Prince Research Excerpts on Gay Rights & the Mormon Church – “08 – Hawaii”

Below you will find Prince’s research excerpts titled, “08 Hawaii.” You can view other topics here.

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08 – Hawaii (and Deep Throat)

1768:

“[p. 17] The major objective of the gay rights homosexual movement is to win legitimacy and public approval for the homosexual ‘sexual preference’ or ‘lifestyle.’  Nothing would accomplish that objective as effectively as legal recognition of homosexual marriages.…

[p. 18] Recognition of homosexual marriages would entitle homosexual couples to such diverse privileges as child adoption, tax benefits, right to court-enforced support, alimony and property division upon divorce, social security benefits, property rights such as intestate inheritance or spouse’s indefeasible share, citizenship privileges, right to sue for wrongful death, access to housing that is restricted to married couples or unattached singles, and pension and group insurance benefits, to name only a few.

In my opinion, the interests at stake in the proposed legalization of so-called homosexual marriages are sufficient to justify a formal Church position and significant efforts in opposition.  Such a position could make the following points, which are stated here in secular terms appropriate for public debate on proposed legislation [Footnote: We therefore do not mention that, in religious terms, homosexual ‘marriages’ would be a devilish perversion of the procreative purposes of God and the earth life He has granted His children.  Homosexual relations are wholly deviant to the procreative purpose of sexual relations.  Homosexual marriages are wholly deviant to the patriarchal family.]:

1. We speak in defense of the family, which is the bulwark of society.

2. [p. 19] The legal rights conferred on marriage partners are granted in consideration of the procreative purpose and effects of a marriage between a man and a woman.  (Even marriages between men and women who are past the child-bearing years serve this procreative purpose, since they are role models for younger, child-bearing couples.)

3. Cohabitations between persons of the same sex do not meet the time-honored definition and purposes of ‘marriage’ and therefore should not qualify for the legal rights and privileges granted to marriage.

4. One generation of homosexual ‘marriages’ would depopulate a nation, and, if sufficiently widespread, would extinguish its people.  Our marriage laws should not abet national suicide.…

[p. 20] This whole subject of homosexual rights in relation to the family is more complicated than first appears.  For example, a difficult case likely to arise is whether the law’s traditional favoritism for parental rights would allow a natural parent who is homosexual to raise his or her child in a homosexual environment, advocating a homosexual lifestyle?  Or, in the alternative, would the law’s traditional hostility to homosexuality prevail over parental rights and require the child’s custody to be given to a non-parent?  The issue is mentioned here since it would be used by the opposition to suggest that in opposing homosexual marriages the Church was also opposing parental rights.” (Dallin H. Oaks, “Principles to Govern Possible Public Statement on Legislation Affecting Rights of Homosexuals,” August 7, 1984)

1631:

“The way to tackle the issue of unconventional relationships in conventional society is to try something both more radical and more conservative than putting courts in the business of deciding what is important is not a family. That alternative is the legalization of civil marriage.…

[Concerning domestic partnerships] in principle, an elderly woman and her live-in nurse could qualify. A couple of uneuphemistically confirmed bachelors could be DPs. So could two close college students, a pair of seminarians, or a couple of frat buddies. Left as it is, the concept of domestic partnership could open a Pandora’s box of litigation and subjective judicial decision-making about who qualifies. You either are or are not married; it’s not a complex question. Whether you are in a ‘domestic partnership’ is not so clear.…

One of the worst products of the New Right’s ‘family values’ campaign is that its extremism and hatred of diversity has disguised this more measured and more convincing case for the importance of the marital bond.…

The gay movement has docked this issue primarily out of fear of division. Much of the gay leadership clings to notions of gay life as essentially outsider, anti-bourgeois, radical. Marriage, for them, is co-optation into straight society. For the Stonewall generation, it is hard to see how this vision of conflict will ever fundamentally change. But for many other gays—my guess a majority—while they don’t deny the importance of rebellion 20 years ago and are grateful for what was done, there’s now this sense of a new opportunity. A need to rebel has quietly ceded to a desire to belong. To be gay and to be bourgeois no longer seems such an absurd proposition. Certainly since AIDS, to be gay and to be responsible has become a necessity.

Gay marriage squares several circles at the heart of the domestic partnership debate. Unlike domestic partnership, it allows for recognition of gay relationships, while casting no aspersions on traditional marriage. It merely asks that gays be allowed to join in. Unlike domestic partnership, it doesn’t open up avenues for heterosexuals to get benefits without the responsibilities of marriage, or a nightmare of definitional litigation. And unlike domestic partnership, it harnesses to an already established social convention the yearnings for stability and acceptance among a fast-maturing gay community.

