irrational.” Id.

Initially, as discussed supra, the fact that Hawaii has extended the legal rights of marriage (except for the title marriage) to same—sex couples via the civil unions law, does not negate the plausibility that the prestige and social significance of marriage might induce opposite—sex couples to marry. Defendant Fuddy and HFF have presented evidence that children fare better on many different levels when raised in a stable family unit by both of their parents. See HFF’s Mot. Ex. 22,

Kristen Anderson Moore, et al., Marriaqe from a Child’s

lo0~

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Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends Research Br. 6 (June 2002) (“Children in single—parent families, children born to unmarried mothers, and children in stepfamilies or cohabitating relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents.”)
.

They

present evidence that when children’are born out of wedlock, the question is often whether the child will be raised by the mother alone or both the mother and father. See HFF’s Ex. 29, William 60 J. Marriage &

J. Doherty, et al., Responsible Fathering, Family 277, 280 (1998)
.

HFF’s evidence further establishes that See Id.

unwed mothers often suffer detrimental economic effects. at 282

(“[Fjor many policy specialists, the principal concern

with fathering outside of marriage .lies with the payment of child support.”); see also Christina Gallo, Marrying Poor: Women’s Citizenship, Race, and TANF Policies, 19 UCLA Women’s L.J. 61, (2012) 93

(“Single mothers are indeed more likely to be poor; 38.1%

live below 1~5% of the poverty level, as opposed to 8.9% of married couples.”)
.

Accordingly, it follows that encouraging

procreation to take place within a marital relationship advances two legitimate goals identified by Defendant Fuddy: “1) to increase the percentage (not necessarily the total number) of ‘children raised in stable married families’ and 2) to decrease the number and percentage of children accidently cànceived outside such relationships.” Fuddy’s Reply 15. Thus, the

Same-sex couples cannot naturally procreate. 101

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Court agrees with Defendant Fuddy’s explanation that “[w]hatever may be. the case with the first reason (and the issue is certainly debatable), the undeniable facts of biology mean that encouraging opposite—sex couples to marry furthers the second reason; encouraging same-sex couples to marry does not.” 15. Fuddy’s Reply

In other words, conferring the unique and socially

significant legal status of marriage on sama—sex couples would not further the interest in decreasing the number of children accidently conceived outside of a stable long-term relationship. See Bruning, 455 F.3d at 867 (concluding that the responsible

procreation theory “justifies conferring the inducements of marital recognition and benefits on opposite—sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot”); Standhardt, 77 P.3d at 463 (“Because same-

sex couples cannot by. themselves procreate, the State could also reasonably decide that sanctioning same—sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.”) One court explained the theory as follows: “[t]hose persons who have invested the significant time, effort, and expense associated with assisted reproduction or adoption may be seen as very likely to be able to provide [a stable] environment, with or without the ‘protections’ of marriage, because of the high level of financial and emotional commitment exerted in conceiving or adopting a child or children in the first place.” Morrison, 821 N.E.2d at 24. Natural reproduction, however,~ “may 102

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occur without any thought for the future.” Id. The court

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concluded that because the recognition of same-sex marriage would not further this interest in responsible procreation,- “the legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by ‘natural’ means.” Id. at 25.

The fact that not all opposite—sex couples have the ability or desire to procreate does not render this interest irrational. Plaintiffs and Defendant Abercrombie’s arguments to

the contrary fail to appreciate the deference the Court must afford the state in rational basis review. “A classification

does not fail rational—basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” omitted)
.

Heller, 509 U.s. at 321

(internal quotations

Instead, “courts are compelled under rational-basis

review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id.

For one, there would be pragmatic and constitutional problems with the state inquiring whether each couple that applies for a license has the ability or desire to have children. Inter alia, “it wou.ld implicate constitutionally-rooted privacy concerns” and “interfere with the fundamental right of opposite sex couples to marry.” In re Kandu, 315 B.R. at 147; see (1972) (“If the right

Eisenstadt v. Baird, 405 U.S. 438, 453—54 103

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of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental

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intrusion into matters so fuhdamentally affecting a person as the decision whether to bear or beget a child.”); Loving, 388 U.S. at 12. Moreover, “even where an opposite-sex couple enters into a ‘accidents’ do

marriage with no intention of having children,

happen, or persons often change their minds about wanting to have children.” Morrison, 821 N.E.2d at 24-25. Thus, the institution

of marriage both “encourages opposite-sex couples to form a relatively stable environment for the ‘natural’ procreation of children
. . .

[and] encourages them to stay together to raise a

child or children together if there is a ‘change in plans.’”36’ Id. at 25. The Supreme Court has held that “[u]nder rational-basis review, where a group possesses distinguishing characteristics relevant to interests the State has the authority to implement, a

36/Many courts have credited the responsible procreation theory and held that there is a rational link between the capability of naturally conceiving children unique to two people of opposite genders and limiting marriage to oppositesex couples. See Bruning, 455 .F.3d at 867—68; Wilson, 354 F. Supp. 2d at 1308-09; In re Kandu, 315 B.R. at 145-47; Conaway, 932 A.2d at 630—31; Andersen, 138 P.3d at 982 (plurality) (“[Nb other relationship has the potential to create, without third party involvement, a child biologically related to both parents, and the legislature rationally could decide to limit legal rights and obligations of marriage to opposite—sex couples.”); In re Marriage of J.B. &~ H.B., 326 S.W.3d at 677 (“Because only relationships between opposite-sex couples can naturally produce children, itis reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite—sex marriage.”); Morrison, 821 N.E.2d at 23—31; Standhardt, 77 P.3d at 461-64; but see Perry v. Schwarzenegger, 704 F. Supp. 2d at 999—1000; Goodridge, 798 N.E. 2d at 961—64.
— —

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State’s decision to act on the basis of those differences does not give rise to a constitutional violation.” Univ. of Ala. v. Garrett, 531 U.s. 356, 366-67 quotations omitted). Bd. of Trustees of (2001) (internal

Here, opposite—sex couples, who can

naturally procreate, advance the interest in encouraging natural procreation to take place in stable relationships and same—sex couples do not to the ‘same extent. Thus, Hawaii’s marriage laws See

are reasonably related to this legitimate state interest. id.; Johnson, 415 U.S., at 382—83.

That is all that is required

under this highly deferential review. Plaintiffs and Defendant Abercrombje have failed to show that this rationale is not at least arguable. Thus, summary

judgment in favor of Defendant Fuddy and HFF is appropriate. See Beach Commc’ns, 508 U.S. at 320 (“The assumptions underlying

these rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational—basis review, to ‘immuniz[e]’ the congressional choice from constitutional challenge.”) (alteration in original); Lofton, 358 F.3d at 820

(“Unless appellants’ evidence, which we view on summary judgment •review in the light most favorable to appellants, can negate every plausible rational connection between the statute and Florida’s interest in the welfare of its children, we are compelled to uphold the statute.”) c. Promoting the Ideal, Where Possible, Children Are Raised by Their Mother and Father in a Stable Relationship

HFF asserts that it is rational for Hawaii to specially 105

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recognize opposite-sex relationships to promote the ideal that children be raised by both a mother and a father in a stable family unit. HFF’s Mot. Mem. 29. Plaintiffs contend that the

legislature was clearthat domestic partners be afforded equality of all the rights, benefits, protections, and responsibilities as those given to married spouses, “‘including any law relating to parent—child relationships.’” Pis.’ Opp’n at 30-31
.

(quoting H. Plaintiffs and

Stand. Comm. Rep. No. 156, at *2 (Feb. 9, Z01l))

Defendant Abercrombie contend that the legislature’s actions and statement cannot be harmonized with the “optimal child rearing” rationale. Id. at 31; Abercrombie’s Mot. Mem. 68—69. Plaintiffs

further argue that “HFF has offered no rational relationship between the title, ‘marriage,’ and the goal of promoting the Pls.’ Opp’n at 32.

‘optimal child rearing environment.’”

Defendant Abercrombie argues that there is no scientific evidence to support that opposite—sex couples are better parents than same—sex couples. Abercrombie’s Mot. Mem. 73.

Under rational basis scrutiny, however, empirical support is not necessary to sustain a classification. Commc’ns, 508 U.S. at 315. Beach

“[A) legislative choice is not

subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” any event, both sides present evidence on this point. Id. In

Defendant

Abercrombie presents evidence that there is no support for the assertion that children fare better when raised by opposite-sex rather than same—sex couples. See Abercrombie’s Countermotion 106

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E-x. 0, American Psychological Association, APA Policy Statement: Sexual Orientation, Parents, & Children (“{R]esults of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children”); Abercrombie’s Countermotion, Michael E. Lamb Declaration ¶ 29 (“The social science literature

overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same—sex parents suffer any developmental disadvantages compared with those with two opposite-sex parents.”) On the other hand, HFF presents evidence that children do best when raised by their two biological parents. See HFF’s

Mot. Ex. 22, Moore, et al., supra, at 6 (“[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents inS-a low—conflict marriage.”); HFF’s Mot. Ex. 31, Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Research 752 (2012)

(finding that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes)
.

HFF also presents evidence that children See HFF’s Mot. Ex. 25,

benefit from having a parent of each sex.

David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood and Marriage Are Indispensable for the Good of Children and Society, 146 (1996) (“The burden of social science

107

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evidence supports the idea that gender differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.”); see also Lynn D. Wardle, Essay, “Multiply and Replenish”: Considering Same—Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771, 780 (2001)

(“Heterosexual marriage reasonably may be assumed to provide the most advantageous environment in which children can be reared, providing profound benefits of dual gender parenting to model intergender relations and show children how to relate to persons of their own and the opposite gender.”). Both sides point out flaws il-i their opponents’ evidence. See Abercrombie’s Mot. Mem. 71-79; Pis.’ Opp’n 29—31;

Pls.’ Reply to HFF 18. .(“{TJhe Regnerus study is badly flawed because it compares apples to oranges. By Regnerus’ own

admission, almost half of his sample of adult children from same sex households had once lived with biological parents.”); HFF’s Opp’n Ex. 32, Loren D. Marks, Same-Sex Parenting and. Children’s Outcorn~s: A Closer Examination of the l~merican Psychological Association’s Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Research 735, 748 (2012) (explaining flaws in 59 studies

cohducted on same-sex parenting, including the involvement of small, non—random, convenience samples, and concluding that the generalized claim of “no difference” was “not empirically warranted”)
.

In applying rational basis review, if “the question is 108

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at least debatable,” the Court fflust uphold the classification. See Heller, 509 U.S. at 326 (internal quotations omitted)

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Accordingly, the rational basis standard only requires that the optimal parenting rationale be based on rational speculation that other things being equal, it is best for children to be raised by their married biological parents or with two parents of opposite genders.’ Fiere, the parties conflicting evidence establishes that Therefore, Plaintiffs and.

the question “is at least debatable.”

Defendant Abercrornbie have failed to show there is a genuine dispute of material fact as to whether the question is at least debatable, and summary judgment in favor of Defendant Fuddy and HFF is appropriate. See Vance, 440 U.S. at 112 (“[lIt is the

very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by th[e] statute: It makes no difference that the fabts may be disputed or theireffect opposed by argument and opinion of serious strength. It is not within the competency of the courts (internal quotations

to -arbitrat~ in such contrariety.”) omitted)

Other courts have likewise determined that this rationale is at least debatable. The Eleventh Circuit concluded

that although the importance of heterosexual role models is a matter of ongoing debate, it “ultimately involve[s] empirical disputes not readily amenable to judicial resolution
—‘

as well as

policy judgments best exercised in the legislative arena.” Lofton, 358 F.3d at 821—22. The Eleventh Circuit thus found that 109

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this consideration provided “a reasonably conceivable rationalè~ for Florida to preclude all homosexuals, but not all heterosexual singles, from adopting.” Id. at 822.

The New York Supreme Court deterinined that it was rational for the legislature to conclude that other things being equal, it is better for children to grow up with both a mother anda father. Hernandez,. 855 N.E.2d at 7. The court explained,

“[i]ntuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” Id. A Texas appellate court

explained that “[t]he state also could have rationally concluded that children are beflefited [sic) by being exposed to and influenced by the beneficial an~d distinguishing attributes a man and a woman individually and collectively contribute to the relationship.” In re Marriage of J.B. & H.B., 326 S.W.3d at 678.

Although Hawaii has given same—sex couples all rights given to married couples regarding raising children, this does not discredit the rationale. “That the State does not preclude

different types of families from raisIng children does not mean that it must view them all as equallyoptimal and equally deserving of State endorsement and support.” N.E.2d at l000,(Cordy, J., dissenting). Goodridge, 798

Thus, “[t]he Legislature

may rationally permit adoption by same-sex couples yet harbOr reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child.” 110 Id. at

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1001.

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Accordingly, it is not irrational for the state to provide

support for the parenthood of same—sex couples through the civil unions law, but not to the same extent or in the same manner it encourages parenthood by opposite—sex couples. d. Cautiously Experimenting With Social Change

HFF asserts that the legislature is entitled to experiment with its social policy to determine what is state’s best interests. HFF’s Opp’n 9—10.

in

the

It argues that “[t]he

state should not be constitutionally compelled to race down this path while so many questions about the impact of same—sex marriage remain unanswered.” HFF’s Mot. Mem: 35.

Defendant Fuddy points out that the marriage amendment does not impose a fundamental barrier to the legislative process, but rather commits the matter to~ the legislature.
Mern.

Fuddy’s Mot.

39.

She cites the legislaIE.ure’s statement in the preface of

the bill for the marriage amendment that the measure was designed “to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” (citing H.R. 117, Haw. Session Laws 1246—47)
-

Id. at 39—40

Plaintiffs assert that the “proceeding with caution” rationale and deferring to the legislature cannot explain or justify why the title “marriage” alone has been denied to same— sex couples. Pls.’ Not. Mem. 32. Plaintiffs contend that “the

State has already made a fundamental change to the traditional 111

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definition of marriage, and it did so in one blow by enacting the civil union law.” Id. at 33.

Throughout history and societies, marriage has been connected with procreation and childrearing. See, e.g., HFF’s

Mot. Ex. 17, W. Bradford Wilcox, et al., eds., ~y Marri~q~ ~ters 15 (2d ed. 2005) (“As a virtually universal human idea,

marriage is about regulating the reproduction of children, families, and society.”)
.

The legislature could rationally

conclude that on a societal level, the institution of marriage acts to reinforce “the important legal and normative link between heterosexual intercourse, and procreation on the one hand and family responsibilities on the other.” 995 (Cordy, J., dissenting) It follows that it is no~ beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure. See HFF’s Mot. Ex. 33, Gdodri~q~, 798 N.E.2d at

Witherspoon Institute, Marriage and the Public Good~ Ten Principles, 18-19 (2008) (concluding that changing the meaning of

marriage”would further undercut the idea that procreation is intrinsically connected to marriage. It would further undermine

the idea that children need both a mother and father, further weakening the societal norm that men should take responsibility for the children they beget.”); HFF’s Mot. Ex. 34, Andrew J. Cherlin, The Deinstitutjonaljzatjon of American Marriage, 66 112

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Journal of Marriage & Family 848, 848-50 (November 2004)

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(explaining that the movement to legalize same-sex marriage is the most recent development in the deinstitutionalization of marriageS, i.e., the “weakening of the social norms that define people’s behavior” in the social institution of marriage) Under rational basis review, the state is not required to show that allowing same-sex couples to marry will discourage, through changing societal norms, opposite—sex couples from marrying. Rather, the standard is whether the legislature could It is at least debatable

rationally speculate that it might.

that altering “that meaning would render a profound change in the public consciousness of a social institution of ancient origin.”37’ See Lewis, 908 A.2d at 222. In any event, under

Johnson, HFF and Defendant Fuddy are not required to show that changing the institution of marriage might harm the state’s interest. See Johnson, 415 U~S. 361. It is beyond dispute that allowing same—sex couples to

371The Court notes that holding Hawaii’s marriage laws as lacking a rational basis might have unintended consequences. Once the link between marriage and procreation is taken away, and encouraging a socially desirable family, structure is deemed irrational, there is no rational limiting principle for other types of relationships. See Israel v. Allen, 57T P.2d 762 (Cob. 1978) (holding a statute prohibiting marriage between adopted brothers and sisters unconstitutional and noting “[t]he physical detriment to the offspring of persons related by blood is totally absent”) (citation omitted); United States Survey on Domestic Partnerships, 22 J. Am. Acad. Matrim. Law. 125, 136 (2009) (“The state also, with consanguinity requirements, wants to ensure that those who decide to have children will not bear children with someone closely related to them, to guard against birth defects that could occur in the aggregate.”) 113

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marry would alter marriage as currently defined in Hawaii. Accordingly, the state may rationally decide to obser~.re the effect of allowing same—sex marriage in other states before changing its definition of marriage. Moreover, Hawaii could

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rationally conclude that by enacting the reciprocal 1~eneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing

so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same—sex couples. Although the legislature has flexibility to amend ~or repeal social experiments that prove unwise, courts have no such ability once they constitutjonaljze an issue. In discussing the

institution of marriage, the Ninth Circuit has stated that “it is difficult to imagine an area more fraught with sensitive social p~li~cy considerations in which federal courts should not involve themselves if there isan alternative.” Smelt, 447 F.3d at 681.

In discussing the need for judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” 114 Bissen v. Fu-~ii,

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466 P.2d 429, 431 (Haw. 1970)

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Hawaii’s history reveals that it has been open to considering the rights of same-sex couples. In 1997, the 1997

legislature enacted the reciprocal beneficiaries statute. Haw. Sess. Laws 383 (H.B. 118)
.

The legislature notes in the

findings of the statute that two individuals of the sthr~e gender who were prohibited from marrying would have access to certain rights and benefits then only available to married couples. H.R.5. § 572C—2. See

Subsequently, in 2011, the legislature passed a

civil unions law, affording same—sex couples the right to enter civil unions and obtain all of the state legal rights of married couples (except the title marriage)
.

The trajectory of Hawaii’s

history has been moving towards providing more rights for samesex couples, but the legislature has not changed its definition of marriage. In this situation, to suddenly constitutionalize the issue of same—sex marriage “would short—circuit” the legislative actions that have been taking place in Hawaii. U.S. at 72—73 See Osborne, 557

(concluding that to recognize a constitutional

right to access state evidence for DNA testing at a time when forty—six states and the federal government had enacted laws regarding DNA testing “would short-circuit what looks to be a prompt and considered legislative response”)
.

“Deliberate

consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process

that it may seem painfully slow to those who are 115

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already persuaded by the arguments In favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm.” J.., dissenting) The Court reiterates that rational basis review is the “paradigm of judicial restraint” and the Fourteenth Amendment “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Beach Commc’ns, 508 U.s. at 313—14. In Goodridge, 792 N.E.2d at 1004 (Cordy,

conducting rational basis review, it is not the role of the courts to “sit as a superlegislature [and] judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Heller, 509 U.S. at 319. Where, as here, “there are

plausible reasons~’ for the state’s action, the Court’s “inquiry is at an end.” 166, 179 (1980) Accordingly, because Hawaii’s marriage laws are rationally, related to legitimate government interests they do not violate the federal Constitution.
CONCLUSION

~Thjted States R.R. Ret. Bd. v. Fritz, 449 U.S.

For the foregoing reasons, the Cdurt GRANTS HFF’s Motion for Summary Judgment; GRANTS Defendant Fuddy’s Motion for Summary Judgment; DENIES Plaintiffs’ Motion for Summary Judgment; DENIES HFF’s Motion to Dismiss Defendant Abercrombje; and DENIES • AS MOOT Defendant Abercrombje’s Motion for Summary Judgment.

116

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IT IS SO ORDERED. DATED: Honolulu, Hawaii, August 8, 2012.

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Sr. United States District Judge

Natasha N.

Jackson,

et al.

v.

Neil S.

Abercrombie,

et al.,

Civ.

No.

11—

00734 ACK-KSC;

Order Granting HFF’s Motion for Summary Judgment and Defendant Denying Plaintiffs’ Motion for Summary and Denying as

Fuddy’s Motion for Summary Judgment,

Judgment and HFF’s Motion to Dismiss Defendant Abercrombie, Moot Defendant Abercrombje’s Motion for Summary Judgment.

117

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Ninth Circuit Case Nos. 12-16995 & 12-16998 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: Honolulu, Hawaii, October 18, 2013. s/ Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawai’i

5220041

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Nos. 12-16995 & 12-16998 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, Defendant-Appellant, and
(caption continued on the next page)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii

GOVERNOR ABERCROMBIE’S EXCERPTS OF RECORD VOLUME 2 CERTIFICATE OF SERVICE GIRARDD.LAU 3711 ROBERT T. NAKATSUJI 6743 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau @hawaii.gov Robert.T.Nakatsuji @hawaii.gov Attorneys for Defendant-Appellant NEIL S. ABERCROMBIE, Governor of the State of Hawai’i
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LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor Defendant-Appellee.

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INDEX TO EXCERPTS OF RECORD VOLUME 2 CRIER Tab No. 130 Document Title Transcript of Proceedings various motions held on 7/24/12 before Judge Alan C. Kay. Notice of Appeal by Neil S. Abercrombie Notice of Appeal by Gary Bradley, Natasha N. Jackson, Janin Kleid Clerk’s Judgment
.

Document Date 09/12/2012

123 121

09/07/20 12 09/07/2012

118 108

08/08/2012

Reply Memorandum in Support of Defendant 07/17/2012 Governor Neil S. Abercrombie’s Motion for Partial Summary Judgment filed by Neil S. Abercrombie (Only Flysheet, pages 26-28 of Reply Memorandum, Declaration of Girard D. Lau, Exhibits P, Q, and R attached)

93

Concise Statement of Facts in Support of 06/29/20 12 Defendant Governor Neil S. Abercrombie’s Counter-Motion for Partial Summary Judgment; Declaration of Girard D. Lau; Exhibits A-O; Declaration of Gregory M. Herek, Ph.D.; Exhibit A; [CR93 cont. in Volume 3]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

3
4 5 vs. NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs,

) ) ) )

CV 11-00734 ACK-KSC Honolulu, Hawaii July 24, 2012 10:00 A.M. Various Motions

6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For Amici Curiae Equality Hawai’i and Hawai’i LGBT Legal Association: For the Governor Neil S. Abercrombie: APPEARANCES: For the Plaintiffs: NEIL S. ABERCROMBIE, Governor, State of Hawaii, et al., and LORETTA J. FUDDY, Director of Health, State of Hawaii, Defendants. and HAWAII FAMILY FORUM,

Defendant-Intervenor.)

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE ALAN C. KAY UNITED STATES DISTRICT JUDGE

JOHN J. D’AMATO D’Amato & Maloney 900 Fort St. Mall, Ste. Honolulu, HI 96813

1680

GIRARD D. LAU ROBERT T. NAKATSUJI Off. of the Attorney General 425 Queen St. Honolulu, HI 96813 CLYDE J. WADSWORTH Alston Hunt Floyd & Ing 1001 Bishop St., Ste. 1800 Honolulu, HI 96813

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APPEARANCES

(Continued) WILLIAM J. WYNHOFF Off. of the Attorney General Kekuanao’a Bldg. 465 S. King St., Rm. 300 Honolulu, HI 96813 LLOYD JAMES HOCHBERG, JR. Topa Financial Ctr. 745 Fort St., Ste 1201 Honolulu, HI 96713 DALE SCHOWENGERDT Alliance Defense Fund 5100 N. 90th St. Scottsdale, AZ 85260

For Director of Health Loretta J. Fuddy:

For Defendant/Intervenor Hawaii Family Forum:

Official Court Reporter:

Debra Kekuna Chun, RPR, CRR United States District Court 300 Ala Moana Blvd. Ste. C285 Honolulu, HI 96850 (808) 541—2061

Proceedings recorded by machine shorthand, with computer-aided transcription (CAT)

transcript produced

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TUESDAY,

JULY 24,

2012

10:00 O’CLOCK A.M. Calling the case of Civil 11-00734 et al.,, versus Neil S. et al. This hearing

THE CLERK:

ACK-KSC, Natasha N. Jackson, Abercrombie, Governor,

State of Hawai’i,

has been called for Various Motions. Counsel, your appearances for the record, please. MR. D’AMATO: on behalf of plaintiffs. THE COURT: MR. LAU: Good morning. Good morning, Your Honor. Girard Lau here for Governor Good morning, Your Honor. John D’Arnato

with Robert Nakatsuji, Neil Abercrornbie. THE COURT:

Deputies Attorney General,

Good morning. Good morning, Your Honor. Clyde

MR. WADSWORTH:

Wadsworth with Alston, Hunt,

Floyd & Ing,

representing amici

curiae Equality Hawai’i and Hawai’i LGBT Legal Association. THE COURT: MR. WYNHOFF: Attorney General, Fuddy. THE COURT: Good morning. Good morning, Your Honor. Jim Good morning. Your Honor, William Wynhoff, Deputy

representing Director of Health Loretta

MR. HOCHBERG:

Hochberg and Dale Schowengerdt, Forum, defendant/intervenors. THE COURT:

representing Hawaii Family

Good morning.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. First, actually,

MR.

SCHOWENGERDT:

Good morning.

THE COURT:

Please be seated.. First motion

We have five motions to hear today.

will be one brought by the Hawaii Family Forum to remove or dismiss Governor Abercrornbie as a defendant, and the court has

allotted five minutes for each party on that particular motion. Then we have four summary judgment motions three and one counter—motion
-— --

and those will be then

presented in the following order: the plaintiffs, Abercrombie;

First Defendant Fuddy, fourth, Governor

then Hawaii Family Forum;

and then the amici curiae Equality Hawai’i. if

Equality Hawai’i will have 10 minutes to make any argument, it wishes to.

The other parties will have 30 minutes in total.
--

That includes their reserve time for.

any rebuttal they wish to make and

And the order of rebuttal will be slightly different: Hawaii Family Forum; then defendant Abercrombie; then and last, Defendant Fuddy. So if the parties

the plaintiffs;

use up all their time,

this hearing will last over two hours.

We’ll start off with the first motion of Hawaii Family Forum to defendant. I hope I can pronounce your name correctly. Schowengerdt; MR. is that right? Good job, Your Honor.
——

which they seek, to dismiss the Governor as a

SCHOWENGERDT:

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THE COURT:

Okay. Good morning, Your Honor. May it

MR. SCHOWENGERDT: please the court.

There’s no basis for the Governor to be a defendant in this case. plaintiff. There’s certainly no basis for him to be a

Whether the court looks at this issue through
-—

Article III standing

as a matter of Article III standing or Is there a

sovereign immunity, the basic question is the same:

causal connection between the governor’s duties as Governor and the plaintiffs’ alleged injury in this case. Clearly, the

answer is no, and I don’t think the Governor makes a real attempt to deny that, except for saying that he has the power to’~appoint Director Fuddy. And under the Ninth Circuit’s

decision in Wasden that’s not a sufficient basis to establish a causal connection under Article III or sovereign immunity. And, you know, it’s admittedly a little odd for a co—defendant to be bringing this issue up, but I think that points out the issue itself. That, typically, the Governor’s

attorneys themselves would be bringing this motion and have brought motions similar in the past. SAnd I think the bottom

line here is that the Governor’s interest is a political one, and, as you said at the beginning of this case, he works through the legislature, and that’s his interest is to
—-

if he

wants to change the laws that his predecessor signed, he works through the legislature to do that. And if he wants to make

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his views known in this court,

he certainly can file an amicus

brief and make that known, but to say that there’s Article III standing against him when he lacks that
--

any causal

connection between his duties and enforcement or administration of the state’s marriage laws, there’s simply no basis for that under Article III or the state sovereign immunity. noted in the briefings, And as we

the Governor cannot unilaterally waive

that sovereign immunity as he’s attempted. Thank you, Your Honor. THE COURT: MR. Thank you. You only used two minutes.

SCHOWENGERDT:

I’m fast.

THE COURT: too. MR.

You do have three minutes for rebuttal,

SCHOWENGERDT:

Thank you.

THE COURT: MR. LAU: THE COURT: MR. LAU:

Who will speak for the governor? I will, Your Honor. Mr. Lau.

Very well.

Thank you, Your Honor.

The Hawaii Family Forum wrongly tries to use their supervisory—powers-is-not-enough theory in the context of the Article III question when, in fact, that theory has only been Hawaii Family

employed with regard to the Eleventh Amendment.

Forum’s cases do not support application of that theory to th~ Article III issue, and thus the supervisory cases are simply

irrelevant to the Article III point.

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As to Article III, the ordinary three-part test applies, which is whether the plaintiff was injured, whether the defendant caused that injury, and whether the defendant can redress that injury. In this case it’s very clear that

plaintiffs! injuries in not receiving the marriage license is traceable not only to Director Fuddy’s actions but also to Governor Abercrombie’s actions in not ordering Director Fuddy to issue the marriage license. And the Governor can redress

plaintiffs’ injury by either ordering Director Fuddy to issue the marriage license or by removing her and replacing her with someone who will. In fact, Ninth Circuit case law confirms this. In

Southern Pacific Transportation versus Brown, 651 F.2d 613, the Ninth Circuit ruled that employers could not sue the Attorney General to enjoin enforcement of a law because the district attorneys who would enforce that law did not have to listen to the Attorney General with regard to the AG’s directives. In

other words, because the Attorney General could, quote, could not compel the DAs to prosecute or refrain from prosecuting, there was no standing to sue the AG because the AG’s advice was simply, quote, not binding. In short the AG could not redress

the plaintiffs’ injury in that case because the DAs could chose to prosecute the employers regardless of the AG’s position. Here the situation is exactly the opposite. Our

state constitution makes very clear under Article 5, Section 6,

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and in HRS 26-4 that Director Fuddy cannot ignore the Governor’s directions and is bound to do what the Governor tells Director Fuddy to do. In fact, the Governor is even Thus,

authorized to remove her, if she does not comply.

directly contrary to the situation in Southern Pacific Transportation, Director Fuddy has no autonomy and must issue the license, if ordered to do so by Governor Abercrombie. Thus, suit against the Governor can redress plaintiffs’ injury, and Article III is easily satisfied here. The Ninth Circuit also ruled the same way in Boating Industry Association versus Marshall, 601 F.2d 1376. So again

Article III is easily satisfied here, given the Governor’s binding authority over Director Fuddy’s actions in issuing marriage licenses. Because of his binding authority over

Director Fuddy the Governor can redress plaintiffs’ injury. Hawaii Family Forum’s cases are all distinguishable, including, for example, Bishop versus Oklahoma where the person issuing marriage licenses there was part of the judiciary, which was not under the control at all of the governor. the portions of Hawaii Family Forum’s cases talking about supervisory powers is simply irrelevant when dealing
-—

Again

those

are only relevant in the context of the Eleventh 7~rnendment. When it comes to Article III, the standard ordinary three—part test is applied, and here because the Governor can direct Director Fuddy to issue the licenses and Director Fuddy is

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bound by whatever Governor Abercrombie instructs, there is clear redressability here and clear causation of plaintiffs’ injury. Now, plaintiffs also make
——

Hawaii Family Forum also

makes a separate claim that, even if the Governor can remain here as a defendant, which we’ve just demonstrated he can because he is definitely connected and can provide the redress
N.

that plaintiffs seek, HFF makes a separate claim, arguing that the Governor can’t present his motion because he is acting in that capacity as a quasi-plaintiff. merit for multiple reasons. First of all, the Governor here is a defendant and not a plaintiff in this case and has not filed a motion seeking affirmative relief. Contrary to Hawaii Family Forum’s false That argument is without

assertion the Governor’s motion itself does not seek a declaration of unconstitutionality. Rather the governor’s

motion merely seeks and asks that stricter heightened scrutiny be applied to plaintiffs’ due process and equal protection claims. Just because that position aligns with plaintiffs does

not convert the Governor into a plaintiff, especially when no affirmative relief is sought by the governor’s motion. Hawaii

Family Forum’s reference to the Raines, Finch, and Baxley cases all involve plaintiff seeking affirmative relief; whereas, the Governor here is a defendant not seeking affirmative relief. Second, even if the Governor had sought affirmative

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relief as a plaintiff, there’s no reason for Article III to prevent him from doing so. The whole purpose of Article III is

to insure that parties with direct stakes provide the, quote, concrete adverseness critical to illuminating the court. But

here there’s no dispute that plaintiffs and Director Fuddy have opposing direct stakes that provide the required concrete adverseness, and because those parties with direct stakes have taken a stand on the Governor’s motions both for and against, there’s no Article III reason to not consider the Governor’s motion. Indeed, Supreme Court case law from Watt and Buckley

confirm that it is wholly unnecessary to consider the Article III standing of plaintiffs when other plaintiffs, like Miss Jackson and Miss Kleid, with undisputed standing are present. Now, Hawaii Family Forum tries to deny this by pointing to cases saying that the plaintiff must have standing with respect to each particular defendant, but we’ve already satisfied that because we’ve shown that the Governor as a defendant has a connection to the law here because he can directly order Director Fuddy to issue the licenses. But as to

the Governor as a quasi-plaintiff, with respect to that aspect of Hawaii Family Forum’s motion it’s clear under the case law from Watt and Buckley that once you have one plaintiff with standing, you do not have to consider the standing of the remaining plaintiffs.

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Third,

2403(b)

——

28 U.S.C. 2403(b) makes clear that

where the constitutionality of state statutes is drawn into question,the state has the right to appear. Secondly,

intervenors in the Ninth Circuit do not even have to have Article III standing to appear. And, lastly, preventing the

Governor from filing a motion would unfairly penalize the Governor here, who generously allowed his director to appear

and defend the law in order to insure that someone would be here to defend that law, and it would be sort of ironic to kick

the Governor out in response to the Governor’s generosity in allowing his director to take a different position. And,

finally, precluding the Governor’s motion would go against this court’s interest in having the most comprehensive informed discussion of the issues possible. As to the Eleventh Amendment issue Hawaii Family Forum raises, the Governor has flatly Waived his Eleventh

Amendment immunity with regard to prospective injunctive relief, and so that claim drops out completely. Now, Hawaii

Family Forum tries to suggest that the Governor has no right to under state law to waive the state’s immunity, but those cases that they cite were overruled by the Lapides U.S. case, which made very clear THE COURT: MR. LAU: THE COURT:
--

Supreme Court

One last minute. I’m sorry? You have one last minute.

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MR. LAU:

Okay.

Thank you.

And that Lapides case makes very clear that regardless of the state law regarding who can waive a state’s immunity, the state’s Eleventh Amendment immunity is waived quote, voluntarily invoked the

when a state official has, court’s jurisdiction.

Here it’s very clear that the Governor by specifically stating in his litigation document that he waives Eleventh Amendment immunity is clearly a voluntary invocation of the court’s jurisdiction, and so their Eleventh Amendment argument drops out completely. Any cases dealing with

supervisory powers not being enough is irrelevant because we have an actual waiver by the Governor here. THE COURT: MR. LAU: THE COURT: MR. Thank you. Thank you, Your Honor. Mr. Schowengerdt. Thank you, Your Honor. Just four

SCHOWENGERDT:

quick points in rebuttal. First, of the case, the Wasden case in the Ninth Circuit, page 19

the court talks about this common denominator

between the Eleventh Amendment immunity question and the Article III amendment question
--

or the Article III question.

And it says that the common denominator is this requirement of a causal connection between the enforcement duties of the officer and the alleged injury. And in the same paragraph, the

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next sentence in fact, the court says, fairly direct.

“This connection must be

A generalized duty to enforce state law or

general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.” So that’s a question under that common denominator It applies to both.

of a causal connection.

Second, the argument that the Governor is not seeking affirmative relief, I mean in his answer he asks for declaratory relief. In his motion he asks that strict scrutiny

be applied to both the due process claim and the equal protection claim, while the plaintiffs only moved for summary judgment on due process. So in a certain sense the Governor’s

commandeered the plaintiffs’ case. And in his motion in his brief he not only argues that strict scrutiny applies, but he argues that the state can’t even meet rational basis scrutiny. So I think it’s clear

from the motion itself he’s asking for some affirmative relief, but it’s clear from his motion and his brief that he’s asking for the state’s marriage laws to be struck down, and he has no standing, he has no injury to request that. The Governor’s argument about 28 U.S.C. Section 2403(b) giving a state official a right to intervene applies only when another state official isn’t already in the case. And, finally, the discussion about Lapides concerning

sovereign immunity, that case the Supreme Court was specific.

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V

It wasn’t abrogating the rule that an official has to have authority to waive sovereign immunity. It said that, when a

state statute has waived sovereign immunity for state court and a government official removes that case to federal court, the court construes that as
-—

the official as having authority to But

also waive sovereign immunity in that specific instance.

the court did not indicate that it was abrogating the rule that officials have to have authority
tO

waive sovereign immunity.

I think it’s clear that the Governor here doesn’t have that authority, and all he has over Director Fuddy is a general which under Wasden is not sufficient.
V V

supervisory capacity,

Thank you, Your Honor. THE COURT: Well, Thank you.

13 14 15 16 17 18 19 20 21 22 23 24 25

the court is inclined to find Governor

Abercrombie is a proper party, but the court will take that under advisement. In any event, however, the court might rule

it would and will allow and consider the Governor’s argument and briefs and countermotion, as it has found them to be

helpful in analyzing these highly contested issues concerning marriage, just as the court has allowed HFF and amici to ~

participate.

Let’s move on to the summary judgment motions now. Defendant Fuddy, MR. WYNHOFF: Your Honor, you’re on first.

Thank you, Your Honor. I believe, and it appears from the

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briefing, that all parties agree as to the relevant elements needed to decide this motion. To some extent we’ve even agreed
--

as to the order of these elements, and so I’m going to

and I

know the court has carefully read the briefs as well as the quite a lot of material that’s floating out there now with respect to all these other cases; so I’m going to try to not repeat everything that I said, and I know I only have a half hour. On this oral argument I’d like to start in a slightly different place. I’d like to start with the Perry case because

the Perry case, the amicus brief explicitly says that Perry is controlling. The other parties don’t necessarily join in that,

but they nevertheless throughout their briefs in arguments to the other elements of the case are really arguing that Perry controls this case and that we need to follow Perry in this case. And so I guess I’d just like to point out to the court that this is one of the cases where Director Fuddy and, I guess, HFF also argue that what the court should do, what we request the court to do, is simply take these courts at their word. And Perry at 1087-1088 of this opinion makes very, very

clear that there is a distinction between a “take away” and a “never had” case. Despite the fact that opponents argue We

vociferously to the contrary, Perry specifically said that. in our arguments talked about this being a rather ordinary

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exercise in line drawing, and we pointed to anyway pointed to Johnson versus Robison. that are similar to that.

--

or at least HFF

We pointed to cases

And on those pages that I referenced, 1087 and 1088 of their opinion, the Perry court said that they
—-

they talked

about proponents’ argument, which we’re making here, that California need not extend marriage to same-sex couples, and the proponents in that case cited to Johnson. The court in Perry rejected that case and that argument that we’re making here because of the distinction, but. plaintiffs in Perry do not ask that marriage be extended to anyone. As we have by now made clear, the question is whether

there’s legitimate interest in withdrawing access to marriage from same-sex cases. We, therefore, need not decide whether

under Johnson California would be justified in not extending the designation of marriage to same—sex couples. That’s the

very case that is presented here, and no amount of argument is going to change that case. I want to point out that one of the opponents specifically pointed to something. Our rational basis in
--

was also advanced in Perry, that’s true. had to argue
-—

Proponents would have

well, the quote from Perry in one of the

opponents’ brief was they were talking about the responsible procreation. So Perry said we are aware of no basis on which And

this argument would be even conceivably plausible.

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opponents would have you say

--

would say and have this court

decide, they did say, that that was not a “take away” argument. That’s just simply a misreading of Perry because the sentence that preceded that argument was “In order to explain how rescinding access to the designation of marriage is responsibly related
--

the word “rescinding.”

And the sentence after what

opponents quoted is “There is no rational reason to think that taking away the designation of marriage from same-sex couples would advance that goal.” Later on those same pages the court talks about another one of the Perry rationales: quoting now. “The same is true
-—-

I’m

“The same is true for plaintiff

proponents’

argument that it is unnecessary to extend the right to use the designation of marriage to couples who cannot procreate,” end quote. Then a few phrases later the Perry court responds:
--

“Whatever merit this argument may have decide whether it has any
--

and again we need not

the argument is addressed to a

failure to afford the use of the designation of marriage to same-sex couples in the first place; it is irrelevant to a measure withdrawing from them, and only them, use of that designation.” So I think it’s very clear that Perry is a “take away” case, and it’s also very clear, we submit, Your Honor, that this is not a “take away” case. I know you’ve read Baehr. I’m not going to belabor

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it, but what happened in Baehr, of course, is that, initially, the court below in response to the lawsuit held that the “rational basis” test was applicable and that the case met the rational basis. On appeal the Supreme Court then said you’ve The standard is strict scrutiny.

applied the wrong standard.

Go back and look at it again in response to strict scrutiny. And in response to strict scrutiny Judge Kevin Chang said that it did not meet that standard, entered judgment for the plaintiffs. So a day after that judgment was entered
--

and under

Hawai’i law that is not a final judgment for purposes of res judicata anyway and I don’t think for any other purposes. in any event, the next day there was a stay. upheld that stay. But

The Supreme Court

The developments of Hawai’i law occurred as But the important point is when the

we’ve already noted. case
-—

so when the Supreme Court ultimately decided, its
——

decision was

and its mandate was, quote, The judgment of the

Circuit Court be reversed and that case be remanded for entry of judgment in favor of Miiki and against plaintiffs. So on two grounds this is not a “take away” case.
--

we are not here with

First of all, the Supreme Court of the

State of Hawai’i never decided that there was a right to same-sex marriage. It decided that there was
--

strict That

scrutiny was applicable under the Hawai’i Constitution.

was rendered moot, and, ultimately, the judgment was in favor

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of plaintiffs for that point. Number two
--

Number one.

so that’s the legal aspect.

Number two, from a practical aspect nobody in Hawai’i
--

no same-sex couple in Hawai’i has ever been married,

no same—sex couple in Hawai’i has ever been issued a license by the State of Hawai’i. THE COURT: That’s undisputed. But the amici argues that in the Supreme

Court ruling strict scrutiny sexual orientation had a suspect class. They take the position that’s a presumptive right that

then was taken away by the constitutional amendment and the amendment to 572-1. MR. WYNHOFF: The only thing that could have been

taken away would be the presumptive right to have it reviewed on a strict scrutiny basis, and so I guess to that extent you could analogize it to Perry. But our position would be that

there’s a big difference between saying that under the state constitution you have a right to strict scrutiny, which is what the most that could be said of Perry, versus in California where it said
--

it made the final connection you have the So I

right to be married, and 18,000 people did get married. think the court makes a very good point.

Presumptively, at the

time under the Hawai’i Constitution there was a right to strict scrutiny, but there never was a determination that there was a right to same-sex marriage. Perry does not control. So, Your Honor, it’s our view that

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sorry. Baker?

So then I’m going to get back to the original thread of my argument, which
--

or our argument, which was that the

first issue is whether Baker does control, Baker versus Nelson, the Minnesota case. I’m sure the court is, of course, familiar I

with that; so I’m not going to belabor the points I made.

want to respond to some of the points briefly that I did have a chance to respond to and, second, perhaps new ones that came up in the later briefing. THE COURT: MR. WYNHOFF: THE COURT: You’re not going to address Baker? I beg your pardon? Did you say you’re not going to address

MR. WYNHOFF:

I am going to address Baker.

I’m

I guess I was just saying again that I’m going to try That’s all I meant to say.

not to repeat all my arguments. Pardon me.

With respect to the argument that in Baker the claim was sexual orientation or was gender and not sexual orientation; whereas, in this case it is sexual orientation, that’s not correct on a couple levels. simply not correct factually. First of all, it’s

In Hawai’i under the present law

two men cannot get married, two women cannot get married. Matters not whether they’re homosexual or not a homosexual. man and a woman can get married regardless of their sexual orientation. And both parties, both the Governor and A

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plaintiffs, acknowledge this in their briefs. In plaintiffs’ brief the page reference.
--

and I’m sorry I don’t have But their

I thought I’d written it down.

arguments are both the same because they say, quote, because section 572—1 discriminates against same—sex couples, it also discriminates against homosexuals as a class since same-sex couples who wish to marry are overwhelmingly likely to be homosexual. The Governor makes the same point at page 28 of his combined brief. The ban on same sex has the undeniable effect

of discriminating on the basis of sexual orientation for the simple reason that people who are lesbian or gay are the ones most likely to seek entrance into an opposite—sex marriage while people who are heterosexual are the ones most likely to seek entrance into an opposite-sex marriage allowed by section 572—1. I don’t dispute that in any way. I think that’s

clearly true that most same—sex couples who wish to marry are homosexuals, but that does not change the fact that the statute on its face does not discriminate on the basis of sexual orientation: get
-—

that two same-sex but heterosexual couples could

not get married, nor does it change the fact that that

was the exact same facts in Baker versus Nelson, and nor does it change the fact that no other reported case has ever seen the distinction that opponents are drawing in this case. It

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doesn’t mean it’s wrong.

Just because they’re the first one’s

who’ve ever argued it certainly doesn’t mean it’s wrong, but it certainly means that a lot of very smart people have not made that argument before. I thought I had a part of the argument from Paul Clement’s brief that he filed on behalf of the Congress in the Massachusetts DOMA case in which he talked about what Baker versus Nelson said. I don’t have it in front of me, but that

brief from Paul Clement also mentioned that in his view Baker versus Nelson was a case in which discrimination was done both on the basis of sex and of sexual orientation. In any event, Your Honor, the point here is there’s no distinction between the two cases on that basis. Both of

them are facially directed to same-sex couples whether or not they’re homosexual, and both of them in practice limited marriage to opposite-sex couples regardless of the actual sexuality of the persons. So it’s our view, Your Honor, that Baker versus Nelson controls. Lawrence. We do not believe it was overturned by I think we’ve

I’m not going to go into that again.

briefed it pretty well.

And so I think that that is one reason

that the court ought to rule in Director Fuddy’s favor in this case. The next issue is, even assuming if you can get past the Baker versus Nelson problem, we believe and we submit that

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you still get to the same result.

The first question here, as

everybody acknowledges and, I think, approaches in the same fashion, is what is the standard of review. The standard of

review is a rational basis, unless either we’re talking about a fundamental right or a suspect classification. rational basis unless
--

So it’s a

it’s a rational basis ab initio

unless one of these exceptions applies. So the question with respect to fundamental right, again I think that’s really been briefed pretty well. think there’s much to add. I don’t

From our point of view we all agree I think it

that the right to marry is a fundamental right. would be
-—

and we submit it would be a rather disingenuous

reading of any Supreme Court precedent to say that the right to marriage includes the right to same-sex marriage. Court has never said so. The Supreme

It has often in its cases failed to

say the contrary, but as I pointed out in our briefs, every time the court talks about marriage and the fundamental right to marriage, it doesn’t say the fundamental right to

traditional marriage or the fundamental right to opposite-sex marriage because that’s simply assumed in the cases, and none of the cases suggest anything to the contrary. Now, I think the argument was powerfully and persuasively
-—

maybe not persuasively but powerfully made

probably as well as it could have been made that that right ought to include the right to same-sex marriages, but with

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great respect,

Your Honor, we don’t think that’s the correct The question before, the court is

question before the court.

whether the Supreme Court has determined that there is now a fundamental right to same sex marriage, and we think that question has only one real answer, and that is no.

