IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI
I

NINA BAEHR

vs.

LAWRENCE H. MIIKE

CIVIL NO. 91-1394-05

AMICUS CURIAE BRIEF OF PETITIONERS


TABLE OF CONTENTS

I.     TABLE OF AUTHORITIES
II.    LIST OF AMICUS CURIAE
III.  QUESTIONS PRESENTED
IV.  SUMMARY OF ARGUMENT
V.    LAW AND ARGUMENT

1. Hawaii's Admission Act Incorporates by Reference The Declaration of Independence and Its Principles

2. The Declaration of Independence Espouses the Principle of Adherence to the Laws of Nature and of Nature's God

3. Same-Sex Marriage Is Not Consistent With the "Laws of Nature and of Nature's God" As That Term Is Used in The Declaration of Independence

4. Sanctioning Same-Sex Marriage Will Have Detrimental Effects On Society and Will Perpetuate A Dangerous Trend in the Law

VI. CONCLUSION


I.  TABLE OF AUTHORITIES

CASES:

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Murphy v. Ramsey, 114 U.S. 15 (1885)
Robin v. Hardaway, 2 Va. (2 Jefferson) 109 (1772)

CONSTITUTIONS:

Hawaii Const. Art. I, Sec. 3

STATUTES:

Hawaii Revised Statutes Annotated, The Admission Act, Section 3 - An Act to Provide for the Admission of the State of Hawaii into the Union (Act of March 18, 1959 Pub. L. 86-3, 73 Stat. 4)

MISCELLANEOUS:

The Declaration of Independence (U.S. 1776)

Ball, William Bentley, What's A Constitution Without Natural Law? in The Laws of Nature and of Nature's God 5 (Plymouth Rock Foundation Inc. ed. 1992)

Berman, Harold, The Crisis in American Legal Education, 26 B.C.L. Rev. 347 (1985)

Blackstone, Sir William, Commentaries on the Laws of England (1765)

Brennan, Terry, Natural Rights and the Constitution. The Original "Original Intent", 15 Harv. J.L. & Pub. Pol'y 965 (1992)

Rice, Charles, Some Reasons for a Restoration of Natural Law Jurisprudence, 24 Wake Forest L. Rev. 539 (1989)

Titus, Herbert W., Defining Marriage and the Family,

3:1 Wm. & Mary Bill of Rights J. 327 (1994)

 


II.  LIST OF AMICUS CURIAE

Coral Ridge Ministries Media, Inc., Concerned Women for America, American Family Association Law Center, Specialty Research Associates, Alaskans Opposed to Pro-homosexual Policies, Christian Family Network, Citizens for Community Values, Colorado for Family Values, Equal Rights Not Special Rights, Family First, Kerusso Ministries, National Campaign to Protect Marriage, Stop Promoting Homosexuality America, Traditional Values Coalition, Wallbuilders, Free Congress Research & Education Foundation and Coalitions for America.

III.  QUESTION PRESENTED

Whether the State of Hawaii can demonstrate a compelling state interest in prohibiting same-sex couples from entering into marriage, when the State of Hawaii’s existing law — in the form of Hawaii’s Admission Act — requires that the laws of this state not be repugnant to the principles enunciated in the Declaration of Independence, when the foremost principle in the Declaration is that this nation is founded upon the "laws of nature and of nature’s God", and when the act of same-sex marriage is inimical to the laws of "nature’s God", as demonstrated by its leading expositors, from time immemorial.

IV.  SUMMARY OF ARGUMENT

Petitioner's argument against the sanctioning of same-sex marriage may be succinctly stated as follows: (1) The Admission Act of the State of Hawaii expressly incorporates by reference the principles of the Declaration of Independence [hereinafter, "the Declaration"] requiring that the Constitution of the state be consistent with those principles; (2) the chief principle set forth in the Declaration is that of adherence to "the laws of nature and nature's God"; (3) same-sex marriage is repugnant to this law; and (4) the approval of same-sex marriage will likely have detrimental effects on our society, the gravity of which cannot be overstated.