Gay marriage also places more responsibilities upon gays: It says for the first time that gay relationships are not better or worse than straight relationships, and that the same is expected of them. And it’s clear and dignified. There’s a legal benefit to a clear, common symbol of commitment. There’s also a personal benefit. One of the ironies of domestic partnership is that it’s not only more complicated than marriage, it’s more demanding, requiring an elaborate statement of intent to qualify. It amounts to a substantial invasion of privacy. Why, after all, should gays be required to prove commitment before they get married in a way we would never dream of asking of straights?

Legalizing gay marriage would offer homosexuals the same deal society now offers heterosexuals: general social approval and specific legal advantages in exchange for a deeper and harder-to-extract-yourself from commitment to another human being.…

The argument that gay marriage would subtly undermine the unique legitimacy of straight marriage is based upon a fallacy. For heterosexuals, straight marriage would remain the most significant—and only legal—social bond. Gay marriage could only delegitimize straight marriage if it were a real alternative to it, and this is clearly not true. To put it bluntly, there’s precious little evidence that straights could be persuaded by any law to have sex with—let alone marry—someone of their own sex. The only possible effect of this sort would be to persuade gay men and women who force themselves into heterosexual marriage (often at appalling cost to themselves and their families) to find a focus for their family instincts in a more personally positive environment. But this is clearly a plus, not a minus: Gay marriage could both avoid a lot of tortured families and create the possibility for many happier ones. It is not, a denial of family values. It’s an extension of them.…

Legal gay marriage could also help bridge the gulf often found between gays and their parents. It could bring the essence of gay life–a gay couple–into the heart of the traditional straight family in a way the family can most understand and the gay offspring can most easily acknowledge. It could do as much to heal the gay–straight rift as any amount of gay rights legislation.

If these arguments sound socially conservative, that’s no accident. It’s one of the richest ironies of our society’s blind spot toward gays that essentially conservative social goals should have the appearance of being so radical.”  (Andrew Sullivan, “Here Comes The Groom: A (Conservative) Case For Gay Marriage,” New Republic, August 28, 1989)

1208:

“5 May 1993 – The Hawaii Supreme Court rules that the state’s refusal to issue marriage licenses constitutes sex discrimination under Hawaii law.  As such, the discrimination may only be practiced if the state can demonstrate a ‘compelling public interest’ in denying marriage to same-sex couples.  The Supreme Court returns the case to the circuit court to issue a new decision based on whether such a compelling interest exists.” (Richley H. Crapo, “Chronology of LDS Involvement in Same-sex Marriage Politics,” 1997) [NOTE THAT BOYD PACKER’S “THREE ENEMIES” SPEECH TO THE ALL-CHURCH COORDINATING COUNCIL WAS GIVEN THIRTEEN DAYS AFTER THE SUPREME COURT DECISION WAS ANNOUNCED.]

1706:

“Because the original lawsuit did not raise any federal issues, the case cannot be appealed to the U.S. Supreme Court and Hawaii’s ruling must stand, making same-sex marriage is legal in that state. Furthermore, under the U.S. Constitution every state is required to recognize marriages performed in any other state.” (“Hawaii’s Supreme Court rules in favor of gay marriage,” Affinity XV(6):1, July/July, 1993)

“[p. 1] The imminent legalization of same-sex marriages in Hawaii certain to give right wing politicians and fundamentalist fits, particularly since those unions will be valid in all 50 states. But nowhere will the ramifications be more significant to Affirmation members and—nowhere will the politics be more intense—than within the LDS church.

Over the last 25 years the church is used ever-changing arguments to defend its position on homosexuality. In recent years however, its public policy has been consistent, despite varied ‘interpretations’ by local leaders.

[p. 9] That policy says that there is ‘only one law of chastity’ that applies to everyone ‘regardless of sexual orientation,’ namely, ‘no sexual relations outside of marriage.’

While this policy is far less malicious than the pronouncements of the Kimball era, gay and lesbian Saints have argued that it is nevertheless discriminatory since ‘waiting’ until marriage is far different than lifelong celibacy. With legal marriage as an alternative, the LDS policy becomes truly ‘one law of chastity,’ applying equally to all members.