With respect to whether sexual orientation is a suspect classification, Ninth Circuit. that question has been answered in the

It was unquestionably answered in High Tech

Gays in which the court specifically decided that sexual orientation is not a suspect classification. is
--

High Tech Gays

expresses the same law that has been decided in every Every other circuit that has addressed the

other circuit. issue.

And I believe the number is eleven other circuits; I could be wrong. THE COURT: MR. WYNHOFF: Second and Third haven’t addressed it. Okay. There’s never been another So
-—

although,

circuit that’s gone the other way. opponents acknowledge that,

and plaintiffs or the so they, obviously,

as they must;

make the argument that High Tech Gays is no longer good law under the Miller versus Gammie standard. a couple of comments with respect to that. Miller versus Gammie itself at 335 F.3d 900 says that, We hold that the issues decided
—-

And I’d like to make

in talking about what

it takes to overturn or fail to follow an opinion of the panel
--

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THE COURT: overturned. MR. WYNHOFF:

When a panel or district court’s been

Right,

right.

We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the

relevant court of last resort must have undercut the theory or reasoning underlying the proper Circuit
——

prior.

Pardon me.

Prior Circuit Court precedent in such a way that the cases are clearly irreconcilable. Just in 2012
--

I don’t have the exact date

-—

another Ninth Circuit panel revisited the issue in U.S. versus Ramos-Medina, opinions. 682 F.3d 852 at 858,
--

talking about prior panel

This panel

quote,

This panel is not free to

disregard the decision of another panel of our court simply because we think the arguments have been characterized differently or more persuasively by a new litigant. So it’s our position, is controlling law. Moreover, Your Honor, that High Tech Gays as shown by the
--

it’s good law,

laws of the other circuits,

and it’s also good law

the

plaintiffs or the opponents’ position that High Tech Gays is not good law because of Lawrence we think is wrong on the standards that we’ve already talked about. We don’t believe it

can be said that the cases are clearly irreconcilable. Furthermore, the issue of whether or not Lawrence undermines or overturns High Tech Gays has alr~ady been decided

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in this circuit.

In 2008 the Ninth Circuit came down with its

Witt versus Department of Air Force case in which again there was an argument made that it was controlled by
-—

the equal The

protection claim was being controlled by prior case law. argument was not,

as plaintiffs or opponents have pointed out, that Lawrence overturned it. as it had to, But, and it

was not necessarily made, nevertheless, decided,

the court considered that, Philips
—-

quote, However,
——

which was the controlling

case in that case Ask,

However,

Philips clearly held that Don’t

Don’t Tell does not violate equal protection under and that holding was not disturbed by

rational basis review,

Lawrence, which declined to address equal protection. So it’s our view that High Tech Gays is controlling, High Tech Gays is right, Lawrence. High Tech Gays is not overturned by

And Witt tells us it’s not overturned by Lawrence.

There’s not any more intervening decisions after Lawrence that can also Witt;
--

or after Witt that can also call into question

so we believe that that issue is simply foreclosed in the for this court. though, the other parties

Ninth Circuit and, with respect, THE COURT:

Back to Baker,

argue that the civil unions law precludes Baker from being controlling in this case. MR. WYNHOFF: unions argument, The
--

I think the core of their civil and in some cases this is But

Your Honor

--

explicitly made and in some cases it’s implicitly made.

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the argument that is being made with respect to civil unions is that that makes
—-

that means that the only thing the
--

legislature has done has taken away or not name marriage to same-sex couples.

taken away the

And, first of all, I guess

our major argument with respect to that is that’s simply not correct. It’s not correct. This is not a “take away” case.
--

What you have is you start here to get here.

you start here and they want That

Well, you start here, and you got to here.

still doesn’t make it a “take away” case. were here and you went back to here. case. points.

It’s not like you

So it’s not a “take away”

And that, I think, is really one of the most salient

With respect to the rational basis

-—

the question of

what the standard is, I’m not sure that they are making the argument that because they’re civil unions, that somehow affects the standard. And, if it is, I guess I would say I

don’t understand that argument; so I can’t fully respond to your question. What I recall
--

what I understood from their
-—

arguments was mostly that civil unions, assuming they
—-

which

at least someplaces do for sake of argument, assuming

that for sake of argument there is a rational basis test, to which, in fact, I do now wish to turn, assuming for purposes of the discussion that there is a rational basis test, because of the civil unions law it is no longer rational, even if it was

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once rational, to deny

-—

to not extend the designation

marriage to same-sex couples. And our response to that is again I think it’s go back to the line-drawing issue, Your Honor. Johnson versus Robison issue.
—-

we

We think it’s a

The legislature, starting here There’s nothing that says

at ground zero, decided to go here. they have to go here.

It’s a completely different situation

than if they went back from the whole ball of wax like they had in California to here. fact that people are
--

We continue to believe, Your Honor, the opposite-sex couples are given the

appellation marriage could rationally be considered to be an inducement for those couples to get married, and the reason that it makes sense that the interests served by just back up a little bit. The question of whether there’s a rational basis has two components. First is whether there’s a legitimate
--

so let’s

government interest to be served, and second of all, whether the steps taken, in fact, serve that legitimate interest. The first step is, I think, less controversial; although, it seems to have been somewhat misunderstood by the opponents. The first step is that it’s better for children to

be born into and raised in a stable and enduring relationship. If you go back
--

I mean Daniel Patrick Moynihan became a

famous person back in 1965 by commenting on the growing incident of out-of-wedlock children, commenting on how that

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made it difficult for them to compete on an equal basis.

was at a time when in a discrete minority, it was 25 percent were being born out of wedlock. Nowadays the numbers are more

like 40 percent for across the board, not just that particular minority. So I think that there is pretty much undisputed and undisputable scholarship that being born into a stable two—parent family is better. that opponents do argue that. about that is they say
--

And, in fact, I don’t believe What I think they misunderstand
--

and rightfully so, I think
--

that

it’s probably better for people or two dads than simply one mom. But that’s not the point. couples
--

for a child to have two moms And I don’t dispute that.

The point is that opposite-sex Only an

and this is just a simple fact of biology.

opposite-sex couple accidentally has a child by engaging in a natural
-—

well, only opposite-sex couples have

-—

accidentally

have children.

And so the legislative response to the fact
--

that only opposite-sex couples can have

accidentally have

children is to encourage people having naturally procreative sex to get married. THE COURT: MR. WYNHOFF: You’ve used up 25 of your 30 minutes. Okay. Good. Thank you for pointing

that out to me, Your Honor, because I do want to save a little bit. So, anyway
--

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THE COURT: for rebuttal. MR. WYNHOFF:

I take it you want to reserve any time

I got it.

I got it.

And, actually,

the only other point that I want to make is I’ve gone through the list of
--

first, I think Baker versus Nelson controls.

Second, if it doesn’t, why it’s a rational basis for the reasons that I’ve talked about. I’ve already talked about the

reason that there is a rational basis, and I also talked about
-—

in brief anyway there’s the “going slowly” argument,

which I think is at least backhandedly endorsing Perry and certainly is in my mind a real issue. But the only other point I would like to make is that again this issue has been decided in the Ninth Circuit. versus Howerton said, quote, We hold
-—

Adams

we hold that Congress’

decision to confer spouse status under section 201 only upon the parties to heterosexual marriages has a rational basis and, therefore, comports with the Due Process Clause and its equal protection requirements. That’s what they decided.

Now, the issue there, it was an immigration case, as you know, and so there was some
--

and there was some argument

from plaintiffs that a higher standard ought to apply, and the court rejeöted that. And there was also some argument that

because it was immigration, which is in Congress’ undoubted wheelhouse of things that it controlled, that there ought to be a lower standard. But the court also said we’re not going to

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go there because it meets

--

we’re not going to accept the

higher standard and we’re not even going to consider whether there’s a lower standard because it meets the rational basis test. And that’s controlling law, unless it’s been overturned

by Lawrence, which we’ve already discussed. So, Your Honor, minutes. I guess I’ve reserved a couple of I’d be happy to answer

Thank you for your attention. of course. Thank you. Thank you. Mr. D’Amato.

any questions as well, THE COURT: MR. WYNHOFF: THE COURT: MR. D’AMATO:

Good morning, Your Honor.

We want to focus on the central question of our motion, which is
—-

which is this:

Is there a rational basis

for denying same-sex couples the right to call themselves married when everything else pertaining to marriage has been made available to them? In a way we’re going to tie in to the

last part of Mr. Wynhoff’s arguments. We phrase the question in terms of rational basis, Your Honor, because we believe that plaintiffs prevail under that standard for the reason that same—sex couples and opposite-sex couples are now situated in the same way under Hawai’i law with respect to the status of marriage. position on that issue. That’s our

It’s not that we argue that they have

the right to that name because there has been a take away.

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Rather,

we say there’s no rational

--

they are similarly and there’s no rational

situated with respect to that status, basis for denying it to them.

We base this on facts about Hawaii’s system for classifying domestic relationships. Let me outline those

briefly before we get to the key part of Mr. Wynhoff’s and Hawaii Family Forum’s argument, which is THE COURT:
--

When you say “domestic relationships,” Or do you mean reciprocal

you mean civil union law? beneficiary
--

MR. D’AMATO:

I mean both the civil union law and

marriage law, Your Honor. THE COURT: MR. D’AMATO: What about reciprocal beneficiary law? They’re different. Right. That’s different.

THE COURT: MR. D’AMATO:

Which are you referring to?

I’m referring to the civil union law

and to the marriage law. Hawai’i law draws a distinction between marriage and civil unions, but the line is largely ephemeral in our view and it’s inconsistent. It’s ephemeral because everything that’s on

the marriage side of the line is also on the civil union side of the line, except for the name marriage. It’s inconsistent
--

because opposite-sex couples have the option of going choosing which side of the line they want to be on.

There’s a third fact about this system that we want

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to emphasize, and that is that all parties agree that marriage is the preferred status that confers the greater prestige so that the line drawn between marriage and civil unions has the effect of subordinating same-sex couples who. enter into civil unions to opposite-sex couples in this scheme. Every court

that has considered a system like this in which you’ve got a two—tiered system, marriage and either civil unions or domestic partnerships, has concluded that it’s injurious to same-sex couples and their families. Those courts include the

Massachusetts Supreme Court, the Connecticut Supreme Court, the California Supreme Court as well as the trial court and the Ninth Circuit majority in the Perry case. We’ve been criticized for using “separate but equal” to describe this two—tiered system of marriage and civil union, but the subordination built into the system invites that comparison, and a number’ of courts have made it. In the marriage cases the California Supreme Court said that California’s domestic partnership status for same-sex couples was, quote, a mark of second-class citizenship. The

Massachusetts Supreme Court, when it was asked to opine on the legislature’s proposal to adopt a civil union law, said this: Because the proposed civil union law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The history of our nation has demonstrated that separate is

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seldom, if ever, equal. In the Kerrigan case the Connecticut Supreme Court also talked about the comparison between these two forms of domestic relationship, and they said something that’s particularly relevant here, Your Honor: We do not doubt that

the civil union law was designed to benefit same-sex couples by providing them with legal rights that they previously did not have. If, however, the intended effect of a law is to treat
-—

unpopular

politically unpopular or historically disfavored

minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate-but-equal doctrine. And they concluded, quote,

Because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. Let me sum up where we ah~e here, Judge. Hawai’i has

drawn a line between marriage and civil unions, but everything that’s on the marriage side of the line is on the civil union side of the line, except the name marriage. Opposite-sex

couples may cross that line at will, and the system is injurious to same—sex couples and their families in the sense of subordinating them to opposite-sex couples and their families. Since the word “marriage” is the only right on the
-

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marriage side of the line that is not duplicated on the civil union side of the line, the legitimacy of the whole classification scheme dangles from that single thread. There

must be some purpose of the state served by reserving that word “opposite-sex couples”; otherwise, there’s nothing to justify the line between marriage and civil unions or denying same-sex couples the right to call themselves married. Now, defendants offer you two rash purposes for restricting access to that word “marriage” to opposite—sex couples: promoting responsible procreation and promoting the Both of these rationales

optimum child-rearing environment.

posit a good that is served by inducing opposite—sex couples to marry; thus, responsible procreation is served by marriage because, if opposite-sex couples have children after they have married, the theory goes, the children will be born into committed relationships. The optimum child—rearing environment

is served by marriage because, if opposite—sex couples raise children after they have married, the children will be raised in a married male-and-female-parent environment, which, the theory goes, is the optimal one for raising children. How does reserving just the name marriage and nothing else to opposite-sex couples serve these purposes? As they

must, defendants claim that the name “marriage” in and of itself induces people to marry. Hawaii Family Forum states

this contention most succinctly on page 32 of its opposition

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and reply brief.

It says, quote, The state’s purposes of

inducement are accomplished by the prestige of the institution itself. According to Hawaii Family Forum, in other words, and

also according to Director Fuddy, people get married for the prestige of the name. We vigorously dispute that contention, Your Ho~nor. First, there’s no case that holds that people marry just for the prestige of the name “marriage,” and there’s no evidence that supports that contention. Second, it goes against common sense, and for that reason we deny that the legislature could have believed that couples get married just for the prestige of that name. develop the argument here, Judge. In Dragovich v. U.S. Department of Treasury the Northern District of California had to consider the issue of why couples marry. That court rejected responsible procreation Let me

as the theory of marriage, and turned instead to what the Massachusetts Supreme Court had had to say in the Goodridge case. The Massachusetts Supreme Court said, quote, It is the

exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage, closed quote. language, Your Honor, is “commitment.” We agree with the Northern District of California and the Massachusetts Supreme Court that people marry to make a The key word in that

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permanent commitment to each other.

To make that commitment is

their incentive to marry, and the opportunity to make such commitment is the inducement to marry, not the prestige of the institution. Marriage vows demonstrate the centrality of commitment to marriage because those words are all about commitment. “I take thee to be my spouse, to have and to hold

from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and cherish until death do us part.” Speaking those words and making that

commitment, that is what motives people to marry, we submit, Judge. Congruently, the inducement to marriage provided by the state is simply the opportunity to speak those words and have them turn into a legally recognized lifetime commitment. Prestige has nothing to do with that. I would guess that most of us, if not all of us, in this courtroom have had a relationship in which either we were not committed to the other person or the other person was not committed to us. I know that I have. As we each know from

such experiences, no amount of prestige is enough to bring you to the altar of marriage, if you aren’t committed to spending the rest of your life with the other person. And as we also

know from our personal experiences, nothing will keep you from doing that, when you have found the person that you want to

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spend the rest of your life with, regardless of the prestige or lack of prestige of the commitment. Your Honor. The civil union is an institution that has no history, it has no particular prestige, it has very little cultural interpretation, but none of those facts kept same-sex couples from making lifetime commitments to one another when the opportunity to do so first arose on January 1, 2012. unions gave same-sex couples the opportunity to make such commitments for the first time, and they took it because there’s something within us which makes us want to make a lifetime commitment to the person we love. Long before- there Civil Civil unions prove this,

were any tax breaks or other incentives to marry, the state provided just the opportunity to make a lifetime commitment to the other person, and that bare opportunity was enough on its own to induce people to marry. Your Honor, we respectfully submit that the prestige of marriage doesn’t go to people’s motives to marry and isn’t an inducement to marry. It goes instead to the satisfaction

that people get from making their commitments to one another and the pleasure and recognition that they get from doing so. Conversely, denying same-sex couples the title of marriage doesn’t make them less willing to make a commitment; it just makes the experience less satisfying because it is a painful reminder, even in that moment of joy when they’re committing to

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their loved one, that they are still second—class citizens. If we accept the Dragovich court’s conclusion that marriage is about making a lifetime commitment, where does that leave us? First, we are left, I think, with yet another way in

which same-sex couples and opposite—sex couples are situated in the same way under Hawai’i law. On both sides of the line

between marriage and civil union we’ve got the same rights and benefits under state law, and also on both sides of the line there is the same inducement to come together as a couple, the same opportunity to make a lifetime commitment to a loved one that is recognized by the state. Second, we’re left with a broken thread, I think. The only difference between opposite—sex couples and same-sex couples under Hawai’i law is that opposite-sex couples have access to that word “marriage” and same-sex couples do not. Defendants have proposed that this difference serves the state’s interests on the assumption
--

in promoting responsible

procreation and optimal child—rearing environment on the assumption that the prestige of the word “marriage” is an inducement to marry. But if it is not the prestige of the word

“marriage” that induces people to marry, if the inducement instead is the state-provided opportunity to make a lifetime commitment, then that word “marriage” ceases to have a rational relationship to the state’s proposed rationale. word
——

It’s not the

it’s not the prestige of the word that gets people to

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marry; it’s the opportunity to make a lifetime commitment. Manipulating access to that word merely manipulates the pleasure and satisfaction that same-sex couples get out of their moment of commitment, their relationships, and their status in the eyes of the state and the community. The City of Cleburne case says that the equal protection clause of the Fourteenth Amendment is, essentially, a direction that all persons similarly situated should be treated alike. That case also says that the state may not rely

on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives, such as a bare

desire to harm a politically unpopular group, are not legitimate state interests. Your Honor, we submit that where the defendants’ rationales are concerned, that’s where we are in this case. have a distinction that is ephemeral and inconsistent, that harms same—sex couples and their families, and that no longer hangs by even the thread of the name “marriage.” In this We

context of laws where everything on both sides is identical, except for access to the prestige of being able to call yourself married, and where limiting access to the prestige of that title serves no purpose but to subordinate the disfavored class, the classification system is attenuated to the point of being arbitrary and is unjustifiably discriminatory.

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I’d like to make three points in closing, Your Honor. First, defendants make an additional argument that the state is entitled to proceed with caution in making fundamental changes to its laws, but this argument is flawed for a number of reasons: First, it is inconsistent. The state has already

made a massive change to its marriage law by adopting the civil union law, and it did so in one blow. The only aspect of

marriage law that the legislature left untouched was access to the title “marriage.” Second, there is no evidence that the legislature considered the civil union laws the first step in any process. It didn’t set up a commission to study the issues of whether the status of marriage should be extended to same-sex couples or the adverse effects upon them of being subordinated or being denied that status. Third, if it is always rational to go slow, then an equal protection claim could always be defeated by the argument that the legislature is entitled to go slow. Fourth, going slow in this case means that same—sex couples and their families must deal every day, Your Honor, with the harm caused by their subordination in Hawaii’s two-tiered system. Going slow can’t justify such harm.

My second point has to do with standard of review. THE COURT: MR. D’AMATO: With what? Standard of review, Your Honor.

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The standard

--

the defendants’ theory is that only

the most lenient review conceivable is applicable to this case, even though it concerns relationships at the heart of our lives. Morerio, But there’s a clear line of equal protection cases, City of Cleburne, Romer v. Evans, in which the court

overtook what Justice O’Connor referred to in Lawrence v. Texas as a more searching form of rational basis review. These cases

in our opinion show that the leniency of rational basis review is not a license to discriminate against a disfavored group. The First Circuit recently analyzed this line of cases in Massachusetts v. U.S. Department of Health and Human Services and has characterized the cases as involving a disfavored group and a thin rationale for a law burdening that group. Both of those factors are clearly present in that case.

Owing to that, plaintiffs have the right to question defendants’ rationales, particularly their theory that the name “marriage” induces couples to marry. THE COURT: You’re referring to the Massachusetts

case decided by the First Circuit? MR. D’AMATO: THE COURT: Yes, And, Your Honor. in that case they used a

of course,

new standard that they acknowledged had never been recognized by the Supreme Court. MR. D’AMATO: Well, did they put it that way, Your

My recollection from their decision in that case is

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that they weren’t inventing a new standard but they were trying to generalize from what the Supreme Court’s precedence had been in this area. They recognized that it was a more searching

form of rational basis review, but as I recall from that case, Your Honor, they didn’t say that they were creating a new standard. THE COURT: I think they said that they expected the

Supreme Court would adopt their new standard. MR. D’AMATO: I think they said that the Supreme Your Honor, as undoubtedly it

Court would make up its own mind, will. THE COURT: preclusive. MR. D’AMATO:

They also held that Baker was

They did, Your Honor.

They did.

But

they didn’t have the facts before them that we do in this case, including the civil union law, which to our mind makes this case
—-

distinguishes this case from Baker because we’re We’re

raising a different kind of equal protection claim.

asking whether there is any rational basis left for withholding the name “marriage” when the civil union law has put same-sex couples and opposite—sex couples in, basically, position. THE COURT: The First Circuit did say that under in the same

rational basis the defendants prevailed. MR. D’AMATO: That’s why they look to these cases

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like Cleburne and Moreno and Romer v. Evans in which the Supreme Court, though adopting a rational basis review, nevertheless probed the justifications offered for laws where they saw the possibility of discrimination. Why? Because it

would be possible, if they didn’t exercise any kind of oversight at all over the rational basis standard, for that standard to be used as a license to discriminate against disfavored groups. I just want to make one more point, Your Honor, and that has to do with something Defendant Fuddy said on the last page of her opposition and reply brief. great
--

She says, With

quote, With great respect it is not this court’s role

to get on the right side of future history. Martin Luther King, Jr., said that, quote, The arc of the moral universe is long, but it bends towards justice. In her comments the director seems to be anticipating how the arc will bend in the case of sam~—sex marriage, but, in fact, we don’t seek a judgment from this court that looks outside this courtroom to history or to anything else. There are three plaintiffs before you in this case, Your Honor: Natasha Jackson, Janin Kleid, and Gary Bradley.

And it’s their interests that will be directly affected by this case. Natasha and Janin are now pregnant. They don’t want Gary

their child to grow up as a second-class citizen. Bradley’s partner is a foreign national.

Gary wishes to

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petition the U.S. government for change in his partner’s status, but he doesn’t have the standing to do that as a civil union partner. We know that this case has ramifications outside this courtroom, but those ramifications always come down to the lives of people, like Natasha, Janin, and Gary. We ask that

you consider our clients,

as you make your deliberations, how

their specific interests will be affected by your decision, and with respect, Your Honor, that you ask yourself this question:

Is it truly rational to deny plaintiffs the right to call themselves married, or is that denial simply the last vestige

in the realm of domestic relationships of bias against people
—-

of plaintiffs’

sexual orientation?

That’s all I have, Your Honor. THE COURT: rebuttal. MR. D’AMATO: Thank you. Good morning again, Your Honor. Thank you. You have 10 minutes left in

MR. SCHOWENGERDT: THE COURT: MR.

Good morning. The plaintiffs’ and the Governor’s

SCHOWENGERDT:

claims in this case are,

essentially,

that marriage has been

defined in this country and throughout history as an opposite-sex union for, essentially, no reason other than And they claim that

discrimination against same-sex couples.

Hawaii’s marriage laws are so devoid of any rational

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justification that they violate the Equal Protection Clause and theDue Process Clause of the Fourteenth Amendment. And if

ultimately correct, the plaintiffs’ claims would not only invalidate Hawaii’s marriage laws but the laws of 44 other states and the federal government as well. So the first hurdle to their claim is the sheer implausibility of their central premise; namely, that marriage

has been defined throughout history as an opposite-sex union for no good reason. If there’s any truth to the notion that

the mere novelty of a claim is enough to doubt that the constitution supports it, have to fail. described, then I think the plaintiffs’ claims As Mr. Wynhoff

And they already have failed.

Baker against Nelson controls this case, as the

Fifth Circuit recently found and other courts have found as well. But beyond that THE COURT:
--

It was pointed out by Mr. D’Amato that

those cases did not involve civil union. MR. SCHOWENGERDT: It didn’t involve a civil union,

but I think it’d be odd to say that a state that grants civil union status to same-sex couples actually makes their marriage laws more unconstitutional. At the beginning of this case hearing on our intervention motion called that an absurd legal theory,
———

in fact,

at the

plaintiffs’

counsel you know, and

and I think,

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now it’s become sort of the centerpiece of their argument.

think the message to the legislature would be no good deed goes unpunished. But the bottom line is that we’ve talked a lot about marriage, and on the one hand the plaintiffs say there’s nothing left of the title, and on the other hand, they say that it means everything. And I think they’re right. It does mean

a great deal to everybody in this courtroom.

It’s a civil

status that the Hawai’i Supreme Court long ago said it was so important that even the state is a party. So whether it’s the

prestige or the opportunity to make the commitment, I think that’s one and the same thing. And as this court said in the Milberger case, the civil unions law or the civil beneficiaries law shows only that the state wants to retain authority over its domestic relations law. And as long as
--

as far as the marriage laws go, as long

as there are distinguishing characteristics relevant to the interests that the state has authority to implement, the equal protection question is in it. And in this case the marriage

laws of Hawai’i and every other society are hardly arbitrary or the product of discrimination. They’re based on the inherent The

yet complementary differences between men and women.

famous anthropologist Claude Levi-Strauss, I think, probably put it best when he said, Marriage is this institution with a biological foundation.

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And anthropologists like Levi-Strauss or historians throughout history have said that the purpose of marriage in our society ~nd every other is to increase the likelihood that children will be born and raised by the parents who brought them into the world. It recognizes that there’s this natural

procreative capacity between opposite-sex couples and that natural procreative capacity, people get pregnant, opposite-sex couples, often unintentionally through even casual sexual conduct. And that natural procreative capacity has the ability

to either harm the state’s interests or benefit them because there’s really, generally speaking, only two choices when someone gets pregnant: either the child will be raised by both So

their parents or by just one, and usually just the mother.

marriage is an in~iucement for the couple to stay together and raise that child together. That’s not an interest that’s

implicated by same-sex couples, who don’t procreate naturally. THE COURT: Under the civil unions law the state has How does that

given same-sex couples full rights of parenting. affect the optimal parenting theory? MR. SCHOWENGERDT:

I don’t think it impacts that

theory because the state can recognize that there are alternative parenting arrangements that exist. And even the

parents in those relationships make praiseworthy and laudable efforts in raising their children, and they can assist those efforts through civil unions or reciprocal beneficiaries while

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at the same time reserving the status of marriage because opposite-sex couples acutely implicate the state’s interests. And the Supreme Court has said in this Johnson v. Robison case that Mr. Wynhoff mentioned that it doesn’t violate equal protection when the state includes one group that advances its interest but doesn’t include another group that doesn’t advance those interests or doesn’t advance them to the same degree. So it can make its distinctions, the state can

draw those lines, even if they’re not always drawn with mathematical nicety. But that’s an authority under rational And we can say

basis review in particular that it retains.

that maybe there’s a better way to do it, it may not be the wisest policy, but that’s the authority the legislature has, and it can even experiment in its domestic relations law to determine what’s best. And, of course, this distinguishing characteristic of opposite-sex couples, this procreative capacity, is what the legislature noted when it enacted 572-1. opposition reply brief
—-

On page 27 of our
--

that’s the last brief we filed

we

cite the legislature’s explicit statement that that was the primary purpose for issuing marriage licenses is to, quote, regulate and encourage the civil marriage of those couples who appear by virtue of their sex to present the biological possibility of producing offspring from their union. And like

I said, that’s just not an interest implicated by same-sex

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couples. But there’s a second component of that procreative interest, and that’s that the legislature can rationally

believe that children benefit from both the influence of both a mother and a father. In fact, the Governor’s own expert

Michael Lamb said both mothers and fathers play crucial and qualitatively different roles in the socialization of a child. And, of course, he’s backed away from that statement since

embracing the movement to redefine marrige to include same-sex couples. But David Popenoe, a sociologist at Rutgers in fact, said that

University, continues to hold that view and,

the burden of social science evidence supports the idea that gender differentiated parenting is important for human development. THE COURT: You have experts on both sides, and it

seems to be very debatable. MR. SCHOWENGERDT: I think that’s exactly right, and

I think that’s exactly the point. Do I think that we can prove that this is the case? I think we can. I think we can prove that there’s
--

that a

biological mother and father are the ideal.

But there are And I think

experts on both sides that say different things.

that really concludes the inquiry under rational basis review because under the Supreme Court’s decision in Heller and Clover Leaf and others, they say, if it’s a debatable proposition,

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rational basis review is done. not
——

The court’s not entitled or

it’s not warranted to sit in judgment of those sorts of

policy debates between experts because at the end of the day that’s really what this is is a policy debate and one that’s been occurring in Hawai’i for some time now. I mean, the

people of Hawai’i have been having this sort of democratic conversation about the nature and meaning of marriage, and there’s no doubt that that will continue. But the constitution doesn’t compel the state to rush down the path of same-sex marriage. Six states and the

District of Columbia have redefined marriage and have included same—sex couples in their definition of marriage, as they’re entitled to. But the State of Hawai’i is entitled to take a

wait—and-see approach and say that our interests are most implicated by opposite-sex couples. later. In fact, that’s the unique thing about Article I, Section 23, is that the legislature, when it passed that and the people ratified it, it didn’t prohibit same-sex marriage in the constitution, I think as many states have. have done that, but they didn’t. They could We can change our mind

They reserved that authority
--

to the legislature, which shows that I think things.

shows a few

One, it’s important to the legislature that it retains

that authority over domestic relations law in this state and, two, that it’s open to changes that any petitioners want to

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make,

and it will take those

--

take account of those and But the idea that same

deliberate on those on an equal basis. sex
--

that redefine marriage into a genderless institution

could impact the institution itself I think itself provides a rational basis. THE COURT: that’s controlling? What is your opinion on Baker and whether I notice that Judge N. R. Smith in his

dissent in Perry felt that Baker was not controlling because of the civil unions. MR. SCHOWENGERDT: And I think Judge Smith was as

particularly concerned about not only the civil unions but, I remember
--

I could be remembering this incorrectly, but the

idea that the Proposition 8 did have a different effect than the Minnesota case because there had been 18,000 marriage licenses issued in California. But I think Nelson controls. laws, but,
——

I don’t think that

--

I think Baker v.

The only real distinction is the civil unions I don’t think that makes the state’s laws Under plaintiffs’ argument a state that

as I said,

less constitutional.

gave absolutely no rights and benefits to same-sex couples would be actually more. constitutional. But, you know, Baker has to be, you know, it has to

be a closely related case.

I think this is.

I mean the bottom

line question is does the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment require a state to

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issue same

--

marriage licenses to same-sex couples.

that’s the basic legal question, and I think that was the same in Baker and the same here. And it wasn’t undermined by
—-

Lawrence because Lawrence did not

explicitly did not involve

formal recognition of same-sex relationships. And I think that goes to a larger point here that the state isn’t telling people what relationships they can have and what relationships they can’t have; it’s just reserving its authority to formally recognize certain relationships as marriage when those relationships uniquely implicate its interests. And as long as it’s rationally conceivable
--

it

has a rationally conceivable basis for that decision, for that line drawing, then it fully complies with the constitution. THE COURT: Now, Judge Smith in his dissent again

felt that Johnson was not applicable because here in Perry they were taking away a class rather than adding a class. MR. SCHOWENGERDT: Yeah, and I think that was the, At 1087 in the

you know, the majority held that same thing.

opinion they said, Johnson v. Robison, that normal standard where including one group
——

it’s fine to include one group if

inc1u~ion of others would not advance the state’s interests or advance in the same degree didn’t apply because it was taking away. But the court stressed that the state, one, had given I

that right explicitly that same-sex couples were exercising.

mean they said several times throughout the opinion that 18,000

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marriage licenses had been issued to same-sex couples. THE COURT: No, but do you take the position that

Johnson is applicable in our case? MR. SCHOWENGERDT: I do. Yes, we do, Your Honor.

THE COURT:

What’s ~yoür basis for that? Well, because the Supreme
--

MR. SCHOWENGERDT:

what

the legislature did was draw a line, always been didn’t
---

and it was a line that had I mean, it

it had existed in Hawai’i law.
--

there were no first of all,

and I think Mr. Wynhoff went into it no

this that,

the Baehr decision was stayed; and it was on appeal. And, two,

never went into effect,

marriage licenses had been issued to same-sex couples. You know, another distinction from Perry is that, Section 23, didn’t define

like I mentioned before, Article I, marriagein the constitution. the legislature.

It reserved that authority to

And I think that is a distinction. the general rule of Johnson and, you know, the Perry court’s you

But, you know, know,

all things being equal,

decision there was unique to say that Johnson v. Robison~ didn’t apply. I mean that was
--

they were going out on a limb to a

certain extent to make that holding because in the normal course that standard under equal protection applies. And it’s

sort of another way of saying whenever there are distinguishing characteristics that are relevant to interests the state has authority to implement, it doesn’t violate equal protection to

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draw lines based on those distinguishing characteristics, which is really
-—

THE COURT:

You say that Baehr never went into

effect, but it never went into effect because the Hawai’i Constitution was amended, 572—1. MR. SCHOWENGERDT: I think, if I remember right, and then the Baehr and then the legislature amended

572-1 was enacted before the amendment, decision
--

or, well,

I guess in the process 572-1 was enacted.

But the bottom line is that same-sex couples never received marriage licenses in Hawai’i. that
-—

I mean that was never a right

THE COURT:

Well, but their position is that they had Just

this so-called presumptive right that was taken away. like Perry had the take away. MR. SCHOWENGERDT:
--

But in Perry,
-—

I mean that was a there was a final and same-sex you know, I think

right that had been

it was actually

judgment in that case,

it was a done deal, So,

marriage licenses were being issued.

there is a serious distThction to be made there, why
—-

and that’s

probably why the court was focused so much on the 18,000

marriage licenses; that the state was actually issuing marriage licenses to same-sex couples and allowing them to get married. And so in Hawai’i just because the decision was on appeal and because the court had said, well, there’s, you know,

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presumptively they have this right, decision;

it was never a final

it never went into final effect. And so, you know, I think it will be interesting to There’s going to

see what the Supreme Court does with Perry. be a cert. petition on that case and, panel decision
--

you know, because the

even their application of Romer as the

dissent in the en banc review noted it was a pretty novel application of Romer at that. So I think, given that it was I

such a novel application of Romer,

that “take away” theory,

think it’s important not to expand it beyond the very narrow confines that the court made that decision. was clear. Because the court

In fact, the majority in the panel reiterated it in

denial of the en banc review and said this applies to the very specific factual context surrounding Prop 8. And that, you

know, by implication would only apply to one state, California, if taking them at their word.

and that’s

If I could reserve the remainder of my time for rebuttal, Your Honor. THE COURT: remaining. MR. SCHOWENGERDT: Mr. Thank you. Very well. You have 12 minutes

THE COURT: MR. LAU:

Lau. Your Honor.

Thank you,

Let me begin by saying that this case presents perhaps the most significant civil rights issue of this new

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century.

The current ban on same-sex marriage excludes an

entire group of equally deserving people from making perhaps the most important decision of their entire lives: decision as to whom they wish to marry. the

The same-sex marriage

ban means that gays and lesbians are singled out as the only people in this state who are not allowed to choose the person
—-

who are not allowed to marry the person they love.

Everyone else, from convicted criminals to non-citizen aliens, are entitled to marry the person they love; yet, law-abiding, worthy citizens, who happen to be gay or lesbian, are forever barred from marrying their beloved person. That is not fair,

it is not justice, and it is, we submit, unconstitutional. Now, the Bakerversus Nelson case, we think, for four reasons is clearly not controlling in this case. First, in

Baker the jurisdictional statement in the Supreme Court stated unequivocally that, I quote, the discrimination in this case is one of gender. Given that explicit statement Baker cannot

control with respect to the sexual-orientation-based discrimination claims made in this case. Although the

jurisdictional statement does reference discrimination based on homosexuality in its introductory sections, the explicit statement in the argument section that the discrimination is based on gender and the lack of any reference to sexual orientation in the argument sections means that sexual orientation claims were not, quote, precisely presented and

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necessarily decided.

At best,

those questions merely lurk in

the record and, therefore, Secondly
--

are not deemed resolved.

THE COURT: broad. MR. LAU: is very narrow,

The statement of jurisdiction is very

It is very broad, but the argument section
--

and it does

again the argument section

specifically references gender discrimination and says that the discrimination in this case is one of gender. THE COURT: The statement of jurisdiction, though,

goes on and refers to homosexuality. MR. LAU: Honor. It does in the introductory sections, Your

But even putting aside the gender discrimination

distinction, the civil unions law clearly is different because in Minnesota at the time Baker was decided there was no civil unions law. unions law. THE COURT: MR. LAU: I’m sorry. There was no what? In Hawai’i, of course, there is a full civil

In Minnesota there was no civil unions law In Hawai’i there currently is

at the time Baker was decided. one.

And regardless of whether or not this court agrees that the civil union law THE COURT:
--

Actually,

in Hawai’i there was no civil
--

union law when the Hawai’i amendment was changed

Hawai’i

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Constitution was amended. MR. LAU: That is true, but there is clearly now a

civil union law, and there is now no longer any rational justification.
THE COURT:

In other words, there was no “take away”

at the time of the amendment of the Hawai’i Constitution. MR. LAU: Well, we would argue that the amendment of

the Hawai’i Constitution involved a “take away” situation because it took away the right recognized in Baehr to have same—sex marriage absent satisfaction of strict scrutiny. THE COURT: time. MR. LAU: There was no civil union law at that time. But there was no civil union law at that

But at this point in time whether or not the court agrees that the civil union law changes the result in this case
——

THE COURT: would be helpful. MR. LAU:

If you can slow down a little bit,

it

I’m sorry.

Yes.

Whether or not this court agrees that the civil union law changes the result in this case, it cannot be disputed that

the civil union law is a sufficiently significant fact that was not present in the Baker case, being controlling. As the Supreme Court
-—

and thus precludes Baker from

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THE COURT:

Let me ask you why are you not

challenging the amendment to the Hawai’i Constitution since in your position you feel that amendment to the Hawai’i Constitution authorizes an enactment by the legislature that would violate the United States Constitution? MR. LAU: Right. We believe because Hawaii’s

Constitution simply says that the legislature is authorized to limit marriage, because it doesn’t actually ban marriage we don’t think that the constitutional provision can violate the federal constitution because it does not mandate a ban on same-sex marriage. THE COURT: MR. LAU: It authorizes it. It authorizes it. That doesn’t bother you? Well, we don’t think it’s the wisest

THE COURT: MR. LAU:

decision, but because courts or the people of the State of Hawai’i are entitled to provide in their constitution whatever rights they wish to provide, they are not required to provide in their state constitution a right to same-sex marriage. Now, the Supreme Court in Mandel has made very clear

that where the facts in today’s case differ in a meaningful respect from the facts in the summary dismissal case, the summary dismissal is not controlling. Here the presence of

full civil unions presents at the very least a different question and different fact scenario from that presented in

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Baker.

And again I must emphasize that this court does not

need to agree that the presence of civil unions changes the result that would have been reached in Baker. It need only

agree that the availability of civil unions is a different fact that could or might have changed the result. And given Perry’s

heavy reliance on the civil union law there, it’s beyond reasonable dispute that the civil union law could or might change the result. Thirdly, Baker is not controlling because of what we consider a similar “take away” situation presented in this case by the constitutional amendment and the legislature’s maintenance of the man/woman distinction in its marriage laws. And again whether this court agrees that that requirement changes the result in Baker, the point is it’s a significantly different fact that could change the result, and for that reason alone Baker cannot be controlling. Fourth, Baker cannot be controlling because the doctrinal development of Lawrence v. Texas totally undermines a very simple doctrinal underpinning that could have justified the Baker ruling. At the time of Baker gay and lesbian

intimate relations could be criminally prosecuted, and, therefore, it was not surprising that the Supreme Court would have rejected any form of heightened scrutiny for sexual orientation discrimination and would have found an easy rational basis for denying gay marriage. After all, if a state

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could criminally prosecute gay intimate relations as held in Bowers, it would be somewhat anomalous to provide heightened scrutiny for gays. But once Lawrence came down protecting the

rights of gays to engage in intimate conduct, the entire Bowers doctrinal underpinning for a Baker ruling was gutted. Thus,

Lawrence serves as a critical doctrinal development preventing Baker from controlling this case. Now, plaintiffs rely on the fact that Lawrence says this case does not involve whether the government must recognize that particular relationship. That statement was,

obviously, true because Lawrence did not decide the issue of a constitutional right to same-sex marriage. THE COURT: I think our court reporter’s having

difficulty keeping up with you. MR. LAU: I’m sorry, Your Honor.

But Lawrence by overruling Bowers did flat out reject any easy doctrinal premise supporting the Baker ruling by recognizing a constitutional right to gay intimate relations. Opponents simply have no answer to this. In sum, Baker’s not

controlling for those four independent reasons. The Massachusetts First Circuit Court comment about Baker was plainly dicta and was wrong for all the reasons we just gave. As to due process, Your Honor, opponents do not even attempt to rebut our demonstration that the reasons given by

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the Supreme Court for why marriage is fundamental apply equally well to same-sex couples. They do not deny that marriage for

same-sex couples is essential to their pursuit of happiness. They do not deny that same-sex marriage is just as fundamental to, quote, existence and survival. The ability to procreate is not what makes marriage fundamental to existence and survival, as people can procreate without getting married. And I would also note that same-sex

couples in fact can and do procreate through adoption and other common modern technologies. In fact, plaintiffs have just

noted that plaintiffs are, in fact, pregnant. Rather, marriage supports existence and survival in two more fundamental ways recognized by the Supreme Court. triggers legal and social responsibilities of the married parties to each other, thereby providing the couple with the mutual support for each other, which promotes their survival. This is what Griswold noted as the, quote, bilateral loyalty provided by marriage. And, secondly, if children are produced It

in the marriage, marriage makes it more likely that the parents will stay together and together raise and support their child, thereby promoting the existence and survival of their children. Both of these reasons apply equally to same-sex couples, and opponents do not really dispute this. In sum, the very reasons

marriage is a fundamental right, pursuit of happiness and existence and survival, apply equally well to same—sex couples,

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and so it makes no sense at all to exclude them from this right. Now, opponents argue that same-sex marriage has little historical tradition, but Loving and Lawrence make very clear that, quote, neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Loving found interracial marriage to be a fundamental right even though 41 states at some point in their history banned interracial marriage, and many even treated such marriages as a felony. It is no surprise, therefore, that Lawrence stated

that, quote, History and tradition are the starting point but not the ending point of the substantive due process inquiry. For these reasons we submit that same-sex marriage is a fundamental right, and the ban should be subjected to strict scrutiny under the Due Process Clause. With respect to the Equal Protection Clause for much the same reasons why Baker is not controlling or binding High Tech Gays’ rejection of suspect status for sexual orientation is not binding either. The principle reason High Tech Gays

rejected suspect status for sexual orientation was the ruling in Bowers that gay intimate relations could be criminally prosecuted. Because Bowers was overturned in Lawrence, finding

such intimate relations constitutionally protected, High Tech Gays’ no suspect class ruling is not binding on this court. Miller versus Gamrnie says that circuit precedent can

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be ignored where a higher court has undercut the theory or reasoning underlying the prior circuit precedent. And that’s

exactly what Lawrence did when it undercut Bowers, which High Tech Gays relied on. Opponents have no answer to this, except to say that rejected

the Witt case, Witt versus Department of Air Force, the Miller versus Gammie argument. reply, Witt did nothing of the sort.

But as we explained in our At most, Witt upheld the Don’t Tell does not It

conclusion post-Lawrence that Don’t Ask,

violate equal protection under the rational basis review.

did not address whether High Tech Gays or Philips, the rational basis test, was the correct test in light of Lawrence for sexual—orIentation discrimination, reasons: One, and this is clear for three

the court did not engage in any discussion of

whether the High Techs/Bowers rationale had been undercut by Lawrence, and any discussion of the Miller theory would have given that it

had to have looked at the viability of Bowers, has been overturned in Lawrence. Secondly,

the plaintiffs in Witt expressly disclaimed

making a Miller versus Gaminie argument with regard to the High Tech ruling. They specifically said they would reserve that and this explains why the Witt

question for en banc review,

majority did not address the Miller versus Gaminie argument. Third, the Witt majority in its one paragraph equal

protection section did not even address the classification

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involved here, which is sexual orientation discrimination. Rather, it addressed the very different classification, distinguishing between, quote, those who engage in homosexual activities versus, quote, those whose presence may also cause discomfort among other service members, such as child molesters. Thus, Witt simply has no bearing on the question of

whether sexual orientation is a suspect class or not. THE COURT: MR. LAU: THE COURT: Can I interrupt you a minute. Yes. Referring to the Perry decision, Judge

Reinhardt tactically crafted that decision to state it was very narrowly based on the specific history of same-sex marriage in California. he said: And then reading from his decision at page 1081,

“There is one further important similarity between Neither case requires that the voters

this case and Romer.

have stripped the state’s gay and lesbian citizens of any federal constitutional right. In Romer, Amendment 2 deprived

gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprives same-sex partners of the right to use the designation of marriage. There is no

necessity in either case that the privilege, benefit, or protection at issue be a constitutional right. We, therefore,

need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that failed to afford the right to marry to gays and lesbians must do so.

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Further, we express no view on those questions. “Ordinarily, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end,” citing to Romer. the case in Romer, and it is the case here as well.” If a law neither burdens a fundamental right nor targets a suspect class. said. That is not the case here is what he “Such was

So isn’t he acknowledging there that High Techs is still

good law? MR. LAU: No, I would submit not, Your HQnor.
--

I

would submit that what all they did

all the majority did in
-—

Perry was simply say that because it does not even

the law

there, Proposition 8, does not even satisfy rational basis scrutiny, they did not have to reach the question of whether or not it should be
--

discrimination on the basis of sexual

orientation must be subject to a heightened form of scrutiny or strict scrutiny. They simply
--

just as in Romer, the Romer

court did not have to decide the proper standard of review because the plaintiffs or the defendants could not even satisfy the rational basis standard of review. fair reading
--

I think that’s the only

THE COURT:

If a law

--

if a law neither burdens a

fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational

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relation. as well.

