Nina Baehr, et al


Lawrence Miike (State of Hawaii)


 Supreme Court for the State of Hawaii

        Many have argued that the heart and soul of the homosexual agenda can be summed up in one phrase: Same-Sex Marriage. If homosexual couples could be accorded the same status as real marriages, most the political and social goals of the homosexual agenda will have been met, or will logically follow. Understanding that position, and being aware of the tremendous damage that same-sex marriage would bring to traditional families everywhere, no case has generated as much and as varied support from the Christian and conservative communities as the case of Baehr v. Miike, also known as the Hawaii same-sex marriage case.

        In April of 1991, three homosexual "couples" applied for marriage licenses in the State of Hawaii. All three "couples" were refused, based on a Hawaii statute that restricts marriage licenses to couples consisting of one male and one female. The "couples" then filed suit in Hawaii, claiming that the state's denial amounted to discrimination under a variety of state and federal civil rights laws. The trial court ruled in favor of the state on procedural grounds and the homosexual individuals appealed to the State Supreme Court. The State Supreme Court correctly ruled that there was no fundamental right to same-sex marriage. However, the court also ruled that, because the license was denied strictly on the basis of the sex of one of the applicants, there was sex discrimination present. The court sent the case back to the trial judge with instructions to apply a "strict scrutiny" standard to determine if the discrimination was necessary to promote a "compelling state interest," and if the statute was crafted in such a way as to be the least restrictive means of guaranteeing that interest.

        The State of Hawaii acted in its own defense throughout all of these proceedings. Many Christian groups submitted friend of the court briefs (amicus curiae) to provide helpful information to trial court judge the second time he reviewed the case. The National Legal Foundation wrote and coordinated the sponsorship of the brief presented jointly by Coral Ridge Ministries, Concerned Women for America, American Family Association, Christian Family Network, Traditional Values Coalition, Wallbuilders, Free Congress Foundation, National Campaign to Protect Marriage, and a number of other pro-family groups.

        The NLF brief presented by this coalition focused on three arguments. First, the founding documents of the State of Hawaii expressly state that all state laws must be consistent with the U.S. Constitution and the Declaration of Independence. Second, the Declaration of Independence invokes the Laws of Nature and Nature's God. The historical record is clear that homosexuality is not in accordance with the Laws of Nature and Nature's God. The Founders of our country specifically chose to use the words of William Blackstone, the foremost scholar on the common law of England, when crafting their phrase "the Laws of Nature." Blackstone clearly stated that homosexuality was immoral, was a sin that should not even be mentioned, and violated the very Laws of Nature.  Finally, the sanctioning of same-sex marriage would be detrimental to society and perpetuate a dangerous trend away from a moral framework of laws toward legal positivism.

        It is disturbing that most of the "experts" called to testify on behalf of the state claimed that there was no basis for the belief that homosexuals were not equally responsible and appropriate parents as heterosexual couples. It is easy to understand how the trial judge ruled in favor of the homosexuals during this second round, when the best witnesses the state could produce admitted during testimony that society would be no worse off granting homosexuals marriage and child custody rights than it was today! Because the state had failed to show any compelling reason why they should be allowed to "discriminate" on the basis of sex in granting marriage licenses, the district court did indeed rule in favor of the homosexuals.

        The state has now appealed to the Supreme Court, and the National Legal Foundation continues to closely monitor the situation.   The court has decided to postpone its ruling on the issue until after the November 1998 election when the people of Hawaii will have an opportunity to vote on a constitutional amendment protecting the institution of marriage and limiting it to the traditional norm.

        This case has resulted in positive action. Many individuals, groups, and politicians correctly perceived the cataclysmic danger of one state legalizing same-sex marriage. It is unclear whether under the Full Faith and Credit Clause of Article IV, Section I of the U.S. Constitution, marriage licenses granted in one state must be honored by all other states. If Hawaii had legalized homosexual marriages, couples would have flocked there to be "married," then returned to their home states demanding recognition of their Hawaii license. In response Congress passed the Defense of Marriage Act (DOMA), that allows states to limit the marriages they will recognize to one man and one woman. Many states have already passed DOMA-type legislation to protect themselves should Hawaii lose. DOMA itself will undoubtedly be challenged at some point, and the National Legal Foundation will be ready to join the battle to protect the God-ordained institution of marriage, to defend the commitment to Judeo-Christian morality envisioned by our Founding Fathers, and to halt judicial legislation and legal positivism whenever possible.

        We will keep you posted.



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