It would indeed be a blessing if that were the end of the story. Based on historical evidence however, it is unrealistic to expect that the Church will simply take gay marriages in stride. Despite the 12^th article of faith, which states we believe in obeying, honoring, and sustaining the law, it is more likely the church authorities will articulate a new rationale for denying gay and lesbian members full equality.…

Mormon scripture has nothing to say on the issue of same-sex marriage either. The few references to physical homosexual behavior often cited from the Bible by fundamentalists make no reference to marriage. Of themselves they no more preclude committed same-sex unions then do the over 120 scriptural references to adultery and fornication forbid heterosexuality. Scripture can only point to the context in which sexual activity is inappropriate, but says little of the relationships which define marriage.

The fact that only heterosexual sealings are now performed in LDS Temples does not rule out the acknowledgment of civil marriages. The Church has always considered heterosexual couples married outside the temple, whether in religious or civil ceremonies, to be living with in the law of chastity. Clearly then, Priesthood authority is not the deciding factor.

If chastity is ‘God’s law,’ it requires only compliance with man-made laws, then who can say which man-made laws will be recognized by God and which will not? Since the ‘laws of the land’ change from country to country and era to era, it is unreasonable to assume that God is bound by any of them. The Scriptures tell us that God is ‘no respecter of persons’ and ‘all are alike unto God.’ It is not the laws of God that discriminate, but the laws of man. It remains to be seen upon which of these laws the policies of the Mormon Church are based.”  (“One law of chastity: Will LDS gays be ‘legally and lawfully wedded,’” Affinity XV(6), June/July 1993)

1707:

“[p. 1] Gender is a ‘suspect class’ under the Hawaiian constitution and the court ruling requires the state to show a ‘compelling reason’ that such discrimination is in the state’s best interest. Failing this, the band will fall and gay marriages will become legal in Hawaii. Legal experts expect this to occur within the next two years.

The religious rights however, has mounted a campaign in the state legislature to either write the ban into law or amend the state constitution to circumvent the prohibition against gender-based bias. Hearings on the topic have been described as ‘contentious’ and according to one observer, ‘the fundamentalists [are] out in force.’

Unsubstantiated rumors are circulating that the Mormon Church is quietly encouraging its members in Hawaii to get involved in the fight to perpetuate the ban. One church official there, who wished to remain anonymous, admitted, ‘The church learned its lesson with the [p. 11] ERA [Equal Rights Amendment]—it should never have gotten publicly involved.” (“Affirmation member testifies on marriage before Hawaii Senate,” Affinity XVI(1):1, 11, January 1994)

1779:

“Same Gender Marriages

The principles of the Gospel and the sacred responsibilities given us require that The Church of Jesus Christ of Latter-day Saints oppose any efforts to give legal authorization to marriages between persons of the same gender.…

We encourage members to appeal to legislators, judges, and other government officials to preserve the purposes and sanctity of marriage between a man and a woman, and to reject all efforts to give legal authorization or other official approval or support to marriages between persons of the same gender.”  (First Presidency Circular Letter, signed by Ezra Taft Benson, Gordon B. Hinckley and Thomas S. Monson, February 1, 1994)

1671:

“In the mid-1970s, the Mormon Church launched an unprecedented campaign against the Equal Rights Amendment, saying its passage would promote lesbianism and degrade the American family.

Two decades later, the church is gearing up to fight another perceived threat to home and hearth: same-sex marriages. A concerted Mormon anti-ERA campaign raged in several states, and some believe the church tipped the scales for the amendments failure. Proponents complained bitterly about what they saw as the church’s intrusion into the secular, political arena.

Like an echo from the past, the charges resonate today.

In February, the church’s First Presidency issued a statement urging members to oppose legalization of same-gender marriage and encouraging them to ‘appeal to legislators, judges and other officials to preserve the purposes and sanctity of marriage between a man and a woman.’

Church leaders say they are apolitical and speak out only on public issues they consider also to be moral issues.

‘The church can teach whatever doctrine it feels appropriate,’ said Marty Baudet, a San Francisco gay activist and the national executive director of Affirmation, a gay Mormon support group.

‘But I don’t accept the premise they can deny the citizens at large, people who don’t subscribe to Mormon doctrine, the right to be recognized equally under the law,’ he said.

As bothersome to Baudet and others is the appearance, at least, that church headquarters is orchestrating the fight. In Hawaii, where a recent court ruling could validate gay marriages, fliers instructing church members to support legislation to counteract the ruling and telling them how to get involved in the political process have been made available at church meetings.

Hawaiian church officials say the effort is local.

‘We never expressed to our members that we require this,’ said Donald Hallstrom, the church’s regional representative and spokesman in Hawaii. ‘There was no coercion, in any way, shape or form.’

