On December 3, 1996, Judge Kevin S. C. Chang issued his Findings of Fact and Conclusions of Law in Baehr v. Miike, Civ. No. 91-1394 (Haw. Cir. Ct. Dec. 3, 1996) (hereinafter "Baehr opin.").

He found that the state had failed to show a compelling state interest for denying same sex couples the right to marry, found the statute disallowing same-sex marriage unconstitutional, and enjoined the director of the Department of Health for the State of Hawaii (Mr. Miike), from denying marriage licenses "solely because the applicants are of the same sex." Baehr opin. at 46.

This article summarizes the opinion, and makes brief comment about it.

Summary of Opinion....

Plaintiffs appealed to the Hawaii Supreme Court, which vacated judgment in May of 1993. Baehr v. Lewin, 852 P.2d 44 (1993). The court unanimously ruled that same sex couples do not have a fundamental right to enter into same-sex marriage. However, a plurality ruled that the denial of marriage licenses to same-sex couples simply because one partner is of the same sex as the other partner was sex discrimination and presumed facially unconstitutional under both the equal protection provision and the Equal Rights Amendment of the state constitution. 852 P.2d at 57-62. The court remanded the case for trial, ordering that on remand the burden of proof would be on the state to show that the denial of marriage licenses to same-sex couples "furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Id. at 74. Thus, the strictest standard of scrutiny was to be applied.

After several postponements while political solutions were explored unsuccessfully, the nine day trial began on September 10, 1996. Each party presented four witnesses. Judge Chang's opinion summarized his view of the evidence.

Since the state had the burden of proof, it put on its witnesses first. In a pretrial statement, the state identified five compelling interests it would establish at trial for the law allowing only male-female couples to marry: 1) protecting the health and welfare of children and others, 2) fostering pro creation in marriage, 3) assuring recognition of Hawaiian marriages in other jurisdictions, 4) protecting the state's fiscal interests, and 5) protecting civil liberties from the effects of same-sex marriage on Hawaiian citizens. The state particularly emphasized "promoting the optimal development of children" and its belief that "it is best for a child that it be raised....at least by a married male and female." Baehr opin. at 6-7, ## 18-19.

The state's first witness was Kyle D. Pruett, M.D., a child psychiatrist whose testimony emphasized that fathers and mothers made different contributions to a child's development, that same-sex parents are not as beneficial learning models for children as heterosexual couples, and same sex marriages would provide "a more burdened nurturing domain," and that the optimal development of children would more likely be reached by children raised by intact families with both mothers and fathers. But he acknowledged that sexual orientation did not disqualify persons from being good parents, that same-sex couples can and do raise happy, well-adjusted children, that the quality of nurturing was the most important factor in parenting, and that he agreed with Charlotte Patterson's research conclusions that kids raised by same-sex couples "are turning out just fine." Id. at 8-12, ## 22-39.

Dr. David Eggebeen, a sociologist, testified about the decline of family life (less marriage, more divorce, fewer births, etc.) which are detrimental to children (though 60% of children are living with both biological parents). He noted that "marriage is synonymous with having children," though that is not a necessary reason for marriage; that children raised in a single parent home are at heightened risk for poverty, academic and behavior problems, and premarital births, and that remarriage or cohabiting does not stop or reduce the risks; that children raised by same-sex couples are involved in a "step-relationship"; and that cohabiting same-sex couples can and do make excellent parents, should be allowed to adopt, and that some of the marital benefits would help same-sex couples raise children (such as tax benefits, child support, welfare, etc.). Id. at 12-17, ## 40-55.

Dr. Richard Williams is an expert in the field of psychology and social science research. He analyzed 20-30 studies of children raised by same-sex parents, focusing on nine in particular, and concluded that they involved non-representative sampling, inadequate sample size, and inappropriate comparison groups, However, Judge Chang rejected Dr. Williams' testimony because of his "bias" against social sciences (because of their theoretical and methodological flaws, and dubious value), because his is a minority position, and because he believes "that there is no scientific proof that evolution occurred." Id. at 17-18, ## 56-62.