Such was the case in Romer, and it is the case here

It seems like he’s also saying that at the time

--

that his decision is based on the fact that at the time of the decision at the time of Proposition 8, it was essential that there was a civil law he’s referring to the
--

a civil union law in place because he’s referring to the use of the And he goes on and on about how civil

--

designation of marriage.

union laws provide all the rights of marriage, except for the title of marriage. MR. LAU: Yes. And again I don’t believe the Perry

decision actually resolves the question as to what the particular standard of review is in that particular case. It

simply came to the conclusion that because it did not even meet rational basis review, that there was no need to address that question; the law was invalidated because it could not satisfy even rational basis review. And so moving on to application of the four-part test, opponents concede the history of discrimination factor, and they concede that the gays and lesbians are a minority. They also effectively concede the ability to perform or contribute to society factor, except to assert that lesbians and gays cannot procreate. three independent reasons: First, the premise is false. But that latter argument falls for
V

Gays and lesbians do

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procreate, not only through adoption but common modern technologies. Plaintiffs, in fact, are pregnant.
—-

Procreation

secondly, procreation is not the

essence of marriage, as Hawai’i specifically eliminated any requirement for people to be able to have children 30 years ago. And in every other way opponents do not deny that gays

and lesbians can perform and contribute to-society equally. With those two factors alone, the history of discrimination and the equal ability to perform, this court could apply heightened scrutiny. The other two factors of immutability and political powerlessness are not necessary factors for heightened scrutiny. This is clear because alienage and religion are not And, similarly, women

immutable, yet receive strict scrutiny.

and racial minorities have substantial political power, yet are entitled to intermediate or strict scrutiny. answer to this. Opponents have no

In fact, men and caucasians receive

intermediate and strict scrutiny, even though they are two groups with the most political power in this country. Thus,

the political powerlessness factor is hardly a necessary factor. But, furthermore, even putting that aside, on immutability the court in the Ninth Circuit in Hernandez—Montiel stated unequivocally that, quote, sexual orientation is immutable and, secondly, that, quote,

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homosexuality is as deeply ingrained as heterosexuality. Moreover, the evidence in this record is unrebutted by Professor Herek that 95 percent of gay men and 84 percent of lesbian women perceive little or no choice when it comes to their sexual orientation. And Hawaii Family Forum’s Laumann

study does not show that orientation changed at all, much less by choice. And it is clear that the lack of choice or the lack

of individual responsibility is the key to the immutability factor weighing in favor of heightened scrutiny. As Frontiero

and Cleburne make clear, heightened scrutiny is appropriate for classifications based on characteristics for which one is not responsible. As to political powerlessness, the facts have changed since High Tech Gays, especially in the area of most relevance here, which is same—sex marriage. Back in 1990 there were no

constitutional amendments banning same-sex marriage; whereas, today there are roughly 30 state constitutional amendments banning it. At the federal level congress enacted the Defense of Marriage Act, denying federal benefits to same—sex couples, and in Hawai’i, the geographic region of most relevance, nearly 70 percent of the electorate voted to override the Supreme Court’s ruling giving same-sex couples marriage equality. Opponents have no answer to Professor Segura’s detailed declaration laying out why gays and lesbians lack

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political power.

And to repeat again political power is not a

required element, as proven.by the heightened scrutiny given to women and minorities. In conclusion, because all of the factors cut in favor of strict scrutiny or heightened scrutiny at the very minimum and at least three of the most important factors, history of discrimination, equal ability to peform or contribute to society, and immutability, all cut in favor of heightened scrutiny, we think the federal district court in Golinski was right to apply heightened scrutiny. Thus, the

Governor’s motion should be granted subjecting the ban to heightened scrutiny. But even if this court were to apply a rational basis test, the bottom line is that the ban on same-sex marriage does not serve any of the purported interests. As to the “responsible procreation” rationale, the simple fact is that banning same—sex marriage will not encourage opposite-sex couples to get married and thus procreate more responsibly. This is common sense, and it is

also the binding conclusion of the Ninth Circuit in Perry. It is also obvious that banning same-sex marriage precludes same-sex couples from getting married, thus guarantying their children won’t have the benefit of the stability provided by marriage that even our opponents view as critical. Thus, in every way the ban on same-sex marriage does

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not serve the “responsible procreation” rationale but actually affirmatively undermines it. The opponents focus on the fact that only opposite-sex couples may procreate, but they can’t dispute the fact that the legislature’s ultimate goal is focused on insuring that children are not born to unmarried couples, regardless of whether the children are accidentally or intentionally conceived. And as to that ultimate goal,

opponents simply cannot deny that the ban does not serve the ultimate goal for heterosexuals, as Perry ruled, and totally contradicts that goal for gays and lesbians. Faced with that dilemma, opponents rely
-—

rest their

entire case on the “one step at a time” argument, claiming that they do not have to show that excluding gays and lesbians from marriage serves any rational purpose. mutliple reasons. That argument fails for

First, Perry ruled that it is not even

conceivably plausible that taking away the designation of marriage from same-sex couples would advance the goal of encouraging California’s opposite—sex couples to procreate more responsibly. Now, Mr. Wynhoff focuses on the “take away” language, but the logic of that ruling is not limited to a “take away” situation. If it is implausible that taking away marriage from

same—sex couples is not going to cause opposite-sex couples to procreate more responsibly, then not giving them that

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designation in the first place is also not conceivably going to cause opposite—sex couples to procreate more responsibly. So while the language of the decision was narrow, the logic of the Perry decision is broad in that that particular logic applies equally well to not giving the designation of marriage in the first place, just as logically as it applies to not
-—

to a “take away” situation. Second, Perry expressed doubts about the one step at

a time argument when dignitary benefits are denied, such as marriage. Third, unlike line drawing that simply inadvertently excludes a particular group or deserving group, this case involves a conscious, deliberate effort of the voters and the legislators to deny same-sex marriage equality. Thus, we

submit it fits within the Perry rationale that the inevitable inference in that situation is that the disadvantage imposed is born of animosity toward the class of persons affected. Fourth, the Hawai’i constitutional amendment overruling the Baehr decision that gave same-sex couples the right to marry is sufficiently analogous to the “take away” situation present in Perry. Thus, opponents must explain how

excluding same-sex couples promotes responsible procreation by heterosexuals, which they cannot do. Fifth, it is unfair and thus inappropriate to apply the “one step at a time” theory when the law exhibits a desire

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to harm a politically unpopular group, mentions in Lawrence,

as Justice O’Connor

for in those situations the “one step at

a time” argument would condone invidious discrimination that not only does not further the legitimate legislative purpose but that actually undermines it. Thus, a more searching form

of rational basis review should apply. THE COURT: MR. LAU: You have ten minutes left. Thank you, Your Honor.

But even if this court does apply the Johnson versus Robison test that was not applied in Perry but that our opponents wish to apply, that test says, when the inclusion of

one group promotes a legitimate government purpose and the addition of other groups would not, other group. then you can exclude the

But that test is not met here because the

inclusion of same—sex couples here would promote the ultimate purpose underlying the responsible procreation argument, which is to provide stable THE COURT:
-—

You better slow down,

if you want the

court reporter to take any of this down. MR. LAU: Thank you. I’m sorry, Your Honor. Yes.

The inclusion of same—sex couples would actually serve the “responsible procreation” rationale because by including them you would serve the goal of providing stable married families for same-sex couples. And so even applying this

the Johnson versus Robison test that they wish to apply,

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law does not stand because it’s illogical in that it cuts against their very goal, which is to provide married, stable families for children. And by banning same—sex couples from

marrying, you’re depriving the children of same-sex couples, including plaintiffs, the stability that marriage provides that they themselves admit is so important and critical. Second, the civil unions law, even if
--

the civil

unions law wipes out any claim as to the procreation rationale because regardless of opponents’ attempts to explain why withholding the title marriage, while nevertheless affording all the legal rights and responsibilities of marriage, furthers there’s a rationale. The fact remains that the Ninth Circuit Perry flatly

in Perry has already rejected any such attempt.

states that, quote, simply taking away the designation of marriage while leaving in place all the substantive rights and responsibilities of same-sex partners, quote, could not reasonably be expected to encourage responsible procreation. And the logic of that statement applies equally well whether you’re doing a “take away” situation or a “not affording in the first place” situation. The logic of that conclusion applies

equally well to both a “take away” situation or “not affording the marriage label in the first place.” As to the optimal mother/father theory, regardless of these debates about, you know, whether both sides.
--

there are studies on

Although, we think the record evidence provided by

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Mr. Lamb totally shows that the evidence is all on one side on the optimal procreation argument and that there’s no basis for it, putting that aside the Ninth Circuit has already rejected the optimal mother/father theory where in any state that provides full domestic partnerships giving equal parenting rights to same-sex parents, because Hawai’i had that situation the court in Perry said Proposition 8 could not have THE COURT: MR. LAU: THE COURT: MR. LAU: Where? Which court?
--

Perry versus Brown. Perry. Yeah. So the Perry court specifically

said, quote, Proposition 8 could not have reasonably been enacted to promote child rearing by biological parents because taking away the designation of marriage while leaving in place all the substantive rights and responsibilities of same-sex partners could not accomplish this. And that Perry ruling

makes sense because the legislature that was genuinely concerned about potentially inferior same-sex parenting would not have granted full and equal parenting rights to same-sex couples. In conclusion, we respectfully ask that this court deny Director Fuddy’s and HFF’s motion and grant our motion subjecting the ban to strict scrutiny or heightened scrutiny at least. In addition, because opponents do not even satisfy the

rational basis test, the court would be right to grant

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plaintiffs’ motion for summary judgment.

That is the only way

to put an end to the real and substantial pain felt by plaintiffs, and thousands like them, who suffer emotionally

each day they are not able to marry the person they love. Thank you, Your Honor. THE COURT: Thank you.

You have seven minutes left. MR. LAU: THE COURT: Thank you. Mr. Wadsworth.

Please proceed. MR. WADSWORTH: Your Honor, today I’m representing

Equality Hawai’i and Hawai’i LGBT Legal Association as amici curiae in support of the plaintiffs’ opposition to the motions

for summary judgment brought by defendants Fuddy and Hawaii Family Forum, which I’ll refer to as HFF. THE COURT: You were involved in Romer? Pardon me?

MR. WADSWORTH: THE COURT:

You were involved in Romer? Yes, Your Honor. I was one of the

MR. WADSWORTH:

attorneys for the plaintiffs in Romer. Our position, Your Honor, is that this case can be

decided on a ground that’s narrower than the parties have generally argued. Because of the similarities between Hawaii’s

voter enacted marriage amendment and California’s Proposition 8 and the resulting two-tiered relationship schemes we believe

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that the Ninth Circuit’s decision in Perry versus Brown controls this case and requires rejection of the defendants’ asserted reasons for depriving same-sex couples of the status and dignity of marriage. This is a “take away” case, to use

counsel for Defendant Fuddy’s words. Now, of course, defendants have argued that Hawai’i can’t be compared with California because the Hawai’i Supreme Court didn’t conclusively find Hawaii’s marriage law unconstitutional, and unlike California where 18,000 same-sex couples married, no same-sex couples have married in Hawai’i. But this argument ignores the fact that the Perry ruling is based on the Supreme Court’s decision in Romer versus Evans and the broader principle stated in that decision. In Romer the

Supreme Court ruled that Colorado’s voter enacted Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment because it singled out gay people and deprived them only of important antidiscrimination protections, such as protections from employment and housing discrimination based on sexual orientation. There was no established constitutional
-—

state

constitutional right for same-sex couples to marry in Colorado. There weren’t 18,000 same-sex couples that
--

who had already That wasn’t

married in Colorado when Amendment 2 was passed.

the touchstone for application of the equal protection clause of the Fourteenth Amendment. The principle that Romer stood

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for is that the state can’t target a group of citizens and deprive them alone of a right to seek aid from the government without a rational basis. Yes, there has to be an existing

right, but it doesn’t have to be a conclusively established right to marry. Colorado’s Amendment 2 not only repealed existing antidiscrimination laws, it also made it more difficult for gay people in Colorado cities that didn’t have antidiscrimination laws to get those laws enacted in the future. The United

States Supreme Court didn’t say that part of Amendment 2 was okay under the Fourteenth Amendment. Instead, the court said

that a law that makes it, quote, more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense, unquote. That’s at 517 U.S. at 633.

So here the Hawai’i Supreme Court held in Baehr versus Lewin that same-sex couples were protected from invidious sex discrimination under the Hawai’i Constitution and presumptively entitled to access to the legal status of marriage. The 1998 voter enacted marriage amendment stripped

same-sex couples o~ those rights in the words of the Hawai’i Supreme Court by, quote, taking the statute Section 572-1, the marriage statute
-—-

that’s HRS

by, quote, taking the

statute out of the ambit of the Equal Protection Clause of the Hawai’i Constitution at least insofar as the statute both on

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its face and as applied purported to limit the access to the marital status to opposite-sex couples, unquote. So the amendment took the status of marriage out of the state’s constitutional guaranty against sex discrimination and deprived same-sex couples of the right to enforce the guaranty in state court. Of course, Baehr still stood for the

proposition that same-sex couples couldn’t be denied the incidence of marriage, the benefits of marriage, but the status of marriage was taken off the table by the voter enacted marriage amendment. And while the marriage amendment didn’t foreclose the legislative process, it still changed the rules of state governmental process to deprive same-sex couples of the right to enforce the state’s constitutional guaranty against sex discrimination in state court. In other words, it made it far

more difficult for gay people to seek aid from the government to enforce an important right. And with that right eliminated,
--

the legislative solution in Hawai’i, like California

well,

first it was to adopt a reciprocal beneficiary law, but then it was to adopt a two-tiered scheme under which or in which same—sex civil union partners have the same benefits and burdens of married couples but not the status and dignity of marriage. So our position, Your Honor, is that the parallel with California is striking here. One day a court says that

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same-sex couples are presumptively entitled to marry under state protection principles, and the next day the state changes

the rules by amending the constitution and taking marriage, quote, out of the ambit, unquote, of equal protection. So

there was a recognition that same-sex couples would have to be treated equally and then a tangible moment of deprivation when the state said, “Not anymore. We found a way around that.” As

the Supreme Court said in Romer, that is a denial of equal protection in the most literal sense. So we believe the defendants’ motions for summary judgment should be denied on that narrow basis. any time left and I can save it for rebuttal, THE COURT: And if I have

I will. Thank you.

You have three minutes left.

So we’ll now begin with rebuttal. goes first, Mr. Schowengerdt. Thank you,

And Hawaii Forum

MR. SCHOWENGERDT:

Your Honor. First of

I’ve got three main points for rebuttal. all,

I’d like to talk about the level of scrutiny and this The court in Witt, I

issue of whether High Tech Gays controls.

think, was clear that under equal protection High Tech Gays is still good law, and nothing
—-

Bowers or Lawrence v.

Texas,

I

mean, did not change that because Lawrence v. Texas was a due process case. And even though the court in High Tech Gays did it independently And, of

note the Bowers decision in its analysis,

analyzed the factors for strict scrutiny in that case.

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course, the Ninth Circuit isn’t island by itself on this issue. that agree with it.

—-

it’s not like it’s on some

It’s got 10 other circuits

And several of those circuits, four to And so

five of them, were decided after Lawrence v. Texas.

this has not been a difficult question for the circuits, and I think in large part because the Supreme Court has been very reluctant to expand the five classes that are already entitled to heightened scrutiny. THE COURT: Incidentally, you have four minutes. Okay. And so the fact
---

MR. SCHOWENGERDT:

also, as

you noted, the Perry court rationalized

the Romer case also

applied a lower level of scrutiny rational basis review in that question. And that standard is extremely deferential, and when
--

we talk about Perry, the plaintiffs

my friends on the other

side of this case basically invert the burden and make the state show that some interest advanced by the opposite-sex couples will procreate more responsibly if same-sex couples are denied marriage. But that’s not the standard under rational

basis review, unless this Ninth Circuit’s under the specific facts under that decision Johnson v. Robison doesn’t apply. And I think clearly the normal rational basis review standard applies here, and it would have significant impact on other areas of the law. I mean we don’t ask
--

the state doesn’t

have to prove how not allowing common law marriage advances the state’s interest in opposite-sex marriage. Same with polygamy

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and every other restriction the state makes. THE COURT: 12 minutes. MR. SCHOWENGERDT:
-—

Incidentally,

I made a mistake.

You have

Okay.

Thank you, Your Honor.

The Governor

counsel for the Governor makes a lot as Mr. Wynhoff said,

out of the Miller v. Gammie case, but, there are two conditions.

I mean it’s really a pretty

unremarkable principle in Miller v. Gammie that a district court or a panel can disregard circuit precedent when two conditions are met: One, the decision of higher authority is And Lawrence v. Like I

closely related and clearly irreconcilable.

Texas is not clearly reconcilable with High Tech Gays. said,

if anything, High Tech Gays is on more solid footing now

than it was when it was decided because of the extraordinary political power that homosexuals have garnered in proceeding years. Exhibit A would be at plaintiffs’ table. The Governor I

of the State of Hawai’i is arguing for plaintiffs’ case. think that in and of itself shows the political power that same-sex couples have garnered.

Romer v. Evans was a case that was unique in itself, and the court there held that it was
--

it stripped same-sex

couples of every right and benefit of law and even prevented future legislative action on homosexuals’ behalf. Justice

Kennedy called it an unprecedented law in our jurisprudence. don’t think that there’s any basis to analogize Hawaii’s

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decision to retain the definition of marriage that it’s always had, I don’t think there’s any basis to say that’s even close

on the same level. And there’s a broader context here, Your Honor. said, As I

I think same-sex marriage is one of the most propound and And as many states have, the

far—reaching issues of our day.

people of Hawai’i and their political institutions are fully engaged in what I said earlier is this democratic conversation about marriage. And Hawai’i has elected to enact a very

generous civil unions bill as well as reciprocal beneficiaries bill, but it’s drawn the line at marriage, Fourteenth Amendment prohibits that choice. and nothing in the I think it would

be a shame if that democratic conversation were cut short and it’s constitutionally compelled to recognize same—sex marriage. I think we’d ask the court to allow this conversation to continue and
-—

as it should,

as the state fully satisfies the Your Honor. Actually, I had not

Fourteenth Amendment. THE COURT:

Thank you,

Excuse me a minute.

initially given the Equality Hawai’i people the right to rebut, but I did say you had three additional minutes, Mr. Wadsworth; so if you wish to use those three minutes now, MR. WADSWORTH: you may.

Unless Your Honor has any questions,

I have nothing further to add. THE COURT: All right.
-

Now it’s the Governor’s turn.

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MR. LAU: THE COURT: MR. LAU: THE COURT: MR. LAU: THE COURT: MR. LAU: THE COURT: MR. LAU:

Thank you, Your Honor. Got your wind back? What’s that? Got your wind back and ready to go? I’m sorry. Okay. Thank you, Your Honor. You have seven minutes. Thank you. I think the best thing to do I took away your wind probably.

here is to address their claim that High Tech Gays is somehow controlling in this case. I think we’ve demonstrated that

because High Tech Gays relied so heavily upon the Bowers ruling that based
-—

which had rejected any constitutional right to that once that decision
--

gay intimate relations,

that Bowers

ruling was overturned in the Lawrence case, that that whole doctrinal underpinning underlying High Tech Gays’ was wiped out. conclusion

There’s no question that High Tech Gays relied

on Bowers, and Bowers was subsequently overturned in Lawrence. And so regardless of whether Lawrence dealt with the issue of same-sex marriage or not, it actually undermined and destroyed

the very Bowers versus Hardwick basis for the High Tech Gays ruling. That by itself wipes out High Tech Gays as a binding

precedent. And again no Ninth Circuit case has ever said that the High Tech Gays precedent is still controlling in light of

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Lawrence, including the Witt case, which we’ve distinguished for the reasons given before. So once this court is free to

examine whether or not sexual orientation should be a suspect classification, you then have to look to the four factors that the Supreme Court has set forth. And at least two of them are

clearly in our favor, and they don’t even dispute the history of discrimination favor. And the second factor about whether gays and lesbians can equally contribute or perform in society, the only objection they have there is that gays cannot naturally procreate. But the fact is that gays do procreate and they do And,

have children, as proven by plaintiffs themselves.

secondly, they cannot defeat the fact that in every other aspect gays and lesbians equally perform and contribute to society. So those are two factors that we think are clearly in

our support. The immutability factor is also clearly in our support. The only evidence in the record is Professor Herek’s

testimony and statement that 95 percent of gay men and 84 percent of lesbian women perceive little or no choice with regard to their sexual orientation. And we also had the Ninth

Circuit’s ruling in Hernandez-Montiel, which also says that sexual orientation is immutable. So we think those three
---

we

have at least three factors that cut in favor of heightened scrutiny.

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The only factor that is at all a close call is the political powerlessness factor, which again we submit the fact that at the time of High Tech Gays there were no constitutional amendments banning same-sex marriage, and now today there are roughly 30. And also post-High Tech Gays we have the defense

of marriage enacted by the federal government, and we have the one plebiscite in Hawai’i where nearly 70 percent of the people voted against the maintenance of a right to same-sex marriage. We have a clear case where since 1990 when High Tech Gays was decided we actually have political power declining with respect to gays and lesbians, at least with respect to the issue that’s of relevance in this case, which is same-sex marriage. But even if this court were to have some doubt about that fourth factor, even though the other three factors are clearly in our support, even if this court had some doubt about that fourth factor, it’s clear that that fourth factor, political powerlessness, is not a determinative factor because women and Blacks and Hispanics all are entitled to heightened or strict scrutiny even though they have substantially more political power than gays and lesbians do today. And, in fact,

as I pointed out earlier, the group consisting of men and the group consisting of caucasians also get strict scrutiny or some form of intermediate scrutiny even though those groups actually have the most political power in this country. And so even if you were to have some doubts about the

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political powerlessness factor, because the other three factors cut in favor of heightened or strict scrutiny and because the political power factor is of questionable
--

it’s certainly not

a necessary factor, given the examples I just gave, we think heightened scrutiny at the very least is an appropriate standard here. Now, were this court nevertheless to apply a rational basis test, we think the most obvious and the most salient fact here is that the ban on same-sex marriage does not serve the “responsible procreation” rationale. The court in Perry has

flatly stated that taking away marriage rights for same-sex couples is not going to in any way encourage heterosexual couples to get married. And while the language involved “take

away,” the logic of that principle that was stated in Perry applies equally well to a non-take-away situation because, if it makes no sense that taking away the designation is going to cause heterosexual couples to get married, it also makes no sense that not granting same-sex couples the designation in the first place is also not going to have any logical connection to causing heterosexual couples to get married and procreate more responsibly. So although the language of Perry was narrow, the

logic of its ruling is extensive, and it applies equally well to this situation where you’re denying and not giving the designation marriage in the first place. As to the biological rationale, again even if there

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were some debate on the issue

--

although, we think the record

evidence forecloses any debate on that issue because Professor Lamb showed that all the studies that Hawaii Family Forum cited did not actually support their claim that somehow same-sex couples are less effective at parenting. In fact, it only

showed that children of broken families do less well than children of intact families, but when it comes to planned LGBT families, they do just as well. But putting aside that argument, the Ninth Circuit in Perry has already ruled that the biological parenting or the optimal mother/father theory is no good, is invalid in any state where full domestic partnership rights are available. And because Hawai’i is one of those states which offers full civil unions, the entire optimal mother/father theory has been wiped .out in the Ninth Circuit, at least for states that offer full and equal parenting rights to same—sex couples. Hawai’i certainly does that under its civil union law. So for all these reasons we submit Baker’s not controlling for the four reasons because there are three different facts: gender discrimination, civil unions, and a And

“take away” situation that are different from what was present in Baker, plus the fact that Lawrence has overruled a doctrinal underpinning of Bowers that could have supported a Baker ruling. And because all of
--

we submit that all four factors

but at least three of the most important factors cut in favor

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of heightened scrutiny, we think that the ban on same-sex marriage should be subjected to strict scrutiny or at the very least heightened scrutiny as the Golinski court found. But

even if this court were to apply a rational basis test, we think that the ban on same-sex marriage is so irrational because it does not serve the goal of encouraging heterosexuals to procreate more responsibly and flat out prohibits gay and lesbian couples from procreating responsibly because their children will be denied the ability to have the stable married family structure that even our opponents submit is so critical to the welfare of children. For those reasons, Your Honor, we respectfully ask that our motion be granted and that plaintiffs’ motion be granted as well. Thank you, Your Honor. Thank you.

THE COURT: Mr. D’Amato. MR. D’AMATO: THE COURT: MR. D’AMATO:

Thank you,

Your Honor.

I think you have seven minutes. Okay. I just have a few points. they’re very robust in terms Assuming

Defendants’

arguments,

of theory, but they’re weak in terms of linkage.

everything that Hawaii Family Forum said is true about the purpose served by marriage, how are those purposes served in

Hawai’i where only the name “marriage” has been reserved to opposite-sex couples?

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There’s something that was said in dissent in Perry v. Brown that’s relevant here. Proposition 8 left California’s Thus, it cannot be

existing domestic partnership laws intact.

said that Proposition 8 confers the inducement of marital benefits on opposite-sex couples but not on same-sex couples. The same point applies here. Section 572-1 of the

Hawai’i Revised Statute doesn’t confer marital benefits on opposite—sex couples but not on same-sex couples because the civil union law provides those same-sex couples. on the Johnson v. Robison case we believe that this case is distinguishable in several ways from this case. First,
—-

all those benefits to

how people were classified in the Johnson case, which concerned veterans’ educational benefits and whether they would be available to conscientious objectors. How people were

classified in that case had to do with the choices that they had made to serve or to be conscientious objectors. Here there

•isn’t a choice for same-sex couples under Hawaii’s domestic relationship law. Second, the classification sOheme in Johnson did not cause harm to those who did not qualif~y for educational benefits. 1 was a young man in the Vietnam era, and I had a

number of friends who were conscientious objectors, and they lost no status from taking that stand. In fact, they were

admired for the positions that they took.

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In this case the state’s classification scheme actually does harm to same-sex couples by subordinating them to opposite-sex couples and denying them the right to marry. A third way in which Johnson is different, Your Honor, is that there was clearlinkage in that case between the classification scheme and the purposes that the state sought to serve. Military service is very disruptive of one’s life, and

one of the purposes that the state sought to serve with educational benefits for veterans was to ameliorate that disruption. Conscientious objectors, who had alternative

service, didn’t have that kind of disruption to their lives; so there was a clear linkage in that case between the classification scheme and the purpose that was sought to be served. Here defendants have not shown that kind of clear

linkage between reserving the name marriage for opposite-sex couples and the purposes of responsible procreation or optimal child care. With regard to the Massachusetts v. U.S. Department of Health case, Your Honor, I found some language in it that I was thinking of when you asked me about it earlier, and it’s this. These three cases did not adopt
-—

this is the First

Circuit talking.

These three cases did not adopt some new

category of suspect classification or employ a rational basis review in its minimalist form. Instead the court tested on the

case specific nature of discrepant treatment, the burden

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imposed,

and the infirmities of the justifications offered.

We

believe that this sort of case sensitive assessment is appropriate in this case because of the infirmity of defendants’ rationales and the fact that same-sex couples are a

disfavored group. Judge, I think I’m done. If you’ve got questions
--

THE COURT: MR. D’AMATO:

You’ve got two more minutes. You know, Thank you. I’m talked out, Mr. Wynhoff, Your Honor.

THE COURT: four minutes. MR. WYNHOFF:

you only have

Your Honor,

I want to address a couple I think you

of the questions that you raised in my brief time.

mentioned Judge Smith’s dissent in Perry and asked about its relationship to Baker. The quote that I was able to find when

I was sitting there waiting was Judge Smith said to point out that it was
—-

to me it was he’s talking about the withdrawal Therefore, the

issue rather than civil unions issue.

constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the specific challenges raised in Baker. continue to believe, So I

Your Honor, that the distinction from

Baker in Perry was not that the civil unions but rather the withdrawal aspect. With respect to Johnson the majority quoted language from page 1088.
--

I’ve already

I’d also point the court to

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footnote 21 where the court Baker did not
--

-—

the majority there said, “Moreover,

quote,

I beg your pardon.

Johnson did not

involve a dignitary benefit that was withdrawn from one group,” closed quote. same issue, Judge Smith in his dissent talking about the quote, “For example, the fact that

footnote 2,

Proposition 8 involves the withdrawal of an existing right and not the extension of a previously reserved right suggests that Johnson is inapposite to the present case.” With respect to the argument that because the legislature has now gone THE COURT: MR. WYNHOFF: THE COURT: statement that it
--——

That was my question Yes, Your Honor.

--

whether with respect to Johnson his it was-~

rather than adding a class,

withdrawing a class. MR. WYNHOFF: That’s what they’re saying in Perry.

My argument is that in Perry they’re talking about withdrawing and not adding. point that. Then I was going to say that with respect to the argument based on civil unions, but not here, the legislature has gone here And those are the quotes that I mentioned to

I think the argument simply misconceives the There’s reference quote,
--

rational basis standard. said that Director Fuddy, clear linkage. Before
--

Mr. D’Amato just closed quote,

has not shown,

in other parts it was argued that

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there’s no evidence. basis works.

That’s simply not the way the rational

The court is supposed to defer under classic It’s

rational basis to the legislature’s rational speculation. not up to us to show evidence. clear linkage.

It’s not up to us to show the

I think the linkage is simply shown just by the fact that same-sex couples want to be married. Opposite-sex

couples, who have the choice to either be married or to have civil unions, choose to be married. It’s also highlighted by

something we heard here today and that I didn’t previously know: Gary Bradley wants to be married so that his spouse can There’s incidents to marriage that the legislature

get a visa.

could rationally believe induce opposite-sex couples to get married and thereby channel their naturally procreative sexual activity into marriage. THE COURT: Thank you, Your Honor.

Thank you.

Our hearing lasted well over two hours, and I want to commend the attorneys for their very thorough and well-researched arguments and briefs. And because of the five In fact, the I

motions today the briefing has been extensive.

briefs of just one party alone have exceeded 130 pages. won’t say which party.

But in view of the strongly disputed political and sociological debate on marriage presented in this case, I want to insure that I have thoroughly considered all points and

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arguments raised, and,

accordingly,

I will take this under Thank

advisement now and issue a written order in due course. you. (Court recessed at 12:30 P.M.)

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COURT REPORTER’S CERTIFICATE Debra Kekuna Chun, Official Court Reporter, United District of Hawaii, complete, do hereby certify

States District Court,

that the f~regoing is a true,

and correct transcript

from the record of proceedings in the above-entitled matter. DATED at Honolulu, Hawaii, September 12, 2012.

/s/ Debra Chun DEBRA KEKUNA CHUN RPR, CRR

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JOHN J. D’AMATO 5540-0 JOHN T. MALONEY, JR. 45 63-0 WILLIAM LEE 836 1-0 D’AMATO & MALONEY, LLP 900 Fort Street Mall, Suite 1680 Honolulu, Hawai’i 96813 Telephone: (808) 546-5200; (808) 546-5203 (f) j damato @benefitslawyers corn Attorneys for Plaintiffs
.

iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JAN1N KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director, Department of Health, State of Hawai’i, Defendants, and HAWAII FAMILY FORUM, Defendant-Intervenor. Hon. Alan C. Kay CIVIL NO. CV1 1-00734 ACK KSC (CONSTITUTIONALITY OF STATE STATUTE) NOTICE OF APPEAL; REPRESENTATION STATEMENT; CERTIFICATE OF SERVICE

NOTICE OF APPEAL Notice is hereby given that Plaintiffs NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, by and through their attorneys, D’Amato &
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Maloney, LLC, hereby appeal to the United States Court of Appeals for the Ninth Circuit from (1) Judgment in a Civil Case entered by the Clerk of Court in favor of Defendants on August 8, 2012 (Doc. 118) and (2) Order Granting HFF’S Motion for Summary Judgment and Defendant Fuddy’s Motion for Summary Judgment; Denying Plaintiffs’ Motion for Summary Judgment and HFF’S Motion to Dismiss Defendant Abercrombie; and Denying as Moot Defendant Abercrombie’s Motion For Summary Judgment, filed August 8, 2012 (Doc. 117). DATED: Honolulu, Hawai’i, September 7, 2012. Respectfully submitted, Is/John J. D’Amato JOHN J. D’AMATO J. THOMAS MALONEY, JR. WILLIAM LEE Attorneys for NATASHA N. JACKSON JANIN KLEID GARY BRADLEY

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REPRESENTATION STATEMENT Party Plaintiffs-Appellants NATASHA K. JACKSON JAN1N KLEID GARY BRADLEY Counsel John J. D’Amato, Esq. John T. Maloney, Esq. William Lee, Esq. D’Amato & Maloney LLP 900 Fort Street Mall, Ste. 1680 Honolulu, HI 96813 Phone: (808) 546-2000 Fax: (808) 546-5203 e-mail: jdamato@benifitslawyers.com tmaloney@benefits lawyers. corn wlee@benefitslawyers.com Girard D. Lau, Esq. Robert T. Nakatsuji, Esq. Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Phone: (808) 587-1360 Fax: (808) 587-1237 e-mail: girard. d. lau@hawaii.gov robert.t.nakatsuji@hawaii. gov William J. Wynhoff~, Esq. Daniel A. Morris, Esq. Deputy Attorneys General Department of the Attorney General Ke~anao’a Building 465 S. King Street, Room 300 Honolulu, HI 96813 Phone: (808) 587-2985 Fax: (808) 587-2999 e-mail: bill.j .wynhoff@hawaii. gov daniel.a.morris@hawaii. gov

Defendant-Appellant NEIL S. ABERCROMBIE, Governor, State of Hawai’ i

Defendant-Appellee LORETTA J. FUDDY, Director, Department of Health, State of Hawai’i

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Intervenor-Defendant-Appellee HAWAII FAMILY FORUM

Dale Schowengerdt, Esq. Brian W. Raum, Esq. Holly L. Carmichael, Esq. Alliance Defense Fund 15100 N. 90th Street Scottsdale, AZ 85260 Phone: (480) 444-0200 Fax: (480) 444-0428 e-mail: dale~telladf.org braum~telladf. org hcarmichael@telladf.org
Pro Hac Vice

Lloyd James Hochberg, Esq. Topa Financial Center 745 Fort St., Ste. 1201 Honolulu, HI 96813 Phone: (808) 534-1514 Fax: (808) 538-3075 e-mail: iim(~JamesHochberg1aw.com Amici Curiae EQUALITY HAWAII and HAWAI’I LGBT LEGAL ASSOCIATION Clyde J. Wadsworth, Esq. Paul Alston, Esq. Aiston Hunt Floyd & Ing 1001 Bishop Street, Ste. 1800 Honolulu, HI 96813 Phone: (808) 524-1800 Fax: (808) 524-4591 e-mail: cwadsworth@ahfi.com palston(~ahfi. corn

DATED: Honolulu, Hawaii, September 7, 2012. Is/JOHN J. D’AMATO JOHN J. D’AMATO J. THOMAS MALONEY, JR. WILLIAM LEE ATTORNEYS FOR PLAINTIFFS

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iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBm, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director, Department of Health, State of Hawai’ i, Defendants, and HAWAII FAMILY FORUM, Defendant-Intervenor. CERTIFICATE OF SERVICE CIVIL NO. CV1 1-00734 ACK KSC (CONSTITUTIONALITY OF STATE STATUTE)

CERTIFICATE OF SERVICE I hereby certify that on the date noted below, the foregoing document was filed with the Clerk of Court via the CMJECF system, causing it to be served on the following parties’ counsel of record, below: Girard D. Lau, Esq. Robert T. Nakatsuji, Esq. Harvey E. Henderson, Jr., Esq. 425 Queen St. Honolulu, HI 96813 gfrard.d.lau~hawaii.gov robert.t.nakatsuii~hawaii.gov harvey. e.hendersonjr@hawaii. gov

Attorneys for Governor Neil S. Abercrombie

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William J. Wynhoff~, Esq. Daniel A. Morris, Esq. 465 S. King Street, Suite 300 Honolulu, Hawai’i 96813 Brian W. Raum Holly L. Carmichael Dale Schowengerdt Alliance Defense Fund 15100 N. 90th St. Scottsdale, AZ 85260 Lloyd James Hochberg, Jr. Topa Financial Center 745 Fort Street, Ste. 1201 Honolulu, HI 96813
Attorneys for Defendant-Intervenor Hawaii Family Forum

bill.i.wynhoff~~hawaii.gov danie1.a.morris(~hawaii.gov

Attorneys for Director Loretta I Fuddy

braum@telladf.org hcarmichael~te1ladf.org dschowengerdtt~telladf. org

iim~JamesHochberglaw. corn

Paul Aiston Clyde J. Wadsworth
Attorneys for Amici Curiae ~Equality Hawai ‘i and Hawai ‘i LGBTLega1 Association

palston@ahfi.com cwadsworth@ahfi.com

DATED: Honolulu, Hawaii, September 7, 2012. Is! John J. D’Amato JONN J. D’AMATO J. THOMAS MALONEY, JR. WILLIAM LEE Attorneys for Plaintiffs NATASHA N. JACKSON JANIN KLEID GARY BRADLEY

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Case 1:11-cv-00734-ACK-KSC Document 118 Filed 08/08/12 Page 1 of 1 3006 AO 450 (Rev. 5/85) Judgment in a civil Case

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

NATASHA N. JACKSON, JANN KLEID, and GARY BRADLEY
Plaintiff(s), V.

JUDGMENT IN A CIVIL CASE Case: CIV NO 11-00734 ACK-KSC
FILED IN THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII August 8,2012 At 12 o’clock and 15 mm p.m. SUE BEITIA, CLERK

NEIL S ABERCROMBIE, Governor, State of Hawaii, and LORETTA J.
FUDDY, Directory of Health, State of Hawaii, Defendant(s). and HAWAII FAMILY FORUM, Defendant-Intervenor.

Decision by Court. This action came for hearing before the Court. The issues have been heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that Judgment is entered in favor of Defendants pursuant to the “Order Granting HFF’S Motion for Summary Judgment and Defendant Fuddy’s Motion for Summary Judgment, Denying Plaintiffs’ Motion For Summary Judgment and HFF’S Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie’s Motion For Summary Judgment” filed August 8, 2012.

August 8, 2012 Date Clerk

SUE BEITIA

Is! Sue Beitia by EPS

(By) Deputy Clerk CR118:1

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Page ID #:

ORIGINAL
GIRARD D. LAU ROBERT T. NAKATSUJI HARVEY E. HENDERSON, JR. Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawai’i 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D .Lau(~hawaii. gov Robert.T.Nakatsuj i@hawaii gov Harvey.E.HendersonJr~hawajj gov
. .

2764

3711 6743 929

FILED IN THE UNITED STATES DiSTRICT COURT DISTRICT OF HAWAII

iUL172~12
aLp’cl~ck and

SUE 8EIfl~ERK

~~ir~PM.

Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANTN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai~i,
Defendants,

CIVIL NO. CV1 1-00734 ACKJKSC (CONSTITUTIONALITY OF STATE STATUTE) DEFENDANT GOVERNOR NEIL S. ABERCROMBIE’S REPLY MEMORANDUM IN SUPPORT OF DEFENDANT GOVERNOR NEIL S. ABERCROMBJE’S MOTION FOR PARTIAL SUMMARY JUDGMENT; CERTIFICATE OF COMPLAINCE WITh WORD COUNT LIMITATION; DECLARATION OF GIRARD D. LAU & EXHIBITS “P” CERTIFICATE OF SERVICE
-

and HAWAII FAMILY FORUM, Defendant-Intervenor.

HEARING DATE: July24, 2012 TIME: 10:00 a.m.

JUDGE: Hon. Alan C. Kay CR 108:1
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press the issue. HFF’s effort is not only barred by Perry, but by the additional fact that a legislature truly concerned about potentially inferior same sex parenting would not give same sex couples equivalent parenting rights. Moreover, just as they failed to come up with any studies that actually supported their optimal-mother-father theory the first time around, ~çç Governor’s 6/29/12 Mem. at 70-74, HFF’s only new evidence involves an attempt to undermine the Governor’s expert Professor Lamb who flatly rejects the theory. HFF first points to the same 1975 article Lamb has already disavowed. Lamb Deci. ¶22 n. 1 (“nearly 40 years ago
..

.1, too, speculated (erroneously) that there might

be qualitative differences in the roles mothers and fathers necessarily play in children’s development”). Second, HFF points to a more recent book by Lamb (HFF Ex. 40), referencing a study indicating that “boys growing up without fathers seemed to have ‘problems’ in [certain development and adjustment] areas.” [1FF Mem. at 32-3 3. But Lamb makes very clear that this is “not necessarily because a sex-role model is absent, but because many aspects of the father’s role economic, social, emotional
---

go unfilled” because of the effects of divorce,

HFF Ex. 40 at 11 (p.15 of 51). Lamb summarizes, “parental warmth, nurturance, arid closeness are associated with positive child outcomes whether the parent or adult involved is a mother or a father. The important dimensions of parental

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influence are those that have to do with parental characteristics rather than genderrelated characteristics.” Id. at 13 (p.17 of5l). Finally, Professor Lamb less than a month ago, made very clear in his comprehensive declaration that “[tjhe children and adolescents of same-sex parents” are “equivalently adjusted,” and “are as emotionally healthy, and as educationally and socially successful, as children and adolescents raised by heterosexual parents;” and that “[tjhe social science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two opposite-sex parents.” Lamb Dccl. ¶29. It is thus absurd for HFF to use Professor Lamb in support of its thoroughly discredited optimal-mother-father theory.’6 Finally, HFF, in its 7/10/12 Mem. at 33-34, again cites the same Regnerus study that Professor Lamb has already demonstrated does not actually support HFF’s theory. See Governors’ 6/29/12 Mem. at 72; Lamb Deci. ¶30 (explaining that Regnerus’ study “merely demonstrates the well-established fact that children tend to do better in stable, intact families” and noting Regnerus’ own admission that child outcomes “in stable, ‘planned’ GLB families” “are quite lilcely distinctive,

16

HFF repeats its previous citation to Loren Marks’ attack on methodology, which
CR 108:3
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Professor Lamb has already discredited. See Lamb Decl. ¶33 n.6.
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as previous studies’ conclusions would suggest.”) Professor Lamb does not attack the study, but only the conclusions that HFF wrongly claims the study supports. Even then, Regnerus admits that any differences that do exist may very well result from “a variety of forces uniquely problematic for child development in lesbian and gay families
--

including a lack of social support for parents, stress

exposure resulting from persistent stigma, and modest or absent legal security for their parental and romantic relationship statuses.” HFF Ex. 31 at 766 (p.16 of 20). In other words, any potential difference may stem from (as to the first two factors), the “private biases [that may be] outside the reach of the law,” but to which “the law cannot, directly or indirectly, give
...

effect.” Palmore v. Sidoti, 466 U.S. 429,

433 (1984). The third factor refers to laws discriminating against same sex parental rights and relationships, and thus, of course, cannot be used to justify those very laws. C. Proceeding with caution, Fuddy does not even attempt to come up with concrete and specific fears under the rubric of “proceeding with caution,” which by itself is meaningless and would render the rational basis test “toothless.” Perry withheld judgment on whether this rationale could ever be a legitimate one. 671 F.3d at 1090, The Governor did not address this argument with “evidence,” and did not in any way concede the issue was “at least debatable.” The Governor instead noted Fuddy’s
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Ninth Circuit Case Nos. 12-16995 & 12-16998 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: Honolulu, Hawaii, October 18, 2013. s/ Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawai’i

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Nos. 12-16995 & 12-16998 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, Defendant-Appellant, and (caption continued on the next page) JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

GOVERNOR ABERCROMBIE’S EXCERPTS OF RECORD VOLUME 3 CERTIFICATE OF SERVICE GIRARDD.LAU 3711 ROBERT T. NAKATSUJI 6743 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau @hawaii.gov Robert.T.Nakatsuji @hawaii.gov Attorneys for Defendant-Appellant NEIL S. ABERCROMBIE, Governor of the State of Hawai’i
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LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor Defendant-Appellee.

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INDEX TO EXCERPTS OF RECORD VOLUME 3 CRIER Document Document Title Tab No. Date 93 Concise Statement of Facts in Support of 06/29/20 12 [Cont. from Defendant Governor Neil S. Abercrombie’s Volume 2] Counter-Motion for Partial Summary Judgment [Continued from Volume 2]
.

Exhibit B (to Declaration of Gregory M. Herek, Ph.D.); Declaration of George Chauncey, Ph.D.; Chauncey Bibliography; Exhibit A; Declaration of Michael E. Lamb, Ph.D.;; Exhibit A (Lamb Bibliography); Exhibit B; [CR93 cont in Volume 4]
.. .

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Fi’ed 06/29/1.2 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIB~ Governor, State of Hawai’i, and LORETTA J. F1JDDY, Director of Health, State of Hawai’ i, Defendants, and HAWAII FAMILY FORUM, Defendant-Intervenor. DECLARATION OF GEORGE CHAUNCEY, Ph.D CIVIL NO. CV1 1-00734 ACKLKSC (CONSTITUTIONALITY OF STATE STATUTE)

Declaration of George Chauncey, Ph.D.

1
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Pursuant to 28

U.S.C. §

1746, I, George Chauncey, hereby declare that:

Expert Background and Qualifications 1. I am a Professor of History and American Studies and chair of the

Department of History at Yale University, where I have taught since 2006. My testimony will relate to my opinions as an expert in the history of the United States in the twentieth century and gender, homosexuality, sexuality, and civil rights in the United States, with a particular focus on the history of discrimination experienced by gay men and lesbians in the United States. I have actual knowledge of the matters stated in this declaration, and could and would so testify if called as a witness. 2. My background, experience, and publications are summarized in my

curriculum vitae, which is attached as Exhibit A to this declaration. In the past four years, I have testified as an expert

either at trial or through declaration

or

been deposed as an expert in Perry v. Schwarzenegger, No, 09-2292 (7\~D. Cal.), Gill v. Office ofPers. Mgmt., No. 09-1 0309 (D. Mass.), Commonwealth ofMass. v. US. Dep ‘t ofHealth and Human Sen’s., No. 09-11156 (D. Mass.), Windsor v. US,, No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N Y,), Pedersen v. Office ofPersonnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Golinski v. Office ofPersonnel Management, 3: 10-cv-0257-JSW (ND. Cal.), Dragovich v. US. Dep ‘t ofthe Treasury, CV4:10-01564-CW (ND. Cal.), Donaldson v. Montana, No. 10-702
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(Mont. 1st Jud. Dist. Ct.), and Sevcik v. Sandoval~ No. 12-5 78 (D. Nev.)—all of which involved testimony on topics similar to those discussed below. 3. From 1991 to 2006, I was a Professor of History at the University of

Chicago. I am the author of Gay New York: Gender, Urban Culture, and the Making ofthe Gay Male World~ 1890-1940 (New York: Basic Books, 1994), which won the Organization of American Historians’ Merle Curti Award for the best book in social history and Frederick Jackson Turner Award for the best first book in any field of history, the Los Angeles Times Book Prize in History, and Lambda Literary Award. I am also the author of Why Marriage? The Histoiy Shaping Today ‘s Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three books and special journal issues, including Hidden From History: Reclaiming the Gay andLesbian Past (NAL, 1989); and the author of numerous• articles, which are listed in my curriculum vitae, attached to this declaration as Exhibit A.

4.

I base my opinions on my own research, experience and publications,

the work of other historians and scholars as listed in the attached bibliography, and the general statutes of a number of states, including Hawaii, New York, Connecticut, Vermont, and New Hampshire. Summary of Opinions

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It is my professional opinion that the historical record, which is outlined below, demonstrates that gay and lesbian people have been subject to widespread and significant discrimination and hostility in the United States. 6. Through much of the twentieth century, in particular, gay men and

lesbians suffered under the weight of medical theories that treated their desires as a disorder; penal laws that condemned their consensual adult sexual behavior as a crime; police practices that suppressed their ability to associate and socialize publicly; censorship codes that prohibited their depiction on the stage, in the movies, and on television; and federal policies and state regulations that discriminated against them on the basis of their homosexual status. These state policies and ideological messages worked together to create and reinforce the belief that gay and lesbian persons comprised an inferior class to be shunned by other Americans. 7. Despite social and legal progress in the past thirty y~ars towards

greater acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the anti-gay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those measures. That legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. 8. Among the many products of the legacy of discrimination in the

twentieth century, the most conspicuous today include Congress’ repeated failure

1
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enact or even seriously consider federal legislative protections for gay and lesbian people in housing, employment, and public accommodations; the numerous state statutes and constitutional amendments that brand gay men and lesbians as second-class citizens by denying them the right to marry the persOn they love; and the federal Defense of Marriage Act, which prohibits the federal government from recognizing such a marriage when it does occur. The legacy of discrimination is also evident in the demeaning stereotypes and inflammatory rhetoric used by antigay organizations and public officials as they campaign to enact further measures meant to erode gay people’s civil rights and diminish their status as full citizens of the United States

campaigns that are, to this day, very often successful.