For the State of Hawaii to interpret its existing law governing marriage (HRS 572-1(1985)) to now permit same-sex marriage would be to violate its own Admission Act, to invite all manner of societal ills, and to perpetuate a dangerous trend in the law, away from the concept of a transcendent law toward that of legal positivism.

V.  LAW AND ARGUMENT

1.  Hawaii's Admission Act Incorporates By Reference The Declaration of Independence and Its Principles

The Admission Act of the State of Hawaii is a statute encompassing twenty-three sections in the Hawaii Revised Statutes 1985, all of which are positive law and binding upon the state's government. Each of the provisions therein is equally binding on Hawaii's government. Nothing in the Act suggests otherwise. Thus, the State of Hawaii must faithfully adhere to each of them, not ignoring, or even reinterpreting those it may find incompatible with current mores or customs, if our society is to continue to be one in which the rule of law prevails.

Section 3 of the Admission Act states that "[t]he Constitution of the State of Hawaii shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." (Emphasis added). The State of Hawaii has thus had incorporated into its law, by reference, the principles enshrined in this nation’s founding documents.

Thus, the Declaration of Independence is, itself, positive law for the State of Hawaii or, at the very least, the State’s Constitution cannot be interpreted in a manner inconsistent with the Declaration's principles. Should Hawaii now interpret its law in any manner repugnant to them, such an interpretation would, by definition, be invalid.

2.  The Declaration of Independence Espouses the Principle of Adherence to the Laws of Nature and of Nature's God

The chief principle espoused by the Declaration is that of adherence to "the laws of nature and of nature's God". The drafters of the Declaration thoroughly believed in the notion of "unalienable" rights; that certain rights and liberties existed, quite independent of any positive law, which the government of this new nation was erected simply to recognize and protect. The founders of this nation were steeped in the tradition of "the law of nature" and this influential concept thus became an integral part of the nation's own "charter document".

This concept was "almost universally accepted" by the "founding generation," and nearly all agreed that certain "transcendent principles" put their rights under government "beyond the reach of human law." Terry Brennan, Natural Rights and the Constitution The Original "Original Intent", 15 Harv. J.L. & Pub. Policy 965, 975, 979 (1992) [hereinafter, Brennan]. The drafters of the Declaration firmly believed that government action was legitimate "only in proportion as [it] is consistent with the laws and the views of nature." Brennan, supra at 980, quoting William Van Murray, A Citizen of the [U]nited [S]tates, Political Sketches, Am. Museum, Sept. 1787, at 247. Moreover, they were convinced that this law of nature was divine in origin. Brennan, supra at 981, 981 n. 96 (quoting a prominent Federalist as asking "[W]hat man is there in existence ... that knows not that the will of his creator is the law of nature?"). The widespread acceptance of the divine origin of this law thus accounts for the description of natural law as the law "of nature's God."

The most prominent example of this, of course, is the Declaration's mention of the "laws of nature and of nature's God." The Declaration of Independence para. 1 (U.S. 1776). This idea appears in earlier writings, however, which would indicate that the Declaration merely incorporated principles which were widely accepted at the time. See Robin v. Hardaway, 2 Va. 2 Jefferson) 109, 115 (1772) (wherein George Mason argued in court that "The laws of nature are the laws of God; whose authority can be superseded by no power on earth.").

Thus, our government was not founded to be a law unto itself, but was intended to operate within narrow limits imposed by a higher law of nature and nature's God. Indeed, the idea of a higher law "is profoundly embedded in American constitutional law." William Bentley Ball, What's A Constitution Without Natural Law? in the Laws of Nature and of Nature's God 5 (Plymouth Rock Foundation, Inc. ed. 1992). Furthermore, this new government was not to enact whatever laws were expedient, but only those which conformed to the higher law. Thus, to be consistent with the principles of the Declaration, as required by its Admission Act, Hawaii's laws must conform to the laws of nature and of nature's God. A non-conforming law is not legitimately within the power of the state to enact.