Dr. Thomas Merrill, a local psychologist in private practice, emphasized the importance of the parental relationship as a learning model for children, and the value of having two-sex parents, especially the importance of opposite-sex parents. He also testified that there was insufficient information to say whether children raised by same-sex parents would develop into healthy, well-adjusted adults, and that the having both mother and father in the home increased the likelihood of optimal parenting (nurturing, guidance, intimacy) for children. But he also indicated that sexual orientation is not an indication of parental unfitness, and that children should have the same opportunity to achieve optimal development and the same benefits regardless of whether they were raised by same-sex parents. Id. at 1821, #, 63 74.

The plaintiffs' first witness was Dr. Pepper Schwartz, and expert in Sociology and sexuality. Her book summarized data about the high break up of homosexual couples, but she said it was based on data from the 1970s and 1980s, and that since then there had been significant changes in society, including a trend for homosexuals to engage in long-term committed relationships. She also testified that homosexual couples, like heterosexuals, want love, companionship, intimacy, commitment - which is the definition of marriage; same-sex couples can and do have successful, loving, committed relationships; sexual orientation is not an indicator of parental fitness; nurturing is what matters for parental success; and there is no reason to deny marriage to same-sex couples for the sake of children or marriage as an institution, but legalizing same-sex marriage could have positive impact on society. Id. at 22-25, ## 77-87.

Dr. Charlotte Patterson, a professor of psychology at the University of Virginia, reported on two studies she had completed on same-sex parenting. Her BayArea Family Study showed that children being raised by lesbian couples found that the children appeared to be developing in a normal fashion, though they were more prone to stress, and her sample was not representative. Her Contemporary Family Study of lesbian and heterosexual couples who had children by assisted reproduction found that sexual orientation of the parents was not a predictor of how well-adjusted the children were. She also testified that no data shows that homosexual persons are less capable of being good parents, that same-sex couples are fit and loving as parents, and can and do have successful, committed relationships. Id. at 25-28, ## 88-98.

Dr. David Bordzinsky, a child psychologist and adoption expert from Rutgers, testified that how children are cared for matters most, not biological factors, same-sex couple adoptions should be allowed because cause homosexuals can provide loving parenting, that children adopted by same sex couples are not at any increased risk for behavioral or psychological problems, that it is offensive to exclude nonbiological parenting from "the best" category of parenting alternatives. Id. at 28-31, ## 99108.

Dr. Robert Bidwell of the University of Hawaii Department of Pediatrics testified that gay and lesbian parents can and do provide the best environment in which to raise children, that they have difficulties because their homes are different, but those children deal with those as a growing up "phase" that doesn't damage the children but helps them create strength. Id. at 31-33, ## 109-115.

Judge Chang's "specific findings" first stressed that the state "presented insufffcient evidence and failed to establish" the state interests of fiscal harm, nonrecognition of Hawaiian judgments, or any need to protect traditional marriage as a fundamental structure of society. Id. at 34, ## 117-119. He also noted that the state "failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children," and "failed to establish or prove that the public interest in the well-being of children and families, or the optimal development of children will be adversely affected by same-sex marriage." Id. at 36, 38 ## 134, 139. Admitting that the welfare of children in a compelling state interest, he found that haying both a mother and a father is "important, though not essential" to child development, that intact father-mother families provide benefits to children, but nurturing is most important and diversity in family structure exists and sexual orientation of parents is not an indicator of parental fitness or child adjustment, and that gays and lesbians have the potential to raise and do raise happy, well adjusted children. Id. at 34-37, ## 120-135. He found that same-sex couples can and do have successful, loving, committed relationships, and that children raised by same-sex couples would benefit from having same-sex marriage legalized. Id. at 37-38. ## 136-138.

As conclusions of law, Judge Chang reiterated the presumption of unconstitutionality of the Hawaii marriage law and the heavy burden of proof upon the state, and noted that marriage confers significant benefits upon couples. Id. at 38-41, ## 111. He also noted that the state "introduced little or no evidence" about possible nonrecognition in other states of Hawaiian marriages, "little or no" evidence about potential adverse fiscal impact of same-sex marriage, and "meager evidence with regard to the importance of the institution of traditional marriage" or the adverse effects of legalizing same-sex marriage upon it. Id. at 41-43, ## 12-14. There are compelling reasons to prevent incest, so the state's analogy between same-sex marriage and incest or polygamy is inapplicable. Quoting Judge Ferren's concurring/dissenting opinion in Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995), Judge Chang re-emphasized that "the evidence presented by the state does not establish or prove" any harm to any governmental interest because the state "failed to present sufficient credible evidence, " and "failed to establish that HRS #572-1 is narrowly tailored." Id. at 43-45, ## 16-19.