9.

Today, the limited civil rights enjoyed by gay and lesbian Americans

vary substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal rights. History of Discrimination Against Gay and Lesbian People in the United States I. Introduction

1177

/0

‘C

3

10.

While there is ample evidence that same-sex love and intimacy have

p

ci th.~’L~
~

~

persisted across the ages, most historians now agree that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the late nineteenth century. This concept had profound effects on the regulation of
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homosexuality. Early American legislators, drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and “unnatural acts,” penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct. While these laws prohibited conduct, it was in the twentieth century that governments began to classify and discriminate against certain of their own citizens on the basis of their status or identity as homosexuals. 11. Official, government-sanctioned hostility and discrimination has had a

profound and enduring negatiye impact on lesbians and gay men in American society. In the 1 920s, the State of New York prohibited theaters from staging plays with lesbian or gay characters. Beginning in the 193 Os and 1940s, many states prohibited gay people from being served in bars and restaurants. In the

l950s, the federal government banned the employment of homosexuals and
insisted that its private contractors ferret out and dismiss their gay employees. It also prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all states penalized sexual intimacy between men. Throughout the twentieth century, many municipalities launched police campaigns to suppress gay meeting places, and sought to purge gay civil servants from government employment.

6
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12.

Private hostility and discrimination, often encouraged by government

officials, has had a similarly profound and enduring negative effect on lesbians and gay men in American society. Until the 1 970s, leading physicians and medical researchers claimed that homosexuality was a pathological condition or disease. In the 193 Os, the Hollywood studios enacted a censorship code that for nearly thirty years prohibited the discussion of gay issues or the appearance of gay or lesbian characters in the era’s most powerful communications medium. In the 1 940s and 1950s, municipal police officials, state governmental leaders, local newspapers, and national magazines justified anti-gay discrimination and the suppression of gay meeting places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes have had enduring consequences, and continue to inspire public fears and hostility, especially concerning gay teachers and parents. In the l980s, the early press coverage of AIDS reinforced the view that homosexuals were diseased and threatened other Americans. In the 1 990s, many clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist Convention, for example, called for a boycott of all Disney products because Disney offered domestic partnership benefits to its employees and Disneyland organized gay theme nights. Also, some anti-gay groups threatened to organize boycotts against the sponsors of network television shows which included gay characters.
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13.

Historically, anti-gay measures often were enacted or strengthened in

response to periods of relative growth in the visibility or tolerance of gay people. For example, the effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian people endured during the Great Depression. The increased visibility of gay men and lesbians during the Second World War helped precipitate a second wave of hostility in the late 1940s and 1950g. The dramatically increased visibility of gay people in the 1970s and 1980s, and their success in persuading some state and local governments to include sexual orientation in their anti-discrimination laws, resulted in a wave of referenda and initiatives between 1977 and the early 1990s that overturned such laws and/or prohibited the enactment of others.

14.

In recent decades, and especially in the last twenty years, many

(though not all) of these discriminatory measures were repealed, but considerable discrimination and animosity persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is unsurprising that in 1977 year Anita Bryant launched her “Save Our Children” campaign
— —

the

two-thirds of

Americans told pollsters they objected to lesbians or gay men being hired as elementary school teachers. By 1992, after fifteen years of extensive public discussion of this and other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of their child having a gay elementary school
8
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teacher. By 2002, about forty percent of Americans still were unwilling to havç elementary schools employ gay teachers, and one-third of them found gay high school teachers unacceptable. 15. When marriage emerged as the new flashpoint in debates over civil

rights for gay men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay policies and attitudes. Many Americans initially responded to the idea that gay and lesbian couples should be allowed to marry with the same misgivings and even hostility with which they once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public apprehension. For instance, during the 2008 campaign over Proposition 8

the

California ballot initiative that revoked the marriage rights of gay men and lesbians that the California Supreme Court had recognized under the state constitution

several television commercials aired by the supporters of Proposition 8 warned that marriage equality might encourage children to become homosexuals themselves, The recent campaign to repeal marriage equality in Maine used the same tactics, including recycling commercials and scripts from the Proposition 8 campaign because they had been so effective in California, The approval of Proposition 8 in California, Question 1 in Maine, and similar laws and constitutional amendments in a total of forty-one states indicates the enduring influence of anti-gay hostility
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and the persistence of ideas about the inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian people throughout the United States continue to be subject to the vicissitudes of public opinion in an ever-changing social, political, and cultural landscape. 16. At several critical junctures, a handful of state and federal courts have

been the only authorities willing to defend the rights of gay people against the antipathy of the majority. In the 1950s and 1960s, at a time when overwhelming public sentiment supported the criminalization of gay bars and other meeting places, state courts in California andNew York ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled that the United States Post Office could not ban a gay political magazine from the mails. In the 1990s, when voters in cities and states across the country were voting to ban states and local municipalities from enacting anti-discrimination protections for gay people, the Supreme Court, in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay men, lesbians, and bisexuals, but no others, specific legal protection from discrimination. Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in public opinion. IL The Roots of Anti-Gay Discrimination 17. The first American laws against homosexual conduct were rooted in

the earliest English settlers’ understanding of the religious and secular traditions
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that prohibited sodomy, and they reflected the ambiguity of those traditions. Although sodomy included some forms of what today would be called homosexual conduct, mediçval theologians did not use sodomy to refer systematically and exclusively to such conduct; they usually understood sodomy to include male anal intercourse, but less frequently oral sex and .rarely sex between women.

18.

The English Reformation Parliament of 1533 turned the religious

injunction against sodomy into the secular crime of buggery when it made “the detestable and abominable vice of buggery committed with mankind or beast” punishable by death. The English courts interpreted this to apply to sexual intercourse between a human and an animal, and anal intercourse between a man and woman, as well as anal intercourse between two men.

19.

Colonial American statutes drew on these religious and secular

traditions and shared their imprecision in the definition of the offense. Variously defining the crime as (the religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and men, men and women, and humans and animals, but their details and their rationales varied. The southern colonies generally adopted the English law against buggery, while the Puritan New England colonies usually drew on religious traditions to penalize many forms of”camall knowledge,” including adultery, fornication, sex with prepubescent girls, and “men lying with men.” Puritan clergy in the New England colonies were especially
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vigorous in their denunciation of sodomitical sins as contrary to God’s will, but their condemnation was motivated by the pressing need to increase the population and to secure the stability of the family, as well as their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited from 1641 by a statute taken directly from Leviticus: “If any man lyeth with mankinde as he lyeth with a woeman, both .of them have committed abhomination, they both shall surely be put to death.” Although several men were executed for sodomy, the colonies rarely prosecuted men for this offense, for reasons that still are not entirely clear to historians. IlL Modem American History: 1890-1940 20. Prosecutions for sodomy and related offenses increased dramatically

in the late nineteenth and early twentieth centuries as a result of the emergence of the idea of the homosexual as a distinct category of person, the expansion of laws penalizing homosexual conduct, and the growing influence of religiously-inspired moral reform societies, which insisted on criminal prosecutions. 21. These types of prosecutions continued to penalize people on the basis

of their homosexual conduct rather than their identity as homosexuals. Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late nineteenth century. The word “homosexual” appeared for the first time in a German pamphlet in 1868, and was
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introduced to the American lexicon only in 1892. Between the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding both to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals. This discrimination reached remarkable, and still largely unrecognized, proportions. 22. The dramatic growth of American cities in the late nineteenth century

permitted lesbians and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas. While everyone was likely to know everyone else’s business in small towns, the size, complexity, and relative anonymity of cities made it easier for gay people (and other nonconformists) to forge a collective life with people like themselves, away from the eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom of the cities is little understood, but it seems to have increased in the early twentieth century, at about the same time as growing numbers of African Americans fled the small towns of the Jim Crow South for the relative freedom of northern cities. Like African Americans, gay people, both black and white, found that the relative freedom of city life was tempered by continuing hostility and discrimination.

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23.

The emergence of gay and lesbian communities described in this

declaration took place to varying degrees in every American city studied by historians. Because the field of lesbian and gay history remains relatively young in 2012 and has been hampered by the legacy of censorship described below, historians still know most about the history of such communitiçs in major metropolitan centers such as New York, Chicago, San Francisco, and Los Angeles, and they will therefore loom large in the history that follows. However, recent studies of the gay history of smaller cities and communities, ranging from Buffalo, New York, and Portland, Oregon, to Jackson, Ivlississippi, and its surrounding rural areas, both confirm the broad outlines of the history described here and reveal regional variations in that history. Important recent historical studies of the development of federal and military policies concerning homosexuality and gay citizens have documented discriminatory laws and policies that had nationwide effects. 24. New York City provides one of the best documented examples of the

emergence of a distinctive gay world in the early twentieth century. By the 191 Os, New York’s “gay world” included gay residential and commercial enclaves in several immigrant, African American, and bohemian neighborhoods; widely publicized dances and other social events; and a host of commercial establishments where gay people gathered, ranging from saloons, speakeasies, and bars to cheap
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cafeterias and elegant restaurants. In the 1920s and early 19-30s, gay writers and performers produced a flurry of gay literature and theater. Some gay people were involved in long-term relationships they called marriages. Most remained very careful to conceal their homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect.

25.

Many Americans responded to the growing visibility of gay life with

fascination and sympathy, regarding it as simply one more sign of the growing complexity and freedom from tradition of a burgeoning metropolitan culture. Popular fascination with gay culture reached a crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the most popular tearooms and cafes in bohemian neighborhoods such as New York’s Greenwich Village and Chicago’s Towertown. That said, the poor, immigrant, African American, and bohemian neighborhoods where gay life became most visible were regarded as the underside of city life by “respectable society.” A. Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay Policing in the Early Twentieth Century Other Americans regarded the growing visibility of lesbian and gay

26.

life with dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about the dramatic changes underway in gender roles at the turn of the last century. In this era

indeed until 1973
15

homosexuality was

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classified as a disease, defect, or disorder. Conservative physicians initially argued that the homosexual (or “sexual invert”) was characterized as much by his or her violation of conventional gender roles as by specifically sexual interests. At a time when many doctors argued that women should be barred from most jobs because employment would interfere with their ability to bear children, numerous doctors identified suffragists, women entering the professions, and other women challenging the limits placed on their sex as victims of a medical disorder. Thus, doctors explained that “the female possessed of masculine ideas of independence” was a “degenerate” and that “a decided taste and tolerance for cigars, dislike and incapacity for needlework
* * * * * *

[the]

and some capacity for athletics” were

all signs of female “sexual inversion.” Similarly, another doctor thought it significant that a male “pervert” “never smoked and never married; [and] was entirely averse to outdoOr games.” 27. Such views about gender roles lost their credibility once public

opinion had come to accept significant changes in women’s roles in the workplace and political sphere, but doctors continued for several more decades to identify homosexuality per se as a “disease,” “mental defect,” “disorder,” or “degeneration.” For generations, such hostile medical pronouncements provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science previously had legitimized widely held (and subsequently discarded)
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beliefs about male superiority and white racial superiority. The medical profession’s classification of homosexuality as a defect or disorder also helped spur and legitimate anti-gay law enforcement activity throughout the country. 28. Religiously-inspired hostility to homosexuality also inspired an

escalation in anti-gay policing. In the late nineteenth century, native-born Protestants organized numerous “anti-vice” societies to suppress what they regarded as the sexual immorality and social disorder of the nation’s burgeoning Catholic and Jewish immigrant neighborhoods. Although these organizations focused on female prostitution and what they regarded as the weakening of moral strictures governing relations between men and women, they also opposed the growing visibility of homosexuality, which they regarded as a particularly egregious sign of the loosening of social controls on sexual expression under urban conditions. They encouraged the police to step up harassment of gay life as one more part of their campaigns to shut down dance halls and movie theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants from serving an interracial mix of customers, and otherwise impose their vision of the proper social order and sexual morality. In New Yoric City in the 191 Os and 1920s, for instance, the Society for the Suppression of Vice (also known as the Comstock Society) worked closely with the police to arrest several hundred men for homosexual conduct, and also participated in a raid on a lesbian-run café and
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encouraged the deportation of the café’s owner. In Massachusetts, the Watch and Ward Society, established as the New England Society for the Suppression of Vice, conducted surveillance on virtually all the popular gay bars and gathering places of the time. 29. As a result of the pressure from Protestant moral reform

organizations, municipal police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness, loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense laws, which carried fewer procedural protections than felony sodomy charges, allowed further harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New York State legislature specified for the first time that a man’s “frequent[ing] or loiter[ingj about any public place soliciting men for the purpose of committing a crime against nature or other lewdness” was a form of disorderly conduct. Many more men were arrested and prosecuted under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were more than 50,000 arrests on this charge in New York City alone. 30. The social marginalization of gay men and lesbians gave both the

police and the public even broader informal authority to harass them. The threat of
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violence and verbal harassment deterred many gay people from doing anything that might reveal their homosexuality in public. Gay people knew that anyone discovered to be homosexual risked the loss of livelihood and social respect, so most gay people were careful to lead a double life, hiding their homosexuality from their heterosexual employers and other associates. B. Censorship The growing visibility of lesbian and gay life in the early twentieth

31.

century precipitated censorship campaigns designed to curtail gay people’s freedom of speech and the freedom of all Americans to discuss gay issues. 32. The earliest gay activists fell victim to such campaigns. In 1924,

when the police learned of the country’s earliest known gay. political group, which had been established by a postal worker in Chicago, they raided his home and seized his group’s files and membership list. After the raid, the group ceased publication of its short-lived magazine, Friendship and Freedom. In the 1910s and 1920s, a handful of plays included lesbian and gay characters or addressed homosexual themes. But in 1927, after “The Captive,” a serious drama exploring lesbianism, opened on Broadway to critical acclaim, New York State passed a “padlock law” that threatened to shut down for a year any theater that staged a play with lesbian or gay characters. Given Broadway’s national importance as a staging

19
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ground for new plays, this law effectively censored American theater for a generation. 33. Theater censorship occurred in other cities in addition to New York.

In the early twentieth century, Boston had a particularly strict culture of “moral purity” censorship, and the phrase “Banned in Boston” was familiar to people throughout the country. In 1935, for instance, Boston Mayor Frederick W. Mansfield banned Lillian Heilman’s “The Children’s Hour,” a play with lesbian themes. Mansfield explained his decision to the press by asserting that the play “showed moral perversion, the unnatural appetite of two women for each other.” 34. Such censorship had even wider-reaching effects when it spread to the

movies. A censorship movement led by religious leaders threatened the Hollywood studios with mass boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to avoid federal legislation, the studios established a production code (popularly known as “the Hays Code”) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of homosexual issues, or even the “inference” of “sex perversion” in Hollywood films. This censorship code remained in effect for some thirty years and effectively prohibited discussion of homosexuality in a powerful communications medium. This censorship stymied and delayed democratic debate about homosexuality for more than a generation.
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C. 35.

The Great Depression and the Curtailment of Gay People’s Freedom of Association In the early years of the Great Depression, restrictions on gay life

intensified. By depriving millions of men of their role as breadwinners, the Depression transformed already-existing anxiety over gender roles into a crisis in gender and family relations. Federal, state, and local governments responded to this perceived crisis with policies that directly affected women and gay people. New Deal public works projects, for instance, which offered jobs only to male heads of households, were designed in part to restore men’s status in their families and larger society, even when this meant limiting women’s economic opportunities.

36.

The apparent fragility of the family and gender arrangements made

the visibility of gay life seem more threatening to many people, especially given the long-standing representation of gay men and lesbians as gender deviants. After a generation in which gay life had been relatively visible and integrated into urban public life, restrictions on gay life increased. Gay people were forced into hiding by new laws that pushed gay people out of restaurants and bars, as well as off the stage and silver screen. 37. New regulations curtailed gay people’s freedom of association. In

New York State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933, issued regulations prohibiting bars, restaurants,
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cabarets, and other establishments with liquor licenses from employing or serving homosexuals or even allowing them to congregate on their premises. The Authority’s rationale was that the mere presence of homosexuals made an establishment “disorderly,” and when the courts rejected that argument, the Authority began using evidence of unconventional gender behavior or homosexual solicitation gathered by plainclothes investigators to provide proof of a bar’s disorderly character. Hundreds of bars were closed for this reason in the next thirty years in New York City alone. 38. Similar regulations were introduced around the country in subsequent

years. In California in the 195 Os, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control Board “collapsed the difference between homosexual status (a state of being) and conduct (behavior) and suggested that any behavior that signified homosexual status could be construed as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence of a bar’s dubious character” and grounds for closing it. IV. Modern American History: World War II 39. Changes in the policies of the Armed Forces of the United States

during the Second World War both reflected and expanded the government’s growing campaign of classifying and discriminating against gay citizens. The
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military had long made sodomy a criminal offense (and, indeed, it continues to do so). But the Second World War marked the first time the military moved beyond criminalizing homosexual conduct to develop policies that systematically endeavored to exclude personnel on the basis of their identity as homosexuals. All of the branches of the armed forces put in place screening mechanisms designed to ferret out homosexuals during the induction process. Thousands of men and women were kept from serving their country, and often faced public opprobrium as a result. Notwithstanding the new prohibition, many gay men and lesbians served in the armed forces in the Second World War, but they had to be careful to whom they disclosed their sexual orientation.

40.

Across the country, notwithstanding legal restrictions, the number of

lesbian and gay bars and other meeting places increased during the war years. Military authorities responded to the growth in the number of gay meeting places by collaborating with civil authorities to close them or at least keep servicemen from visiting them. The Army and the Navy created a joint Disciplinary Control Board that worked together with state liquor control agents and municipal police forces to identify and police bars and night clubs, including almost one hundred in San Francisco alone, with the intent of harassing and suspending the licenses of those that served a gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and other meeting places. Servicemen who were
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caught in these raids risked being discharged, and several thousand patriotic Americans who honorably served to defend their country were not honorably discharged solely because of their gay or lesbian identity.

41.

Following the war, the Veterans Administration denied GI Bill

benefits to soldiers who had received undesirable discharges. Eventually most other groups of soldiers with undesirable discharges had their benefits restored, but the Veterans Administration steadfastly refused to restore them to homosexuals. This meant that gay veterans
—~

members of the “Greatest Generation”

who had

risked their lives for their country before being discharged were denied the educational, housing, and readjustment allowances provided to millions of their peers. V. Modern American History: Post-WWII Period A. 42. Government Policies in the McCarthy Era Even the stepped-up policing of gay life in the 1930s and 1940s did

not equal the scale of discrimination faced by gay men and lesbians in the generation following the Second World War. The persecution of gay men and lesbians dramatically increased at every level of government after the war. 43. Tn 1950, following Senator Joseph McCarthy’s denunciation of the

employment of gay persons in the State Department, the Senate conducted a special investigation into “the employment of homosexuals and other sex perverts
24
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in government.” The Senate Committee recommended excluding gay men and lesbians from all government service, civilian as well as military. To support this recommendation, the Committee argued that homosexual acts violated the law, and it gave its imprimatur to the prejudice that “those who engage in overt acts of perversion lack the emotional stability of normal persons” and that homosexuals “constitute security risks.” 44. The Committee also portrayed homosexuals as predators: “{Tjhe

presence of a sex pervcrt in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control.... One homosexual can pollute a Government office.” 45. The Senate investigation and report were only one part of a massive

anti-homosexual campaign launched by the federal government after the war. The Senate Committee reported that “[a] spot check of the records of the Civil Service Commission indicates that between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal positions were denIed employment because they had a record of homosexuality or other sex perversion.” In 1953,
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President Eisenhower issued an executive order requiring the discharge of homosexual employees from federal employment, civilian or military. Thousands of men and women were discharged or forced to resign from civilian and military positions because they were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S. State Department discharged more homosexuals than communists. The government’s purge of its gay employees prompted the founding of some of the earliest gay rights organizations. Frank Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed from his job as a government astronomer for being homosexual in 1957.

46.

President Eisenhower’s executive order prohibiting federal

employment for homosexuals also required defense contractors and other private corporations with federal contracts to ferret out and discharge their homosexual employees. Many other private employers without federal contracts adopted the federal government’s policy by refusing to hire gay people. Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive order. As the historian John D’Emilio has noted, “The FBI sought out friendly vice squad officers who supplied arrest records on morals charges, regardless of whether convictions had ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by homosexuals, and clipped press articles that provided information about the gay world..
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engaged in more than fact-finding; they also exhibited considerable zeal in using information they collected.” 47. Two years after the Senate Committee recommended that

homosexuals be purged from government employment, Congress signaled its~ conviction that homosexuals had no place in American society in the most palpable way possible: by denying them entry into the country. In 1952, Congress prohibited homosexuals (whom it called “psychopaths”) from entering the country, much as it previously had prohibited immigration from Asia and curtailed the immigration of Jews and Catholics from eastern and southern Europe. In the case of homosexuals, the prohibition extended beyond people seeking long-term residency or citizenship; a generation of foreign visitors applying for mere tourist visas had to sign statements swearing they were not homosexual before they could make even the briefest trip to the United States.

48.

Many state and local governments followed the federal government’s

lead in seeking to ferret out and discharge their homosexual employees. As a result of these official policies, countless state employees, teachers, hospital workers, and others lost their jobs. Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been established by the legislature in 1956 to investigate and discredit civil rights activists, turned its attention to homosexuals working in the state’s universities and public schools. Its initial
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investigation of the University of Florida resulted in the dismissal of fourteen faculty and staff members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It “pressured countless others into relinquishing their teaching positions, and had many students quietly removed from state universities.” Its 1959 report to the legislature called the extent of homosexual activity in the state’s school system “absolutely appalling.” In addition, in a wellpublicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent of the Women’s Reformatory at Framingham, was dismissed by the Commissioner of Corrections because she had either not known or had known and had not prevented “an unwholesome relationship” that “existed between inmates of the Reformatory,” which had “resulted in ‘crushes’, ‘courtships’, and homosexual practises [sic] among the inmates.” She was then forced to defend her policies in public hearings held by a Massachusetts house committee over several months.

49.

During this period, both federal and local agencies sought to curtail

gay people’s freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails, a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut down newsstands that dared to carry it. In 1957, San Francisco officials arrested

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Lawrence Ferlinghetti and Shig Murao for publishing and selling “Howl,” a poem by Allen Ginsberg that openly proclaimed his homosexuality. 50. Censorship, government-sanctioned discrimination, and the fear of

both made it difficult for gay people to organize and speak out on their own behalf. Given the severity of anti-gay policing, for instance, the Mattachine Society, the most significant gay rights organization in the 1950s, repeatedly had to reassure its anxious members that the police would not seize its membership list. In Denver in 1959, a few weeks after Mattachine held its first press conference during a national convention, the police raided the homes of three of its. Denver organizers; one lost

his job and spent sixty days in jail.
B. The Demonization of Homosexuals The official harassment of homosexuals received further

51.

legitimization from a series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes of homosexuals as child molesters out to recruit the young into their way of life. hi response to a series oflocal panics over sex crimes against women and children, in which homosexuals were almost never identified as the culprits, numerous local newspapers and national magazines claimed that children faced a growing threat from homosexuals. The press warned that, in breaking with social convention to the extent necessary to engage in homosexual behavior, a man had demonstrated the refusal to adjust to social norms
29
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that was the hallmark of the psychopath. Tn 1950, Coronet, a popular national magazine, asserted: “Once a man assumes the role of homosexual, he often throws off all moral restraints.
.. .

Some male sex deviants do not stop with infecting their

often-innocent partners: they descend through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder.” 52. The demonization of homosexuals by the press was reinforced by the

statements of public officials. A Special Assistant Attorney General of California claimed in 1949 that “{tjhe sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual who never hurts anyone but himself. All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims.” Detroit’s prosecuting attorney demanded the authority to arrest, examine, and possibly confine indefinitely “anyone who exhibited abnormal sexual behavior, whether or not dangerous.” In 1957, the Hartford Courant reported on comments by a Connecticut judge at a criminal sentencing. The judge endorsed jail terms for homosexuals because his “observation” was that homosexuality “ha[dj spread• much too far.” 53.
S

Such press campaigns and official statements created fearsome new

stereotypes of homosexuals as child molesters, which continue to incite public fears about gay teachers and parents as well as other gay people who come into
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contact with children. Between the late 193 Os and late 195 Os, public hysteria incited by such press campaigns prompted more than half the state legislatures to enact laws allowing the police to force persons convicted of certain sexual offenses (including men convicted of consensual sodomy)—or, in some states, merely suspected of being “sexual deviants”—to undergo psychiatric examinations. These examinations could result in indeterminate civil confinements for individuals. deemed in need of a “cure” for their homosexual “pathology.” C. 54 Another Escalation of Anti-gay Policing During the postwar era, bars became an especially important meeting

place for lesbians and gay men because they were often the only public spaces in which people dared to be openly gay. Given their growing importance to gay people as a social center and the growing pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay bars became an important battleground in the postwar years. Despite the prevailing popular animosity toward homosexuals, state courts in New York and California issued rulings that curtailed the right of state liquor authorities and the police to discriminate against gay bar patrons. Official antipathy to homosexuals was so strong, however, that police officials circumvented or simply disregarded these judicial decisions.

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55.

This sharp escalation in the policing of gay life after the Second

World War occurred throughout the country. In 1955, for example, the government of Boise, Idaho launched a fifteen-morKth investigation of gay men in town, interrogating fourteen hundred persons and pressuring men known to be gay to reveal the names of other gay men. Police departments from Seattle and Dallas to New Orleans and Baltimore stepped up their raids on bars and private parties attended by gay and lesbian persons, and made thousands of arrests for “disorderly conduct.” By 1950, Philadelphia had a six-man “morals squad” arresting more gay men than the courts knew how to handle, some 200 a month. In the District of Columbia, there were more than a thousand arrests every year. In 1965, the Boston City Council’s Committee on Urban Renewal debated whether to bulldoze several downtown gay bars. A proponent of the effort, City Councilor Frederick Langone, gave a speech at the meeting calling for the destruction of “these incubators of homosexuality and indecency and a Bohemian way of life,” and insisting that “[wje must uproot these joints so innocent kids won’t be contaminated.” Many gay bars were razed in the “revitalization” that followed. In 1969, a Councilman in Rocky Hill, Connecticut called for a nightclub frequented by homosexuals (Alice’s Joker Club) to be closed as a “public nuisance” because it was a “threat to the morals” of the town’s citizens. From 1933 until the mid 1960s, hundreds of bars that tolerated gay customers were closed in New York City alone. Some bars in
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New York and Los Angeles posted signs telling potential gay customers: “If You Are Gay, Please Stay Away” or, more directly, “We Do Not Serve Homosexuals.” VI. The Gay Rights Movement and its Opponents in the 1970s and 1980s A. 56. Early Successes of the Gay and Lesbian Rights Movement The dramatic escalation in policing and suppression in the post-war

years failed to eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants, which they turned into informal meeting places, took over remote sections of public beaches, and held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs, amateur theaters, and women’s softball leagues, and was sustaine4 by closely knit social circles. 57. Nonetheless, most gay men and lesbians responded to the escalation

in policing after the Second World War by keeping their homosexuality carefully hidden from non-gay people. They developed elaborate verbal codes that allowed them to communicate with one another while remaining invisible to hostile outsiders. The word “gay” is a good example of this: before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual meaning. But the very success of such subterfuges in concealing gay life made it difficult for gay people to find one another in the 1950s, and it severely limited the capacity of gay people to organize on their own behalf.~

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58.

The earliest gay rights organizations, the Mattachine Society, ONE,

and the Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of homosexuals as dangerous, irrational, and unstable pariahs who threatened the nation’s children as well as national security. This initial generation of activists worked to meet and educate potential allies among sociologists, psychologists, criminologists, and other professionals who had the credibility to speak on homosexuality that was denied to homosexuals themselves. 59. Gay rights organizations began to influence public policy in the mid

1 960s, although the pace of change varied enormously across the country. The New York Mattachine Society’s success in 1966 in persuading Mayor John Lindsay to end the widespread police use of entrapment had a profound effect on gay male New Yorkers, who for the first time in decades did not have to worry that the men who approached them in bars and elsewhere were undercover policemen. New York and California state court rulings finally curtailed the policing of gay bars and other meeting places in those states in the 1960s, but in some other parts of the country the police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the treatment of gay people in different parts of the country prompted a growing number of gay people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago, and other more tolerant cities and regions. This mass migration, in turn, affected the political and cultural
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climate of those cities and regions, making them more likely to enact gay rights legislation and similar policies. 60. Major institutions that once helped legitimize anti-gay attitudes also

began to change their positions. Medical writers and mental health professionals whose stigmatization of homosexuality as a disease or disorder had been used to justify discrimination for decades were among the first to change their views. In 1973, the American Psychiatric Association voted to remove homosexuality from its list of mental disorders. The American Psychological Association soon followed suit. However, the American Psychiatric Association’s decision was fiercely opposed by prominent members of the association such as Charles Socarides and Irving Bieber. They and other medical professionals who claimed homosexuality was a treatable psychological disorder continued to receive considerable attention. 61. Censorship of gay images and speech declined. By the early 1960s,

competition from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship code, enabling the studios to make films for adult viewers which addressed “serious themes” such as homosexuality. These themes remained off-limits for television. The studios initially still included very few gay characters in their features, and the television networks included virtually none, but

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ending formal censorship opened a door that resulted in significant cultural changes in later years. 62. A small but growing number of municipalities enacted legislation

protecting people from certain fonns of discrimination on the basis of their sexual orientation. In 1972, East Lansing, Michigan, home to Michigan State University, became the first town to do so. Within five years, another twenty-seven communities passed such legislation, more than half of them university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by a handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this same period, however, a number of states enacted new legislation that criminalized homosexual sodomy, even as they decriminalized heterosexual sodomy. 63. Attitudes toward homosexuals and homosexuality in some religious

denominations also began to change. Since the 1970s, many mainline Protestant denominations have issued official statements condemning legal discrimination against homosexuals and affirming that homosexuals ought to enjoy equal protection under criminal and civil law. Several of these groups descended from the historically influential denominations whose religious authority had been invoked to justify colonial statutes against sodomy. The Lutheran Church in America, the Unitarian Universalist Association, the United Methodist Church, the United Church of Christ, the Protestant Episcopal Church, the Disciples of Christ,
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• V

and the United Presbyterian Church in the U.S.A. all issued statements in support of civil rights for gay men and lesbians by 1980.

64.

Those seven denominations, however, account for only 10.3 percent

of the American population. Many more Americans belong to faith traditions that remain strongly opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from those churches have played a major role in opposing gay rights measures across the country. B. Anti-Gay Discrimination in the 1970s and 1980s Gay men and lesbians continued to suffer discrimination at the hands

65.

of government officials in the 1970s and 1980s. For example, police continued to raid gay bars in some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the drivers license of a man on the grounds that he was “an admitted homosexual and that his homosexuality makes him an improper person to hold an operator’s license.”

66.

Beginning in the late 1970s, the initial success of the gay movement.

in securing local gay rights legislation, as well as the increasing visibility of gay people in the media, provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious stereotypes developed in previous decades to argue that enacting gay rights laws, permitting gay people to teach, and even simply
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allowing gay characters to appear on television sitcoms threatened the security of children and the stability of the family. 67. The anti-gay rights campaign of this era was effectively launched in

1977, when Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers, led a campaign to “Save Our Children” from newly enacted civil rights protections for gay men and lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami voters to vote against the ordinance depended heavily on her use of the still powerful postwar images of homosexuals as child molesters. Her organization published a full-page advertisement the day before the vote warning that the “other side of the homosexual coin is a hair-raising pattern of recruitment and outright seductions and molestation.” Her victory in Miami prompted groups in other cities to take up the cause, and in the next three years, laws extending civil rights protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates managed to defeat such referenda only in two elections, in November 1978, when Seattle voted to preserve its antidiscrimination ordinance and when California rejected the Briggs Initiative. The Briggs Initiative was a proposal so onerous it would have prohibited public school teachers, gay or straight, from saying anything that could be construed as “advocating homosexuality.”
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68.

The Save Our Children campaign had other far reaching effects. The

day after the Dade County gay rights ordinance was repealed, the governor of

Florida signed into law a ban on adoption by lesbians and gay men, the first such statewide prohibition. Thousands of children who might otherwise have had loving parents were thus denied the stability of family life. Similarly, in 1985, Massachusetts Governor Michael Dukakis removed two boys from their foster care placement with a gay male couple and implemented a policy of preferred placement in “traditional family settings.” While Massachusetts’ ban was reversed in 1990 as a result of litigation, the Florida ban remained in effect until 2010. 69. Across the country, the unfounded fear that homosexuals posed a

threat to children itself threatened some children: those already being raised by lesbians and gay men. In the 1 970s, most children being raised by lesbian or gay parents had been born before their parents came out as gay. When a parent came out, any dispute over child custody that had to be resolved in court was likely to be heavily influenced by stereotypes and prejudices. A growing number of such cases reached the courts in the 1970s and 1980s, and in case after case the courts took the custody of children away from a mother or father whose estranged husband or wife raised the parent’s lesbian or gay identity. Some courts confronting early disputes of this nature articulated a “per se” rule against custody and visitation claims made

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by gay and lesbian parents, holding that homosexuality was inherently inconsistent with parenthood as a matter of law. 70. The long-standing association of homosexuals with disease was

reinforced in the 1980s by the media’s initial sensationalist coverage of AIDS, which frequently depicted homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a new wave of discrimination against gay people in medical care, housing, and employment. Media coverage and the government’s slow response to the disease also reflected and reinforced the enduring conviction that homosexuals stood outside the moral boundaries of the nation. Even after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker GRiD (Gay-Related Immune Deficiency), media reports initially minimized the crisis by reassuring Americans that the “general public” was not at risk, since the disease only affected homosexuals and a handful of other groups, as if gay people were not part of the “general public.” 71. The media coverage of AIDS and the numerous campaigns against

local gay rights laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis unleashed a new wave of fear of homosexuals, public disapproval of homosexuality reached its peak. Polling data showed virtually no change through the 1970s, but the number of people who declared that homosexual relations were always wrong climbed from 73 percent in 1980 to 78 percent in
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1987. In the 1980s, gay rights activists secured the enactment of gay rights ordinances in an additional forty cities, counties, and suburbs, including Boston, New York, Chicago, and Atlanta, bringing the national total to eighty. But these victories often were more difficult to achieve than they had been in the 1 970s. In New York City, for example, the law passed the city council only after more than a decade of struggle. 72. National religiously-inspired organizations formed in the 1970s and

1980s, such as the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values Coalition, provided national leadership and coordination to the movement against gay rights and disseminated campaign materials, political strategies, and financial resources to local groups fighting gay rights ordinances. VII. The Persistence of Anti-Gay Discrimination from the l990s to the Present A. Legal Inequality in State Law 73. The spread of AIDS and the escalation of debate over gay rights at the

local level fueled a growing polarization of the nation over homosexuality in the l980s and especially the 1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws found those laws under attack from an increasingly well-organized and well-funded opposition. Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon, Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws,
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and built local anti-gay rights organizations. In the twenty-five years after Anita Bryant’s campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and another eleven in 1994. Oregon’s gay rights supporters lost all but one. 74. Following Anita Bryant’s lead, anti-gay rights activists frequently

fomented voter fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened the nation’s children and moral character. Two videos that repeatedly were screened in churches and on cable television, “The Gay Agenda” and “Gay Rights, Special Rights,” juxtaposed discussions .of pedophilia with images of gay teachers and gay parents marching with their children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child molesters. This message was reinforced by mass mailings and door-to-door distribution of anti-gay pamphlets, which fostered a climate of hostility and fear during the referenda. 75. Tn 1992, voters in Colorado passed Amendment Two, which amended

the state constitution to prohibit any municipality or unit of the government from enacting anti-gay discrimination ordinances or policies. This amendment repealed the ordinances already enacted by Denver, Boulder, and Aspen. Moreover, it
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removed from the political arena any future effort to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay people, represented by the success of this and other referenda overturning non discrimination laws, several legal groups filed alawsuit, Romer v. Evans, challenging the constitutionality of such constitutional amendments. Once again, the courts protected the rights of the minority against the prejudice of the majority. In 1996, the Supreme Court overturned this state constitutional amendment because it withdrew specific legal protection against discrimination for gay men, lesbians, and bisexuals, but no others. 76. Although a number of states now have extended basic anti-

discrimination protections to gay men and lesbians, in twenty-nine states, there is no statutory barrier to firing, refusing to hire, or demoting a person in private sector employment solely on the basis of their identity as a gay man or lesbian. In approximately twenty states, there is no statutory or administrative barrier to such discrimination even in state government employment. Similarly, gay men and lesbians remain without statutory protection from discrimination in housing in thirty states. And, despite the critical role played by harassment of gay and lesbian meeting places in enforcing discrimination toward them throughout the twentieth century, gay and lesbian people in twenty-nine states have no statutory protection from discrimination in public accommodations.
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B. Legal Inequality in Federal Law 77. At the national level, employment discrimination against gay men and

lesbians by federal agencies remained permissible until the late 1990s. Although the outright ban on hiring gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay men and lesbians in hiring and employment decisions until former President Clinton issued a first-of-its-kind executive order forbidding such hiring discrimination in 1998. 78. Tn 1992, President Bill Clinton’s proposal to end the armed forces’

policy banning lesbians and gay men from serving in the military sparked a firestorm in the first months of his presidency and revealed how deeply divided the nation remained. The public outcry against his plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the public led Congress and President Clinton to enact anew law known as “Don’t Ask, Don’t Tell,” which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual orientation under any circumstances, even in private counseling. Discharge of gay men and lesbians from the military continued after “Don’t Ask, Don’t Tell” became law. According to the Servicemembers Legal Defense Network, an organization dedicated to assisting military personnel

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affected by “Don’t Ask, Don’t Tell,” “more than 14,000 service members have been fired under the law since 1993.” 79. The repeal of “Don’t Ask, Don’t Tell” became effective in 2011.

Although the repeal was an important advance for gay men and lesbians, it did not restore the careers of the thousands of service members who had been discharged under the policy. Nor does it protect gay men and lesbians from the significant discrimination that they continue to face in other domains. After years of effort, gay and lesbian advocates and their allies still have not been able to enact any federal legislation that specifically prohibits discrimination in schools, employment, housing, and public accommodations on the basis of sexual orientation. The Employment Non-Discrimination Act, which would extend express employment protections on the basis of sexual orientation, has been introduced regularly since 1994 (and earlier versions as far back as the 1970s) and has never passed both houses of Congress.

80. Government-sanctioned discrimination against gay men and lesbians
still exists in federal immigration law. Federal law prohibits gay and lesbian Americans from sponsoring their same-sex spouses or registered partners from other countries for immigration benefits. C. Discrimination in Adoption, Custody, and Parenting

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81.

In the 1990s, lesbian mothers and gay fathers continued to risk their

parenting rights when their former different-sex spouses used their sexual orientation to try to deny them custody or visitation rights in divorces. By the mid1 990s, courts in most states followed rules that required individualized assessment of a parent’s fitness. But as Julie Shapiro’s 1996 study of custody cases around the country demonstrated, many courts continued to infuse those individualized assessments with their own prejudice against lesbians and gay men. As she discovered, courts were especially disapproving of lesbians and gay men who were honest about their sexual orientation with their children. In a widely publicized case, a Virginia trial court in 1993 granted a grandmother’s petition to talce Sharon Bottoms’ two-year-old son away from her because, as the trial court judge explained, her lesbian “conduct is illegal.. a Class 6 felony in the
.

Commonwealth of Virginia.” He went on to declare “that it is the opinion of this Court that her conduct is immoral” and “renders her an unfit parent.” Virginia’s Supreme Court upheld the trial court’s decision terminating Sharon’s parental rights despite the presumption favoring her as a natural parent. In doing so, it relied on a wider range of evidence, including the finding that Bottoms’ lesbianism would subject her child to social condemnation and thus disturb the child’s relationships with peers and the community at large. Some courts had used similar reasoning to remove children from the homes of divorced white mothers who had
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married or lived with black men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v. Sidoti, Chief Justice Warren Burger ruled that “private biases may be outside the reach of the law, but the law cannot directly, or indirectly, give them effect.” 466 U.S. 429, 433 (1984). But courts in many states continued to give legal effect to the private bias they assumed existed against lesbian and gay parents by preferring heterosexual parents over gay parents, without regard to other factors bearing on the child’s best interests. 82. Gay and lesbian parents continue to be forced by some courts to

choose between hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988, “unless [a motherj ended her open lesbian relationship I would have little chance of winning a custody trial.” According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose his child to his “jay lover(s) and/or gay lifestyle,” a Tennessee trial court sentenced the father to two days in jail for coming out to the child. 83. State and popui~ar efforts that began in the 1970s to ban lesbians and

gay men from adopting or serving as foster parents continued throughout the 1990s and 2000s. For example, in 2000, Mississippi’s legislature passed a ban on adoption by same-sex couples that was subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular referendum a ban on foster care and adoption by gay people.
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84.

Some states enacted laws that bar recognition of out-of-state

adoptions by same-sex couples. For example, in 2004, Oklahoma passed the “Adoption Invalidation Law,” which stated that Oklahoma “shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.” 85. Some states refuse to allow a biological parent’s same-sex partner to

adopt the children they raise together. For example, as recently as December 2010, the North Carolina Supreme Court invalidated a second parent adoption by a woman’s same-sex partner, holding that a non-biological same-sex partner could not be recognized as a legal parent.

86.

During the 1980s and 1990s, gay and lesbian parents continued to face

significant obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments toward gay and lesbian parents even when a child was conceived with two gay or two lesbian parents intending to raise the child jointly. This was especially evident when the courts had to decide where to place a child when the child’s biological mother died and one of her relatives contested the right of her surviving partner, the child’s second mother, to continue to raise the child. In a number of cases, courts granted custody to those relatives despite clear evidence that the child wished to remain with her surviving mother. D. Depiction of Gay Men and Lesbians in the Media.
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87.

With the decline in movie and television censorship and the growing

interest in gay people and issues, there was a significant increase in the coverage of gay issues in the media and in the number of gay characters in movies and on television in the 199 Os, By the time the immensely popular Will & Grace premiered on NBC in 1998, gay and lesbian characters were a more regular part of the television landscape. This exposure changed the dominant representation of homosexuals. Gay people usually appeared in the media in the 1950s as shadowy and dangerous figures, but they now appeared as a diverse and familiar group whose all-too-human struggles and pleasures drew the interest of large viewing audiences.

88.

It was not only in the media that heterosexuals began to see gay and

lesbian people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or co-worker had personally told them that they were gay, and more than half believed they did not know anyone gay.. Fifteen years later, in 2000, the number of people who knew someone openly gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and support for civil rights protections increased as growing numbers of

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heterosexuals realized that some of the people they most loved and respected were gay. 90. It is important not to overstate the results of this nationwide “coming

out” experience, however. In 2000, a significant majority of Americans still expressed moral disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality continued to show significant regional differences. Polls showed that public opinion in Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was strong in most other states in New England, in New Jersey and New York, and in other regional clusters: Maryland in the mid~Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest, and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in southern states and in the lower Midwest and plains states. The effects of these regional differences could be seen in regional variations in congressional votes on key gay rights issues, in the treatment of gay couples and individuals by state laws, regulations and court rulings concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws. Only two. states—Wisconsin in 1982 and Massachusetts in 1989—enacted legislation banning anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary enormously across the nation.
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E. Continued Official, Religious, and Private Condemnation of Homosexuality in the 1990s-2000s. 91. Gay people also continue to face discrimination and opprobrium from

highly regarded institutions and officials. The Boy Scouts of America, a federallychartered organization, continues to insist that “homosexual conduct is not morally straight,” and refuses to allow gay men into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651(2000). Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred, in a judicial opinion, to homosexual conduct as “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated.” Ex Parte HIL, 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring). 92. Although the American Psychiatric Association (APA) removed

homosexuality from its list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles Socarides and Joseph Nicolosi established the National Association for Research and Therapy of Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that homosexuality is a psychological disorder and a “potentially deadly lifestyle,” and that homosexuals can be “healed.” NARTH also lectures, partners
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with religious organizations, supports conversion therapy activities, and files amicus briefs in court cases.
93.

Anti-gay activists also used the appearance of AIDS in the early

1 980s to rekindle the historic associations between homosexuality, disease, and public danger. F. Anti-Gay Policing and Private Anti-Gay Violence•
94.

Although police harassment of gay men and lesbians and their

meeting places is not as common as it was some years ago, it continues to be a problem. Tn 2009, for example, there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth, Texas, where one patron was critically injured. 95. Gay people also continue to face violence motivated by anti-gay bias.

A handful of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23-year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked him and, although he protested that he could not swim, threw him off a bridge into the Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he was gay. Ten years later, Lawrence “Larry” Fobes King, a 15-year-old student at E.O. Green Junior High School in Oxnard, California, was shot and killed in school by a
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fellow student because of his sexual orientation. But the problem reaches far beyond these three incidents. The FBI reported 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,265 in 2007. Tn 2008, the year of Lawrence King’s murder, a national coalition of anti-violence social service agencies identified twenty-nine murders motivated by the assailants’ hatred of lesbian, gay, bisexual, or transgender people. The threat of violence continues to lead many gay people to hide their identities or to avoid such commonplace expressions of affection as holding hands with their partners in public. 96. The most vulnerable victims of discrimination are youth. A national

study published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more likely than heterosexual teenagers to be punished by schools, police, and the courts, According to the Gay, Lesbian and Straight Education Network’s 2009 National School Climate Survey published in 2010, 61.1 percent of lesbian, gay, bisexual and transgender (LGBT) students surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally harassed because of their sexual orientation; 40.1 percent were physically harassed in the past year because of their sexual orientation; and 18.8 percent were physically assaulted because of their sexual orientation. A recent study sponsored by the New York City Council noted the over-representation of LGBT youth among the city’s homeless population. And the recent spate of suicides among LGBT youth has
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highlighted the personal consequences of the ostracism and demonization of gay men and lesbians in American society. G. Marriage 97. Gay men and lesbians are still prohibited from marrying in the vast

majority of states in this country and the question of marriage rights for same-sex couples remains hotly contested across-the-board. Some of the arguments made in the debate over the right of gay couples to marry have echoed those made in earlier debates over the rights of disfavored minority groups. Fifty years ago, for instance, segregationists often claimed that segregation and statutes banning interracial marriage reflected God’s plan for humankind. In the 1960s, a Virginia judge who upheld that state’s law against interracial marriage in the lower-court proceeding in Loving v. Virginia claimed that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the racesto mix.”

98.