The fliers contain no references to The Church of Jesus Christ of Latter-day Saints. Some list a telephone number for the ‘Hawaii Public Affairs Council,’ which rang to the churches public affairs missionaries.

Hallstrom said the fliers were intended for church members only.

William E Woods, a spokesman for the Honolulu-based Gay and Lesbian Education and Advocacy Foundation, said several statements faxed to a Senate subcommittee came from machines at the church-owned Polynesian Cultural Center and the campus of Brigham Young University-Hawaii.

‘I am absolutely, personally and clearly aware that the church and its business organizations are actively developing testimony on the issue,’ Woods said.

Church spokesman Don Le-Fevre said that other than the February statement, church leaders have not involved themselves.…

There are those, however, who believed that if church leaders are not conducting the campaign now, they will be.”  (“LDS Church Opposing Gay Marriages,” Deseret News, March 30, 1994)

1708:

“[p. 1] In a statement made public February 13, counselors to ailing LDS Church President Ezra Benson, urged ‘members to appeal two legislators, judges and other government officials to preserve the purposes and sanctity of marriage between a man and a woman and to reject all efforts to give legal authorization or other official approval or support to marriages between persons of the same gender.’ Sent earlier to Church leaders worldwide, the statement was to be read in local Sacrament Meetings.

The statement was time to coincide with a legal battle in the Hawaii state legislature to enact a ban on same-sex marriages. The legislation was proposed following a preliminary Hawaii Supreme Court ruling, declaring such a ban to be gender-based discrimination and ordering the state to provide a compelling state interest in prohibiting same-sex unions.…

[p. 6] The Church, which for the last decade has said that it applies a ‘single standard’ to members all sexual orientations, namely ‘no sexual intercourse’ outside the bonds of ‘legal and lawful’ marriages, could find it necessary to re-articulate that policy if indeed Hawaii sanctions ‘legal’ gay marriages. Despite a Church ‘article of faith’ pledging to ‘honor, uphold and sustain the law’ of the land, it is not widely sought that LDS leaders would recognize such legal unions.…

The proposed legislation now being argued in Hawaii articulates the possibility of procreation as a justification for recognizing traditional marriages. The Church statement underscores that reasoning, stating, ‘Marriage between a man and a woman is ordained of God to fulfill the eternal destiny of his children. The union of husband and wife assures perpetuation of the race and provides a divinely ordained setting for the nurturing and teaching of children.’…

Speaking for Affirmation: Gay & Lesbian Mormons, Executive Director Marty Beaudet said, ‘Heterosexuals do not have a monopoly on happy homes and ‘righteous living.’ Many gay and lesbian couples are already raising healthy children in a ‘sacred family setting.’

Affirmation’s Norden chapter, based in Helsinki, reports the church leaders in Scandinavia have also been speaking out recently an opposition to laws already in effect in Denmark and Norway, as well as pending legislation in Finland and Sweden, recognizing gay and lesbian marriages.” (“Church enters political arena to prevent same-sex marriages,” Affinity XVI(3), March 1994)

1708:

“[p. 8] What is the Church trying to protect by limiting the agency of people (non-members in this case) who want to have a choice? Remember, the Church still has control over what it permits members do and remain in good standing. The Church doesn’t lobbied to prohibit alcohol production simply because it’s forbidden to us.”  (“Responses to the Church’s statement,” “T.C.”, Affinity XVI(3), March 1994)

“[p. 8] This statement expresses the idea that marriage is about men and women coming together to have children, that marriage is solely for those who are committed to creating a traditional family, and that marriage is really only moral when it brings together those who are creating an eternal family unit that includes procreation in this life and in the life to come.

Yet, in practice, the Church approves of marriage between man and women even when those requirements aren’t met and never will be. The Church encourages those who have already been married, and for whatever reason find themselves single again, to remarry, knowing that these marriages are for things like companionship and other reasons, including sexual expression, rather than for the creation of a permanent family unit.

The church also tolerates interdenominational marriage, civil marriage, and marriage in which no children are born (or will ever be born, in the case of couples who choose not to have children). It’s true that the church probably doesn’t like these types of marriage, but it doesn’t prevent them from happening. It doesn’t threaten excommunication for those involved. And it doesn’t encourage its members to get politically involved in creating legislation to prohibit these forms of heterosexual union, even though they are not in accord with the rationale for marriage expressed in this First Presidency statement (and in other such statements by church leaders).