3.  Same-Sex Marriage is Not Consistent With the "Laws of Nature and of Nature's God" As That Term Is Used in The Declaration of Independence

In the period leading up to this nation's founding era, Sir William Blackstone was the leading expositor of this law of

nature. His classic treatise, Commentaries on the Laws of England, was the preeminent legal text of the 18th century, and virtually all of this nation's founders were intimately familiar with its principles. Thus, Blackstone influenced an entire generation of political thinkers with his belief in the primacy of the higher law, and with his notion that "no laws are of any

validity, if contrary to [the law of nature.]" 1 William Blackstone, Commentaries 39. The principles he expounded were therefore incorporated into the Declaration of Independence, and it is with those principles that Hawaii's laws must be consistent.

One constitutional scholar, writing in the William & Mary Bill of Rights Journal, framed the resulting question:

the task of defining the rules governing sexual behavior, including marriage and the family, is first to discover the law of nature and the law of revelation of human sexuality, and marriage and the family. Once that law is discovered and stated, then one must conform the civil rules accordingly. Otherwise, the civil order is illegitimate.

Herbert W. Titus, Defining Marriage and the Family, 3:1 Wm. & Mary Bill of Rights J. 327, 329 (1994).

Consequently, one must consult Blackstone, to whom the founders looked for understanding, to determine whether sodomy -- an obvious corollary of same-sex marriage -- is consistent with the laws of nature and of nature's God.

Blackstone makes it abundantly clear that it is not. Sodomy, he said, was a crime "of deeper malignity" than even rape, which he viewed as a "most detestable crime". 4 William Blackstone, Commentaries 215. He called sodomy an "infamous crime against nature", the "very mention of which is a disgrace", and "a crime not fit to be named." Id.

He also noted that sodomy had long been a capital offense in England, and also during ancient times, since "long before the Jewish dispensation" and since the time of the "ancient [sic] law." Id. at 216. The fact that sodomy had been condemned from time immemorial was, for Blackstone, prima facie evidence that it was a violation of natural law and of the laws of nature's God. For Blackstone, and for the drafters of the Declaration, it was therefore essential to the general welfare of society that

its positive law conform to the laws of nature and of nature's God by likewise prohibiting the act of sodomy. See 1 William Blackstone 42 (stating that "[u]pon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."). To have enacted a positive law which did not conform to these higher laws would have been, in the view of Blackstone and our founders, tantamount to an ill-conceived rebellion against the natural order of things.

4.  Sanctioning Same-Sex Marriage Will Have Detrimental Effects on Society and Will Perpetuate a Dangerous Trend in the Law

The United States Supreme Court has recognized the traditional family -- "the union for life of one man and one woman" -- as "the sure foundation of all that is stable and noble in our civilization." Murphy v. Ramsey, 114 U.S. 15, 45 (1885). We needlessly invite all manner of problems when we undermine the primacy and stability it has enjoyed throughout our history. Id. Therefore, society has consistently demonstrated its desire that the heterosexual family retain its exclusive right to legal recognition. This preference is embodied in Hawaii's statute, HRS 572-1 which, on its face, limits the marriage relationship to one man and one woman. It is also reason enough for the state to withhold its approval of same-sex "marriage". See Bowers v. Hardwick, 478 U.S. 186, 196(1986).

From a philosophical standpoint, it may well be argued that sanctioning same-sex marriage would also perpetuate a dangerous trend in the law, whereby law has been divorced from its religious moorings, and has come to be viewed as a mere instrument with which to codify the beliefs of those with the greatest political sway. This is a recent, and nearly imperceptible, trend that will inevitably tend to our nation's ruin:

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law has produced an ominous shift in the foundation of our legal system. *** Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just.

