Senate Committee on Judiciary and Labor (JDL) - chair: Clayton Hee, vice chair: Maile S.L. Shimabukuro

Monday, October 28, 2013, 10:30 a.m., State Capitol Auditorium

Testifier: Beppie J. Shapiro, Legislative Committee, LWV of Hawaii

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Chair Hee, Vice-Chair Shimabukuro, and Committee Members: The League of Women Voters of Hawaii strongly supports SB1 which recognizes marriage between two persons of the same sex in the State of Hawaii. LEGAL RATIONALE FOR MARRIAGE EQUALITY The US Constitution’s Fourteenth Amendment, (Section 1) guarantees equal protection under the law stating “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor 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.” In most instances, the Supreme Court permits laws that do not treat people equally if the laws have a “rational basis” and a “legitimate purpose.” The League speaks later in this testimony to “rational” arguments advanced in favor of restricting marriage to a man and a woman. As to ‘legitimate purpose’, in Romer v. Evans (1995) Justice Kennedy wrote for the majority “If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." 1 The group in question was homosexuals. While Hawai`i’s Civil Unions law provides state benefits for same-sex couples, this is not the case for Federal benefits, such as income tax deductions; the ability to file joint taxes; the ability to receive a spouse’s inheritance; preferential treatment under immigration laws; benefits such as health care to spouses of federal employees or veterans, and continuation of some benefits after death or divorce. How can Hawaii prohibit same sex marriage after this summer’s U.S. Supreme Court ruling that invalidated DOMA restrictions on Federal benefits to same-sex couples? Arguments based on religious principles or authority confuse civil marriage (which is licensed and regulated by the State), and religious marriage ceremonies conducted under the auspices of an organized religion. Same-sex couples may choose a civil marriage officiated by a judge, but if they seek religious ceremonies, the bill allows clergy/churches to choose whether or not to provide these ceremonies; many churches which support the proposed bill will presumably do so. Since the proposed bill states that clergy will not be required to perform same-sex marriages, we think the first amendment rights of religious clergy to express disapproval by not sanctioning these marriages is upheld. However, with regard to religious facilities, it is entirely appropriate that Hawaii’s public accommodations law be applied if a religious organization operates its facility as a for-profit business, and/or allows non-members to use its facilities for weddings. This law protects our citizens from prejudicial exclusions. We now call on the legislature to support and defend the U.S. Constitution, which by Supreme Court interpretation of the First Amendment Establishment clause includes the separation of church and state. We hope you will be able to separate religious belief and individual civil rights in this important situation. “RATIONAL” ARGUMENTS AGAINST MARRIAGE EQUALITY The 2010 U.S. Census reported that 27% of Hawaii’s households headed by same-sex couples include children. Some opponents of marriage equality argue that children of same-sex parents experience a lower quality of life than children living with a male and female parent. However, “scientific research that has directly compared outcomes for children with gay and lesbian parents with outcomes for children with heterosexual parents has been consistent in showing that lesbian and gay parents are as fit and capable as heterosexual parents, and their children are as psychologically healthy and well-adjusted as children reared by heterosexual parents.” 2 In general, children benefit from living in stable, two parent families. Having a clear legal relationship with both parents simplifies situations from school and medical emergencies to the death of a parent. Legal marriage will promote stable same-sex families both because of the recognized commitment, and the enhanced financial security and physical and mental health which characterize married versus cohabiting couples. 3 Others fear legalizing same-sex marriage encourages people who would otherwise be heterosexual to adopt a homosexual identity or “lifestyle”. Yet research documents that most gay men and many or most lesbians do not feel they had a choice in their sexual orientation. Further, sexual orientation is highly resistant to change. 4 Another argument is that legalizing same-sex marriage would undermine the stability and functioning of society. The executive board of the American Anthropological Association published the following Statement in 2004: "The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social order depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built on same-sex partnerships, can contribute to stable and humane societies.” 5 OUR CONCLUSION The League of Women Voters believes there is ample legal precedent for same-sex marriage. We strongly reject any notion that same-sex marriages place children in the family at higher risk than heterosexual marriages. We believe that economic research has documented that marriage equality will have economic benefits to Hawai’i, with State of Hawaii and City and County of Honolulu general excise tax revenue projected to grow by $10.2 million over the 2014-2016 period.6 The number of weddings, honeymoons, and anniversary celebrations would grow, increasing employment and tax revenue. Hawaii could also avoid modifying its tax code or public infrastructure to accommodate same-sex couples who owe taxes to Hawai’i but have already married in one of 14 other states that permit such marriage. We hope the legislature will now have the political will to reject misplaced religious arguments in favor of protecting the civil rights of gay couples. Hawaii voters expect no less, having passed a Constitutional Amendment in the 1998 election, enabling the legislature to pass this bill: “The legislature shall have the power to reserve marriage to opposite-sex couples” HAW. CONST. ARTICLE I, SECTION 23. The League of Women Voters of Hawaii urges you to thoughtfully consider our reasoning and evidence, and to enact marriage equality. 1 www2.law.columbia.edu/faculty_franke/Gay_Marriage/Romer%20edited.pdf, accessed 9/22/13. 2 cdn.ca9.uscourts.gov/datastore/general/2010/10/27/amicus29.pdf, accessed 9/22/13. 3 cdn.ca9.uscourts.gov/datastore/general/2010/10/27/amicus29.pdf, accessed 9/22/13. 4 www.theage.com.au/victoria/tick-for-samesex-families-20130605-2npxf.html#ixzz2faBoHsrB, 6/5/2013. 5 www.aaanet.org/issues/policy-advocacy/Statement-on-Marriage-and-the-family.cfm; accessed 9/22/13). 6 Sumner LaCroix and Lauren Gabriel, “The Impact of Marriage Equality on Hawaii’s Economy and Government: An Update after the U.S. Supreme Court’s Same-Sex Marriage Decisions,” Research Paper from the Economic and Research Organization at the University of Hawaii, July 25, 2013.