Opponents of the right of gay people to many or adopt children also

have drawn on their reading of scripture to justify their positions. As recently as 2002, when the Supreme Court of Alabama reversed the Alabama Court of Civil Appeals’ decision to grant a lesbian mother custody of her children, the Chief Justice
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of the Supreme Court of Alabama used language as strong as that used by the trial judge in Loving v. Virginia in his concurring opinion: “Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The law of the Old Testament enforced this distinction between the genders by stating that ‘[ijf a man lies with a male as he lies with a woman, both of them have committed an abomination.’ Leviticus 20:13 (King James).
. .

The common law

designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.” Exparte JiH 830 So.2d 21, 33, 35 (Ala. 2002). 99. The vigorous opposition to ending discrimination against lesbian and

gay couples in marriage law is the latest example of this pattern. The marriage issue first reached the national stage in 1993, when Hawaii’s Supreme Court ruled that the state’s ban on marriages between same-sex couples presumptively violated the state’s equal rights amendment and remanded Baehr, the lawsuit challenging that ban, to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (~Haw. 1993). By 1996, when a second trial began in the lower court, the prospect of gay couples winning the right to marry had galvanized considerable opposition. Ultimately, while the litigation was pending, Hawaii amended its constitution to give the legislature the authority to limit marriage to different-sex couples, see Haw. Const. art. I,

§ 23, which

it did. The Hawaii Supreme Court then dismissed the case as moot. Baehr v. Mit/ce,
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Civ. No. 20371 slip op. at 5-8 (Dec. 9, 1999) (taking notice of constitutional amendment). In addition, under pressure from organizations proclaiming support for “traditional family values,” the United States Senate passed the Defense of Marriage Act (~DOMA) on the day the Hawaii trial began. The Act provided a federal definition of marriage as the union of one man and one woman and declared that no state needed to give “full faith and credit” to “same-sex marriages” licensed in another state. It also denied federal benefits to such married couples. Fourteen states passed state-level DOMA statutes that year, and another eleven passed such statutes the following year. In 2004, when Massachusetts became the first state to permit gay couples to marry, a full thirteen states passed constitutional amendments banning such marriages even though twelve of those states already had enacted statutory DOMAs.

100. Indeed, in each state where gay men and lesbians have achieved the
right to marry

either through judicial decision or legislative action

there has

been significant and organized action by those opposed to marriage rights for same-sex couples to take that right away. California provides a good especially contentious
— —

and

example. In February 2004, San Francisco mayor Gavin

Newsom instructed city officials to issue marriage licenses to same-sex couples. The California Supreme Court ordered the city to stop doing so the following month, and it later nullified the marriages which had been performed. In 2005, and
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again in 2007, California’s legislature approved bills that would legalize marriage for same-sex couples, but both bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme Court decided in In re Marriage Cases, 183 P~3d 384 (Cal. 2008) that the privacyand due process provisions of the California Constitution guaranteed the basic civil right of marriage to all individuals and couples, without regard to their sexual orientation. Six months later, on November 4, 2008, California voters approved Proposition 8, adding to the California Constitution the provision “Only marriage between a man and a woman is valid or recognized in California.” Same-sex couples immediately sued to prevent the enforcement of Proposition 8, but their efforts were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d 48 (Cal. 2009). The court held that the amendment was lawfully enacted, but that it did not invalidate marriages of same-sex couples performed in California prior to its effective date. Federal litigation concerning the constitutionality of Proposition 8 is ongoing, with the Ninth Circuit overturning Proposition 8 on equal protection grounds.

101. Opponents of marriage equality who supported Proposition 8
mobilized some of the most enduring anti-gay stereotypes to heighten public apprehension. Several television commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality might encourage children to become homosexuals themselves. The approval of California’s Proposition 8
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along with similar laws and constitutional amendments in forty other states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. 102. Iowa provides another example. In April 2009, a unanimous Iowa Supreme Court struck down the exclusion of qualified same-sex couples from civil marriage. In response, national organizations opposed to marriage for same-sex couples, such as the National Organization for Marriage and the American Family Association, initiated a campaign for the removal of three of the judges involved in •that decision who were subject to retention elections. The campaign was successful, and all three judges were ousted from their position on the bench.

Efforts to legislatively repeal marriage for same-sex couples now are underway in
Iowa. CONCLUSION 103. Today the civil rights enjoyed by gay and lesbian Americans vary substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, they often must rely on judicial decisions to secure equal rights. The role of the courts in this dispute is reminiscent of earlier disputes in which courts had to confront public opposition to minority rights. In 1948, when the California Supreme Court became the first state supreme court in the nation to overturn a state law banning interracial marriage, it bucked the tide of
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white public opposition to such marriages. While the United States Supreme Court overturned the remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was not until 2001 that more Americans approved of interracial marriage than disapproved of it. History has vindicated the judges who had the courage and foresight to uphold the constitutional rights of disfavored minorities in the face of maj oritarian hostility. I declare under penalty of pei~ury that the foregoing is true and correct.

Executed on June272012.

~

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BIBLIOGRAPhY Allan Bérubé, Coming Out Under FIre.’ The History ofGay Men and Women in World War II (New York: Free Press, 1992). Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010). Nan Alamilla Boyd, Wide Open Town: A History ofQueer San Francisco (Berkeley: University of•California Press, 2003). Robbie Brown, Antzpathy Toward Obama Seen as Helping Arkansas LimitAdoption,The New York Times, Nov. 8, 2008 at A26. Rob Burnes, Homosexual Law Unchanged~ The Billings Gazette, Sept. 3, 1970, at 6. California Safe Schools Coalition, et al., Safe Place to Learn: Consequences ofHarassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer (2004). Margot Canaday, The Sb’aight State: Sexuality and citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009). David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Family Law Quarterly, 1999-2000. George Chauncey, Gay New York: Gender, Urban Culture, and the Making ofthe Gay Male Worla’~ 1 890-1940 (New York: Basic Books, 1994). George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004). George Chauncey, Martin Duberman, and Martha Vicinus, eds., Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989). George Chauncey, “From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” 58-59 Salmagundi 114-46 (Fall 1982-Winter 1983). George Chauncey, “Christian Brotherhood or Sexual Perversion? Homosexual identities and the Construction of Sexual Boundaries in the World War One Era,” 19 Journal ofSocial History 189-211 (1985). George Chauncey, “The Postwar Sex Crime Panic,” in True Storiesfrom the American Past (William Graebner edit., McGraw-Hill: 1993), pp.1 60-78. Roger Clawson, Preacher Raises Hell Over Homosexuals, The Billings Gazette, Sep. 2, 1970, at 1,

CHAUNCEY BIBLIOGRAPHY

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Dudley Clendinin and Adam Nagourney, Outfor Good: The Struggle to Build a Gay Rights Movement in America (New York: Simon & Schuster, 1999). Councilman Callsfor Closing Night Club as Public Nuisance, The Hartford Courant, Nov. 16, 1969 at 42. John D’Emilio, Sexual Politics, Sexual Communities: The Making ofa Homosexual Minority, 1940—1970 (Chicago: University of Chicago Press, 1981). Empire State Coalition of Youth and Family Services, A Count ofHomeless Youth in New York City (Empire State Coalition, 2008). Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement (Berkeley: University of California Press, 2006). Lillian Faderman and Stuart Timmons, Gay L.A.: A History ofSexual Outlaws Power Politics, andLipstick Lesbians (New York: Basic Books, 2006). Estelle B. Freedman, “Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920— 1960” 74 Journal ofAmerican History 83—1 06 (1987). Gay, Lesbian and Straight Education Network, The 2009 National School Climate Survey: The Experiences ofLesbian, Gay, Bisexual and Transgender Youth in Our Nation ‘s Schools, (GLSEN, 2010). General Accounting Office, Military Personnel: Financial Costs and Loss ofCritical Skills Due to DOD ~ Homosexual Conduct Policy Cannot be Completely Estimated (2005). Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins, 2002). The History Project, Improper Bostonians (Boston: Beacon Press, 1998). Jail Terms Urgedfor Offenders, The Hartford Courant, Sept. 21, 1957 at 3. Ron Jenkins, Henry signs measure on gay adoptions, The Associated Press State & Local Wire, May 4, 2004. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004). Mark D. Jordan, The Invention ofSodomy in Christian Theology (Chicago: University of Chicago Press, 1997). Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper & Row, 1983).

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Ruediger Lautmann, “The Pink Triangle: Homosexuals as ‘Enemies of the State,” in Michael Berenbaum and Abraham 3. Peck, eds., The Holocaust and History (Indiana, 2002). Eric Marcus, Making Gay History: The HaifCentury Fightfor Lesbian and Gay Equal Rights (2002). Martin Meeker, “Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1 950s and 1 960s” 10 Journal ofthe Histoty ofSexuality 78— 116 (2001). National Association for Research and Therapy of Homosexuality, “NARTH Position Statements,” http ://narth.comlmenus/positionstatements.html, accessed June 24, 2012. National Association for Research and Therapy of Homosexuality, “The Three Myths About Homosexuality,” http:llnarth.comlmenus/myths.html, accessed June 24, 2012, The National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual~ and Transgender People in the United States, 2008 (National Coalition, 2009). Nat’l Gay & Lesbian Task Force, State Laws Prohibiting Recognition of Same-Sex Relationships (2009), available at http://www.thetaskforce.org/downloads/reports/ issue_maps/samesex_relationships7o9.pdf, Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey, February 2008. Richard Plant, The Pink Triangle: The Nazi WarAgainst Homosexuals (New York: bit, 1986). Amy Ronner, “Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes,” 7 Yale J L. & Feminism, 1995. Clifford J. Rosky, “Like Father Like Son: Homosexuality, Parenthood and the Gender of Homophobia,” 20 Yale J.L. & Feminism, 2009. Teemu Ruskola, “Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist,” 8 Yale J L. & Feminism 269, 1996. Servicemembers Legal Defense Network, About “Don’t Ask, Don’t Tell” (2011). Servicemembers Legal Defense Network, About the Servicemembers Legal Defense Network (2011). Julie Shapiro, “Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children,” 71 Indiana L. .1 71 623-627, 1996. Stan Simon, Homosexual Fights Driving Ban, The Hartford Courant, Nov. 6, 1970 at 17. US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 1998; id, Hate Crime Statistics 2007.
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C, Todd White, Pre-Gay L.A.: A Social History of the Movementfor Homosexual Rights (Urbana: University of Illinois Press, 2009). William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890).

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GEORGE

CHAUNCEY

Department of History Yale University P.O. Box 208324 New Haven, CT 06520-8324

(203) 432-1364
george.chauncey~yale.edu

Cuiu~ENTPosrnoN
Professor of History and American Studiles; Chair, Department of History, Yale University Co-director, Yale Research Initiative on the History of Sexualities

PREvious PosITIoNs
Professor of History, University of Chicago, 1997-2006. Visiting Professor of History, Ecole Normale Supérieure, Paris, May 2001. Associate Professor of History, University of Chicago, 1995-97. Assistant Professor of History, University of Chicago, 199 1-95. Assistant Professor of History, New York University, 1990-91. Postdoctoral Fellow, Rutgers Center for Historical Analysis, 1989-90. DEGREEs Ph.D., Yale University, 1989. M.Phil., Yale University, 1983. M.A., Yale University, 1981. B.A,, Yale University, ?lla,gna t~wm 1aud~, 1977.

AwARDs
Gay New York was awarded the: Frederick Jackson Turner Award for the best first book on any topic in American history in 1994 Merle Cutti Award for the best book in American social history in 1994 or 1995 (both from the Organination of American Historians), Los Angeles Times Book Prize for History (1994), Lambda Literary Award for Gay Men’s Studies (1994), John Boswell Award of the Committee on Lesbian and Gay History of the American Historical Association (1995). Named a New York Times Notable Book of 1994. Village Voice List one of the Best Books of 1994. Lingua Franca List one of the two best academic books of the 1990s. Subject of a panel discussion, “Charting Chauncey’s Gay Male World: Reflections on the Tenth Anniversary of Ga~ New York,” at the 2004 meeting of the OAH. As a dissertation, Gay New York received the following prizes from Yale University: George Washington Egleston Prize in American history (1990), John Addison Porter Prize, Yale’s highest university-wide dissertation award (1990), Andrew Gaylord Bourne Gold Medal, the Yale History Department’s triennial award for a “pioneering work of scholarship” (1992).

Other Honors:
New York Academy of History, elected to membership in 2007. Society of American Historians, elected to membership in 2005. Community Service Award from the Lesbian Community Cancer Project, Chicago, 2004.

EXHIBIT A

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George Chauncey, page 2 Freedom Award from Equality Illinois, the state’s largest gay tights group, 2001. First James Brudner Memorial Award in Lesbian and Gay Studies, Yale University, 2000. Centennial Historian of the City of New York, 1998. Sprague-Todes Literary Award, Gerber-Hart Library, 1997. BooKs AND EDITED COLLECTIONS Gay New York: Gender. Urban Culture, and the Making of the Gay Male World. 1890-1940 Basic Books, 1994; paperback, 1995, British edition published by HarperCoffins/U.K, 1995. French translation by Didiet Eribon published by Fayard, 2003. Chapters reprinted in: The Columbia Reader on Lesbians and Gay Men in Media. Society, and Politics, eds. Larry Gross andJames C. Woods (Columbia, 1999) The Gender and Consumer Culture Reader, ed. Jennifer Scanlori (NYU, 2000) Major Problems in the History of American Sexuality: Documents and Essays, ed. ICathy Peiss (Heath, 2001) Sexu~lities in History, eds. Kim M. Phillips and Barry Reay (Routledge, 2002). American Oueer:Now and Then, ed. David Shneer and Caryn Aviv (Paradigm, 2006). The Strar~ge Career of the Closet: Gay Culture. Consciousness, and Politics from the Second World War to the Gay Liberation Era (in progress, to be published by Basic Books).
Why Marriage? The History Shaping Today’s Debate Over Gay Equality (Basic Books, 2004; paperback,

2005). Japanese translation published byAkashi Shoten, 2006.
Hidden From History: Reclaiming the Gay and Lesbian Past (Co-editor, with Martin Duberman and Martha Vicinus; a collection of thirty essays published by New

American Library in 1989). Turkish translation published by Siyasal, 2002. Thinking Sexuality Transnationally ( special issue of GLQ: A Journal of Lesbian and Gay Studies, 5:4 (1999), co-editor with Eliaabeth Povinell~. Gender Histories and Heresies ( special issue of Radical History Review, 52 (1992), co-editor with Barbara Melosh). ARTICLES IN SCHOLARLY JOURNALS AND CoLLECTIoNs “The Trouble with Shame,” in Gay Shame, ed. David Halperin and Valerie Traub (University of Chicago Ptess, 2010). “How History Mattered: Sodomy Law and Marriage Reform in the United States,” Public Culture 20:1 (2008): 27-38. “Homosexuality, Family, and Society: Historical Perspectives from the United States,” in Homosexuality and the Law: Essays and Materials from an International Workshop on Sexuality. Policy. and Law (Guangxi Normal University Press, 2007 [in Chinese and English]), 12-18, 115-23. “Après Stonewall, le déplacement de la frontiare entre le ‘soi’ public et le ‘so? privé,” Histoire et Sociétés: revue européenne d’histoire sociale 3 (2002): 45-59. “Skapets historie,” Kvinneforskning 24 (2000): 56-71 [“The History of the Closet,” in the Norwegian journal Women’s Studies]. “Introduction: Thinking Sexuality Transnationally,” with Eliaabeth A. Povinelli, in Povineffi and Chauncey, eds,, “Thinking Sexuality Transnationally,” special issue of GLQ: A Journal of Lesbian and Gay Studies 5:4 (Autumn 1999): 439-49.

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George Chauncey, page 3 “Gay New York,” Actes de Ia recherche en sciences sociales 125 (December 1998): 9-14. [This artide and the rest of the special issue on Hotiosexualitds are introduced by Eric Fassin, ‘Politiques de l’histoire: Gaj New York et l’historiographie homosexuelle aux Etas-Unis,” 3-9] “Genres, identités sexuelles et conscience homosexuelle dans l’Amérique du xx’ siècle,” in Les etudes gay~.t lesbiennes, ed, Didier Eribon (Paris: Editions du Centre Pompidou, 1998), 97-108. “Sex Gender, and Sexuality: Female Prostitution and Male Homosexuality in Early Twentieth-Century America,” GRAAT (Groupes de Recherches Anglo-Americaines de Tours) 17 (1997): 39-54. “The Queer- History-and Politics-ofLesbian. and Gay Studies,” Queer Frontiers: Millennial Geographies, Genders~ and Generations. ed. Joseph Boone, et al (University of Wisconsin Press, 2000), 298-31 5. “From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualiaatiou of Female Deviance,” Sa1mag~in~A, no. 58-59 (Pall 1982-Winter 1983): 114-46. Reprinted in two collections: Homosexualidad: literatura y politica (Madrid, 1982), in Spanish Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons ~emple University Press, 1989). “Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era,” Journal of Social History 19:2 (1985): 189-211. Reprinted in ten collections: Onder Mannen~ Onder Vrouwen (Amsterdam, 1984), in Dutch Sodomites. Invertis. Homosexuels: Perspectives Historigues (Paris, 1994), in French Expanding the Past: Essays from the Journal of Social History (New York University Press, 1988) Hidden From History: RecIainiing~the Gay and Lesbian Past (NAL, 1989) Studies in Homosexuality: History of Homosexuality in Europe and America (Garland, 1992) Gender in American History Since 1890 (Routledge, 1993) Que(e)rying Religioui Studies (Continuum, 1997) Same Sex: Debating the Ethics. Culture, and Science of Homosexuality (Rowman & Littlefield, 1997) American Sexual Histories (Blackwell, 2001) Sexual Borderlands: Constructing An American Sexual Past (Ohio University Press, 2003) “Privacy Could Only Be Had in Public’: Gay Uses of the Streets,” Stud: Architectures of Masculinity, ed. Joel Sanders (Princeton Architecture Press, 1996), 224-61. “The Postwar Sex Crime Panic,” True Stories from the American Past, ed William Graebner (McGraw-Hiii, 1993), 160-78. “Long-Haired Men and Short-Haired Women: Building a Gay World in-the Heart of Bohemia,” Greenwich Village: Culture and Counterculture, ed. Rick Beard and Leslie Berlowitz (Rutgers University Press, 1993), 151-64. “The Policed: Gay Men’s Strategies of Everyday Resistance,” Inventing Times Square: Commerce and Culture at the Crossroads of the World~ 1880-1939, ed. William R. Taylor (Russell Sage, 1991), 315-28. Reprinted in Creating A Place For Ourselves: Lesbian. Gay’. and Bisexual Community Histo~jç~, ed, Brett B eemyn (Routledge, 1997). “The National Panic Over Sex Crimes and the Construction of Cold War Sexual Ideology, 1947-1953,” Sociologisehe Gids [Amsterdamj 32 (1985): 371-93. [In Dutch; title translated] “The Locus of Reproduction: Women’s Labour in the Zambian Copperbelt, 1927-1953,” Journal of Southern African Studies 7 (1981): 13 5-64.

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George Chauncey, page 4 SELECTED SHORT ESSAYS, REVIEWS, INTERVIEWS, AND ENCYCLoPEDIA ENTRIES “Last Ban Standing,” New York Times, December 21,2010, A35. “Gay at Yale: How Things Changed,” Yale Alumni Magazine (July/August 2009), 32-43. “George Chauncey: de l’autre côté du placard,” interview conducted by Philippe Mangeot for Vacarme, no. 26 (Winter 2004), 4-12. “D’une march ~ l’autre,” interview conducted by Sébastien Chauvin for I~ (June 2004), 86-87. Review of James McCourt, “Queer Street: Rise and Fall of an American Culture, 1947-1985,” New York Times, December 31, 2003, “Etats Unis” and “New York,” in Dictionnaire Des Cultures Gays Et Lesbiennes, ed. Didier Eribon, Amaud Lerch, Frederic Haboury (La.rousee, 2003). Amici Curiae Brief of Professors of History to the Supreme Court in the case of Lawrence v. Texas (organizer and primary author; co-signed by nine other historians). Sections reprinted as “Educating the Court: In Changing the Law of the Land, Six Justices Turned to Its History,” Word for Word column, Week in Review, New York Times, July 20, 2003, and discussed in “What Gay Studies Taught the Court,” Washington Post. July 13, 2003. Reprinted in full, with my introduction, in GLQ: A Journal of Lesbian and Gay Studies 10.3 (2004): 509-38. “Introduction,” Homosexuality in the City: A Century of Research at the UniversjW of Chicago (University of Chicago Library, 2000). “Who is Welcome at Ellis Island? AIDS Activism and the Expanding National Community,” Honoring With Pride: An Evening Benefit for the American Foundation for AIDS Research on Ellis Island, program book, June 21,2000. “The Ridicule of Lesbian and Gay Studies Threatens All Academic Inquiry,” back page “Point of View” column, Chronicle of Higher Education, July 3, 1998, Review of Charles Kaiser, “The Gay Metropolis, 1940-1996,” New York Times ,December 30, 1997. Review of Daniel Harris, “The Rise and Fall of Gay Culture,” New York Times Book Review, September 7, 1997. “The Joy of No Sex,” part of a Talk-of-the-Town roundtable on the Heaven’s Gate mass suicide, The New Yorker, April 14, 1997, 3 1-32, “The Present as History,” Out Magazine. February 1997, 69. “Tea and Sympathy,” Past Imperfect History According_to Hollywood, ed. Mark Carnes (Henry Holt, 1995), 258-61. “Gay male community,” in The Encyclopedia of New York City. ed. Kenneth Jackson (Yale, 1995). “A Gay World, Vibrant and Forgotten,” New York Times Op-Ed Page, Sunday, June 26, 1994. “Queer Old New York: A Historic Walking Tour,” Village Voice, June 21, 1994, 25-27. “Homosexuality,” The Encyclopedia of Social History, ed, Peter N. Stearns (Garland, 1993), 323-25, “Time on Two Crosses: An Interview with Bayard Rustin” (with Lisa Kennedy), Village Voic~, June 30, 1987, 27-29. “Gay Male Society in the Jazz Age,” Village Voice, July 1, 1986, 29-34. FELLOWSHIP AwARDs New York Public Library Dorothy and Lewis B. Culiman Center for Scholars and Writers Residential Fellowship, 2004-5. Princeton University Shelby Cullom Davis Center for Historical Studies Fellowship, 2004-5 [declined]. Institute for Advanced Study School of Social Science Membership, 2004-5 [declined].

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George Chauncey, page 5 Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 2002-3. Social Science Research Council Sexuality Research Fellowship, Faculty Advisor Award, 1999-2000. Fellow, Institute for Advanced Study, Indiana University, September 1998. Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 1997-98. John Simon Guggenheim Memorial Foundation Fellowship, 1996-97. National Humanities Center Rockefeller Fellowship and Residency, 1996-97. American Council of Learned Societies Fellowship for Recent Recipients of the Ph.D., 1992-93. Cornell University Society for the Humanities Postdoctoral Fellowship, 199 1-92 [declined in order to accept new position at Chicago]. Rutgers Center for Historical Analysis Postdoctoral Fellowship, 1989-90. New York University School of Law Samuel Golieb Fellowship in Legal History, 1987-88. Mrs. G. Whiling Foundation Fellowship in the Humanities, 1986-87. Woodrow Wilson Foundation Research Grant in Women’s Studies, 1984. Bush Center in Child Development and Social Policy History Fellowship, 1983-84, Yale College Prize Teaching Fellowship, 1982-83. Danforth Foundation Graduate Fellowship, 1979-82. John Courtney Murray Travelling Fellowship, 1977-7 8 [supported research in Zambia]. PRIMARY INVESTIGATOR, INSTITUTIONAL GRANTS Ford Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000, Rockefeller Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000. Illinois Humanities Council, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000. Mellon Foundation, grant in support of the Sawyer Seminar on Sexual Identities and Identity Politics in Transnational Perspective, University of Chicago, 1997-98.

NAMED LECTuREs, PLENARY LEcTUREs, AND SELEcTED FOREIGN LECTURES
“From Sodomy Laws to Marriage Amendments: The History Shaping Today’s Debate over LGBT Equality,” keynote address at Toward a More Perfect Union: Civil Rights, Human Rights, and Creating a New Age of Social Responsibility, Benjamin Hooks Conference for Social Change, University of Memphis, April2012 “Single Men, Urban Decline, and the Cultural Logic of Postwar American Antigay Politics,” Rutgers Center for Historical Analysis Twentieth Anniversary Celebration Conference, Rutgers University, May 2010

“Homosexuality and the Postwar City,” Center for Interdisciplinary Research in the Arts, University of Manchester, England, March 2009.
“Homosexuality and the Postwar City,” keynote lecture, Australia-New Zealand American Studies Association, Sydney, July2008. “From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Provost’s Lecture, University of Maryland, College Park, February 2008. “Revisiting the Postwar Politics of Sexuality,” keynote lecture (with Joanne Meyerowitz), New England American Studies Association, Brown University, November 2007, “From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Presidential Lecture, Columbia University, April 2007,

“Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the I 950s and 60s,” Vern and Bonnie Bullough Lecture in the History of Sexuality and Gender,
University of Utah, April 2007.

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George Chauncey, page 6 “The Future of Sexuality Studies,” at the plenary session of the Sexuality Research Fellowship Program’s Capstone Conference (commemorating the conclusion of a ten-year-long fellowship program funded by the Ford Foundation and administered by the Social Science Research Council), Tamayo Resort, New Mexico, April 2006. “Homosexuality, State, and Society: Historical Perspectives from the United States,” at the symposium “Diversity, Equality and Harmony: International Workshop on Sexuality, Policy and Law,” School of Social Development and Public Policy, Fudan University, Shanghai, China, January 2006. “How History Mattered: Sodomy Law and Marriage Reform in the United States,” at the conference “Partisan Histories: Conflicted Pasts and Public Life,” The Australian National University, Canberra, September 2005. “From Sodomy Laws to Marriage Amendments: Sexual Identity/Politics Since 1900,” Kaplan Lecture, University of Pennsylvania, March 2004. “Reflections on Gay New York and Beyond,” at the symposium “Histoire sexuelle et Kistoire sociale, I l’occasion de Ia traduction francaise de Gay New York 1890-1940 de George Chauncey,” Ecole normale supérieure, Paris, December 2003. “Civil Rights, Gay Rights, Human Rights,” dual keynote address given with Mrs. Coretta Scott King at the• beginning of Outgiving, a conference on gay philanthropy organized by the Gill Foundation, Atlanta, September 2003. “Drag Balls as Society Balls: Phil Black’s Funmakers’ Ball and the Changing Rituals of Belonging in African American Society, 1940-1973,” Mark Ouderkirk Memorial Lecture, Museum of the City of New York, September 2003. “A Different West Side Story: Latino Gay Culture and Antigay Politics in Postwar New York City,” Nicholas Papadopoulos Endowed Lecture in Lesbian and Gay Studies, University of California, San Diego, February 2003. “Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” The Rahv, Hughes, Manuel and Marcuse Memorial Lecture, Brandeis University, February 2003. “Sexual Identity in the Twentieth Century,” Women’s Breakfast, American Historical Association, January 2003, “Sexuality, Intimacy, and History,” Commencement Address, University of Chicago, June 2002, “Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” at “Histoire de la sexualité: échanges transatlantiques,” at the Ecole normale superienre, Paris, May 2001. “The History of the Closet,” Inaugural George Mosse Memorial Lecture, University of Wisconsin, April 2001. “The History of the Closet,”at the Sexuality 2000 Symposium, Oslo, Norway, August 2000. ‘Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” Inaugural Brudner Prize Lecture, Yale University, February 2000. “Rethinking the History of Homosexuality and the Category of the Homosexual” and “A Research Program for Lesbian and Gay Studies,” at the First Swedish Conference on Research on Homosexuality and Lesbianism, University of Gothenburg, Sweden, November 1995. “The National Panic over Sex Crimes in Cold War America,” Inaugural Mark Ouderkirk Memorial Lecture, Museum of the City of New York, June 1995. “Gay Studies on Trial: Queer History/Politics/Studies,” at the Fifth National Graduate Student Conference on Lesbiari and Gay Studies, University of Southern California, Los Angeles, March 1995.

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George Chauncey, page 7 “The Kinsey Scale and the Consolidation of the Hetero-Homosexual Binarism in the Twentieth Century,” at the Second International Conference on the History of Marriage and the Family, Carleton University, Ottawa, Canada, 1994.
“European Sexual Cultures in the Immigrant Neighborhoods of New York City, 1890-1940,” at the International Conference on European Sexual Cultures, University of Amsterdam, The Netherlands, June 1992.

“Publish and Perish? Lesbian/Gay Studies, Publishing, and the Academy,” at the plenary session on ‘~ew Directions in Scholarship,” Association of American University Presses, Chicago, June 1992,
OTHER INVITED LECrURES SINCE

1989

Chicago History Museum, April 14, 2011 Columbia University, February 19, 2011. Rutgers University, May 7, 2010. University of Antwerp, Belgium, March 20, 2010 University of Amsterdam, March 15, 2010 Middlebury College, October 17, 2008. The Rothmere American Institute, Oxford University, April 30, 2008. University of Texas, Austin, April 11, 2008. University of Amsterdam, The Netherlands, May 3, 2006. Facultad de Fiosofla y Letras, University of Buenos Aires, Argentina, March 20, 2006. Kansas State University, March 10, 2006. University of Miami. February 27, 2006. DePaul University, Chicago, February 20,2006. Harvard University, February 3,2006. University of Massachusetts, Boston, February 3,2006. Boston University, February 2,2006. Yale University,January 17, 2006. University of Melbourne, Australia, September 21, 2005. University of Sydney, Australia, September 7, 2005. New York University, April 19,2005. Chicago Historical Society, May 27, 2004. University of North Texas, April 17, 2004. University of Maryland, February 23, 2004. University of California, Berkeley, September 25, 2003. University of California, Los Angeles, February 20, 2003, University of Minnesota, February 15, 2002. Texas A&M University, April 25, 2001, William and Mary College, April 18, 2001, Northwestern University, April 5, 2001. Harvard University, November 16, 2000. Trinity College, November 15, 2000. University of Michigan, April 15, 2000, University of Connecticut, Storrs, February 17, 2000, Hobart and William Smith Colleges, February 13, 2000. Chicago Humanities Festival, November 8, 1998. Indiana University, September 17, 1998. University of Minnesota, May 22, 1998, Institute for the Humanities, University of Illinois, Chicago, February 13, 1998. Pompidou Center, Paris, June 27, 1997. Colby College, April 10, 1997. Cornell University, April 8, 1997. University of California, Los Angeles, February 5, 1997. University of California, Irvine, February 3-4, 1997. Northwestern University, December 6, 1996.
V V V V V V V

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George Chauncey, page 8 Yale University, American Studies and History Departments, November 7, 1996. Yale School of Architecture Urbanism Series, November 7, 1996. University of Copenhagen, Denmark, November 3, 1995. National Danish Lesbian and Gay Organization, Copenhagen, November 3, 1995. University of Illinois, Champaign-Urbana, MillerComm Lectures, October 23, 24, 1995. University of Notre Dame, September 9, 10, 1995. Princeton University, Match 9, 1995. Chicago Teacher’s Institute, December 7, 1994. New York Academy of Medicine, New York City, November 10, 1994. University of Chicago New York City Club, Distinguished Faculty Lecture Series, October 13, 1994. Northwestern University, May 17, 1994. New York Public Library, Celeste Bartos Forum, May 3, 1994. [This lecture was later broadcast on public television.] New York University, April 29, 1994. Rutgers University, December 6, 1993. Newberry Library Social History Seminar, June 8, 1993. University of Wisconsin, Milwaukee, Center for Twentieth Century Studies, Match 25, 1993. Urban History Seminar of the Chicago Historical Society, January 12, 1993. University of Iliinois at Chicago, November11, 1992. New York City Lesbian and Gay Community Services Center, Gregory Kolovakas Memorial Lecture Series, November 19, 1992, University of Oregon, April 24, 1992. Cornell University, February 24, 1992. University of Chicago Centennial Symposium, Canons in the Age of Mass Culture, February 10, 1992, Northwestern University, May 30, 1991, Johns Hopkins University, Match 28, 1991. Sarah Lawrence College, November 27, 1990. Carleton College, April 5, 1990. Museum of the City of New York, November 5, 1989. Rutgers Center for Historical Analysis, October 3, 1989. Rutgers University, Camden, April 6, 1989.

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iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY,
Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA 3. FUDDY, Director of Health, State of Hawai’ i, Defendants, and DECLARATION OF MICHAEL E. LAMB, Ph.D

CIVIL NO. CV1 1-00734 ACK/KSC (CONSTITUTIONALITY OF STATE
STATUTE)

HAWAII FAMILY FORUM,
Defendant-Intervenor.

Declaration of Michael B. Lamb, Ph.D.

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Pursuant to 28

U.S.C. §

1746, I, Michael E. Lamb, hereby declare that:

PRELIMINARY STATEMENT 1. I am Professor of Psychology in the Social Sciences and Head of the

Division of Socialand Developmental Psychology at the Univer~ity of Cambridge. I have been retained by counsel for Hawaii Governor Neil S. Abercrombie to prepare this Declaration in connection with the above-referenced litigation (“Jackson”). I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2.
V

My background, experience, and list of publications from the last 10

years are summarized in my curriculum vitae, which is attached as Exhibit A to this declaration. 3.
V

I hold a Bachelor’s degree in psychology and economics from the

University of Natal in Durban, South Africa (1972), Master’s degrees in psychology from Johns Hopkins University (1974) and Yale University (1975), and a Ph.D. in psychology from Yale University (1976). 4. I have held academic positions as Assistant Professor of Psychology

at the University of Wisconsin, Assistant Professor of Psychology at the University of Michigan, and Professor of Psychology, Psychiatry, and Pediatrics at the University of Utah. In 2004, I took a position as Professor and Head of the

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Department of Social and Developmental Psychology at Cambridge University in the United Kingdom, where I am now employed.

5.

From 1987 until 2004, I was head of the Section on Social and

Emotional Development and a Senior Research Psychologist at the United States’ National Institute of Child Health and Human Development, an institute within the National Institutes of Health (NIH). 6. I have authored more than 600 publications that have appeared either

in peer-reviewed professional journals or in professional books published by academic presses primarily for the readership of other professionals. I have written or edited about 45 books in the field of developmental psychology, development in infancy, mother-child relationships, father-child relationships, the role of the father, sibling relationships, the effects of nontraditional rearing circumstances, the effects of daycare, child abuse, and forensic interview practices. A number of my books, including my books on nontraditional families, are used widely as texts in graduate courses. 7. I have been a peer-reviewer for various professional journals regularly

for more than 35 years, and I edit the journal, Psychology, Public Policy, and Law, for the American Psychological Association. I currently average five to ten reviews of other professionals’ work per week. In connection with my work as a

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peer-reviewer, I have peer-reviewed dozens of articles that address the parenting abilities of gay men and/or lesbians and/or their children’s adjustment. 8. Over the past 40 years, I have pursued two broad areas of research.

One line of research has focused on forensic issues such as the credibility of children and the best ways of eliciting accurate information from victims of child abuse. This work is not directly relevant to the present litigation. The other line of research is concerned with children’s development and adjustment, especially the formative effects of the relationships that children establish with their parents and the ways in which these relationships shape children’s development over time. In this context, I have also examined factors that are likely to have an adverse effect on development, such as child abuse, and I have explored variations in rearing experiences that might affect child development, such as the effects of various types of nontraditional family forms. I am familiar with the research on families headed by gay and lesbian individuals and couples. 9. My initial research in the United States was about the formation of

relationships between babies and their parents in households with a mother and a father. When I began my research, I focused on the role played by fathers in children’s development. I later expanded my research in order to understand better the role that fathers play in children’s lives

when they live with their children and

V

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when they do not, in both divorced and married families, and when they are highly involved or uninvolved in childcare. 10. In preparing this Declaration, I reviewed the Amended Complaint in

Jacks~on, and the materials listed in the attached Bibliography. I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Declaration, as additional support for my opinions. I have also relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein.

I.

Summary Of Ultimate Conclusions

11.

Children and adolescents raised by same-sex parents are as likely to

be well-adjusted as children raised by heterosexual parents, including ‘biological’ parents. Numerous studies of youths raised by same-sex parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals conclude that children and adolescents raised by same-sex parents are as successful psychologically, emotionally, and socially as children and adolescents raised by heterosexual parents, including ‘biological’ parents. Furthermore, the research makes clear that the same factors, as elaborated below, affect the adjustment of youths, whatever the sexual orientation of their parents.

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(~l2.

It is beyond scientific dispute that the factors that account for the

adjustment of children and adolescents are the quality of the youths’ relationships with their parents, the quality of the relationship between the parents or significant adults in the youths’ lives, and the availability of economic and socio-emotional resources. These factors affect adjustment in both traditional and nontraditional families. The parents’ sex or sexual orientation does not affect the capacity to be good parents or their children’s healthy development. There is also no empirical support for the notion that the presence of both male and female role models in the home promotes children’s adjustment or well-being.

II.

The Factors That Determine Children’s and Adolescents’ Adjustment

13.

Psychologists use the term “adjustment” to refer to psychological

well-being. “Adjustment” refers to characteristics (including the absence of psychological or psychiatric symptoms and the absence of behavior problems) that allow children or adolescents to function well in their everyday life. Well-adjusted youths have sufficient social skills to get along with others, to get along and comply with adults, to function well in school, to function effectively in the workplace, and establish meaningful intimate relationships later in life. In contrast, maladjustment might be manifested by behavior problems, such as

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bullying and acting aggressively with others, or deficient social skills making it difficult for individuals to establish relationships with others, thus leaving them socially isolated. .14. Over the last 50 years, more than 1000 studies have examined the

factors that predict healthy adjustment in children and adolescents. As a result of this significant body of research, psychologists have reached consensus on the factors that predict healthy development and adjustment. Among these are: a) the quality of children’s or adolescents’ relationships with their parents or parent figures; b) the quality of the relationship between the parents and other significant adults; conflict between them is associated with maladjustment while harmonious relationships between the adults support healthy adjustment; c) the availability of adequate economic and social resources, with poverty and social isolation being associated with maladjustment, and adequate resources supporting healthy adjustment. 15. The quality of parent-offspring relationships is determined by the

degree to which parents offer love and affection, emotional commitment, reliability and consistency, as well as the extent to which the parents ‘read’ their children or adolescents effectively and provide appropriate stimulation, guidance, ~nd limit setting. jihe better the quality of parent-child relationships, the better the

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~children’s or adolescents’ adjustment is likely to be, whether the parents have same- or opposite-sex orientations. 16. Not all differences between youths are differences in adjustment.

Many ways in which children or adolescents differ from each other are simply normal variations among people, and are unrelated to adjustment. For example, there has been considerable research on intelligence, but individual differences in intelligence are not viewed as markers of adjustment or maladjustment. Other normal variations can result from cultural differences (such as in assertiveness or individualism) or differences in personality (e.g., some children are extroverted while others are introverted).

LIT.

The Factors Predicting Healthy Adjustment Are The Same For Traditional and Nontraditional Families, and Children or Adolescents In Nontraditional Families Are Just As Capable Of Healthy Adjustment As Those In Traditional Settings

17.

In the social sciences, the term “traditional family” refers to the
--

childrearing environment that social scientists formerly considered the norm middle-class family with a bread-winning father and a stay-at-home mother,

a

married to each other and raising their biological children. “Nontraditional” family forms, by definition, involve any kind of variation from this pattern. Thus, families with fathers who assume responsibility for childcare would qua1if~’ as

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nontraditional, as would families with employed mothers, with two employed parents, with one parent, or that rely on childcare centers instead of performing childcare exclusively within the home. Nontraditional families constitute the vast majority of families in the United States today. 18. Society’s early assumptions about the superiority of the traditional

family form have been challenged by the results of empirical research. Early in the Twentieth Century, it was widely believed that traditional family settings were necessary in order for children to adjust well. This view derived directly from psychoanalytic thinking that was based on clinical observations, but not on empirical research. As psychoanalysis yielded to more empirically-based psychology over the early parts of the last century, it became clear that this notion was unsupported. Research beginning in the late 1940’s and continuing until the present has tested many of the hypotheses that flowed from the assumption that children and adolescents need to be raised in traditional families in order to develop healthily. Specifically, there have been over 50 years of research into the effects on children or adolescents of having one parent, of divorce, and of maternal employment. Intense interest in the effects of daycare began in the 1970’s, as did interest in highly involved fathers (stay-at-home fathers or families in which mothers and fathers share childcare responsibilities) and in same-sex families and households.

9

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19.

This research has demonstrated that the correlates of children’s or

adolescents’ adjustment listed above are important regardless of whether children and adolescents are raised in traditional family settings or in nontraditional families. Children’s or adolescents’ adjustment depends overwhelmingly upon such qualities as the parents’ affection, consistency, reliability, responsiveness, and emotional commitment, as well as on the quality and character of the relationships between the parents and their intimates, and on the availability of sufficient economic and social resources. Since the end of the 1980’s, as a result, it has been well established that children and adolescents can adjust just as well in nontraditional settings as in traditional settings.

A.

Difficulties in one-parent families have nothing to do with parental gender or sexual orientation; the absence of a father or of a mother, by itself, is not a predictor of healthy adjustment.

20.

Numerous large-scale studies show that most of the children and

adolescents who grow up in one-parent families are well adjusted. However, there is a significant body of research on the impact of father absence, divorce, and one parent family life demonstrating that children and adolescents in one-parent families are more likely to have adjustment difficulties than children and adolescents in two-parent families. Research shows that the reasons for this disparity are consistent with the predictors of adjustment generally. ~ie primary 10
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r~uses of increased risk of maladjustment among children or adolescents in oneparent families are the reduced resources available when there is one parent, and the disruptive effects of and conflict associated with parental separation,) 21. Many children and adolescents of parents whose relationships

dissolve lose one of their supportive parental relationships, and do not get the benefit of both psychological and fmancial support from their non-resident parents. Additionally, many divorces expose children and adolescents to parental conflict both preceding and following the separation, may also involve rejection by or separation from one of the parents, and possible dislocations, such as moving to a new neighborhood and school. Finally, families headed by single mothers, in particular, often suffer considerable degrees of financial hardship because of a combination of factors including the continuing disparity in pay received by men and by women, and because many women, whether or not they were once married, have taken time out from the workforce to raise children.

B.

Male and female parents can be equally competent; the absence of male or female parents in the home does not impair development.

22.

Fifty years ago, it was widely assumed that the absence of a male

parent figure accounted for the problems in adjustment encountered by some children and adolescents in single-parent families. However, ~tensive empirical research on nontraditional families has demonstrated that father absence is not 11
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itself important to adjustment;. instead, it is the quality of the children’s experiences more broadly and, specifically the quality of the parent-child relationships, the quality of the relationship between the parents, and the adequacy of resources that explain the higher levels of maladjustment on the part of children and adolescents in one-parent families.’ It is well-established that both men and women have the capacity to be good parents, and that having parents of both genders does not enhance adjustment.2

The Hawaii Family Forum references an article of mine from nearly 40 years ago (see brief, at 30) in which I, too, speculated (erroneously) that there might be qualitative differences in the roles mothers and fathers necessarily play in children’s development. 2 The Hawaii Family Forum cites a number of publications to support its assertion that children are better off with two opposite-sex parents than two same-sex parents. (Brief; at 25, 29-32). But none of these publications lend any support for this claim. “Daddy Dearest? Active Fatherhood and Public Policy” merely recognizes—as do I—that within heterosexual two-parent families, active father involvement is beneficial to children’s well-being. It explicitly explained that “[tjhis does not mean that there is some gender-specific role for fathers in relation to their children. Empirical evidence has shown that the gender of the carer does not appear to matter in terms of child outcomes; it is parental warmth, nurturance and closeness that are important.” (p. 76) Kyle Pruett’s book, Fatherneed, does not suggest that children of same-sex couples are at risk; indeed, the author recognizes that “there is no reason for concern about the developmental or psychological competence of children living with gay fathers.” 134) James Q. Wilson’s book The Marriage Problem does not address gay and lesbian parents. Nor does David Popenoe’s LVe Without Father, except to devote one paragraph to gay parenting in which he notes that, in 1996, “we do not yet have good data about the child outcomes of these same-sex arrangements.” (p. 147)
1
(p.

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23.

Studies have shown that, at the time that parents first receive their

children, whether by birth or adoption, men and women are equivalently competent (or incompetent) at parenting, Most parenting skills are learned ‘on the job.’ Because women in this society on average spend more time on the job, they often become more skillful at it over time. However, this disparity in parenting skills simply reflects women’s greater experience and greater opportunities to learn rather than a biologically given capacity. When men actively care for their children, they become more skillful, too. Nothing about a person’s sex determines the capacity to be a good parent. 24. Many studies have pointed to differences between the ways in which

mothers and fathers interact with their children, but this is not significant to adjustment. These studies suggest that, on average, men’s patterns of interaction are dominated by a more boisterous, playful, unpredictable interaction, while women’s patterns are more soothing, containing, and restrictive. However, these differences do not apply across the board to all men or to all women, nor is it harmful when parents do not assume traditional gender roles with respect to interactive parenting styles. 25. Male and female adults can adopt sensitive or authoritative parenting

styles. When fathers are the primary caregivers, for example, the style of interaction between fathers and children often becomes more like typical mother

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child interaction. The observed differences in parenting style appear to reflect, in large part, differences in the type of responsibility that the parent has within the home (i.e., differences between being the primary or secondary parent). Many children do not have parents who offer both of these parenting styles and this does not appear to be harmful. [26. There also is no empirical support for the notion that the presence of

both male and female role models in the home enhances the adjustment of children and adolescents. Society is replete with role models from whom children and adolescents can learn about socially prescribed male and female roles] Some normal variations do characterize children and adolescents raised in some nontraditional settings, however. For example, such children often have distinctive attitudes about sex-role norms. Within the field, sex-role norms refer to the awareness of and beliefs in behavioral differences between boys and girls or men and women. In nontraditional families, children may have more flexible sex-role standards. This means, for example, that the children are more likely to think that both boys and girls can be astronauts or doctors, and that it is acceptable for both girls and boys to play with both trucks and dolls. By contrast, children raised in traditional family settings tend to have more sex-stereotypical notions about appropriate gender roles. Again, this variation with respect to sex-role norms is a normal variation, and has nothing to do with adjustment.

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IV.

Research Specific To Same-Sex Parenting Demonstrates That The Children and Adolescents of Same-Sex Parents Are Just As WellAdjusted As Those With Heterosexual Parents. A. Based on a significant and well-respectedbody of research, the scientific community has reached consensus that parental sexual orientation does not affect adjustment.

27.

The body of research that has examined children’s and adolescents’

adjustment in the specific context of same-sex parenting represents approximately 30 years of scholarship and includes more than 50 peer-reviewed empirical reports. The earliest reports from studies of same-sex parenting were published in the late 1970’s, and research has continued to the present. More than 100 articles about same-sex parents and/or their offspring have been published in respected academic journals or as chapters in books for use by other professionals. These present both qualitative research (relying primarily on interviews and discussions with either the youths. or with the parents) and quantitative research. 28. The results of these studies support and are consistent with the results

of the broader body of research on socialization in both traditional and nontraditional families. They demonstrate that the adjustment of children and adolescents of same-sex parents is determined by the quality of the youths’ relationships with the parents, the quality of the relationship between the parents, and the resources available to the families. 15
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[29.