Based upon these findings and conclusions, Judge Chang declared Hawaii's marriage statute allowing only heterosexual marriage to be unconstitutional, and enjoined the denial of marriage licenses solely because the parties are of the same sex. Id. at 45 46, ## 1-2.

Comment Upon the Ruling....

In same political-establishment-versus the-common-people conflicts, the courts have performed wonderful, courageous service to vindicate the principles of democracy against rogue legislatures and imperial executives. However, when the contest takes the form of determining whether the courts themselves get to establish a judicial preference as public policy, the record is not so encouraging. Courts have too often abandoned the independence of judicial neutrality and acted like any other self-interested political power in order to establish their pet positions as the law of the land. That is what has happened in this case.

Sadly, the ruling in Baehr v. Miike demonstrates unmistakably why the same-sex marriage policy issue does not belong in the courts. First, the proposed legalization of same-sex marriage is a matter of establishing public policy (a legislative matter), not interpretation of it (a judicial matter). The issue raises questions of legislative fact for the elected representatives of the people to decide, not adjudicative fact that courts are competent to determine. It is remarkable that 70% of the people of Hawaii oppose same-sex marriage, but that the courts apparently believe that they have the right to impose a radical redefinition of marriage upon the people by feigned constitutional interpretation -- even though their position is grounded in no precedent nor in any expression of the consent of the people (the basis of constitution law and government). Politically insulated judges have no business deciding these issues and forcing them upon the people. That kind of judicial abuse violates the fundamental principle of republican self-govemment.

Second, throughout the opinion Judge Chang emphasizes that the state failed to produce evidence of various state interests or how they were advanced by Hawaii's marriage law. That is no surprise. From the beginning, the Hawaii Attorney General has been criticized for the feeble defense she has given the marriage law. Several interested groups attempted to intervene to insure that a thorough and vigorous defense was made, but their motions were denied. Although the state finally changed trial lawyers, it was too little and too late. The state deliberately took a very high risk, high-road, deferential, mild-&-moderate defensive strategy. Despite the tough-no-holds-barred tactics of the plaintiffs, the state made a tactical decision to try to be moderate, reasonable, to avoid taking positions that would embarrass gays and lesbians, and to try to show good will. Unfortunately, that "high road" tactic did not impress Judge Chang as much as the "get tough" tactics of the plaintiffs lawyers. The political dimensions of the defense of Hawaii's marriage law was a problem throughout the case. The pro-same- sex-marriage Governor's handpicked attorney general imposed restraints upon the witnesses that would be called, the arguments that would be made, and the evidence that would be used. In effect the state tried to defend the marriage Iaw with one hand tied behind his back. The tactical basis for defending the law had already been made with the state changed trial lawyers at the last minute, and finally began to prepare a real defense.

Getting a vigorous defense is a unavoidableable problem when courts determine these kinds of controversial social issues. Often, the defense of controversial laws is exclusively in the hands of state attorneys (or their political bosses) who do not care (or personally oppose) the position they are defending. For example, lawyers familiar with abortion litigation know how frequently attorneys for the state "took a dive," in abortion case, putting on only token defenses, failing to make critical arguments, not producing essential evidence, or simply conceding and not defending abortion restrictions. State attorneys who philosophically dislike the Iaw they are defending can and do find many ways to undermine and effectively abandon the defense of such laws. When the "compelling state interest" test applies and the burden is on the state, a mild-&-moderate defense seems to guarantee failure, as the abortion cases and Judge Chang's ruling shows. The strictest standard of judicial review demands vigorous defense, rather than a good will, response.

