Attorney Dan Foley, left, listens to proceedings during today's
first day of the civil suit over same-sex marriage.
He represents
the plaintiffs, including Joseph Melillo and Pat Lagon,
center background
wearing leis, who want the right to marry each other.
Photo by Anthony Cheng, Associated Press
"Same-sex unions deny this right," said Rick Eichor, deputy attorney general, in opening statements before Circuit Court Judge Kevin Chang in a nonjury trial.
Eichor argued that the state's interest to promote a child's optimal development is compelling enough to justify the sex discrimination that the state Supreme Court has said exists in the state's marriage law.
But the law actually harms children of same-sex couples by discriminating against their parents, said Dan Foley, lead attorney for the three same-sex couples who sued in 1991 for the right to marry.
Foley said it deprived committed same-sex couples of the status of marriage and the benefits that help them and their children.
"Today, a law-abiding, tax-paying same-sex couple can't marry, but a convicted murderer serving life in prison can," he said.
The attorneys offered their statements before a courtroom with local and national media covering the case that may make Hawaii the first in the country to legalize same-sex marriage.
Sheriff's deputies reported no demonstrations and issued all 24 lottery passes to the public to listen to the proceedings in the small courtroom.
Eichor traced the state's marriage law to 1846, adding it was the second act of King Kamehameha III. He said the law limiting marriage to a man and a woman was just as valid today.
He also said the 1994 state Legislature reaffirmed the law, adding that it was to foster procreation between a man and a woman through marriage.
Eichor said he would show that children raised by a mother and father have higher self-esteem and better coping skills.
"In the absence of a father, a child is more aggressive and has poorer social skills," he said.
He also said a child becomes more loving, caring and affectionate if raised with a mother and experiences increased stress in a mother's absence.
"The Legislature's purpose to limit marriage is the only way to encourage a setting most likely to result in the optimal development for children," he said.
But Foley said the law only served to prevent two people who love each other from marrying.
"The evidence will show there is no good reason, much less a compelling one, to deny people the right to marry because of gender," he said. Foley said the state Legislature's Commission on Sexual Orientation and the Law last year also found that the state has no compelling interest to withhold marriage licenses to same-sex couples.
He said the state's argument ignores the reality that same-sex couples are raising childing and that they are good parents.
Eichor said studies on same-sex couples who raise children are mainly anecdotal stories that tend to focus on women who came out as lesbians and divorced. He said virtually no studies on gay men as parents existed.
Residents should think of same-sex marriage as an extention of the progressive attitude that put Hawaii on the national civil rights map, say supporters of the controversial issue. Will Hawaii once again
lead way in social change?Validating same-sex marriage would be another
By Linda Hosek
progressive step for the islands, supporters say
Star-Bulletin
But opponents say same-sex marriage goes beyond the state's tradition of social tolerance.
"There's a drastic difference between being tolerant and legalizing something like same-sex marriage," said Linda Rosehill, Hawaii's Future Today lobbyist. "Legalizing it would say: 'This is acceptable, normal and OK to teach about in school.'"
Hawaii was the first state to approve the Equal Rights Amendment and the first to legalize abortion, said Vanessa Chong, American Civil Liberties Union of Hawaii director.
The state also was first to embrace interracial marriage and has acknowledged native Hawaiian rights, showing a commitment to equality, she said.
"Hawaii is ahead of the country in coming to grips with same-sex marriage," Chong said, adding that residents have responded to the issue in a reasonable, civil tone.
Rosehill acknowledged that same-sex couples already raise children and have their own set of family values and concerns.
But she said opposite-sex marriages reflect the community's foundation and that the state should encourage the family unit best for nurturing children. "The community is not ready for same-sex marriage," Rosehill said.
The controversial case that could make Hawaii the first in the country to allow two men or two women to legally marry is before Circuit Judge Kevin Chang in a nonjury trial.
It is expected to last about 10 days, with a ruling later this year.
The trial is the result of a 1993 state Supreme Court ruling in which Justices presumed that banning same-sex marriage was sex discrimination unless the state could provide a reason compelling enough to justify the ban.
State attorneys will argue that promoting optimal conditions for children, which include raising them in biological families, is a compelling state interest.
Local supporters include more than 25 organizations combined under the Coalition for Equality and Diversity. More than 25 religious leaders, including those from Christian, Buddhist, Jewish and protestant faiths, have formed a clergy coalition.
Organizations to submit briefs after the trial to support the case include: the ACLU, Japanese American Citizens League, Hawaii Women Lawyers, Na Mamo O Hawaii, Madison Society of Hawaii, American Friends Service Committee, two groups representing researchers and a national group representing five organizations.
Opponents also include the Hawaii Catholic Conference, the public policy arm of the Roman Catholic Church in Hawaii and the Church of Jesus Christ of Latter-Day Saints.
Those submitting briefs to oppose same-sex marriage include: Hawaii's Future Today, the Church of Jesus Christ of Latter-Day Saints, eight state House of Representatives members who will oppose the issue as individuals and a national group representing 17 organizations.
The lawmakers are Reps. Felipe Abinsay Jr., Michael Kahikina, Ezra Kanoho, Colleen Meyer, David Stegmaier, Romy Cachola, William T.K. Swain and Gene Ward.