They further demonstrate that adjustment is not affected by the gender

or sexual orientation of the parent(s). Research comparing the adjustment of children and adolescents of same-sex parents with the children and adolescents of heterosexual parents consistently shows that the children or adolesöents in both groups are equivalently adjusted. The children and adolescents of same-sex parents are as emotionally healthy, and as educationally and socially successful, as children and adolescents raised by heterosexual parents. The social science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two opposite-sex parents ~3O.

.3

The Hawaii Family Forum cites a recent article by Mark Regnerus to

support its assertion that “recent social science research confirms that children raised in alternative parenting structures—including households headed by same sex partners— do not have nearly the same positive outcomes that a married biological mother and father do.” (Brief’, at 32.) But this article allows for no such conclusion because the study did not actually assess individuals raised by same-sex partners. The majority of the respondents in the “lesbian mother” and “gay father” groups were the product of failed heterosexual unions whose parents

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chad same-sex relationships at some point.3 Most of the children spent very little if any

time living in a household headed by a same-sex couple.4 Moreover, most

of Regnerus’ “gay father” and “lesbian mother” participants were in families that went through a divorce and transition to single-parent or step-family life, which, as I have discussed above, is knowr~ to correlate with poorer child outcomes. In contrast, for the heterosexual family sample, Regnerus excluded all the families that went through divorce and included only those that remained intact throughout the course of the respondents’ childhoods. Thus, the study merely demonstrates the well-established fact that children tend to do better in stable, intact families and they tend to do worse when they experience their parents’ divorce. Regnerus recognizes that “[c]1~ild outcomes in stable, ‘planned’ GLB families and those that]

Individuals were deemed to have a “gay father” or “lesbian mother” if they affirmatively answered the following question: “From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relationship with someone of the same sex?” ~ Just over half of the respondents in the “lesbian mother” group lived with their mother and her partner for at least 4 months; under a quarter did so for more than 3 years. For the “gay father group”, under a quarter lived with their father and his same-sex partner for at least 4 months; under 2% did so for more than 3 years.

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~re the product of previous heterosexuals unions are quite likely distinctive, as previous studies’ conclusions would suggest.”5 [31. There is consensus within the scientific community that parental

sexual orientation has no effect on children’s and adolescents’ adjustment. Numerous organizations representing mental health and child welfare professionals have issued statements confirming that same-sex parents are as effective as heterosexual parents in raising well-adjusted children and adolescents and should not face discrimination. See Exhibit B. These organizations include the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the National Association of Social Workers, the Child Welfare League of America, and the North American Council on Adoptable Children.~

L~

Regnerus notes that the vast majority of his respondents did not come from planned lesbian or gay parent families. Moreover, his inference that even 1726% of the respondents in the “lesbian mother” group and under 1% of those from the “gay father” group might be from planned lesbian or gay parent families is highly dubious. It was based only on those respondents’ reports that their biological parents never married or lived together and that they never lived with their parents and opposite-sex partners. However, since this is true of families in which the parent lived alone, with no partner of either sex, it is not clear if there were any planned lesbian or gay parent families in these groups.]

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B.

Studies identifying differences in the children or adolescents of same-sex parents have identified only normal variations, and not differences in adjustment.

32.

Like children and adolescents in other nontraditional families,

children and adolescents with same-sex parents have sometimes been found to have less sex-stereotyped beliefs, and to be more open in their views of societal norms and standards about appropriate behavior for males and females. For example, some studies of young children suggest that girls raised by lesbian mothers may play with both dolls and trucks, and be more willing to think that being an astronaut or being a doctor are appropriate aspirations for girls as well as boys, than girls raised by heterosexual mothers. Although there was a time when some developmental psychologists believed that conformance to sex-based stereotypes was a component of healthy adjustment, this view has been discredited and abandoned. The differences seen in sex-stereotyped beliefs and behavior between children of lesbian and heterosexual parents are not differences in adjustment. ~hildren and adolescents raised by same-sex parents do not differ from those raised by heterosexual parents with respect to gender identity, which is an aspect of psychological adjustment.

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C.

The methodology of the research examining same-sex parenting is standard, reliable, and accepted in the field.

33.

Social scientists use and value diverse methodologies, research

designs, and types of data that vary depending on the discipline involved, the specific area of research, the questions being raised, and the theories being applied and evaluated. Developmental psychologists (and psychologists more generally) tend to emphasize intensive examination of relatively small numbers of individuals, often studied in the context of social relationships and influences. Developmental psychologists rarely use research methods based on statistically representative national samples. Such large-scale survey, research methods, which are typically used by sociologists and demographers, are often too blunt to address adequately the complex and nuanced questions that generally are at issue when scholars attempt to assess and compare the course of development in different circumstances. It is more common for researchers to use what might be called “convenience” samples, and to explore those samples intensively, rather than to study large samples more superficially.6

The Hawaii Family Forum referenced Loren Marks’ selective critique of the gay parent family literature (brief at 32). The critique, although published in 2012, curiously addresses a 2005 briefing paper, ignoring all research published since 2004. Marks fails to recognize the repeated demonstration, by researchers using a variety of methods (including the survey research methodology he favors in the ~
6

[Footnote continued on next page] 20
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34.

The methodologies used in the major studies of same-sex parenting

meet the standards for research in the field of developmental psychology and psychology generally. Proper research methods and standards in social sciences are determined through a rigorous peer review process that is conducted by established scholars in individual disciplines and sub-fields. When scholarly papers are submitted for publication, the research methods used, the analyses conducted, and the findings drawn are critically reviewed. In order to be published, an academic’s work must satisfy the scrutiny and standards of scholars considered to be experts in the field of research under review.

35.

The studies specific to same-sex parenting from which I draw my

conclusions were published in leading journals in the field of child and adolescent development, such as Child Developmern~, Developmental Psychology, and The

Journal ofChild Psychology and Psychiatty. The journals Child Development,
published by the Society for Research in Child Development, Developmental

Psychology, published by the American Psychological Association, and The Journal of Child Psychology and Psychiatiy are the flagship peer-review journals
in the field of child development. Most of the studies on which I rely appeared in

C’

[Footnote continued from previous page] critique), that parental sexual orientation is unrelated to children’s outcomes (as detailed above). ‘~

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these (or similar) rigorously peer-reviewed and highly selective journals, whose standards represent expert consensus on generally accepted social scientific standards for research on child and adolescent development. Prior to publication in these journals, these studies were required to go through a rigorous peer-review process, and as a result, they constitute the type of research that members of the respective professions consider reliable. The body of research on same-sex families is consistent with standards in the relevant fields and produces reliable conclusions.

D.

Data concerning one-parent families does not support conclusions about the preferred gender of parents.

36.

Research showing that children and adolescents in one-parent families

are at greater risk of maladjustment than those raised by two parents is sometimes used to support the view that youths need both mothers and fathers, and therefore that heterosexual couples make the best parents. This mischaracterizes the research into one-parent families, which typically does not explore the effects of parental sexual orientation or gender. 37. Studies on the impact of one-parent family life generally compare

one-parent and married-couple heterosexual parents; I am aware of no study that includes same-sex couples. Consequently, it is inappropriate to attribute the

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differences resulting from the number of parents and resources in a household to parental gender or sexual orientation, or to draw conclusions about the children of same-sex parents from these studies. f~e relevant studies do suggest, however, that, all other things being equal, children and adolescents tend to do better with two parents than one, and therefore, that children and adolescents with same-sex parents, like their peers, likely would benefit if their parents could choose to marry and solidif~r their family and parental ties.

3

V. Research Concerning The Benefits Of Being Raised By ‘Biological’ Parents Does Not Support Arguments That Same-Sex Couples Are Inferior Parents.

~

Others claim that children thrive in families with ‘biological’ parents

and, by implication, claim that same-sex parenting is bad for children because same-sex parents cannot provide children with the advantages of being raised by their two biological parents. This argument is misleading. In many of the relevant studies, the term ‘biological parents’ includes adoptive parents, as the term is used to distinguish between parents (whether biological or adoptive) and single or stepparents.7 Children adopted early in life have similar outcomes to biological children. These studies thus provide no evidence in support of the argument that

[.

7lndeed, the publications by Moore and McLanahan referenced by the Hawaii Family Forum (Brief, at 25 and 29-32) do just that.
“~

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the children and adolescents raised by same-sex parents would be at psychological ‘f’t~ risk. While some studies show that children do better when raised by their ‘biological’ parentsthan when raised by one ‘biological’ parent and the parent’s new partner,~these studies do not examine children being raised by same-sex couples, including the many who jointly planned to bring children into their families either by birth or adoption, and are jointly raising the children. Children in oneparent families or step-families are at a higher risk for adverse outcomes for reasons explained earlier (i.e., these children may have endured their parents’ separations, exposing the children to parental conifict and related dislocations, the children may have experienced separation from or abandonment by parents, and the step-parents may have entered their lives relatively late in their development, affecting the quality of the parent-child relationships). One would not expect to see these difficulties in same-sex families who jointly plan to marry and have children. As explained above, the research comparing children with same-sex and opposite-sex parents shows no differences in outcome. 40.

3

There is a substantial body of research on parents who have chosen to

raise biologically unrelated children rather than remain childless. These studies show that such parents are at least as competent as parents raising their biological

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children; indeed, many studies show that these parents are more competent or committed in some respects.

VI.

Children and Adolescents With Same-Sex Parents Would Benefit If Their Parents Were Permitted To Marry.

[41.

Marriage can yield important benefits for youths and families,

including state and federal legal protections and social legitimacy. These benefits would be equally advantageous for children and adolescents in same-sex and opposite-sex families. Mahy lesbians and gay men afready are parents, and it is in the best interests of their children for their parents to have equal access to the state and federal protections and social legitimacy benefits afforded through marriage. 42.

J

The 2000 Census identified 594,000 households headed by same-sex

partners. About a quarter of these had co-resident children. A total of 416,000 children were living in such households, and the numbers have certainly increased in the last decade. Many more children (estimates vary from 6 million to 12 million) live with single gay or lesbian parents. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and

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Ninth Circuit Case Nos. 12-16995 & 12-16998 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: Honolulu, Hawaii, October 18, 2013. s/ Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawai’i

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Nos. 12-16995 & 12-16998 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Háwai ‘i, Defendant-Appellant, and
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii

GOVERNOR ABERCROMBIE’S EXCERPTS OF RECORD VOLUME 4 CERTIFICATE OF SERVICE GIRARDD.LAU 3711 ROBERT T. NAKATSUJI 6743 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau @hawaii.gov Robert.T.Nakatsuji @hawaii. gov Attorneys for Defendant-Appellant NEIL S. ABERCROMBIE, Governor of the State of Hawai’i
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LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor Defendant-Appellee.

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INDEX TO EXCERPTS OF RECORD VOLUME 4 CRIER Document Document Title Tab No. Date 93 Concise Statement of Facts in Support of 06/29/20 12 [Cont. from Defendant Governor Neil S. Abercrombie’s Counter-Motion for Partial Summary Volume 3] Judgment [Continued from Volume 3]
.
. .

Declaration of Gary M. Segura, Ph.D.; Exhibits A-B; Certificate of Service
.

92

Defendant Abercrombie’s Counter Motion for Partial Summary Judgment; Memorandum in Support of Counter Motion for Partial Summary Judgment (Only Counter Motion and pages 70-74 of Memorandum in Support of Motion attached)

06/29/20 12

27

Defendant Abercrombie’s Memorandum in Opposition to Hawaii Family Forum’s Motion to Intervene; Declaration of Robert T. Nakatsuji; Exhibit A (Only Flysheet, Declaration of Robert T. Nakatsuji and Exhibit A attached)

04/09/20 12

10

Defendant Fuddy’s Answer to First Amended 02/21/2012 Complaint Defendant Abercrombie’s Answer to First Amended Complaint First Amended Complaint 02/21/2012

9

6

01/27/2012

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CRIER Tab No. DKT

Document Title Docket for Civil No. 1 1-00734-ACK/KSC Jackson, et al. v. Abercrombie, et al.

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Case 1:11 -cv-00734-ACK-KSC Document 92

Filed 06/29/12 Page 1 of 3

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ORIGINAL

1842

FILED IN ThE UNITED STATES DISTRICT couj DIr~T OF HAWAII

GIRARDD.LAU 3711 ROBERT T. NAKATSUJI 6743 • HARVEY B. HENDERSON, JR. 0929 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawai’i 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau(~hawaii.gov Robert.T.Nakatsuji(ä~hawaii.gov Harvey.E.HendersonJr(~hawaii.gov Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i

‘JUN 29 2012
and ~ mj~~ SUE BEflIA~RK

=

D

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JAN1N KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants, CIVIL NO. CV1 1-00734 ACKIKSC (CONSTITUTIONALITY OF STATE STATUTE) DEFENDANT GOVERNOR NEIL S. ABERCROMBIE’ S COUNTERMOTION FOR PARTIAL SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF DEFENDANT GOVERNOR NEIL S. ABERCROMBIE’ S COUNTERMOTION FOR PARTIAL SUMMARY JUDGMENT, iN RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT RE COUNT TWO, AND IN OPPOSITION TO DEFENDANT LORETTA 3. FUDDY’S AND DEFENDANT-INTERVENOR
CR92:1

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and HAWAII FAMILY FORUM, Defendant-Intervenor.

HAWAII FAMILY FORUM’S MOTIONS FOR SUM1v[ARY JUDGMENT; CERTIFICATE OF SERVICE HEARING DATE: July 24, 2012 TIME: 10:00 a.m. JUDGE: Hon. Alan C. Kay

DEFENDANT GOVERNOR NEIL S. ABERCROMBIE’ S COUNTERMOTION FOR PARTIAL SUMMARY JUDGMENT Defendant NEIL S. ABERCROMB]E, Governor, State of Hawai’i, by and through his attorneys, GIRARD D. LAU, ROBERT T. NAKATSUJI, and HARVEY E. HENDERSON, JR., Deputy Attorneys General, hereby moves this Honorable Court for entry of partial summary judgment in his favor and against Defendant LORETTA J. FUDDY and Defendant-Intervenor HAWAII FAMILY FORUM (“HFF”). Governor ABERCROMBIE respectfully requests that this Court rule that the ban on same sex marriage in Hawai’i Revised Statutes (“HRS”)

§ 572-1

is subject to strict (or heightened) scrutiny, because (1) Plaintiffs have a

fundamental right to same sex marriage under the Due Process Clause of the U.S. Constitution, and/or (2) under the Equal Protection Clause of the U.S. Constitution, the ban discriminates against Plaintiffs based on their sexual orientation, a suspect

2
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(or quasi-suspect) class, or, alternatively, interferes with the exercise of their fundamental rights. This countermotion is based upon Federal Rules of Civil Procedure (“FRCP”) Rules 7 and 56; Local Rules 7.2, 7.4, 7.5, 7.9, and 56.1; the Minute Order entered on June 20, 2012 granting Defendant Governor NEIL S. ABERCROMBIE’S Motion for Leave to File a Single Combined Memorandum of 25,000 Words, In Support of his Countermotion and In Opposition or Response to all Three Parties’ Motions; the attached memorandum in support’; the concise statement of facts filed simultaneously herewith (including declarations and exhibits attached thereto); and the records and files in this case. DATED: Honolulu, Hawai’i, June 29, 2012.

~

ID.

GIRARD D. LAU ROBERT T. NAKATSUJI HARVEY B. HENDERSON, JR. Deputy Attorneys General Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i

‘The attached memorandum in support, besides supporting the instant countermotion, also responds to Plaintiffs’ motion for summary judgment and opposes Director FUDDY’s and HFF’s motions for summary judgment. 3
CIVrL NO. CVI 1~OO734 ACKJKSC

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Second, and although not necessary given the above, there is no scientific basis for concluding that same sex parents are not as good parents as opposite sex parents. Indeed, the evidence is entirely to the contrary. [B]eliefs that lesbian and gay adults are not fit parents have no empirical foundation (Patterson, 2000, 2004a; Perrin, 2002). The results of some studies suggest that lesbian mothers’ and gay fathers’ parenting skills may be superior to those of matched heterosexual parents. There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation (Armesto, 2002; Patterson, 2000; Tasker & Golombok, 1997). On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.
...

Fears about children of lesbian or gay parents being sexually abused by adults, ostracized by peers, or isolated in single-sex lesbian or gay communities have received no scientific support. Overall, results of research suggest that the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents. American Psychological Association[Exh. “0”]. Research comparing the adjustment of children and adolescents of same-sex parents with the children and adolescents of heterosexual parents consistently shows that the children or adolescents in both groups are equivalently adjusted. The children and adolescents of same-sex parents are as emotionally healthy, and as educationally and socially successful, as children and adolescents raised by heterosexual parents. The social science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two oppositesex parents. There is consensus within the scientific community that parental sexual orientation has no effect on children’s and adolescents’ adjustment. Lamb Deci. ¶~J29, 31. 70
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HFF’s citations to studies it claims suggest otherwise in fact do not, because they compare apples and oranges. $ç~ Lamb Deci. ¶~J38-39 (noting that studies that claim a benefit to biological parenting are “misleading,” and that while “some studies show that children do better when raised by their ‘biological’ parents than when raised by one ‘biological’ parent and the parent’s new partner, these studies do not examine children being raised by same-sex couples, including the many who jointly planned to bring children into their families either by birth or adoption, and are jointly raising the children. Children in one-parent families or step-families are at a higher risk for adverse outcomes for [other] reasons (i.e., these children may have endured their parents’ separations [exposing the children to parental conflict] separation from or abandonment by parents
...,

or [late step-parent

involvement] affecting the quality of the parent-child relationships”). One would not expect to see these difficulties in same-sex families who jointly plan to marry and have children.”). Most importantly, addressing the studies 11FF presents, Professor Lamb has declared that: “It is well-established that
...

having parents of both genders does

not enhance adjustment. The Hawaii Family Forum cites a number of publications to support its assertion that children are better off with two opposite-sex parents than two same-sex parents. (Brief~, at 25, 29-32). But none of these publications lend any support for this claim.” Lamb Deci. ¶~J22 & n.2. It is important to note

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that Professor Lamb expressly addresses each of the studies 11FF cites,36 and, rather than attacking the credibility, or expertise of those behind the study, or the accuracy of the results, simply explains why the studies do not support the conclusion HFF claims they support
--

that same sex parenting leads to inferior

outcomes for children. Lamb Deci. ¶22 & n.2, ¶30 & nn. 3, 4 & 5, ¶33 & n.6, ¶38 &n.7. As just one example, Professor Lamb explains that due to the particular methodology used in Regnerus’s study: the study did not actually assess individuals raised by same-sex partners, [and] most of Regnerus’ “gay father” and “lesbian mother” participants were in families that went through a divorce and transition to single-parent or step-family life. In contrast, for the heterosexual family sample, Regnerus excluded all the families that went through divorce [Consequently,] the study merely demonstrates the well-established fact that children tend to do better in stable, intact families and they tend to do worse when they experience their parents’ divorce. Regnerus recognizes that “Lclhild outcomes in stable, ‘planned’ GLB families and those that are the product of previous heterosexuals unions are quite likely distinctive, as previous studies’ conclusions would suggest.”
. . . .

Lamb Deci. ¶30. Similarly, Lamb points out that “[i]n many of the relevant studies [including the Moore study and the McLanahan study 11FF cite in HFF Mem. at 25, 29-32], the term ‘biological parents’ includes adoptive parents, as the term is used to distinguish between parents (whether biological or adoptive) and single or step36

Professor Lamb does not address Doherty because the quotation from him does

not even ostensibly support HFF’s proposition in any event. 72
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parents. Children adopted early in life have similar outcomes to biological children. These studies thus provide no evidence in support of the argument that the children and adolescents raised by same-sex parents would be at psychological risk.” Lamb Decl. ¶38 & n.7. In sum, not only is there no scientific basis for the optimal-mother-father theory, but the scientific consensus contradicts it. As one court has described the research: These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children. These conclusions have been accepted, adopted and ratified by the American Psychological Association, the American Psychiatry Association, the American Pediatric Association, the American Academy of Pediatrics, the Child Welfare League of America and the National Association of Social Workers. As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise. Florida Dep’t v. Adoption of X.X.G., 45 So.3d 79, 87 (Fla. Dist. Ct. App. 2010). Under these circumstances, it is simply “impossible to credit” a theory that has no scientific support.37. Even if the State need not produce evidence to support ~ HFF relies heavily upon Lofton v. Sec. of Dep’t, 358 F.3d 804 (11th Cir. 2004), upholding a ban on adoption by gay people. However, there was no scientific evidence in the record concerning the suitability of gay parents, 358 F.3d at 81920, with the Court simply resting its conclusion on the State’s mere speculation that children are better off with a mother and a father. ~ Indeed, unlike the case at bar with Professor Lamb’s expert declaration, the Lofton plaintiffs “offered no competent evidence” against the notion that “children benefit from the presence of both a father and mother.” j~ at 819. In a 6 to 6 split, rehearing en banc was denied, with 6 judges either concluding the law lacked a rational basis or 73
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proffered theories, the theory must still be “plausible.” The optimal-mother-father theory lacks plausibility on the above two independent fronts. G. The ban on same sex marriage is not rationally related to proceeding with caution with respect to watershed changes in access to marriage. Both HFF and Director Fuddy argue as a final rationale the need to proceed with caution in expanding marriage to include same sex couples. Director Fuddy is right that Perry expressly chose not to decide “whether the objective of ‘proceed[ing] with caution’ was a legitimate one.” Perry, 671 F.3d at 1090.38 We

expressing doubts about its constitutionality. 377 F.3d 1275, 1290-13 13 (11th Cir. 2004). Where courts have had the opportunity to hear competent expert testimony on gay parenting, they have rejected child welfare based justifications for discriminating against gay couples. ~ Florida Dep’t v. Adoption of X.X.G., supra; D.H.S. v. Howard, 238 S.W.3d 1 (Ark. 2006); Perry v. Schwarzenegger, 704 F. Supp.2d 921 (N.D. Cal. 2010).
~,

38

We would submit, however, that like Perry, this case, too, involves taking away

of rights, via the combination of the Hawaii constitutional amendment ~p4 the legislative man/woman amendment to 572-1 in 1994, and refusal to amend that definition after passage of the constitutional amendment. See discussion, supra at 60. Thus, rather than proceeding with caution, the effect of that combination was to shut the door on an existing same sex marriage right --the right to same sex marriage absent the State satisf~’ing strict scrutiny unless the legislature could muster enough votes for, and the Governor would sign, a bill allowing same sex marriage. And, as in Perry, there is no time-specific moratorium on 572-i’s ban, but a permanent ban, absent the above steps. If the legislature does not act, the ban remains permanently in place. Thus, we submit that Perry’s rejection of the proceed with caution theory should be extended to this slightly different, but analogous, case. We acknowledge that Perry relied in part upon the difference between having to amend a constitution, versus amending an ordinary law passed by the legislature. We believe, however, that the proceed with caution theory can be rejected on the above similaritiesalone.
--

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ORIGINAL
DAVID M. LOUIE Attorney General of Hawai’i GIRARD D. LAU ROBERT T. NAKATSUJI HARVEY E. HENDERSON, JR. Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawai’i 96813 Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau(~hawaii.gov RobeaT.Nakatsuji(~hawaii. gov Harvey.E.HendersonJr(~hawaii. gov
2162-0

3711-0 6743-0 929-0

FILED

Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants. DEFENDANT NEIL S. ABERCROMBIE’ S MEMORANDUM IN OPPOSITION TO MOTION TO INTERVENE OF HAWAII FAMILY FORUM; DECLARATION OF ROBERT T. NAKATSUJI; EXHIBITS “A” “E”; CERTIFICATE OF SERVICE

CIVIL NO. CV1 1-00734 ACKJKSC (CONSTITUTIONALITY OF STATE STATUTE)

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HEARING DATE: April 30, 2012 TIME: 10:00a.m. JUDGE: Honorable Alan C. Kay [RE: CMJECF Doe. No. 15] No Trial Date Set

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs,
VS.

CIVIL NO. CV1 1-00734 ACKJKSC (CONSTITUTIONALITY OF STATE STATUTE) DECLARATION OF ROBERT T. NAKATSUJI

NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants.

DECLARATION OF ROBERT T. NAKATSUJI Pursuant to 28 U.S.C. that: 1. I am a Deputy Attorney General and one of the attorneys representing

§

1746, I, ROBERT T. NAKATSUJI, hereby declare

Defendant NEIL S. ABERCROMBIE, Governor, State of Hawai’i, in the aboveentitled case. 2. Attached as Exhibit “A” is a true and correct copy of the News

• Release issued by the Department of the Attorney General on February 21, 2012

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(attachments omitted). This document is also available at http://hawaii.gov/agJ main/press releases/20 1 2/News%2ORelease%2020 1 2-04.pdf. 3. Attached as Exhibit “B” is a true and correct certified copy of the

letter from Jackie Young and David M. Smith, of Protect Our Constitution and Protect Our Constitution/Human Rights Campaign, to the Campaign Spending Commission dated July 30, 1998. 4. Attached as Exhibit “C” is a true and correct certified copy of the

letter from Peter J. Hamasaki, Attorney for Hawaii Family Forum, to the Campaign Spending Commission dated August 6, 1998. 5. Attached as Exhibit “D” is a true and correct certified copy of the

Findings of Fact, Conclusions of Law, Decision and Order issued by the Campaign Spending Commission on December 22, 1998 in Protect Our Constitution v. Hawaii Family Forum, No. 98-07 (Haw. Campaign Spending Commission filed on Dec. 22, 1998). 6. Attached as Exhibit “E” is a true and correct excerpt of pages 1, 4, and

5 from the Order Granting Citizens for Fair Valuation’s Motion to Intervene filed on October 21, 2009 in HRPT Properties Trust v. Lingle, Civil No. 09-00375 SOM-KSC (D. Haw. filed on Oct. 21, 2009).

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I declare under penalty of perjury that the foregoing is true and correct. Executed in Honolulu, Hawai’i, on April 9, 2012.

Robert T. Nakatsuji

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EXHIBIT A

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DEPARTMENT OF THE ATTORNEY GENERAL

News Release
NEIL ABERCROMBIE
GOVERNOR David M. Loule Attorney General Phone: (808) 586-1500 Russell Suzuki First Deputy Attorney General

For Immediate Release: February 21, 2012

News Release 201 2-04

The Department of the Attorney General Files Answers to Same-Sex Marriage Lawsuit
HONOLULU Attorney General David M. Louie announced today that Governor Neil Abercrombie and Director of the State Department of Health Loretta Fuddy, have filed separate answers, as the two defendants named in their official capacities, in the First Amended Complaint in Jackson v. Abercrombie, the United States District Court lawsuit which challenges Hawaii’s ban on same sex marriage.
-

Governor Abercrombie has acknowledged many of the corñplaint’s allegations, including the denial of federal constitutional rights caused by the state’s existing marriage law. Director Fuddy, however, as the director of the department charged with administering the law, has denied many of the complaint’s allegations. As such, the Department of Health will continue to enforce the law, and will vigorously defend it. Both defendants’ answers are attached to this press release. The Complaint The complaint alleges that on November 18, 2011, plaintiffs Natasha Jackson and Janin Kleid were denied a marriage license by the Department of Health because they are both women. The complaint also alleges that plaintiff Gary Bradley and his partner were the first male couple to obtain a civil union in Hawaii, but chose not to apply for a marriage license because it would be “futile” to do so under state law. All three plaintiffs allege that the denial of a marriage license to them by the State, pursuant to section 572-1 of the Hawaii Revised Statutes and article I, section 23 of the Hawaii Constitution, violates their rights to Due Process and Equal Protection under state law, guaranteed them by the Fourteenth Amendment of the United States Constitution.
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Governor Abercrombie, in choosing not to defend those portions of the complaint alleging equal protection and due process violations under the United States Constitution, issued the following statement: “Under current law, a heterosexual couple can choose to enter into a marriage or a civil union. A same-sex couple, however, may only elect a civil union. My obligation as Governor isto support equality under law. This is inequality, and I will not defend it.” In his answer to the complaint, Governor Abercrombie has specifically admitted several of the plaintiffs’ allegations: • To the extent that state law allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution. State law, in denying all opposite sex couples the ability to get married, violates the Due Process Clause of the United States Constitution because the right to marry is a fundamental right, and there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex. Allowing opposite sex couples but not same sex couples to get married violates the Equal Protection Clause of the United States Constitution. By denying all same sex couples the ability to marry, state law discriminates on the basis of sexual orientation, and there are no compelling, substantial, or even rational bases for such discrimination.

Governor Abercrombie is defending against all of the allegations in the complaint that he has not admitted in his answer. This means he is defending against certain allegations, including defending the state against any civil rights liability under chapter 42, section 1983 of the United States Code. The Governor is also defending the state against any money damages claims. Director Fuddy’s Position Director Fuddy, after consulting with the Governor, has chosen to defend against the complaint. She issued the following statement: “The Department of Health is charged with implementing the law as passed by the Legislature. Absent any ruling to the contrary by competent judicial authority regarding constitutionality, the law will be enforced. Because I am being sued for administering the law, I will also defend it.”

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In her answer to the complaint, Director Fuddy specifically: • Admits that she has been sued in her capacity as the Director of the Department of Health. The authority, responsibilities, and duties of that office are as stated in Hawaii law. Admits that Bradley and his male partner cannot be issued a marriage license under existing Hawai’i law. Denies that plaintiffs may have their relationship recognized as a marriage by the state.

• •

The Attorney General’s Legal Ability To Represent Multiple Parties The Attorney General has assigned separate teams of attorneys to represent the Governor and the Director of Health, under well-established Hawaii Supreme Court precedent. In State v. Klattenhoff (1990) and Chun v. Board of Trustees of Emoloye~ Retirement System of State of Hawaii (1998), the Hawaii Supreme Court held that the Department of the Attorney General may undertake concurrent representation of multiple parties, which might otherwise constitute a conflict of interest under Rule 1 .7 of the Hawaii Code of Professional Conduct, the rules governing lawyers. In so doing, however, the Department must erect appropriate firewalls between the competing attorneys, and take steps to ensure that no prejudice is suffered by the clients. In this case, both the Governor and the Director are being represented by separate teams of attorneys general, and appropriate protections have been put in place to ensure that both clients are being vigorously, and separately, represented. Attach. ### For more information, contact: Joshua Wisch Special Assistant to the Attorney General (808) 586-1284 (808) 542-4089 (cell) joshua. a.wisch@hawaii~gpy htt~ ://hawaii .ciov/aq/

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Document 102 Filed 02/21/12 Page 1 of 10

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Attorney General of Hawai’i WILLIAM J. WYNHOFF 2558 Deputy Attorney General REBECCA B. QUINN 8663 Deputy Attorney General Department of the Attorney General 465 S. King Street, Suite 300 Honolulu, Hawai’i 96813 Tel. (808) 587—2993 E mail: bill.j.wynhoff@hawaii.gov Attorneys for Loretta J. Fuddy, Director of Health, State of Hawai’i

UNlTEgg~~O~/

FEB 2 1 2~12)
2~t~ ~

~~SUE~ITIA1CL~RK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants. CIVIL NO. 11-00734 ACK KSC

(CONSTITUTIONALITY OF STATE STATUTE) LORETTA J. FUDDY, DIRECTOR OF HEALTH, STATE OF’ HAWAI’I’S ANSWER TO FIRST AMENDED COMPLAINT CERTIFICATE OF SERVICE

LORETTA J.

FUDDY, DIRECTOR OF HEALTH, STATE OF HAWAI’I’S ANSWER TO FIRST AMENDED COMPLAINT

• FIRST DEFENSE The complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE

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1. (“Fuddy”)

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LORETTA J. FUDDY, Director of Health, State of Hawai’i is without knowledge or information sufficient to form

a belief as to the truth and accuracy of the allegations in paragraphs 1 2.
-

4 of the first amended complaint.

Fuddy admits the allegations in paragraph 5 of the

first amended complaint. 3. For answer to paragraph 6 of the first amended complaint,

Fuddy admits that she is sued in her capacity as the Director of the Department of Health. The authority, responsibilities, and

duties of that office are as stated in Hawai’i law. 4. Fuddy denies the allegations in paragraph 7 of the

first amended complaint. 5. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraphs 8 and 9 of the first amended complaint. 6. For answer to paragraph 10 of the first amended complaint,

Fuddy admits that Bradley and his male partner cannot beissued a marriage license by the State under existing Hawai’i law. 7. Fuddy denies the allegations in paragraphs 11 and 12

of the first amended complaint. 8. For answer to paragraph 13 of the first amended complaint,

Fuddy admits that to the extent the court has jurisdiction, venue is proper. 9. For answer to paragraph 14 of the first amended complaint,

2

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Fuddy admits that persons who are lesbian or gay have been the subject of discrimination by private actors and have been denied State recognition of marriage to each other. Fuddy is without

knowledge or information sufficient to form a belief as to the truth and accuracy of the remaining allegations in the paragraph. 10. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraph 15 of the first amended complaint. 11. For answer to the allegations in paragraphs 16

33 of

the first amended complaint, Fuddy states that the proceedings in Baehr v. Lewin speak for themselves and denies that the proceedings are fully or accurately summarized in the first amended complaint. The provisions of the “Reciprocal

Beneficiaries Act” and the “marriage amendment” speak for themselves. 12. Fuddy neither admits nor denies the allegations in

paragraph 34 of the first amended complaint because they are statements of opinion rather than statements of fact or law. 13. For answer to paragraph 35 of the first amended

complaint, Fuddy admits that post-Baehr v. Miike some jurisdictions have allowed same sex couples to marry. 14. For answer to paragraphs 36

38 of the first amended

complaint, Fuddy states that the laws of the referenced

3

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jurisdictions speak for themselves. 15.

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Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraph 39 of the first amended complaint. 16. For answer to paragraphs 40

53 of the first amended

complaint, Fuddy states that the proceedings in the referenced cases speak for themselves. 17. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraph 54 of the first amended complaint. 18. Fuddy denies the allegations in paragraph 55 of the

first amended complaint. 19. For answer to paragraph 56 of the first amended

complaint, Fuddy admits that a civil unions law was enacted and became effective on January 1, 2012. 20. Fuddy denies the allegations in paragraphs 57 and 58

of the first amended complaint. 21. For answer to paragraph 59 of the first amended

complaint, Fuddy admits that denial of State recognition of same sex marriage does not violate the Hawai’i State Constitution. 22. Fuddy denies the allegations in paragraph 60 of the

first amended complaint. 23. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations

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in paragraphs 61 24. 67 of the first amended complaint.

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-

Fuddy denies the allegations in paragraphs 68 and 69

of the first amended complaint. 25. For answer to paragraphs 70 and 71 of the first

amended complaint, Fuddy states that the provisions of the civil unions law speak for themselves. 26. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraph 72 of the first amended complaint. 27. Fuddy denies the allegations in paragraphs 73 and 74

of the first amended complaint. 28. For answer to paragraph 75 of the first amended

complaint, Fuddy states that the provisions of the civil unions law speak for themselves. 29. Fuddy neither admits nor denies the allegations in

paragraph 76 and 77 of the first amended complaint because they are statements of opinion rather than statements of fact or law. 30. Fuddy denies the allegations in paragraph 78 of the

first amended complaint. 31. Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraphs 79 32.
-

84 of the first amended complaint.

For answer to paragraphs 85 and 86 of the first

amended complaint, Fuddy states that the referenced documents

5

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speak for themselves. 33.

Page I D #:

Fuddy is without knowledge or information sufficient

to form a belief as to the truth and accuracy of the allegations in paragraphs 87 34.
-

89 of the first amended complaint.

For answer to paragraphs 90

93, Fuddy states that

referenced constitutional provisions and law speak for themselves. 35. complaint, For answer to paragraph 94 of the first amended Fuddy incorporates her responses to the

referenced paragraphs. 36. complaint, For answer to paragraph 95 of the first amended Fuddy denies that plaintiffs have a fundamental

right to have their relationship recognized as a marriage by the State. for themselves. 37. Fuddy denies the allegations in paragraphs 96

The cases referenced in the paragraph speak

99 of

the first amended complaint. 38. For answer to paragraph 100 of the first amended

complaint, Fuddy incorporates her responses to the referenced paragraphs. 39.
-

For answer to paragraphs 101 and 102 of the first

amended complaint, Fuddy states that the provisions of the referenced law speak for themselves. 40. Fuddy denies the allegations in paragraphs 103 and 104

6

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of the first amended complaint. 41. For answer to paragraph 105 of the first amended

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complaint, Fuddy incorporates her responses to the referenced paragraphs. 42. Fuddy denies the allegations in paragraphs 106 and 107

of the first amended complaint. 43. Fuddy denies any allegations not specifically

addressed above. THIRD DEFENSE Plaintiffs’ claims are barred by sovereign immunity, qualified immunity, the 11th Amendment to the United States Constitution, and “our federalism.” FOURTH DEFENSE The matters alleged are not suitable for declaratory relief because there is no actual controversy. FIFTH DEFENSE This court lacks subject matter jurisdiction over the matters alleged. SIXTH DEFENSE Plaintiffs lack standing. SEVENTH DEFENSE Plaintiffs’ claims are not ripe, present a political question, or are otherwise not justiciable.

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WHEREFORE, Fuddy requests that the complaint be dismissed with prejudice and that she be awarded costs and such other relief as this court deems appropriate. DATED: Honolulu, Hawai’i, February 21, 2012.

DAVID M. LOtJIE Attorney General State of Hawai’i WILLIAM J. WYNHOFF REBECCA E. QUINN Deputy Attorneys General Attorneys for Loretta J. Fuddy, Director of the Department of Health, State of Hawai’i

8

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants. CIVIL NO. 11-00734 ACK KSC

(CONSTITUTIONALITY OF STATE STATUTE) CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was duly served on the following persons by U.S. mail at the address shown by mail on February 21, 2012:

JOHN D’AMATO, ESQ. JOHN T. MALONEY, JR., ESQ., WILLIAM LEE D’Amato & Maloney, LLP 900 Fort Street Mall, Suite 1680 Honolulu, Hawai’i 96813 HARVEY E. GIRARD D. 425 Queen Honolulu, HENDERSON, JR., LAU, ESQ. Street Hawai’i 96813 ESQ.

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DATED:

Honolulu,

Hawai’i,

February 21,

2012.

WILLIAM J. WYNHOFF Deputy Attorney General Attorney for Loretta J. Fuddy, Director of the Department of Health, State of Hawai’i

2

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ORLG~N/-\L
DAVID M. LOUIE Attorney General of Hawai’i 2162
FILEDINTHE UNITED STATES DISTPICT COURT DISTRICT OF HAWAII

GIRARD D. LAU 3711 HARVEY E. HENDERSON, JR. 0929 ROBERT T. NAKATSUJI 6743 Deputy Attorneys General Department of the Attorney General 425 Queen Street Honolulu, Hawai’i 96813 Tel. (808) 586-1360 Fax (808) 586-1237 Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i

FEi32t2~l2
and. SUE BEIT~A,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants. DEFENDANT NE]L S. ABBRCROMBIE’S ANSWER TO FIRST AMENDED COMPLAiNT; CERTIFICATE OF SERVICE

CIVIL NO. CVI 1-00734 ACK/KSC (CONSTITUTIONALITY OF STATE STATUTE)

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DEFENDANT NEIL S. ABERCROMBIE’S ANSWER TO FIRST AMENDED COMPLAINT Defendant NEIL S. ABERCROMBIE, in his official capacity as Governor of the State of Hawai’i, answers Plaintiffs’ First Amended Complaint filed January 27, 2012. Defendant ABERCROMBIE admits that to the extent that FIRS

§ 572-1

allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution. In all other respects, Defendant ABBRCROMI3IE denies that HRS 572-1 is unconstitutional under the United States Constitution. Defendant ABERCROMBIE admits that FIRS

§

§ 572-1, in denying all

opposite sex couples the ability to get married, violates the Due Process Clause of the United States Constitution because the right to marry is a fundamental right, and there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex. Defendant ABERCROMBIE also admits that HRS

§ 572-1, by allowing

opposite sex couples, but not same sex couples, to get married violates the Equal Protection Clause of the United States Constitution. By denying all same sex couples the ability to marry, HRS

§ 572-1

discriminates on the basis of sexual

orientation, and this discrimination, at least in the context of marriage, must be

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subject to heightened scrutiny. There are no compelling, substantial, or even rational bases for such discrimination. Defendant ABERCROMBIE asserts Article I, Section 23, of the Constitution of the State of Hawai’i merely provides that under the Hawai’i State Constitution, and only under the Hawai’i State Constitution, the Legislature has the power to reserve marriage to opposite sex couples. With that construction, Defendant ABERCROMBIE denies that Article I, Section 23, of the Hawai’i State Constitution violates any provision of the United States Constitution. Although the Legislature’s decision to restrict marriage to opposite sex couples as stated in FIRS

§ 572-1 violates the United States Constitution, that decision and IIRS § 572-1 do
not and cannot violate the Constitution of the State of Hawai~i, given Article I, Section 23. Defendant ABERCROMBIE talces the above-stated positions consistent with his oath of office to defend the Constitution of the United States and the Constitution of the State of Hawai ‘i. RESPONSE TO ALLEGATIONS OF COMPLAINT Defendant ABERCROMBIE responds to the allegations of the Complaint in correspondingly numbered paragraphs as follows:

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1. Defendant ABERCROMBIB is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 1, and therefore denies the same. 2. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 2, and therefore denies the same. 3. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 3, and therefore denies the same. 4. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 4, and therefore denies the same. 5. Defendant ABERCROMBIE admits the allegations of paragraph 5. 6. Defendant ABERCROMBIE admits that Defendant FUDDY, who is sued in her capacity as the Director of the Department of Health, has the authority, responsibilities, and duties set forth in HRS

§~ 26-13

and 572-5. Defendant

ABERCROMBIE submits that these statutory provisions speak for themselves, and asserts that the remaining allegations as to the scope, applicability, and effect of these provisions are mere characterizations and statements of opinion, and therefore denies the same. Defendant ABERCROMBIE is without sufficient

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information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 6, and therefore denies the same. 7. With respect to the allegations of paragraph 7, Defendant ABERCROMBIE admits HRS

§

572-1, to the extent it allows opposite sex

couples, but not same sex couples, to get married, violates the Due Process and Equal Protection Clauses of the United States Constitution. Defendant ABERCROMBJE denies the allegations in all other respects. 8. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 8, and therefore denies the same. 9. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 9, and therefore denies the same. 10. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 10, and therefore denies the same. 11. With respect to the allegations of paragraph 11, Defendant ABERCROMBIE admits HRS

§ 572-1, to the extent it allows opposite sex

couples, but not same sex couples, to get married, violates the Due Process and

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Equal Protection Clauses of the United States Constitution. Defendant ABERCROMBIE denies the allegations in all other respects. 12. Except for the jurisdictional defenses that Defendant ABERCROMBIE sets forth in this Answer, Defendant ABBRCROMBIB admits that this Court has jurisdiction pursuant to 28 U.S.C.

§

1331.

13. Defendant ABERCROMBIE admits that if this Court has jurisdiction over this matter, venue is proper pursuant to 28 U.S.C.

§

1391.

14. Defendant ABERCROMBIB admits that people who are lesbian or gay make up a relatively powerless minority, both in Hawai’i and the United States. Defendant ABERCROMBIE submits that Plaintiffs’ characterization of lesbians and gays as “unpopular” is a statement of opinion that is neither a statement of fact or law, and therefore neither admits nor denies the same. Defendant ABERCROMBIE admits that people who are lesbian or gay have been and remain subject to invidious discrimination by some private actors. Defendant ABBRCROMBIE admits that same sex couples have been denied the right to marry, a right enjoyed by opposite sex couples.
15. Defendant ABERCROMBIE admits that for over twenty years, some

lesbian and gay couples have fought in State and federal courts for the right to marry.

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16. Defendant ABERCROMBIE neither admits nor denies the allegation of paragraph 16 because it is a statement of opinion that is neither a statement of fact nor law. 17. With respect to the allegations of paragraph 17, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 17, and therefore denies the same. 18. With respect to the allegations of paragraph 18, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 18, and therefore denies the same. 19. With respect to the allegations of paragraph 19, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsityof the remaining allegations of paragraph 19, and therefore denies the same. 20. With respect to the allegations of paragraph 20, Defendant ABERCROMBIE submits that the Baehr v. Miike case spealcs for itself.

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Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 20, and therefore denies the same. 21. With respect to the allegations of paragraph 21, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 21, and therefore denies the same. 22. With respect to the allegations of paragraph 22, Defendant ABERCROMBIE submits that the Baehr v. Miilce case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 22, and therefore denies the same. 23. With respect to the allegations of paragraph 23, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABBRCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 23, and therefore denies the same. 24. With respect to the allegations of paragraph 24, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself.

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Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 24, and therefore denies the same. 25. With respect to the allegations of paragraph 25, Defendant A]3ERCROMI3IE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 25, and therefore denies the same. 26. With respect to the allegations of paragraph 26, Defendant ABERCROMBIE submits that the Baehr v. Miilce case spealcs for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 26, and therefore denies the same. 27. With respect to the allegations of paragraph 27, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 27, and therefore denies the same. 28. With respect to the allegations of paragraph 28, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself.

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Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 28, and therefore denies the same. 29. With respect to the allegations of paragraph 29, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 29, and therefore denies the same. 30. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 30 because they are statements of opinion that are neither statements of fact nor law. 31. Defendant ABERCROMBIE neither admits nor denies the allegation contained within the first sentence of paragraph 31 because it is a statement of opinion that is neither

a statement of fact nor law.

With respect to the remaining

allegations contained in paragraph 31, Defendant ABBRCROMBIE submits that Hawai’i law, and the legislative and constitutional record, speak for themselves. Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 31, and therefore denies the same.

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32. Defendant ABBRCROMBIE admits the allegations set forth in paragraph 32. 33. With respect to the allegations of paragraph 33, Defendant ABERCROMBIE submits that the Baehr v. Miike case spealcs for itself. Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 33, and therefore denies the same. 34. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 34 because they are statements of opinion that are neither statements of fact nor law. 35. Defendant ABERCROMBIB admits the allegations of paragraph 35, to the extent that, post-Baehr v. Miike, some jurisdictions have recognized the right of same sex couples to marry. 36. With respect to the allegations of paragraph 36, Defendant ABERCROMBIE submits that the laws of the Netherlands, Argentina, Belgium, Canada, Iceland, Norway, Portugal, Spain, South Africa, and Sweden speak for themselves. Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 36, and therefore denies the same.