Third, however, it is probably vain to believe that Judge Chang would have upheld the Hawaii marriage law even if the strongest defense had been presented. There probably was sufficient evidence in the record of compelling state interests advanced to uphold the Hawaii marriage statute, if they were interested in doing But politics and philosophy matter more than evidence in political cases. Judge Chang's summary of the testimony of witnesses reveals a significant double standard. One of the witnesses for the state already commented that his testimony was significantly misrepresented in Judge Chang's summary. Especially revealing for example, Dr. Richard Williams testified as an expert about social science research, particularly psychometrics. However, his testimony was brushed aside by Judge Chang because Dr. Williams was critical of most psychological research and because he allegedly did not believe the scientific "proof' of evolution (Dr. Williams thinks that is a distortion of his testimony). Perhaps if Dr. Williams were testifying in the Scopes trial about whether the teaching evolution can be banned, that would be relevant, but none of Judge Chang's criticisms of Dr. Williams had anything to do with the testimony he gave about the methodological flaws in the studies relied on by plaintiffs experts. Dr. Williams testimony substantially discredited the studies upon which the plaintiff's expert opinions were based. If Dr. Williams testimony was so easily disregarded by Judge Chang, it is likely that other stronger witnesses would have been treated the same way. Similarly, Judge Chang's excessive concern that same-sex couples "can and do" provide nurturing parenting misses the point. Polygamous parents, incestuous parents, and immature adolescents "can and do" provide nurturing parenting also. (For that matter, child molesters, child beaters, and child murderers "can and do" sometimes provide safe and adequate parenting for some children.) But society's view of the welfare and interests of society and of children leads us to draw conclusions from the overall, general picture, not from the exceptions. Judge Chang apparently didn't understand that.

Likewise, Judge Chang did not mention the educational achievements or instifutional affiliations of the state's scholar-witnesses (Pruett from Yale, Eggebeen from Penn State, Williams from BYU) but he mentions that plaintiff's witnesses Dr. Patterson was a professor at the University of Virginia, and Dr. Brodzinsky teaches at Rutgers University, and Dr. Bidwell taught at the University of Hawaii, and particularly lauded the qualifications of plaintiffs' witnesses Schwartz and Brodzinsky (both plainly inferior in professional qualifications to Pruett and Eggebeen, for example, and in the field of methodology, unequal to Dr. Williams). Judges have no special qualification to tell good scholars or scholarship from bad, of course. The point is that on issues of important public policy judges ought not to be the ones to make such decisions for the people.

Fourth, and most importantly, the "compelling state interest" standard of review is in practical terms a near-certain death sentence for the defense of state laws. That strict standard gives a judge or court that is inclined to strike down a statute abundant latitude to do so. The basis for application of the compelling state interest standard of review to laws allowing only heterosexual marriage is the notion (embraced by the Hawaii Supreme court in Baehr v. Lewin and by no other court -- yet) that denial of same-sex marriage is gender discrimination. That is absurd. It confuses "sex" (meaning gender) with "sex" (meaning sexual relationship). Marriage laws entail discrimination on the basis of sexual relationships, not gender. The former does not invoke strict judicial scrutiny. However, by declaring that denial of marriage licenses to same-sex couples is "sex" (gender) discrimination, the Hawaii Supreme Court was able to send the case to a lower court to do the dirty work (make the first ruling mandating same-sex marriage). Now the state supreme court is insulated somewhat - it merely will affirm what the lower court did.

The moral of the story of Baehr v. Miike is that courts have no proper business determining important social policy issues like whether same-sex marriage should be legalized. The way courts function, their total dependency on the lawyers to present the best case for each side, the ability for political manipulation to weaken the defense and undermine the advocacy of a position sustaining the law, the distortions of judicial misperception and philosophical predisposition, the misapplication of inappropriate analytical standards of judicial review, not to mention the limitation of the bi-polar nature of constitutional analysis that is incapable of perceiving, embracing, and rendering justice to the whole policy picture -- all of these flaws evident in the Hawaii same-sex marriage trial demonstrate that the courts are not the proper branch of government to determine what social policy should be. Rather, in matter of such fundamental social interest, our constitutional system of government makes the establishment of public policy a matter to be determined by the people. Since the last election brought to office a legislature more sympathetic to overturning the Hawaii Supreme Court's misinterpretation of the state constitution, and since a majority of Hawaii citizens who voted on the issue voted to convene a constitutional convention, there is hope that even in Hawaii principles of respect for the consent of the governed is still alive and may eventually prevail. Until then, Judge Chang's one-sided opinion in Baehr v. Miike remains not only an embarrassment to the notion of fairness and self-government in Hawaiian law, but it is a time bomb waiting to explode not only in Hawaii, but the fallout will be felt in every other state in the union.