Charles E. Rice, Some Reasons for a Restoration of Natural Law Jurisprudence, 24 Wake Forest L. Rev. 539 (1989) (emphasis added) [hereinafter, "Rice"].

Another commentator has put it in stronger terms:

Only in the past two generations ... has the public philosophy of America shifted radically from a reli- gious to a secular theory of law [and] from a moral to a political or instrumental theory .... *** Usually [the law] is thought to reflect at best the community sense of what is expedient; and more commonly it is thought to express the more or less arbitrary will of the lawmaker.... Harold Berman, The Crisis of Legal Education in America, 26 B.C.L. Rev. 347, 348 (1985) [hereinafter "Berman"].

Most importantly, a legal justification for retaining the current law has already been recognized by this Court under a "fundamental rights, due process" analysis. This Court has acknowledged that no "fundamental principles of liberty and justice" would be violated by a "failure to recognize [same-sex marriage]." Baehr. v Lewin, 852 P.2d 44, 47 (1993).

However, this Court remanded in that case for purposes of an evidentiary hearing on the question of whether any justification exists, under the Equal Protection Clause, for the existing prohibition on same-sex marriage. Id. at 57. This Court has left open the question of whether this state has a "compelling interest" in maintaining its present law on marriage, and as to whether the present law is so "narrowly drawn" as to avoid an undue infringement on constitutional rights. Such a compelling interest does exist here, i.e., the state simply fulfilling its duty to its citizens to ensure that none of its laws, including its own "Equality of Rights" provision of the state constitution (Haw. Const. Art. I, Sec. 3), be repugnant to the principles of the Declaration of Independence or, by extension, to the "laws of nature and nature’s God." A state could have no more compelling interest than to faithfully execute its own laws, in a manner consistent with the requirements of its founding documents, such as the Hawaii Admission Act.

Moreover, there is ample social justification for this prohibition as well. The empirical data regarding the potential harm of same-sex marriage are still plagued with ambiguity. The potential effect on society and its children of permitting same-sex marriage is still hotly debated in the scientific and ethical communities. Thus, as a matter of prudent social policy, society must "err" on the side of the traditional family, and not effect a paradigmatic shift toward other family structures on the basis of ambiguous data or mere ideology. This Court owes a duty to its children — the would-be subjects of this social experiment — to be more certain of the potential consequences before facilitating such a radical departure from the traditional family model.

Ultimately, however, same-sex marriage must be denied an equal status with heterosexual marriage for reasons other than its potential effect on individuals. Chief among them is our need to once again embrace the law of nature and of nature's God, as did the founders of this nation. The question before this Court is, in fact, whether our laws will conform to a higher law that clearly condemns this practice, or whether we will permit mere expediency to be our guiding legal "principle". If we choose expediency, we choose to our detriment:

The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality .... * * * The historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse .... * * * [I]t is the disappearance of those religious foundations [of our law] that gives power to the convictions of the utopian nihilists .... * * * We shall not achieve social justice without a strong sense of legality, and we shall not recover [that] without an integrative jurisprudence that finds the sources of our law not only in politics, but also in history ....

Berman at 351 -52.

Thus, there is far more at stake here than the personal happiness of those who seek the state's imprimatur upon same-sex marriage. Indeed, there are important ramifications for our society as a whole. We travel down a ruinous path if we view the law as a mere tool with which to implement the latest socio-legal theory. See Rice, supra at 568 (citing the infamous "Dred Scott" decision of 1857 as a prime example of a court departing from the laws of nature and nature’s God, in favor of a reprehensible, but then prevalent, conception of the law). Our courts must once again embrace the concept of a higher law if we are to preserve the limits on governmental power, necessary to ensure our continued liberty.

V.  CONCLUSION

Petitioners urge this Court to rule in favor of Appellants, Lawrence H. Miike, in his official capacity as Director of the Department of Health, and the State of Hawaii.

Respectfully Submitted,



David Huggins
The National Legal Foundation
P.O. Box 341283
Memphis, TN 38184-1283


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