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37. With respect to the allegations of paragraph 37, Defendant ABERCROIV[BIE submits that the laws of Mexico City, the United States, Israel, Aruba, Curacao, and Sint Maarten spealç for themselves. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 37, and therefore denies the same. 38. With respect to the allegations of paragraph 38, Defendant ABERCROMBIE submits that the laws of Massachusetts, Iowa, New Hampshire, Vermont, the District of Columbia, Connecticut, New Yorlc, and California speak for themselves. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 38, and therefore denies the same. 39. With respect to the allegations of paragraph 39, Defendant ABERCROMBIE submits that the litigation records of Massachusetts, Iowa, Connecticut, and California speak for themselves. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 39, and therefore denies the same. 40. With respect to the allegations of paragraph 40, Defendant ABERCROMBIE submits that the Goodridge v. Department of Public Health case spealcs for itself. Defendant ABERCROMBIE is without sufficient information or

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knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 40, and therefore denies the same. 41. With respect to the allegations of paragraph 41, Defendant ABERCROMBIE submits that the Kerrigan v. Commissioner of Public Health case speaks for itself. Defendant ABERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 41, and therefore denies the same. 42. With respect to the allegations of paragraph 42, Defendant ABERCROMBIE submits that the Kerrigan v. Commissioner of Public Health case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 42, and therefore denies the same. 43. With respect to the allegations of paragraph 43, Defendant ABERCROMBJE submits that the Kerrigan v. Commissioner of Public Health case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 43, and therefore denies the same. 44. With respect to the allegations of paragraph 44, Defendant ABERCROMBIE submits that the Vamiim v. Brien case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to

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form a belief as to the truth or falsity of the remaining allegations of paragraph 44, and therefore denies the same. 45. With respect to the allegations of paragraph 45, Defendant ABERCROMBIB submits that the Vamum v. Brien case speaks for itself. Defendant ABERCROMBIB is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 45, and therefore denies the same. 46. With respect to the allegations of paragraph 46, Defendant ABERCROMBIE submits that the Varnum v. Brien case speaks for itself. Defendant ABERCROMBIB is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 46, and therefore denies the same. 47. With respect to the allegations of paragraph 47, Defendant ABERCROMBIE submits that the In re Marriage Cases case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 47, and therefore denies the same. 48. With respect to the allegations of paragraph 48, Defendant ABBRCROMBIB submits that the law of California and the constitutional record speak for themselves. Defendant ABERCROMBIB is without sufficient

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information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 48, and therefore denies the same. 49. With respect to the allegations of paragraph 49, Defendant ABERCROMBIE submits that the Perry v. Brown case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 49, and therefore denies the same. 50. With respect to the allegations of paragraph 50, Defendant ABERCROMBJE submits that the Perry v. Brown case spealcs for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 50, and therefore denies the same. 51. With respect to the allegations of paragraph 51, Defendant ABERCROMBJE submits that the Perry v. Brown case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 51, and therefore denies the same. 52. With respect to the allegations of paragraph 52, Defendant ABERCROMBIE submits that the Perry v. Brown case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to

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form a belief as to the truth or falsity of the remaining allegations of paragraph 52, and therefore denies the same. 53. With respect to the allegations of paragraph 53, Defendant ABERCROMBIE submits that the Perry v. Brown case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 53, and therefore denies the same. 54. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 54, and therefore denies the same. 55. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 55 because they are statements of opinion that are neither statements of fact nor law. 56. With respect to the allegations of paragraph 56, Defendant ABERCROMBIE submits that the legislative record and history regarding civil unions speak for themselves. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations ofparagraph 56, and therefore denies the same.

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57. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 57 because they are statements of opinion that are neither statements of fact nor law. 58. Defendant ABERCROMBIE admits that a law that grants opposite sex couples the right to marry, but denies that same right to similarly situated same sex couples, deprives same sex couples who wish to marry of a fundamental right. However, Defendant ABERCROMBIE neither admits nor denies the remaining allegations of paragraph 58 because they are statements of opinion that are neither statements of fact nor law. 59. With respect to the allegations of paragraph 59, Defendant ABERCROMBIE submits that the Baehr v. Miike case speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 59, and therefore denies the same. 60. Defendant ABERCROMBIE admits that to the extent that IIRS

§ 572-1

allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 60, and therefore denies the same.

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61. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 61, and therefore denies the same. 62. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 62, and therefore denies the same. 63. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 63, and therefore denies the same. 64. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 64, and therefore denies the same. 65. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 65, and therefore denies the same. 66. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 66, and therefore denies the same.

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67. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 67, and therefore denies the same. 68. Defendant ABERCROMBIE admits that to the extent that fIRS

§ 572-1

allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations regarding deprivation of benefits under federal law and private contracts, and therefore denies the same. Defendant ABERCROMBIE neither admits nor denies the remaining allegations of paragraph 68 because they are statements of opinion that are neither statements of fact nor law. 69. With respect to the allegations of paragraph 69, Defendant ABERCROMBIE admits that a law that allows opposite sex couples, but not similarly situated same sex couples, the right to marry does not serve any legitimate rational purpose of the State. Defendant ABERCROMBIE denies the allegations in all other respects. 70. With respect to the allegations of paragraph 70, Defendant ABERCROMBIE submits that Hawaii’s civil unions law speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to

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form a belief as to the truth or falsity of the remaining allegations of paragraph 70, and therefore denies the same. 71. Defendant ABERCROMBIE admits the allegations of paragraph 71. 72. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 72 because they are statements of opinion which are neither statements of fact nor law. 73. Defendant ABERCROMBIE admits that a State policy underlying the civil union law is to provide same sex civil union couples the same legal rights that are presently held by similarly situated opposite sex married couples. Defendant ABERCROMBIE also admits that denying same sex couples the right to marry, while allowing similarly situated opposite sex couples to either marry or enter into a civil union, does not have a legitimate rational purpose, and is unconstitutional. However, Defendant ABERCROMBIE neither admits nor denies the remaining allegations of paragraph 73 because they are statements of opinion that are neither statements of fact nor law. 74. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 74 because they are statements of opinion that are neither statements of fact nor law.

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75. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 75 because they are statements of opinion that are neither statements of fact nor law. 76. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 76 because they are statements of opinion that are neither statements of fact nor law. 77. With respect to the allegations of paragraph 77, Defendant ABERCROMBIE submits that the Kerrigan and Perry cases speak for themselves. Defendant ABERCROMBIE neither admits nor denies the remaining allegations of paragraph 77 because they are statements of opinion that are neither statements of fact nor law. 78. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 78 because they are statements of opinion that are neither statements of fact nor law. 79. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 79, and therefore denies the same. 80. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 80, and therefore denies the same.

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81. Defendant ABERCROMBIE denies the allegations of the first sentence in paragraph 81. Defendant ABBRCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of the second sentence in paragraph 81, and therefore denies the same. 82. With respect to the allegations of paragraph 82, Defendant ABERCROMBIE submits that State and federal law speak for themselves. Defendant AI3ERCROMBIE is without sufficient information or lcnowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 82, and therefore denies the same. 83. With respect to the allegations of paragraph 83, Defendant ABERCROMBIE submits that federal law speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 83, and therefore denies the same. 84. With respect to the allegations of paragraph 84, Defendant ABERCROMBIE submits that the federal law speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 84, and therefore denies the same.

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85. With respect to the allegations of paragraph 85, Defendant ABERCROMBIE submits that Attorney General Holder’s letter speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 85, and therefore denies the same. 86. With respect to the allegations of paragraph 86, Defendant ABERCROMBIE submits that the U.S. Department of Justice’s letter spealcs for itself, and Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations, and therefore denies the same. As to the last sentence in paragraph 86, Defendant ABERCROMBIE submits that the two cases spealc for themselves, and Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations, and therefore denies the same. 87. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 87, and therefore denies the same. 88. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 88, and therefore denies the same.

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89. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the allegations of paragraph 89, and therefore denies the same. 90. With respect to the allegations of paragraph 90, Defendant ABERCROMBJE submits that Article III, Section 1 of the Hawai’i Constitution speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 90, and therefore denies the same. 91. With respect to the allegations of paragraph 91, Defendant ABERCROMBIE submits that Article VI, Section 2 of the U.S. Constitution speaks for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the tmth or falsity of the remaining allegations of paragraph 91, and therefore denies the same. 92. With respect to the allegations of paragraph 92, Defendant ABERCROMBJE submits that Section 1 of the Fourteenth Amendment to the U.S. Constitution spealcs for itself. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as to the truth or falsity of the remaining allegations of paragraph 92, and therefore denies the same. 93. Defendant ABERCROMBIE admits the allegations of paragraph 93.

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94. With respect to the allegations of paragraph 94, Defendant ABERCROMBIE hereby incorporates his responses to paragraphs 1 through 93 above. 95. With respect to the allegations of paragraph 95, Defendant ABERCROMBIE admits that marriage is a fundamental right. Defendant ABERCROMBIE submits that the decisions of the Hawai’i Supreme Court and the United States Supreme Court speak for themselves, and denies any allegations that may inaccurately characterize those decisions. 96. With respect to the allegations of paragraph 96, Defendant ABERCROMBIE admits that if HRS

§ 572-1 denies Plaintiffs the right to marry

the same sex person of their choice, it burdens their right to marry in Hawai’i. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as the truth or falsity of the remaining allegations contained in the second sentçnce of paragraph 96 of the Complaint, and therefore denies the same. Defendant ABERCROMI3IE denies the allegations in all other respects. 97. With respect to the allegations of paragraph 97, Defendant ABERCROMBJE admits that the State of Hawai’i does not have a rational purpose, or a substantial or compelling reason, for denying same sex couples the right to marry, when similarly situated opposite sex couples are given the right to marry. Defendant ABERCROMBIE is without sufficient information or

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knowledge to form a belief as the truth or falsity of the remaining allegations of paragraph 97, and therefore denies the same. 98. Defendant ABERCROMBIE neither admits nor denies the allegations of paragraph 98 because they are statements of opinion that are neither statements of fact nor law. 99. With respect to the allegations of paragraph 99, Defendant ABERCROMBIE admits that FIRS

§ 572-1, to the extent it allows opposite sex

couples, but not same sex couples, to get married, violates the Due Process Clause of the United States Constitution, and is thus unconstitutional. Given Defendant ABERCROMBIE’s construction of Article I, Section 23, of the Constitution of the. State of Hawai ‘ i as merely providing that under the Hawai ‘i State Constitution, and only under the Hawai’i State Constitution. the Legislature has the power to reserve marriage to opposite sex couples, Defendant ABERCROMBIE denies that Article I, Section 23, violates any provision of the United States Constitution. Defendant ABERCROMBIE denies the allegations in all other respects. 100. With respect to the allegations of paragraph 100, Defendant ABBRCROMBIE hereby incorporates his answers to paragraphs 1 through 99 above. 101. With respect to the allegations of paragraph 101, Defendant ABERCROMBIE admits that HRS

§ 572-1 permits a man and a woman to many,
26

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but does not permit two men or two women to marry. Defendant ABERCROMBIE denies the allegations in all other respects. 102. With respect to the allegations of paragraph 102, Defendant ABERCROMBIE admits that HRS

§ 572-1 may have the effect of proscribing

marriage on the basis of sexual orientation. Defendant ABERCROMBIE is without sufficient information or knowledge to form a belief as the truth or falsity of the remaining allegations of paragraph 102, and therefore denies the same. 103. With respect to the allegations contained in the first sentence of paragraph 103, Defendant ABERCROMBIE admits that the State of Hawai’i does not have a legitimate rational purpose, or a substantial or compelling reason, for denying same sex couples the right to many, when similarly situated opposite sex couples are allowed to marry. In all other respects, Defendant ABERCROMBIE denies the allegations contained in the first sentence of paragraph 103 of the Complaint. Defendant ABERCROMB1E is without sufficient information or knowledge to form a belief as the truth or falsity of the allegations contained in the second sentence of paragraph 103, and therefore denies the same. 104. With respect to the allegations of paragraph 104, Defendant ABERCROMEIE admits that HRS

§

572-1, to the extent it allows opposite sex

couples, but not same sex couples, to get married, violates the Equal Protection Clause of the United States Constitution, and is thus unconstitutional. Given

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Defendant ABERCROMBIE’s consftuction of Article I, Section 23, of the Constitution of the State of Hawai’i as merely providing that under the Hawai’i State Constitution, and only under the Hawai’i State Constitution, the Legislature has the power to reserve marriage to opposite sex couples, Defendant ABERCROMBIE denies that Article I, Section 23, violates any provision of the United States Constitution. Defendant ABERCROMBIE denies the allegations in all other respects. 105. With respect to the allegations of paragraph 105, Defendant ABERCROMBIE hereby incorporates his answers to paragraphs 1 through 104. 106. With respect to the allegations of paragraph 106, Defendant ABERCROMBIE admits HRS

§ 572-1, to the extent it allows opposite sex

couples, but not same sex couples, to get married, violates the Due Process Clause and Equal Protection Clause of the United States Constitution. Defendant ABERCROMBIE denies the allegations in all other respects. 107. Defendant ABERCROMBIE denies the allegations of paragraph 107. 108. Any and all claims and allegations in the Complaint not heretofore expressly admitted, are hereby denied.

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AFFIRMATIVE DEFENSES FIRST DEFENSE Some of the claims stated in the Complaint fail to state claims for which relief may be granted. SECOND DEFENSE Some of the claims stated in the Complaint are barred by the doctrine of sovereign immunity or Eleventh Amendment immunity. THIRD DEFENSE This Court lacks subject matter jurisdiction to adjudicate some of the claims stated in the Complaint. Some of the Plaintiffs may lack standing, andJor their claims are not ripe, or are otherwise non-justiciable. FOURTH DEFENSE Some of the claims may be barred by applicable statute of limitations, or other statutory or administrative time deadlines, or by waiver or laches. FIFTH DEFENSE If any claims for money damages are asserted, they are barred, in whole or in part, by absolute or qualified officer’s immunity, and derivative immunity.

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SIXTH DEFENSE Defendant ABERCROMBIE should not be liable for simply carrying out and enforcing statutory law when the courts have not fmally declared such laws to be unconstitutional. SEVENTH DEFENSE Claims for equitable relief (e.g., injunctive relief) should be denied as a matter of this Court’s equitable discretion, and because it is unnecessary. EIGHTH DEFENSE Special circumstances render any award of attorney’s fees to Plaintiffs unjust. WHEREFORE, Defendant ABERCROMBIE respectfully requests that this Court: 1. Declare, if Plaintiffs satisfy jurisdiction and justiciability requirements, that the restriction of the right to marry to opposite sex couples under HRS

§ 572-1

violates the Due Process Clause and Equal Protection Clause of the United States Constitution. 2. Deny Plaintiffs’ other requests for relief, 3. Grant Defendant ABERCROMBIE such other relief in law or in equity as this Court deems just and proper.

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DATED: Honolulu, Hawai’i, February 21, 2012. DAVID M. LOUJE Attorney General of Hawai’i

GIRARD D. LAU HARVEY B. HENDERSON, JR. ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant Neil S. Abercrombie, Governor, State of Hawai’i

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iN THE UMTED STATES DISTRICT COURT FOR THE DISTRICT OF I-IAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director of Health, State of Hawai’i, Defendants. CIVIL NO. CV1 1-00734 ACKJKSC (CONSTITUTIONALITY OF STATE STATUTE)
S

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was mailed first-class, postage-prepaid by the last mail pick-up of the day to the following person(s) as addressed below: JOHN D’AMATO, ESQ. JOHN T. MALONEY, JR., ESQ. WILLIAM LEE, ESQ. D’Amato & Maloney, LLP 900 Fort Street Mall, Suite 1680 Honolulu, Hawai’i 96813 Attorneys for Plaintiffs

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WILLIAM J. WYNHOFF, ESQ. REBECCA E. QUINN, ESQ. Deputy Attorneys General Department of the Attorney General 465 Queen Street, Room 300 Honolulu, Hawai’i 96813 Attorneys for Defendant Loretta J. Fuddy, Director of Health, State of Hawai’i DATED: Honolulu, Hawai’i, February 21, 2012.

GIRARD D. LAU HARVEY B. HENDERSON, JR. ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant Neil S. Abererombie, Governor, State of Hawai’i

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JOHN J. D’AMATO 5540-0 JOHN T. MALONEY, JR. 45 63-0 WILLIAM LEE 836 1-0 D’AMATO & MALONEY, LLP 900 Fort Street Mall, Suite 1680 Honolulu, Hawai’i 96813 Telephone: (808) 546-5200; (808) 546-5203 (f) j damato~benefitslawyers. corn Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FUDDY, Director, Departrnent of Health, State of Hawai’i, Defendants. CIVIL NO. Cvii- 00734 ACK KSC (CONSTITUTIONALITY OF STATE STATUTE) FIRST AMENDED COMPLAINT; CERTIFICATE OF SERVICE

COMPLAINT Plaintiffs NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, by and through their attorneys, D’Amato & Maloney, LLP, allege that they have been denied rights to Due Process and Equal Protection secured by the U.S. Constitution in that they have been denied the right to

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marry a person of the same sex. Specifically, they allege the following: PARTIES AND NATURE OF CASE 1. Plaintiff NATASHA N. JACKSON (“Jackson”) is a woman

and citizen and resident of Honolulu, State of Hawai’i. 2. Plaintiff JANIN KLEID (“Kleid”) is a woman and citizen and

resident of Honolulu, State of Hawai’i. 3. On November 18, 2011, Plaintiffs Jackson and Kleid sought to

obtain a marriage license from the Department of Health, State of Hawai’i (“Department”). 4. Stella Somiko Allen, representing the Department, told them

that they are denied the right to marry because they are both women. 5. NEIL S. ABERCROMBIE (“Governor”) is the Governor of

Hawai’i and is sued in that capacity. As Governor, he is the chief executive of Hawai’i and is charged with executing its laws. Constitution of Hawai’i (“Haw. Const.”) Art. 5, §~1 & 5. The Governor resides in Honolulu and maintains a principal office in Honolulu. 6. LORETTA J. FUDDY (“Director”) is the Director of the

Department and is sued in that capacity. As Director, she is the chief executive of the Department and has ultimate responsibility for its functions, including the administration of marriage licenses. Hawai’i Revised Statutes 2
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(“H.R.S.”) §~26-13, 572-5. The Director resides in Honolulu and maintains a principal office in Honolulu. 7. Plaintiffs Jackson and Kleid allege that the denial of a marriage

license to them by the State of Hawai’i pursuant to Section 572-1 of the H.R.S. and Section 23 of Article 1 of the Hawai’i Constitution violates rights to Due Process and Equal Protection under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution. (As used to identif~r rights protected by the Fourteenth Amendment of the U.S. Constitution, “Due Process” and “Equal Protection” will be capitalized in order to distinguish those rights from comparable rights under the Hawai’i Constitution and other State Constitutions.) 8. Plaintiff GARY BRADLEY (“Bradley”) is a man and citizen

and resident of Honolulu, State of Hawai’i. 9. Plaintiff Bradley and his partner, a male and foreign national,

were the first male couple to enter into a civil union under the Hawai’i civil union law, which became effective on January 1, 2012. 10. Plaintiff Bradl~y alleges that he and his partner entered into a

civil union and did not seek a marriage license because it was futile for them to seek a marriage license under Section 572-1 of the H.R.S. 11. Plaintiff Bradley alleges that denying the right to marry a 3
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person of the same sex pursuant to Section 572-1 of the H.R.S. and Section 23 of Article 1 of the Hawai’i Constitution violates rights to Due Process and Equal Protection under State law guaranteed to him by the Fourteenth Amendment of the U.S. Constitution. JURISDICTION AND VENUE 12. This Court has jurisdiction of this matter pursuant to 28 United

States Code (“U.S.C.”) §1331. 13. Venue is proper under 28 U.S.C. §1391. INTRODUCTION 14. People who are lesbian or gay make up a relatively powerless

and unpopular minority, both in Hawai’i and the United States, generally. They have been and remain the subjçct of invidious discrimination by private actors and have also been denied rights under State law enjoyed by opposite sex couples and heterosexuals, including the right to marry. 15. For more than twenty years, lesbian and gay couples have

fought in State and Federal courts for the right to many. 16. In the 1990s, Baehr v. Miike put Hawai’i’s State courts at the

forefront of that fight. 17. Baehr v. Miike was filed by three same sex couples on May 1,

1991 in Hawai’i’s First Circuit Court under the name Baehr v. Lewin, Lewin 4
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then being the Director of the Department. The plaintiffs complained that •they had been denied marriage licenses in violation of their rights to due process and equal protection under Hawai’i’s Constitution. 18. Baehr v. Miike was initially dismissed on the trial court’s

finding that the State had a rational purpose for limiting marriage to opposite sex couples. 19. On appeal, the Hawai’i Supreme Court reversed. In the

plurality opinion rendered by Steven H. Levinson, J., the Hawai’i Supreme Court held that Section 572-1 of the H.R.S. discriminated on the basis of sex in determining who may and may not marry and that such a discriminatory use of a sexual classification constituted a facial violation of the equal protection clause of Hawai’i’s Constitution. Baebr v. Lewin, 74 Haw. 530, 580, 852 P.2d 44, 67 (Haw. 1993). Consequently, the trial court was instructed that Section 572-1 of the H.R.S. was presumptively unconstitutional and that the State’s justification for the law had to be subjected to strict scrutiny. ~ To overcome the presumption of unconstitutionality and survive the test of strict scrutiny, the State would need to carry the heavy burden of showing both that denying same sex couples the right to marry served compelling State interests and that Section 572-1 of the H.R.S. had been narrowly drawn to achieve those interests. Id. 5
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20.

Acknowledging that same sex marriage might be unpopular,

Justice Levinson observed, “constitutional law may mandate, like it or not, that customs change with an evolving social order.” Id., at 570. 21. At trial, Kevin S. C. Chang, J., found that the State had failed to

show that denying same sex couples the right to marry served compelling State.interests. Baehr v. Miike, 1996 WL 694235, *25 (Haw.Cir.Ct.). 22. The State had promised to show five compelling State interests

were served by restricting marriage to opposite sex couples. Id., at *4~ 23. The State had promised to show that the denial served its

“compelling interest in protecting the health and welfare of children and other persons”. But it failed to show how same sex marriage would jeopardize children or anyone else. Instead, the Court found that, “The sexual orientation of parents does not automatically disqualify them from being good, fit, loving or successful parents”;
~,

at *20; and that, “Gay and

lesbian parents and same-sex couples have the potential to raise children that are happy, healthy and well-adjusted.” j~, at *21. 24. The State had promised to show that the denial served its

“compelling interest in fostering procreation within a marital setting” because such a setting was “optimal” for child rearing, but the State’s own expert testified “that single parents, gay fathers, lesbian mothers and same 6
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sex couples have the potential to, and often do, raise children that are happy,

healthy and well-adjusted.” Id, at *4• The Court found, 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. 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. There are also families in Hawaii, and elsewhere, which do not have children as family members. 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.
~,

at *20 (paragraph numbering omitted). 25. The State had promised to show that the denial served its

“compelling interest in securing or assuring recognition of Hawai’i marriages in other jurisdictions”. But it 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”. ~ at *19..2o. 7
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26.

The State had promised to show that the denial served its

“compelling interest in protecting the State’s public fisc from the reasonably foreseeable effects of State approval of same-sex marriage”, but it failed to demonstrate how the State’s fisc would be adversely affected. Id., at *19. 27. Finally, the State had promised to show it had a compelling

interest in averting “the reasonably foreseeable effects of State approval of same-sex marriages” on the theory that such approval would lead to the legalization of all manner of sexual conduct and marriage, including “legalized prostitution, incest and polygamy”. But the Court dismissed that argument because it “disregards existing statutes and established precedent and the Supreme Court’s acknowledgment of compelling reasons to prevent and prohibit marriage under circumstances such as incest.” j~, at *24. 28. Summing up the case, Judge Chang concluded that the State 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. Id., at *25. 8
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29.

Accordingly, Judge Chang held that, “The evidentiary record

presented in this case does not justify the sex-based classification of HRS Sec. 572-1” and entered judgment in favor of the Plaintiffs. Id. 30. On account of the bold and persuasive rulings by Justice

Levinson and Judge Chang in Baehr v. Miike, Hawai’i was poised, in 1996, to be the first jurisdiction in the world to recognize same sex marriage. 31. But as is well known, that was not to be. Judge Chang’s ruling

in Baehr v. Miike was appealed to the Hawai’i Supreme Court and was stayed during the pendency of the appeal in order to give the Legislature the opportunity to act. The Legislature did act in several ways. First, it attempted to pass legislation permitting same sex marriage. That legislation failed, and many of the legislators who had promoted it were turned out of office. Next, the Legislature adopted the Reciprocal Beneficiaries Act (“RB Act”) in 1997. The RB Act provided a limited version of the rights incident to marriage to a whole range of beneficiaries, including individuals prohibited from marrying on account of the prohibition against incest. Finally, in 1998, the Legislature put before the people a Constitutional amendment purporting to authorize the Legislature to limit marriage to opposite sex couples. The so-called “marriage amendment” was duly ratified by a substantial majority and became law on November 3, 1998. 9
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32.

Set forth at Section 23 of Article 1 of the Hawai’i Constitution,

the “marriage amendment” provides that, “The legislature shall have the

power to reserve marriage to opposite sex couples.” 33. Finally taking up the matter of the appeal of Baehr v. Miike, the

Hawai’i Supreme Court held that the case’s equal protection claim had been mooted by the “marriage amendment”: The passage of the marriage amendment placed HRS Sec. 5721 on new footing. The marriage amendment validated HRS Sec. 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii 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. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS Sec. 5721 no longer is. In light of the marriage amendment, HRS Sec. 572-1 must be given full force and effect... Inasmuch as HRS Sec. 572-1 is now a valid statute, the relief sought by the plaintiffs is unavailable. The marriage amendment has rendered the plaintiffs’ complaint moot. Baehr v. Miike, Hawai’i Supreme Court, No. 20371, Order of Dec. 9, 1999. 34. As the opinions of Justice Levinson and Judge Chang had

seemed a great victory for lesbians and gays, so now did the final order in Baehr v. Miike represent a devastating defeat. Not since Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), had plaintiffs been told by the court to which they had applied for relief that the relief sought could not be theirs because they had no constitutional right even to 10
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complain. 35. In the twelve years since Baehr v. Miike was dismissed, same

sex couples have won the right to marry in many jurisdictions. 36. In 2001, the Netherlands became the first country to legalize

same sex marriage. Same sex marriage is now permitted in nine countries in addition to the Netherlands: Argentina, Belgium, Canada, Iceland, Norway, Portugal, Spain, South Africa, and Sweden. 37. Same sex marriage is also permitted in Mexico City and in

parts of the United States, while same-sex marriages performed elsewhere are recognized in Israel and in the Netherlands’ possessions in the Carribean—Aruba, Curacao, and Sint Maarten. 38. The parts of the United States in which same sex marriage is

now recognized (ordered by the date of the relevant court ruling or legislation) are Massachusetts (ruling dated 11/18/2003), Iowa (ruling dated 4/3/2009), New Hampshire (law enacted 6/3/2009), Vermont (law enacted 9/1/2009), the District of Columbia (law enacted 12/18/2009), Connecticut (ruling dated 10/28/20 10), and New York (law enacted 7/24/20 1 1). Same sex marriage was also briefly recognized in California in 2008 in consequence of a California Supreme Court order and may again become recognized if the appeal of the result favorable to same sex couples in Perry 11
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v. Brown, Case No. C 09-2292 (N.D.Cal. 8/4/20 10), is denied. 39. In all four jurisdictions in which the right of same sex couples

to marry was won through litigation—Massachusetts, Iowa, Connecticut, and California—the litigation invariably included equal protection arguments like those made in Hawai’i, and, as had been the case in Hawai’i, in none of those States was the State able to show that its denial of marriage to same sex couples served a legitimate policy interest. 40. In Goodridge v. Department of Public Health, 440 Mass. 309,

798 N.E.2d 941 (Mass. 2003), the Massachusetts Supreme Judicial Court reversed the trial court, holding that denying same sex couples the right to marry had no rational basis, let alone a compelling or substantial purpose, and that it therefore violated rights to due process and equal protection under the Massachusetts Constitution. The opinion of the Massachusetts Supreme Judicial Court opened with language that could have been written by Justice Levinson or Judge Chang: Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and fOr their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. 12
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We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples. Goodridge, supra, 440 Mass. at 312, 798 N.E.2d at 948. 41. In Connecticut, the right to same sex marriage was mandated by

the decision of the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn. 2008). 42. Plaintiffs’ challenge to Connecticut’s marriage law had been

dismissed by the trial court on the State’s argument that its adoption of a civil union law, during the pendency of plaintiffs’ action, had given same sex couples the same rights as those of married couples, thereby foreclosing plaintiffs’ argument that Connecticut had unfairly discriminated against them. As summarized by the Connecticut Supreme Court, The trial court concluded that the plaintiffs could not establish “that they have suffered any legal harm that rises to constitutional magnitude”... because “[t]he effect of [the civil union law] has been to create an identical set of legal rights in Connecticut for same sex couples and opposite sex couples.” Kerrigan, supra, 289 Conn. at 146-7, 957 A.2d at 415. 43. The Connecticut Supreme Court disagreed. Concurring with

plaintiffs that “marriage is not simply a term denominating a bundle of legal 13
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rights” but “an institution of unique and enduring importance in our society, one that carries with it a special status”; id., 289 Conn. at 148-9, 957 A.2d at 416; the Connecticut Supreme Court held that the State’s civil union law had created a status of “second class citizenship” for same sex couples, forbidden by the equal protection clause of Connecticut’s Constitution. Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered.. .we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. “Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.” We therefore agree with the plaintiffs that “[mjaintaining a secondclass citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.”
...

Id., 289 Conn. at 151, 957 A.2d at 418. 44. In Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), the Iowa

Supreme Court unanimously upheld the trial court’s ruling that denying same sex couples the right to marry violated the equal protection clause of the Iowa Constitution. 45. At the outset of their opinion, the Iowa Supreme Court

emphasized the priority of their judicial duty over public opinion: A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and 14
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deep-seated traditional beliefs and popular opinion.
[. . .1

Our responsibility.., is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. Vamum, supra, 763 N.W.2d at 875. 46. The Iowa Supreme Court held, first, that a heightened level of

scrutiny of marriage law was mandated by certain factors, including, in particular, the history of discrimination against lesbian and gay people. Next, the court held that the State of Iowa had not met its burden under this heightened level of scrutiny of showing that its marriage law was substantially related to an important governmental objective; in fact, it had not demonstrated that any permissible State objective was served by denying same sex couples the right to marry. 904, c~passim. 47. In In re Marriage Cases, 183 P.3d 384 (Cal. 2008), the
~,

763 N.W.2d at 880, 885, 887, 896-

California Supreme Court held that California’s marriage law violated the California Constitution’s equal protection clause by denying same sex couples the right to marry. 48. In reaction, a citizens’ initiative group proposed an amendment

to the California Constitution for the November 4, 2008, state elections. The 15
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amendment purported to restrict marriage to a man and a woman and was entitled, “Proposition 8”, on the state ballot. Proposition 8 passed and became effective on November 5, 2008. 49. Same sex couples attacked Proposition 8 in Perry v. Brown

(originally, Perry v. Swarznegger), Case. No. C 09-2292 (N.D.Cal. 8/4/20 10) (“Perry”). Plaintiffs brought their challenge in federal District Court, arguing that Proposition 8 violated their rights to Due Process and Equal Protection under the U.S. Constitution. 50. The defendants in Perry were five representatives of the State of

California or subordinate organizations, including the Governor and Attorney General. Four of the five defendants declined to take a position on Proposition 8 or to defend it; the Attorney General answered with the view that Proposition 8 was unconstitutional. Perry, supra, Findings of Fact and Conclusions of Law (“Ruling”), *3~ 51. The defense of Proposition 8 was taken on by the citizens’

initiative group which had promoted it. 52. The Perry Court found that the claims of the plaintiffs in the

case were meritorious in that “Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Perry, supra, Ruling, * 109. 16
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53.

Perry’s holding rested on findings that have become

commonplace since Baehr v. Miike—that marriage implicates fundamental relationships and rights, that same sex couples can make good and loving parents, that marriages between same sex couples will not undermine marriages between opposite sex couples, that denying same sex couples the right to marry denies them the dignity of marriage, merely punishes them for being who they are, and serves private moral beliefs, values, and prejudices rather than State interests. On the issue of “traditional” marriage and changes in attitudes and law regarding marriage, the Perry Court observed, The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals. j~, Ruling, *113. 54. The idea of same sex marriage has also gained in popular

acceptance since the Baehr case. A public opinion poli released by the Pew Institute on November 3, 2011, shows that, on a national basis, 42% of the public supports gay marriage, while 48% opposes it. 17
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55.

In Hawai’i itself, the cause of same sex marriage has languished

in a kind of legislative and legal limbo since the “marriage amendment” put an end to Baehr v. Miike. 56. After several failed attempts at legislation, a civil union law

was enacted in 2011 and became effective on January 1, 2012. 57. The civil union law is intended to be a substitute for marriage,

but Plaintiffs Jackson, Kleid, and Bradley (hereafter, “Plaintiffs”) respectfully allege that it is not and cannot be. 58. Plaintiffs believe that they have been deprived of a fundamental

right and have been discriminated against unjustly by a law that is unfair, discriminatory, and not based upon any lawful purpose of the State of Hawai’i. 59. Owing to Baehr v. Miike, Plaintiffs cannot rely any further

upon the equal protection clause of the Hawai’i Constitution insofar as the right to marry is concerned. 60. Plaintiffs yet have recourse, however, to the guarantees of Due

Process and Equal Protection under State law secured by the Fourteenth Amendment of the U.S. Constitution. It is on that basis, therefore, that Plaintiffs ask this Court for relief.

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ALLEGATIONS SPECIFIC TO PLAINTIFFS’ CLAIMS 61. At no time relevant to this Complaint, were Plaintiffs Jackson

and Kleid disqualified from marrying each other or was Plaintiff Bradley disqualified from marrying his partner under Section 572-1 of the H.R.S., except for the reason of being of the same sex. 62. Plaintiffs Jackson and Kleid maintain a household together and

have been involved in a romantic and committed relationship with each other for four years. 63. Likewise, Plaintiff Bradley and his partner maintain a

household together and have been involved in a committed and romantic relationship with each other for more than three years. 64. During their relationship, Plaintiffs Jackson and Kleid have

experienced their share of vicissitudes, including serious health problems and the loss ofjobs, but they have remained true to one another and steadfast in their relationship. They pooi their resources to share expenses and have been each other’s main source of emotional support. 65. Likewise, Plaintiff Bradley and his partner have faced their

challenges as a couple over the last several years and have been each other’s main source of support. 66. Neither Plaintiff Jackson nor Plaintiff Kleid has any interest in 19
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marrying a male, and Plaintiff Bradley has no interest in marrying a female. 67. Plaintiffs Jackson and Kleid and Plaintiff Bradley and his

partner desire to marry for all the many and varied reasons that any couple desire to marry, including that they wish to share in the security and cultural meaning of marriage; to declare, formalize, and celebrate with their family and friends their commitment and love for each other as spouses; to be accepted, each by the other’s family, as their loved one’s life partner; and to enjoy the legal and economic benefits of marriage, including the benefits provided under State law, Federal law, and such private contracts as private employers’ employee benefit plans. 68. Plaintiffs allege that Section 572-1 of the H.R.S. unlawfully

denies them the right to marry, thereby frustrating their purposes, causing injury to their dignity as human beings, and depriving them of the economic and other benefits of marriage under Federal law and private contracts, including, in particular, private employers’ employee benefit plans. 69. In support of the foregoing paragraph, Plaintiffs allege, first,

that the State’s denying Plaintiffs the right to marry is unlawful because it does not serve any rational purpose of the State. 70. The same treatment given spouses under Hawai’i statutory,

regulatory, and decisional law must nowbe given to partners in civil unions 20
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pursuant to Hawai’i’s civil union law. 71. Further, opposite sex couples as well as same sex couples may

enter into civil unions under Hawai’i’s civil union law. 72. Consequently, each and every policy interest and legal purpose

of the State served through Hawai’i’s institution of marriage can now be served through Hawai’i’s institution of civil unions. 73. Because the manifest policy of Hawai’i law is to give identical

legal treatment to spouses and to partners in civil unions under Hawai’i law, the State’s continuing to deny same sex couples the right to marry, while permitting opposite sex couples to choose freely between marriage and civil unions, does not have a rational purpose furthering any lawful policy of the State, is purely an act of discrimination based upon the sex and sexual preferences of same sex couples, and is unlawful. 74. Second, the State’s denying same sex partners the right to

marry is injurious and demeaning to such partners’ dignity as human beings because it subordinates their relationships to those of heterosexual couples; the withholding of the right to marry constitutes the rebuke that same sex relationships are not entitled to the same respect as those of heterosexual couples. 75. Hawai’i’s civil union law purports to solve this problem by 21
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replacing the denied status of marriage with the legally equivalent (for purposes of Hawai’i law) status of civil unions. 76. 77. But there is no substitute for marriage. As the Kerrigan and Perry courts held persuasively, marriage is

not merely a bundle of rights, notwithstanding the treatment of a civil union as a bundle of rights equivalent to a marriage under Hawai’i law. Marriage is a special and unique status, accorded unique meanings and traditions and affording those who participate in it unique respect. 78. Hawai’i’s “solution” to the problem of giving legal recognition

to the relationships of same sex couples without permitting them to marry has not created equality but a system as pernicious and damaging in its effects as any system of segregation. As African-Americans were permitted to ride on public buses but denied the right to sit in the front of the bus in an earlier time, so now are same sex couples given the “rights” of marriage under Hawai’i law but denied the respect and sanctity of marriage. 79. Third, the State’s denying same sex couples the right to marry

deprives them of economic and other benefits under Federal law and private employee benefit contracts. 80. The Hawaii State Legislature can force equivalence between

civil unions and marriages under State law, but it is powerless to force such
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equivalent treatment under Federal law or private employee benefit plans. 81. State law relating to private employee benefit plans is

preempted by Section 5 14(a) of the Employee Retirement Income Security Act (“ERISA”). Consequently, the State of Hawai’i may not require private employers to give partners in civil unions the same rights as spouses under their benefit plans. 82. However, if same sex individuals could be spouses under

Hawai’i law, then they would automatically be entitled to the same rights as spouses under any employee benefit plan that provides benefits to spouses, and they would be entitled to enforce such rights under Section 5 02(a) of ERISA. 83. Under Federal law—including Federal income tax, estate tax,

pension, and immigration law—more than 1,000 special rights and benefits are provided to spouses, but no such special rights and benefits are provided to partners in civil unions. 84. Plaintiffs allege that they would be entitled—or could become

entitled—to such special rights and benefits if they were permitted to marry under State law, notwithstanding Section 3 of the Defense of Marriage Act (“DOMA”), which purports to limit “marriage,” for all purposes of Federal law, to unions between opposite sex couples. 23
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85.

In a letter to Congress dated February 23, 2011, Attorney-

General Holder gave notice that President Obama had made the determination that Section 3 of DOMA is unconstitutional as applied to same sex couples legally married under State law and that the Obama administration would no longer defend Section 3 of DOMA in court against such couples. Attorney-General Holder explained, After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. 86. In a letter dated February 23, 2011, the U.S. Department of

Justice gave notice to the U.S. Circuit Court for the First Circuit that it would cease to prosecute appeals in two cases challenging DOMA. In those cases, the trial court had held Section 3 of DOMA to be unconstitutional. 87. Accordingly, Plaintiffs allege that if they could marry under

Hawai’i law, then, DOMA notwithstanding, they would enjoy all the special rights and benefits of spouses under Federal law. 88. At the least, if they could marry under Hawai’i law, Plaintiffs

allege that they would have the right to challenge the denial of spousal benefits to same sex married couples pursuant to Section 3 of DOMA. 24
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89.

But if Plaintiffs may not marry under Hawai’i law, but may

only be partners in civil unions, then they will not have the right to the special Federal rights and benefits given to spouses under the clear terms of Federal law, and they will not have the right to challenge the denial of such rights and benefits should the Federal government seek to deny such rights and benefits under Section 3 of DOMA. 90. Section 1 of Article 3 of the Hawai’i Constitution limits the

legislative power of the State Legislature “to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States”. 91. At Article 6, Section 2, of the U.S. Constitution, the Supremacy

Clause declares, in relevant part, This Constitution shall be the supreme law of the land. anything in the constitution or laws of any state to the contrary notwithstanding.
...

92.

Section 1 of the Fourteenth Amendment to the U.S.

Constitution guarantees Plaintiffs Jackson and Kleid the right to Due Process and Equal Protection under State law, providing, in part (underlining added), No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; p~ shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 25
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93. contract
...

Section 572-1 of the H.R.S. provides, in part, “the marriage shall be only between a man and a woman...” COUNT ONE

VIOLATION OF PLAINTIFFS’ RIGHT TO DUE PROCESS 94. Plaintiffs hereby incorporate paragraphs 1 through 93, above, as

though fully set forth herein. 95. The freedom to marry is a fundamental civil right. As Justice

Levinson had observed in Baehr v. Lewin, supra, 74 Haw. at 562-3, 852 P.2d at 60, quoting Loving v. Virginia, 388 U.S. 1, 12 (1967), “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free [people].” So “fundamental” does the United States Supreme Court consider the institution of marriage that it has deemed marriage to be “one of the ‘basic civil rights [of men and women].” 96. By denying Plaintiffs the right to marry the same sex person of

their choice, Section 572-1 of the H.R.S. severely burdens their opportunity to exercise the right of marriage in the jurisdiction of Hawai’i. In fact, by limiting the choices of Plaintiffs Jackson and Kleid to males and of Plaintiff Bradley to females, Section 572-1 of the H.R.S. effectively denies Plaintiffs the right to marry because it is highly unlikely that any Plaintiff would ever choose to marry a person of the opposite sex. 97. The State of Hawai’i does not have a rational purpose, let alone 26
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a substantial or compelling reason, for denying same sex couples the right to marry and for so burdening Plaintiffs’ exercise of the right to marry. 98. The State of Hawai’i’s denying same sex couples the right to

marry is not based upon lawful policy interests but private moral judgments, values, and prejudices, including animus against homosexual individuals and wholly unfounded fears that same sex marriage will undermine the institution of marriage or harm children. 99. For the foregoing reasons, Plaintiffs allege that Section 572-1

of the H.R.S. violates the right to Due Process under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution, both on its face and as applied to them; that it is consequently unlawful; that, to the extent that the “marriage amendment” purports to authorize such a violation of their rights, it is also unconstitutional, void, and without effect; and that neither provision of Hawai’i law may be enforced against same sex couples by the Governor, Director, or any person. COUNT TWO VIOLATION OF PLAINTIFFS’ RIGHT TO EOUAL PROTECTION 100. Plaintiffs hereby incorporate paragraphs 1 through 99, above, as though fully set forth herein. 101. Section 572-1 of the H.R.S. prescribes who may and may not 27
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marry on the basis of sex, permitting a man and a woman to marry but neither two men nor two women. 102. By proscribing marriage between two men and between two women, Section 572-1 of the H.R.S. also proscribes marriage on the basis of sexual orientation since it is highly unlikely that any two individuals of the same sex who are not gay would wish to marry. 103. Hawai’i’s classification of who may and may not marry by sex and sexual orientation serves no rational purpose, let alone a compelling or substantial purpose. It is instead a classification that makes no sense except as an expression of private moral judgments, values, and prejudices. 104. For the foregoing reasons, Plaintiffs allege that Section 572-1 of the H.R.S. violates the right to Equal Protection under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution, both on its face and as applied to them; that it is consequently unlawful; that, to the extent that the “marriage amendment” purports to authorize such a violation of their rights, it is also unconstitutional, void, and without effect; and that neither provision of Hawai’i law may be enforced against same sex couples by the Governor, Director, or any person. COUNT THREE CLAIMS UNDER 42 U.S.C. ~1983 28
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105. Plaintiffs hereby incorporate paragraphs 1 through 104, above, as though fully set forth herein. 106. By enforcing Section 572-1 of the H.R.S. against same sex couples, the Governor, Director, and their agents have acted under color of State law to deny Plaintiffs rights to Due Process and Equal Protection secured by the Fourteenth Amendment of the U.S. Constitution. 107. Plaintiffs are therefore entitled to the remedies provided by and through 42 U.S.C. §1983. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: a. Declare that the restriction of the right of marriage to opposite sex couples under Section 572-1 of the H.R.S. violates the rights of Plaintiffs to Due Process and Equal Protection under State law guaranteed by the Fourteenth Amendment of the U.S. Constitution; b. Declare that the “marriage amendment” violates the rights of Plaintiffs to Due Process and Equal Protection under State law guaranteed by the Fourteenth Amendment of the U.S. Constitution to the extent it purports to authorize the Hawai’i Legislature to deny same sex couples the right to marry; 29
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c.

Find that, on account of the actions of the Governor, Director, and their agents in enforcing Section 572-1 of the H.R.S., Plaintiffs are entitled to the remedies of 42 U.S.C. § 1983;

d.

Permanently enjoin the Governor, the Director, and any person acting on their behalf from enforcing the restriction of marriage to opposite sex couples under Section 572-1 of the H.R.S.;

e.

Award Plaintiffs their attorney’s fees and costs and expert fees pursuant to 42 U.S.C. §1988(b) and (c); and

f.

Award such other and further relief and make such other findings and declarations, as it may deem just and proper.

DATED: Honolulu, Hawai’i, January 27, 2012. Is! John J. D’Amato JOI{N J. D’AMATO J. THOMAS MALONEY, JR. WILLIAM LEE Attorneys for Plaintiffs

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Case 1:1 1-cv-00734-ACK-KSC Document 6

Filed 01/27/12 Page 31 of 32

PagelD #: 66

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NATASHA N. JACKSON, JAN1N KLEID, and GARY BRADLEY, Plaintiffs, vs. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, and LORETTA J. FTJDDY, Director, Department of Health, State of Hawai’i, Defendants. CIVIL NO. CV1 1-00734 ACK KSC (CONSTITUTIONALITY OF STATE STATUTE) CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE I hereby certifS’ that on the date noted below, a copy of PLAINTIFFS NATASHA N. JACKSON, JAN1N KLEID, and GARY BRADLEY’S FIRST AMENDED COMPLAINT, was served via DELIVERY addressed as follows: William J. Wynhoff Esq. (bi11.i.wvnhoff(~hawaii.gov) Harvey E. Henderson, Jr., Esq. (Harvey.E.HendersonJr~hawajj. gov) Department of the Attorney General 425 Queen Street Honolulu, HI 96813 DATED: Honolulu, Hawaii, this 27t1~ day of January, 2012.

Is! William Lee JOHN J. D’AMATO 31
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Case 1:1 1-cv-00734-ACK-KSC Document 6

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PagelD #: 67

JOHN T. MALONEY, Jr.
WILLIAM LEE Attorneys for Plaintiffs NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY

32
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APPEAL

U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:11-cv-00734-ACK-KSC

Jackson et al v. Abercrombie et al Assigned to: JUDGE ALAN C KAY Referred to: JUDGE KEVIN S.C. CHANG Case in other court: 9CCA, CA 12-16995 9CCA, CA 12-16998 Cause: 28:2201 Constitutionality of State Statute(s) Plaintiff Natasha N. Jackson

Date Filed: 12/07/2011 Date Terminated: 08/08/20 12 Jury Demand: None Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question
-

represented by John J. D’Amato D’Amato & Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546-5200 Fax: 546-5203 Email: jdamato@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED John T. Maloney , Jr DAmato & Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546-5200 Fax: 546-5203 Email: tmaloney@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED William Lee D’Amato & Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546-5200 Fax: 546-5203 Email: wlee@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Dkt:1

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Plaintiff Janin Kleid represented by John J. D’Amato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED John T. Maloney , Jr (See above for address) LEAD ATTORNEY ATTORNEY TOBE NOTICED William Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
V V

V

Plaintiff Gary Bradley

represented by John J. D’Amato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED William Lee (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Neil S. Abercrombie Governoi State of Hawaii’i represented by Girard D. Lan Office of the Attorney General-Hawaii 425 Queen St Honolulu, HI 96813 586-1500 Email: girard.d.lau @hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Harvey E. Henderson, Jr. Department of the Attorney General 425 Queen Street Honolulu, HI 96813 586-1219 Email: harvey.e.hendersonjr @hawaii.gov LEAD ATTORNEY

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ATTORNEY TO BE NOTICED Robert T. Nakatsuji Department of the Attorney General-State of Hawaii 425 Queen St Honolulu, 111 96813 (808) 536-1360 Fax: (808) 586-1237 Email: robert.t.nakatsuji @hawaii.gov ATTORNEY TO BE NOTICED

-

Defendant Loretta J. Fuddy Directo, Department of Health, State of Hawaii ‘i represented by Daniel A. Morris Office of the Attorney General-State of Hawaii Kekuanao’a Building 465S King St Rm 300 Honolulu, HI 96813 587-2983 Email: Daniel.A.Morris@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Rebecca Estrada Quinn Department of Commerce and Consumer Affairs 335 Merchant Street, Ste 205 Honolulu, HI 96813 586-2740 Email: Rebecca.E.Quinn @hawaii.gov TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED William J. Wynhoff Office of the Attorney General-State of Hawaii Kekuanao’a Building 465S King St Rm 300 Honolulu, HI 96813 587-2985 Email: bill.j .wynhoff@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Dkt:3

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V. Intervenor Defendant Hawaii Family Forum represented by Dale Schowengerdt Alliance Defense Fund 15100 N. 90th Street Scottsdale, AZ 85260 480-444-0020 Email: dale@telladf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Lloyd James Hochberg , Jr. Topa Financial Center 745 Fort St., Suite 1201 Honolulu, HI 96713 534-1514 Email: jim@JamesHochberglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Brian W. Raum Alliance Defense Fund l5lOON9OthSt Scottsdale, AZ 85260 (480) 444-0020 Fax: (480) 444-0028 Email: braum@telladf.org PRO HAC VICE ATTORNEY TO BE NOTICED Holly L. Carmichael Alliance Defense Fund l5lOON9OthSt Scottsdale, AZ 85260 (480) 444-0020 Fax: (480) 444-0028 Email: hcarmichael@telladf.org PRO HAC VICE ATTORNEY TO BE NOTICED Amicus

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Equality Hawaii

represented by Clyde J. Wadsworth Alston Hunt Floyd & Ing 1001 Bishop St Ste 1800 Honolulu, HI 96813 (808) 524-1800 Email: cwadsworth@ahfi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Paul Aiston Aiston Hunt Floyd & Ing 1001 Bishop Street Suite 1800 Honolulu, HI 96813 524-1800 Email: palston@ahfi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Hawai’i LGBT Legal Association represented by Clyde J. Wadsworth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Paul Aiston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed 12/07/2011 12/07/2011 # 1 Docket Text COMPLAINT, filed by Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Summons (issued), # 2 Civil Cover Sheet)(eps) (Entered: 12/07/2011) JUDGE KEVIN S.C. CHANG.. by JUDGE SUSAN OKI MOLLWAY dated 12/7/11. (Attachments: # .1. Memo re: Corporate Disclosure Statements)(eps) (Entered: 12/07/2011) 12/07/2011 12/08/20 11 3 Filing fee: $ 350.00,receipt number HI001985 re 1 (eps) (Entered: 12/07/2011) 4 SUMMONS Returned Executed by Natasha N. Jackson, Janin Kleid. Neil S. Abercrombie served through Kendall J Moser, Deputy Atty General on 12/7/2011. (eps) (Entered: 12/08/2011)
.

2 Order Setting Rule 16 Scheduling Conference for 09:OOAM on 3/12/2012 before

~ 12/08/2011

5

SUMMONS Returned Executed by Natasha N. Jackson, Janin Kleid. Loretta J. Fuddy served through Kendall J Moser, Deputy Attorney General on 12/7/2011.

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(eps). (Entered: 12/08/2011) 01/27/2012 6 AIVIENDED COMPLAINT; Certificate of Service against All Defendants, filed by Natasha N. Jackson, Janin Kleid, Gary Bradley.(Lee, William) (Entered: 01/27/2012)

02/15/20 12

j

7 EO: By agreement of counsel, Rule 16 Scheduling Conference set 3/12/12 shall be continued to 09:OOAM on 4/17/2012 before JUDGE KEViN S.C. CHANG. Harvey Henderson to notify all parties. (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 02/15/2012) 9 ANSWER to ~ First Amended Complaint ; Certificate of Service by Neil S. Abercrombie.(eps) (Entered: 02/21/2012) 10 ANSWER to 6 First Amended Complaint; Certificate of Service by Loretta J. Fuddy.(eps) (Entered: 02/21/2012)

02/21/20 12 02/21/2012 02/22/20 12
~

II
•._~.___.._.____~

Errata Sheet to ANSWER; Certificate of Service re ~ First Amended Complaint on behalf of Defendant Neil S. Abercrombie. (eps) (Entered: 02/22/2012)
~.~._~~._—____ ~~~_._~.__.___ —V...’ ~~____ ~ -

03/01/2012

03/01/2012

f

12 APPLICATION TO APPEAR Pro Hac Vice Lloyd James Hochberg, Jr (local counsel) and Brian W Raum (PHV) requesting to appear as to Intervenor Defendant Hawaii Family Forum (Attachments: # 1 Declaration of Counsel, #2 Certificate of Service)(eps) (Entered: 03/01/2012) 13 APPLICATION TO APPEAR Pro Hac Vice :Lloyd James Hochberg, Jr (Loc al Counsel) and Holly L Carmichael (PHV) requesting to appear for Intervenor Defendant Hawaii Family Forum (Attachments: # ~ Declaration of Counsel, #2 Certificate of Service)(eps) (Entered: 03/01/2012)

03/01/2012

14 Filing fee: $ 300.00,receipt number H10029 11, $ 300.00 receipt number H1002912 re 12 BRIAN W RAUM Pro Hac Vice, 13 HOLLY L CARMICHAEL Pro Hac Vice (eps) (Entered: 03/01/2012)

03/01/2012

i~

MOTION to Intervene Lloyd James Hochberg, Jr appearing for Intervenor Defendant Hawaii Family Forum (Attachments: #1 Declaration, #2 Exhibit A, # 3 Exhibit B, #4 Corporate Disclosure Statement, # ~ Certificate of Service)(eps) (Entered: 03/01/2012)
-

03/01/2012 03/02/20 12 ~

j~ PROPOSED ANSWER In Intervention of Hawaii Family Forum by Hawaii Family Forum.(eps) (Entered: 03/01/2012)
* ~ ~ ~ ~ -‘----~------

17 NOTICE of Hearing on Motion ~ Intervenor Defendant Hawaii Family Forum’s MOTION to Intervene set for 4/30/20 12 10:00 AM before JUDGE ALAN C KAY. (lls, )
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry.

(Entered: 03/02/20 12)

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03/14/20 12

18

ORDER ADMITTING BRIAN W. RAUM PRO HAC VICE re 12. Signed by JUDGE KEVIN S.C. CHANG on 03/14/20 12. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first clase mail on the date of this docket entry

(Entered: 03/14/2012)
~ ~ ~

03/14/2012

19 ORDER ADMITTING HOLLY L. CARMICHAEL PRO HAC VICE 13. Signed by JUDGE KEVIN S.C. CHANG on 03/14/20 12. (eps)

-

I

CERTIFICATh OF SERVICE Participants registered to receive electronic notifications received this document electronically at the s-mall address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mall on the date of this docket entry

(Entered: 03/14/20 12)

03/23/2012 03/29/20 12

20 REPORT of Planning Meeting; Certificate of Service. (Lee, William) (Entered: 03/23/2012) 22 FIRST STPULATION Regarding Deadline For Making Initial Disclosures AND ORDER. Signed by JUDGE KEVIN S.C. CHANGon 03/29/20 12. (eps) the time for making initial disclosures shall be set for 30 days after the court files its written order granting or denying Hawaii Family Forum’s motion to intervene
--

,

~

CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on 03/30/2012

(Entered: 03/29/2012)

04/09/20 12
I

~ MEMORANDUM in Support re j~ MOTION to Intervene and certificate of service filed by Loretta J. Fuddy. (Wynhoff, William) (Entered: 04/09/20 12)
— ~ .—

04/09/20 12

.

24 MEMORANDUM in Opposition re 15 MOTION to Intervene filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration Declaration of John J. D’Amato, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(D’Amato, John) (Entered: 04/09/20 12)
~___._._._____.______ ~—~--~ p-_~ ~ ~—

*

04/09/20 12

25 Additional Exhibits to ~4 Memorandum in Opposition to Motion, Certificate of Service filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # lExhibitP, #2Exhibit Q (1 of 4), #3 Exhibit Q (2 of 4), #4Exhibit Q (3 of 4), #
~

Q (4 of 4), #6 Exhibit R (1 of 2), #7 Exhibit R (2 of 2), #8 ExhibitS, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X, # 14 Exhibit Y)(D’Amato, John) (Entered: 04/09/20 12)
5 Exhibit

04/09/2012 04/09/2012

~ REQUEST for Judicial Notice; Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D’Arnato, John) (Entered: 04/09/20 12)

~7. MEMORANDUM in Opposition To re ~ MOTION to Intervene of Hawaii
Family Forum filed by Neil S. Abercrombie. (Attachments: # 1 Table of Contents, #2 Table of Authorities, # ~ Memorandum In Opposition, #4 Declaration of Robert T Nakatsuji, #5 Exhibit A, #6 Exhibit B, #7 Exhibit C, #
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8 Exhibit D, # 9 Exhibit E, # j~ Certificate of Service)(eps) (Entered: 04/09/2012) 04/10/20 12 28 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid re 24 Memorandum in Opposition to Motion, (Lee, William) (Entered: 04/10/20 12) Scheduling Conference Statement Certz~ficate of Service. (DAmato, John) (Entered: 04/10/2012)

04/10/2012 04/10/2012 04/10/20 12 04/1 1/20 12 04/12/20 12

29

30 Scheduling Conference Statement and certi~ficate of service. (Wynhoff, William) ntered:04/10/2012)
~

31

Scheduling Conference Statement; Certificate of Service on behalf of Defendant Neil S Abercrombie. (eps) (Entered: 04/10/2012)

32 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid re: Campaign Spending Comm’n (D’Amato, John) (Entered: 04/11/20 12)

1

33

CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Depo Campaign Spndng Comm’n (D’Amato, John) (Entered: 04/12/20 12)

04/16/20 12

~ REPLY to Response to Motion re j~ MOTION to Intervene filed by Hawaii Family Forum. (Attachments: # j~ Declaration of James Hochberg, # 2 Exhibit A)(Raum, Brian) (Entered: 04/16/2012) 35 EP: Rule 16 Scheduling Conference held on 4/17/20 12. Rule 16 Scheduling Conference Order to be issued. Court informed counsel for Defendant Fuddy that upon the filing of the Motion for Summary Judgment, Judge Kay will schedule the motion for 7/24/12. Bench Trial set for 4/23/2013 09:00 AM before JUDGE ALAN C KAY Final Pretrial Conference set for 3/12/2013 09:00 AM before JUDGE KEVIN S.C. CHANG. Settlement Conference set for 1/15/2013 11:00 AM before JUDGE KEVIN S.C. CHANG. Motions due by 11/21/2012. Discovery due by 2/22/2013. ( C5 no record, 9:05-9:lOam.) (JUDGE KEVIN S .C. CHA.NG)(sna, )No COS issued for this docket entry (Entered: 04/17/2012)
-

04/17/20 12

04/17/2012
~

~ Rule 16 SCHEDULING ORDER:. Signed by JUDGE KEVIN S.C. CHANG on 04/17/2012. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 04/17/2012)

04/19/2012

37 EO: Status Conference Re: filing of cross motion for summary judgment set for 4/20/20 12 11:15 AM before JUDGE KEVIN S.C. CHANG. John D’Amato has notified all parties. (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 04/19/2012) 38
,

04/19/20 12

Ps’ 1st Req for Ans to Interrogs (DAmato, John) (Entered: 04/19/2012)

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04/20/2012

1

~ EP: Status Conference Conference Re: filing of cross motion for summary judgment held on 4/20/20 12. Discussion held. Counsel agree to the following deadlines: 6/15/12: deadline to file Motions for Summary Judgment which will be heard by Judge Kay on 7/24/12. 6/29/12: deadline to file opposition and/or counter motions, if any. 7/10/12: reply deadline. (C5 no record, 11:30-11 :4Oam.) (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 04/20/2012)
-

04/24/20 12

40 SUPPLEMENT re 15 MOTION to Intervene filed by Hawaii Family Forum by Hawaii Family Forum (pursuant to Local Rule 7.8). (Attachments: # 1 Order, # 2 Form 990, # 3 Certificate of Service)(Raum, Brian) (Entered: 04/24/20 12) CORRECTIVE ENTRY. The entry docket number 4Q Supplement filed by Hawaii Family Forum is filed incorrectly in this case. The Main Document is incorrectly formatted. The Main Document is submitted in Letter Form rather than Pleading Form. Please refer to LR1O.2 (b) and (c).
The filing party shall re-submit a corrected filing.

04/25/2012

(eps) (Entered: 04/25/2012)

04/25/2012
~

ADVISORY ENTRY. The entry docket number 4Q Supplement filed by Hawaii Family Forum pursuant to LR 7.8 is a Letter. The general practice is as follows: Letters to the Court are submitted via e-mail (refer to LR.100.9.3 for the hearing judge’s e-mail) or by Fax (refer to USDC website, Judge’s Contact List). Subsequently, at the Court’s direction, the letter is entered on the docket by the Clerk’s Office. The filing party is advised that no further follow-up action as to this entry is
necessary.

(eps) (Entered: 04/25/2012)

V

~

04/25/20 12

41 ~

j
04/30/2012

SUPPLEMENT re 24 Memorandum in Opposition to Motion, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson by Gary Bradley, Natasha N. Jackson, Janin Kleid; Certificate of Service. (Attachments: # 1 Exhibit A)(D’Amato, John) (Entered: 04/25/2012)
V -

42 EP: Motion Hearing held on 4/30/2012 re 15 MOTION to Intervene filed by Hawaii Family Forum-Oral Discussion Held. Motion is hereby Granted. Court to issue a written Order.(Court Reporter Gloria Bediamol.) (JUDGE ALAN C KAY)(lls, )No COS issued for this docket entry (Entered: 04/30/2012)

05/02/20 12
V

4~

ORDER GRANTING HAWAII FAMILY FORUMS MOTION TO INTERVENE re, Signed by JUDGE ALAN C KAY on 05/02/20 12. (eps)
.

CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 05/02/20 12)

05/09/20 12 05/11/20 12 05/11/20 12

44 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Req for Ans to Written Interrogs HFF (DAmato, John) (Entered: 05/09/20 12) 45 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Depo. on Written Qs KITV (D’Amato, John) (Entered: 05/1 1/20 12)

46 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KGMB (DAmato, John) (Entered: 05/1 1/20 12) Dkt:9

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05/11/2012

47

CERTiFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid
Notice of Taking Depo. on Written Qs KFVE (DAmato, John) (Entered:

05/11/2012) 05/11/2012
.

48

CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid
Notice of Taking Depo. on Written Qs KHON (DAmato, John) (Entered:

05/1 1/20 12) 05/1 1/20 12 49 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KHNL (D’Amato, John) (Entered: 05/11/2012) 50 MOTION for Pro Hac Vice of Dale Schowengerdt Brian W. Raum appearing for Intervenor Defendant Hawaii Family Forum (Raum, Brian) (Entered: 05/18/20 12)

05/18/20 12

05/18/20 12
~

51

CERTIFICATE OF SERVICE by Loretta J. Fuddyfor answers and objections to plaintiffs’ interrogatories (Wynhoff, William) (Entered: 05/18/20 12)

05/21/2012 ~ 05/22/20 12
~ ~

52 Filing fee: $ 300.00,receipt number H1003828 re50 Pro Hac Vice of Dale Schowengerdt (eps) (Entered: 05/21/2012) 53 ORDER ADMITTING DALE SCHOWENGERDT PRO HAC VICE by JUDGE KEVIN S.C. CHANG on 05/22/2012. (eps)
~.

Signed

CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 05/22/2012)

05/23/2012

54 TRANSCRIPT of Proceedings Intervenor Dft. HFF Mt. to Intervene held on 4-30-12, before Judge Alan C. Kay. Court Reporter/Transcriber Gloria T. Bediamol, Telephone number (808) 541-2060. Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 6/1 1/20 12. Redacted Transcript Deadline set for 6/20/2012. Release of Transcript Restriction set for 8/20/2012. pp. 47. ~ (gb @hid.uscourts.gov) (Entered: 05/23/2012)
-

05/30/20 12 06/01/2012

55

CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Plaintiffs’ Initial Disclosures (D’Amato, John) (Entered: 05/30/2012)

56 NOTICE of Appearance by Dale Schowengerdt on behalf of,Hawaii Family Forum on behalf of Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/01/2012)

06/01/2012 06/01/2012

~7 CERTIFICATE OF SERVICE by Hawaii Family Forum for Rule 26(a) Initial
Disclosures (Schowengerdt, Dale) (Entered: 06/01/2012)

58 INITIAL DISCLOSURES; Certificate of Service by Neil S. Abercrombie. (eps) (Entered: 06/01/2012) Dkt:10

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06/01/20 12 06/12/20 12
I

59 CERTIFICATE OF SERVICE by Loretta J. Fuddy for initial disclosures (Wynhoff, William) (Entered: 06/01/2012) 60 CERTIFICATE OF SERVICE by Hawaii Family Forumfor Responses and Objections to Plaintiffs’ First Set of Discovery Requests (Schowengerdt, Dale) (Entered: 06/12/2012) 61 MOTION for Leave to File Excess Pages Dale Schowengerdt appearing for Intervenor Defendant Hawaii Family Forum (Schowengerdt, Dale) (Entered: 06/13/2012)

06/13/2012

06/14/20 12 ~

62 ORDER GRANTING LEAVE TO EXCEED WORD LIMITATION 61. Signed by JUDGE ALAN C KAY on 06/14/2012. (eps) Defendant-Intervenor Hawaii Family
--

Forum shall be permitted to file a memorandum of law in support of its motion for summary

judgment of not more than 10,600 words.
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 06/14/20 12)

06/15/20 12

63 MOTION for Summary Judgment William J. Wynhoff appearing for Defendant Loretta J. Fuddy (Attachments: # I Memorandum in support of motion, # 2 certificate of compliance, # certificate of service)(Wynhoff, William) (Entered: 06/15/2012)
~.

06/15/20 12

64 CONCISE STATEMENT in Support re ~ MOTION for Summary Judgment ~ filed by Loretta J. Fuddy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit ~ 3, #4 Declaration of Loretta J. Fuddy, # 5 Declaration of William J. Wynhoff, # 6 certificate of service)(Wynhoff, William) (Entered: 06/15/2012)

06/15/20 12

~ MOTION for Summary Judgment ;Cert~ficate of Compliance; Certificate of Service John J. D’Amato appearing for Plaintiffs Gary Bradley, Natasha N. Jackson, Janin Kleid (Attachments: #1 Memorandum In Support of Plaintiffs’ ~ Motion)(D’Amato, John) (Entered: 06/15/2012) ~ CONCISE STATEMENT in Support re ~ MOTION for Summary Judgment
; Certificate of Compliance; Certificate of Service Certificate of Service (CSF)

06/15/20 12

filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration Of John J. D’Amato, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, # 10 Exhibit I)(D’Amato,_John)_(Entered: 06/15/20 12) 06/15/20 12

~7 MOTION for Summary Judgment Dale Schowengerdt appearing for Intervenor
Defendant Hawaii Family Forum (Attachments: # 1 Memorandum in Support) (Schowengerdt, Dale) (Entered: 06/15/2012)

06/15/20 12

~ CONCISE STATEMENT in Support re ~7 MOTION for Summary Judgment ~ filed by Hawaii Family Forum. (Attachments: # 1 Declaration, #2 Exhibit 1, #3 ~ Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, J #9 Exhibit 8, #10 Exhibit 9, # 11 Exhibit 10, #12 Exhibit 11, #13 Exhibit 12, # Dkt:11

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14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, #20 Exhibit 19, # ~j Exhibit 20)(Schowengerdt, Dale) (Entered: 06/15/2012) 06/15/20 12 69 Additional Exhibits to ~i. MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # 1 Exhibit 21, #2 Exhibit 22, #3 Exhibit 23, #4 Exhibit 24, #5 Exhibit 25)(Schowengerdt, Dale) (Entered: 06/15/2012) 70 Additional Exhibits to 67 MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # ~

06/15/20 12

1 Exhibit 26, #2 Exhibit 27, #3 Exhibit 28, #4 Exhibit 29, #5 Exhibit 30)(Schowengerdt, Dale) (Entered: 06/15/2012) Additional Exhibits to ~2 MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, #4 Exhibit 34)(Schowengerdt, Dale) (Entered: 06/15/2012)

06/15/20 12

71

06/15/2012

j

72 NOTICE of Hearing on Motions ~7 Intervenor Defendant Hawaii Family Forum’s MOTION for Summary Judgment, 63 Defendant Loretta J. Fuddy’s MOTION for Summary Judgment and 65 Plaintiffs Gary Bradley, Natasha N. Jackson and Janin Kleid’s MOTION for Summary Judgment set for Court Hearings on 7/24/20 12 at 10:00 AM before JUDGE ALAN C KAY. (lis,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry.
*

(Entered: 06/15/2012)

06/19/20 12

7~. TRANSCRIPT of Proceedings Intervenor Dft. Hawaii Family Forum’s Mt. to Intervene held on April 30, 2012, before Judge Alan C. Kay. Court
-

Reporter/Transcriber Gloria T. Bediamol, Telephone number (808) 541-2060.

Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1 (a) and FRBP 9037(a) Redaction Request due 7/9/20 12. Redacted Transcript Deadline set for 7/17/2012. Release of Transcript Restriction set for 9/14/2012. pp. 47. (gb@hid.uscourts.gov) (Entered: 06/19/20 12)
06/20/2012

74 MOTION for Leave to File A Single Combined Memorandum of 25,000 Words, In Support Of His Countermotion And In Opposition Or Response To All Three Parties’ Motions Girard D. Lau, Robert T. Nakatsuji, Harvey E. Henderson, Jr ~ appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Declaration of Girard D Lau, # 2 Certificate of Service)(eps) (Entered: 06/20/20 12)
-

06/20/2012

7~ EO: The Court GRANTS Defendant Abercrombies request filed 6/20/2012 (Doc.
No. 74), to file a single combined memorandum of 25,000 words in support of his

countermotion and in opposition or response to all three motions for summary judgment. In granting this request, the Court notes that under Local Rule 7.9: A Dkt:12

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partys memorandum in support of the counter motion must be combined into one document with the partys memorandum in opposition to the original motion and may not exceed the page or word limit for an opposition absent leave of court. The opposition to the counter motion shall be served and filed together with anyreply in support of the original motion in accordance with LR 7.4. A partys opposition to the counter motion must be combined into one document with that partys reply in support of the original motion and may not exceed the page limit for a reply absent leave of court. In other words, the other parties each will be limited under Local Rule 7.5 to a combined opposition and reply memorandum of not more than 4,500 words unless otherwise authorized by the Court. (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received thie document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 06/21/2012)

06/25/20 12

76 MOTION for Leave to File Excess Pages and Single Opposition to Motions for
Summary Judgment of Defendant Director Fuddy and Defendant-Intervenor Hawaii Family Forum; Certificate of Service John I. D’Amato appearing for

~
~‘

Plaintiffs Gary Bradley, Natasha N. Jackson, Janin Kleid (D’Amato, John) (Entered: 06/25/20 12)

06/26/2012

77 EO: The Court grants Plaintiffs unopposed motion to file a single opposition of 12,200 words in response to the motions for summary judgment of Defendant Director Fuddy and Defendant-Intervenor Hawaii Family Forum (Doc. No. 76). (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 06/26/20 12)

06/29/20 12

I

7~ MEMORANDUM in Opposition to Plainqffs’ Motionfor Summary Judgment filed by Loretta J. Fuddy. (Attachments: #1 Certificate of Service)(Quinn,
Rebecca) (Entered: 06/29/20 12) 79 RESPONSE to Plaintiffs’ Concise Statement ofFacts in support of Motion for Summary Judgment filed by Loretta J. Fuddy. (Attachments: # 1 Declaration of William J. Wynhoff, # 2: RESTRICTED FROM PUBLIC VIEW Exhibit 4, #3 Certificate of Compliance, #4 Certificate of Service)(Quinn, Rebecca) Modified on 7/2/2012 : restricting Exhibit 4 because it is a transcript that has not been released for public viewing ~4 (eps). (Entered: 06/29/2012)

06/29/20 12

06/29/20 12

.~Q STATEMENT of No Opposition to Defendant-Intervenor Hawaii Family Forum’s
Motion for Summary Judgment filed by Loretta J. Fuddy. (Attachments: #1

Certificate of Service)(Quinn, Rebecca) (Entered: 06/29/2012)
— — ~ ~ ~

06/29/20 12

81

NOTICE of Appearance by Clyde J. Wadsworth on behalf of Equality Hawai’i, Hawai’i LGBT Legal Association on behalf of Equality Hawai’i, Hawai~i LGBT Legal Association. (Wadsworth, Clyde) (Entered: 06/29/2012) Dkt:13

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~ MEMORANDUM in Opposition re ~ MOTION for Summary Judgment ; Certificate of Compliance; Certificate of Service filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/2012) 83 MOTION LEAVE TO FiLE BRIEF OF AMICI CURIAE EQUALITY HAWAPI AND HAWAI’I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS? OPPOSITION TO DEFENDANT LORETTA J. FUDDY AND DEFENDANT-INTERVENOR HAWAII FAMILY FORUM’S MOTIONS FOR SUMMARY JUDGMENT re 67 MOTION for Summary Judgment, 65 MOTION for Summary Judgment ;Certificate of Compliance; Certificate of Service, 63 MOTION for Summary Judgment Clyde J. Wadsworth appearing for Defendant Equality Hawai’i, Amicus Hawai’i LGBT Legal Association (Attachments: #1 Brief of Amici Curiae Equality Hawai’i and Hawai’i LGBT Legal Association in Support of Plaintiffs’ Opposition to Defendants Loretta I. Fuddy and Hawaii Family Forum’s Motions for Summary Judgment, #2 Certificate of Service) (Wadsworth, Clyde) (Entered: 06/29/20 12) Concise Statement in Opposition re ~ Concise Statement in Support of Motion, filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/2012) 85 STATEMENT of No Opposition re ~ MOTION for Summary Judgment filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/20 12) ~ MEMORANDUM in Opposition re ~ MOTION for Summary Judgment, ~ MOTION for Summary Judgment; Certificate of Service filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D’Amato, John) (Entered: 06/29/20 12) 89 CONCISE STATEMENT OF Facts in Opposition To Defendant Loretta J Fuddy’s 63 MOTION for Summary Judgment ; Certificate of Service filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
-

____________

06/29/20 12

06/29/2012 06/29/2012 06/29/20 12 ~ 06/29/20 12

06/29/2012

9Q CONCISE STATEMENT Of Facts in Opposition To Defendant-Intervenor Hawaii Family Forum’s ~7 MOTION for Summary Judgment ; Certificate of
Service filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
-

06/29/20 12 j 06/29/20 12

91

CONCISE STATEMENT of Facts In Response To Plaintiffs’ 65 MOTION for Summary Judgment Re: Count Two: Violation Of Plaintiffs’ Right To Equal Protection; Certificate of Service filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
-

9~ COUNTERMOTION for Partial Summary Judgment Girard D. Lau, Robert T.
Nakatsuji, Harvey E. Henderson, Jr appearing for Defendant Neil S. Abercrombie (Attachments: # Memorandum In Support of Defendant Governor Neil S Abercrombie’s CounterMotion For Partial Summary Judgmeint, In Response To Plaintiffs’ Motion For Summary Judgment Re Count Two, And In Opposition To Defendant Loretta J Fuddy’s And Defendant-Intervenor Hawaii Family Forum’s Motions For Summary Judgment, # ~ Certificate of Compliance, # 3 Certificate of Service)(eps) (Entered: 07/02/2012) Dkt:14

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06/29/2012

93

CONCISE STATEMENT Of Facts in Support Of Defendant Governor Neil S Abercrombie’s ~ COUNTER-MOTION for Partial Summary Judgment filed by Neil S. Abercrombie. (Attachments: # 1 Declaration of Girard D Lau, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit 0, # 17 Declaration Of Gregory M Herek, Ph.D, # 18 Exhibit A, # 19 Exhibit B, #20 Declaration of George Chauncey, Ph.D, # ~j. Chauncey Bibliography, #22 Exhibit A, #23 Declaration of Michael E Lamb, Ph.D, # .~4 Lamb Bibliography, #25 Exhibit A, #26 Exhibit B, #27 Declaration of Gary M Segura, Ph.D, #28 Exhibit A, #29 Exhibit B, # 30 Certificate of Service)(eps) (Entered: 07/02/20 12)

07/02/20 12

j
07/02/20 12

87 CONCISE STATEMENT in Opposition re 67 MOTION for Summary Judgment, 63 MOTION for Summary Judgment Response to Concise Statement ofFacts of • Defendant Fuddy and Defendant-Intervenor Hawaii Family Forum; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D’Amato, John) (Entered: 07/02/20 12)

88 Errata re 83 MOTION LEAVE TO FILE BRIEF OF AMICI CURIAE EQUALITY HAWAI’I AND HAWAI’I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT LORETTA I. FUDDY AND DEFENDANT-INTERVENOR HAWAII FAMILY FORUM’S ~ MOTIONS FOR SUMMARY JU. (Attachments: # .]. [CORRECTED] Pages 8 ~ and 9 of BRIEF of Amici Curiae, #2 Certificate of Service)(Wadsworth, Clyde) (Entered: 07/02/2012) 94 EO: The Court GRANTS Equality Hawaii and Hawaii LGBT Legal Association’s motion for leave to file brief of amici curiae (Doc. No. 83).(JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

07/02/20 12

(Entered: 07/03/2012)

07/03/2012

95 NOTICE of Hearing on Motion ~ Defendant Neil S. Abercrombie’s COUNTER MOTION for Partial Summary Judgment set for Court Hearing on 7/24/20 12 at 10:00 AM before JUDGE ALAN C KAY. (us,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on

[

-~

07/03/2012

thedate~titisdeckten~(Entered~ 07/03/2012) 96 MEMORANDUM re 86 Memorandum in Opposition to Motion [BRIEF OF AMICI CURIAE EQUALITY HAWAJ’I AND HAWAJ’I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS LORETTA J. FUDDY AND HAWAII FAMILY FORUM’S MOTIONS FOR SUMMARY JUDGMENT] filed by Equality Hawai’i, Hawaii LGBT Legal Association. (Wadsworth, Clyde) (Entered: 07/03/2012)

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07/09/2012

~7 MOTION for Leave to File Excess Pages Dale Schowengerdt appearing for
Intervenor Defendant Hawaii Family Forum (Schowengerdt, Dale) (Entered: 07/09/2012)

07/09/2012

98

EO: The Court grants 27 Hawaii Family Forum’s unopposed motion to file a combined opposition to Defendant Abercrombie’s motion for summary judgment, reply to Plaintiffs’ opposition, and response to the brief of Amici Equality Hawaii, not to exceed 12,000 words. (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered so receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 07/09/2012)

07/10/2012

99

RESPONSE re ~ Concise Statement in Support of Motion,,, Response to Defendant Governor Neil S. Abe rcrombie~ Concise Statement of Facts (ECF 93) filed by Loretta J. Fuddy. (Attachments: # j~ Declaration of William J. Wynhoff, # 2 Exhibit 5, # 3 Certificate of Service)(Quinn, Rebecca) (Entered: 07/10/2012)

07/10/20 12

100 MEMORANDUM re 96 Memorandum, ~ Memorandum in Opposition to Motion, 92 COUNTER-MOTION for Partial Summary Judgment Consolidated
Memorandum in Opposition and Reply to 1) Defendant Governor Neil S. Abercrombie ‘s Countermotion for Partial Summary Judgment (ECF 92); 2) Plaint~ffs’Memorandum in Opposition (ECF 86); and Brief ofAmici Curiae (ECF 96) filed by Loretta J. Fuddy. (Attachments: # 1 Certificate of Compliance, # 2 Declaration of William J. Wynhoff Re FRCP 56(d), # 3 Certificate of Service)

(Quinn, Rebecca) (Entered: 07/10/2012) 07/10/20 12 101 REPLY re MOTION for Summary Judgment, 92 COUNTER-MOTION for Partial Summary Judgment filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 07/10/2012) filed by Hawaii Family Forum. (Attachments: # 1 Declaration, #2 Exhibit 35, # 3 Exhibit 36, #4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, #7 Exhibit 40)(Schowengerdt, Dale) (Entered: 07/10/2012) 07/10/2012 ~ REPLY re ~7 Memorandum in Opposition to Motion; Certificate of Compliance; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Exhibit A, #2 Declaration John D’Amato)(D’Amato, John)
j~Q~

07/10/20 12

~ Concise Statement in Opposition re 2~. Concise Statement in Support of Motion,,,

07/10/2012

(Entered: 07/10/2012) REPLY re 7~ Memorandum in Opposition to Motion; Certificate of Compliance; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration John D’Amato)(D’Amato, John) (Entered: 07/10/2012) Summary Judgment; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D’Amato, John) (Entered: 07/10/20 12) Dkt:16

07/10/20 12

i~Q~ STATEMENT of No Opposition re 9~ COUNTER-MOTION for Partial

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07/11/2012

j~ MOTION for Leave to File A Reply Memorandum Of 10,000 Words, In Support Of His Countermotion Girard D. Lau, Robert T. Nakatsuji, Harvey E. Henderson, Jr appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Declaration of Girard D Lau, # 2 Certificate of Service)(eps) (Entered: 07/11/2012)
-~

07/12/2012

107 EO:The Court grants Defendant Abercrombie’s unopposed motion for leave to file a single reply memorandum of 10,000 words in support of his countermotion (Doc. No. 106). (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 07/12/2012)

~

07/17/20 12

108 REPLY MEMORANDUM in Support Defendant Governor Neil S Abercrombie’s 92 MOTION for Partial Summary Judgment filed by Neil S. Abercrombie. (Attachments: # 1 Certificate of Compliance With Word Count Limitation, #2 Declaration of Girard D Lau, #3 Exhibit P, #4 Exhibit Q, #5 Exhibit R, #6 Certificate of Service)(eps) (Entered: 07/17/2012) 109 EO: The Court concludes that it will be helpful to set forth the order of and time allotment for presentations at the hearing on the parties three motions and one countermotion for summary judgment set for Tuesday, 7/24/20 12. The Court will initially hear arguments on Hawaii Family Forums (HFF) Motion to Dismiss Defendant Abercrombie. As it is HFFs motion, they may present their argument first, followed by Defendant Abercrombie and any other party that wishes to present argument on this issue. The Court will allow each party five minutes to present argument on this motion. 11FF will have an additional three minutes for rebuttal. With respect to the summary judgment motions and countermotion, the Court will allow each party to have thirty minutes total. This allowance includes initial presentation and rebuttal arguments. The order of arguments, based on the order in which the motions were filed, will be as follows: (1) Defendant Fuddy, (2) Plaintiffs, (3) HFF, and (4) Defendant Abercrombie. After the initial arguments, the Court will allow amici curiae, Equality Hawaii and Hawaii LGBT Legal Association, to present ten minutes total of argument in support of their amicus brief if they wish to do so. The parties will then be allowed to present rebuttal arguments. The order of rebuttal arguments will be slightly modified as follows: (1) HFF, (2) Defendant Abercrombie, (3) Plaintiffs, and (4) Defendant Fuddy. Accordingly, if each party uses all of the time allowed, the hearing will last over two hours. (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

07/18/2012

(Entered: 07/18/2012)

07/20/20 12

jj~ Errata re 103 Reply, Corrected Page 10 to Reply to Hawaii Family Forum; Certificate of Service;. (D’Amato, John) (Entered: 07/20/20 12) Dkt:17

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07/20/20 12

111

EO: Motions for Summary Judgment are set for Court Hearing on Tuesday, 7/24/2012 at 10:00 a.m. before the Honorable Alan C. Kay. The following listed Attorneys are authorized to bring into the courthouse their laptops for the purpose of use at the Court Hearing. This Court Hearing will take place in Courtroom Aba Kaulike on the 4th Floor of the PJKK U.S. Courthouse Building. List of Attorneys:John J. DAmato, Dale Schowengerdt, Clyde J. Wadsworth and William J. Wynhoff (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 07/20/2012)
~ ~

*

~

07/24/20 12

112 EP: Evidentiary Hearing/Dispositive Motions Hearing held on 7/24/20 12- Oral Discussion Held. Intervenor Defendant Hawaii Family Forums Motion to Dismiss ~ (Doc. 67), Defendant Loretta J. Fuddys Motion for Summary Judgment (Doc. 63),Plaintiffs Motion for Summary Judgment (Doc. 65), Intervenor Defendant Hawaii Family Forums Motion for Summary Judgment (Doc. 67) and Defendant Neil S. Abercrombies CounterMotion for Partial Summary Judgment (Doc.92) All Motions’ are hereby taken under advisement. (Court Reporter Debra Chun.) (JUDGE ALAN C KAY)(lls, )No COS issued for this docket entry (Entered: 07/24/2012)
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07/30/20 12

113 MOTION for Leave to File 1 1/2 Page Supplemental Memorandum To Fully Respond To Court’s Question Girard D. Lau appearing for Defendant Neil S. Abercrombie (Attachments: # ~ Exhibit 1, # Certificate of Service)(eps) (Entered: 07/30/20 12)
.~ -

07/3 1/20 12

114 EO: The Court grants Defendant Abercrombies motion for leave to file a supplemental memorandum to respond to one of the Courts questions (Doc. No. 113). The Court has considered the matter and directs the parties not to file any further memorandums. (JUDGE ALAN C KAY)(lls,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry (Entered: 07/3 1/20 12) f*~ ll~ SUPPLEMENTAL MEMORANDUM filed by Neil S. Abercrombie. (eps)

07/31/2012 08/06/2012 08/08/20 12

(Entered: 07/31/2012) 116 NOTICE by Loretta J. Fuddy of Withdrawal ofRebecca E. Quinn as Counsel to Defendant Loretta J. Fuddy. (Quinn, Rebecca) (Entered: 08/06/20 12) 117 ORDER GRANTING HFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FUDDY’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND HFF’S MOTION TO DISMISS DEFENDANT ABERCROMBIE, AND DENYING AS MOOT DEFENDANT ABERCROrvEBIE’S MOTION FOR SUMMARY JUDGMENT re Signed by JUDGE ALAN C KAY on 08/08/20 12. (eps)
~ , , , ~.

~

CERTIFICATE OF SERVICE

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Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 08/08/20 12)

08/08/20 12

~ CLERK’S JUDGMENT: entered in favor of Defendants pursuant to the “Order Granting HFF’S Motion for Summary Judgment and Defendant Fuddy’s Motion for Summary Judgment, Denying Plaintiffs’ Motion For Summary Judgment and HFF’S Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie’s Motion For Summary Judgment” filed August 8, 2012.. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 08/08/20 12)

08/20/20 12

119 NOTICE of Appearance by Daniel A. Morris on behalf of Neil S. Abercrombie, Loretta J. Fuddy on behalf of Neil S. Abercrombie, Loretta J. Fuddy. (Morris, Daniel) (Entered: 08/20/20 12) 120 NOTICE by Loretta J. Fuddy Errata to Notice ofAppearance of Counsel Loretta ~ J. Fuddy. (Morris, Daniel) (Entered: 08/20/2012) ADVISORY ENTRY. The entry docket number 119 Notice of Appearance filed by Daniel A Morris for Neil S. Abercrombie was filed in error and the counsel association will be removed from the docket. The 120 Errata filed by counsel Daniel A Morris as to Loretta J. Fuddy serves as the formal appearance of counsel. (eps) (Entered: 08/22/20 12) NOTICE OF APPEAL as to 117 Order on Motion for Summary Judgment,,, Order on Motion for Partial Summary Judgment,,,,,,,, 118 Clerk’s Judgment,,, by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D’Amato, John) CA 12-16995 Modified on 9/10/2012 adding court of appeals case number (eps). (Entered: 09/07/2012)
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08/20/20 12 08/22/2012

~ 09/07/2012

09/07/20 12

123

NOTICE OF APPEAL as to 117 ~ by Neil S. Abercrombie. Filing fee $ 455. (Attachments: # 1 Representation Statement, # 2 Certificate of Service)(eps) CA 12-16998
, --

~ CERTIFICATE OF SERVICE Participants registered to receive eleëtronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

Modified on 9/10/20 12 : (Entered: 09/07/2012)

adding court of appeals case number

(eps ).

09/07/20 12

j~ USCA Appeal Fees received $ 455 receipt number H1005 107 re 121 Notice of Appeal filed by Plaintiffs Janin Kleid, Gary Bradley, Natasha N. Jackson (eps)No COS issued for this docket entry (Entered: 09/07/2012) 124 USCA Appeal Fees #1 received $ 455 receipt number H1005 106 re 123 Notice of Appeal, filed by Neil S. Abercrombie (eps). Modified on 9/10/2012 : applicable receipt, PDF attached (eps). (Entered: 09/07/2012) Dkt:19

09/07/2012

Case: 12-16995
CM/ECF V5. 1.1 **LP~B**

10/18/2013

ID: 8828050

DktEntry: 41-4

Page: 174 of 176 (856 of 858)

https://ecf.hid.uscourts.gov/cgj~bjpJDktRpt.p1?552977797724572~~~ 1

09/10/2012

125 USCA Case Number CA 12-16995 for j~ Notice of Appeal filed by Janin Kleid, Gary Bradley, Natasha N. Jackson. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 09/10/20 12)

09/10/2012 j

126 USCA Time Schedule Order CA 12-16995 as to ~4 Notice of Appeal filed by Janin Kleid, Gary Bradley, Natasha N. Jackson. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notffications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mall on the date of this docket entry

(Entered: 09/10/20 12)

09/10/2012

127 USCA Case Number CA 12-16998 for 123 Notice of Appeal, filed by Neil S. Abercrombie. (eps)
~ CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 09/1 0/2012)

09/10/2012

128 USCA Time Schedule Order as to CA 12- 16998 re 123 Notice of Appeal, filed by Neil S. Abercrombie. (eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 09/10/20 12)

09/10/20 12

j~7~ Attorney Appeal Packet re i~J, Notice of Appeal CA 12-16995, 123 Notice of Appeal CA 12-16998, (Attachments: #1 Instructions Civil Appeal, #2 Instructions Transcript Designation, #3 Additional Instructions TDOF, #4 Transcript Designation & Ordering Form, # 5 APPEAL CA 12-16995, # 6 APPEAL CA 12-16998, #7 District Court Docket Sheet)(eps)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

(Entered: 09/10/20 12)

09/12/2012

~ TRANSCRIPT of Proceedings Various Motions held on 7/24/12 before Judge Alan C. Kay. Court Reporter Debra Chun, Telephone number 808 541-2061. Transcript may be viewed at the court public terminal or ordered through the Court Reporter before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a), FRCrP 49.1 (a), and FRBP 9037(a). Redaction Request due 10/1/2012. Redacted Transcript Deadline set for 10/10/20 12. Release of Transcript Restriction set for 12/10/20 12. (dc@hid.uscourts.gov) pp. 96. (Entered: 09/12/2012) TRANSCRIPT Designation and Ordering Form by Neil S. Abercrombie for proceedings held on 04/30/2012 (Gloria Bediamol) before Judge ALAN C KAY: CA 16009 and CA 12-16995 (eps )No COS issued for this docket entry (Entered: 10/05/2012) Dkt:20

10/05/20 12

Case: 12-16995
CMIECFV5.1.1 **Lfl,TE**

10/18/2013

ID: 8828050

DktEntry: 41-4

Page: 175 of 176 (857 of 858)

https://ecf.hid.uscourts.gov/cgi~binJDktRpt.p1?552977797724572L~o 1

10/05/20 12

132 TRANSCRIPT Designation and Ordering Form by Neil S. Abercrombie for proceedings held on 07/24/2012 (Debra Chun) before Judge ALAN C KAY: CA 12-16998 and CA 12-16995 (eps)No COS issued for this docket entry (Entered: 10/05/2012) 133 TRANSCRIPT REQUEST and Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid for proceedings held on 7/24/2012 (Motions for Summary Judgment, Debra Chun, reporter) before Judge Alan C. Kay.. (D’Amato, John) Modified on 10/10/2012: Refer to docket entry 135 (eps). (Entered: 10/09/2012) 134 TRANSCRIPT REQUEST and Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid for proceedings held on 4/30/20 12 (Hearing on Motion to Intervene, Gloria T. Bediamol, reporter) before Judge Alan C. Kay.. (DAmato, John) Modified on 10/10/2012 : Refer to docket entry (eps). (Entered: 10/09/20 12) ~ 135 TRANSCRIPT Designation and Ordering Form by Natasha N. Jackson, Janin Kleid for proceedings held on 07/24/2012 (Debra Chun) before Judge ALAN C KAY, (eps) RE-ENTERED by the Clerk’s Office (incorrect event selected by the filing party formerly entry 133 No COS issued for this docket entry (Entered: 10/10/2012)
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10/09/20 12

10/09/20 12

10/09/20 12

10/09/20 12

136 TRANSCRIPT Designation and Ordering Form by Natasha N. Jackson, Janin • Kleid for proceedings held on 04/30/2012 (Gloria T Bediamol) before Judge ~ ALAN C KAY, (eps) RE-ENTERED by the Clerk’s Office (incorrect event selected by the filing party formerly entry j~4 No COS issued for this docket entry (Entered: 10/10/2012)
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10/18/2012

137 Certificate of Record re 121 Notice of Appeal, 123 Notice of Appeal,, USCA Number: 12-16995 &12-16998. (1mg,)
CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on

the date of this docket entry

(Entered: 10/18/2012)

12/3 1/20 12 ~ ~

138

ORDER of USCA as to Notice of Appeal, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson, 123 Notice of Appeal,, filed by Neil S. Abercrombie (eps) (Entered: 12/31/2012)

PACER Service Center

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10/14/2013 11:53:35
ha0096 Docket Report [16 Client Code: Search Criteria: [~ost

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[Billable Pages

Dkt:21

Case: 12-16995

10/18/2013

ID: 8828050

DktEntry: 41-4

Page: 176 of 176 (858 of 858)

Ninth Circuit Case Nos. 12-16995 & 12-16998 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: Honolulu, Hawaii, October 18, 2013. s/ Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawai’i

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