So the statement by the First Presidency doesn’t settle things at all.

The whole thing about the Church’s decision to ask its members to get politically involved in preventing gay marriage might never have happened except that at times in the last few years marriage became the Church’s simplest reason for explaining its position on why gay sex is condemnable. Comments to CBS news in 1986 by Dallin Oaks, press statements quoting Boyd Packer, and other publicly-presented comments by Church leaders during the last half of the 1980s focused on the reason that gay sex is not acceptable to the LDS church is because gay sex is like any other [p. 9] form of sex outside of lawful, legal marriage and is therefore inappropriate.

Now, with discussion going on in Hawaii regarding that state’s marriage law covering gay marriage, the church is making a different appeal, putting a different face on its position: gay sex is morally wrong not because it’s sex outside of marriage, but because even in marriage it can produce offspring and for that and related reasons gay marriage isn’t ‘really’ marriage.

What does this rationale of lack of possible biological offspring say to those heterosexual couples who were biologically unable to be parents—that their marriage is not real, it is not valid, is not acceptable in the eyes of the Church and God?

So no, this statement by the First Presidency doesn’t settle the issue. It doesn’t resolve it. And it opens this particular Pandora’s box—of gender roles, sexuality and eternal relationships—wider.…

The Church wants does not to just go away, but to never have existed in the first place. That way it can be rid of the problem it has no solution to, a problem it doesn’t understand, a group of people it doesn’t want to bother with.” (“Responses to the Church’s statement,” Randy Weight, Affinity XVI(3), March 1994)

1781:

“The Church’s stand on homosexual relations provides another arena where we offend the devil. I expect that the statement of the First Presidency and the Quorum of the Twelve against homosexual marriages will continue to be assaulted. Satan is only interested in our misery, which he promotes by trying to persuade men and women to act contrary to God’s plan. One way he does this is by encouraging the inappropriate use of sacred creative powers. A bona fide marriage is one between a man and a woman solemnized by the proper legal or ecclesiastical authority. Only sexual relations between husband and wife within the bonds of marriage are acceptable before the Lord.

There is some widely accepted theory extant that homosexuality is inherited. How can this be? No scientific evidence demonstrates absolutely that this is so. Besides, if it were so, it would frustrate the whole plan of mortal happiness. Our designation as men or women began before this world was. In contrast to the socially accepted doctrine that homosexuality is inborn, a number of respectable authorities contend that homosexuality is not acquired by birth. The false belief of inborn sexual orientation denies to repentant souls the opportunity to change and will ultimately lead to discouragement, disappointment, and despair.

Any alternatives to the legal and loving marriage between a man and a woman are helping to unravel the fabric of human society. I am sure this is pleasing to the devil. The fabric I refer to as the family. These so-called alternative lifestyles must not be accepted as right because they frustrate God’s commitment for a life-giving union of male and female within a legal marriage as stated in Genesis. If you practiced by all adults, these lifestyles would mean the end of the human family.”  (James E. Faust, “Trying to Serve the Lord Without Offending the Devil,” BYU Devotional Address, November 15, 1994, in Brigham Young University 1994-95 Devotional & Fireside Speeches (Provo: Brigham Young University Publications, 1995), p. 62)

1670:

“Hawaii leaders of the LDS Church have petitioned to join the court battle to prevent the proposed legalization of same-sex marriages in Hawaii.

The Church of Jesus Christ of Latter-day Saints submitted a petition to intervene in a case pending before Hawaii State Court that could decide the legal status of same-sex marriages here. ‘There are times when certain moral issues become so compelling that churches have a duty to make their feelings known, said Don Hallstrom, the church’s regional representative for Hawaii.…

The case was brought by three homosexual couples in 1991, and the Hawaii Supreme Court sent it back to the lower court in 1993, saying the state must show a compelling interest why same-sex marriages should not be legal.

The case is scheduled for trial September 25, 1995.

The churches want to help the attorney general prepare for the case by supplying extralegal manpower, expert witnesses and research results, Elder Hallstrom said.

He would not comment on how much money the church is prepared to spend on the issue, but said the Hawaii region has the full support of the international church in its actions.

The LDS church took this unprecedented step because of the seriousness of the issue and its potential impact on society, Elder Hallstrom said.

The church takes a moral stand against homosexuality [emphasis added] but does not try to impede the civil rights of individuals, Elder Hallstrom said.

‘We do not see this as a civil-rights issue. We see it as a protection of traditional marriage.’

Dan Foley, attorney for the couples, said the LDS Church’s motion to intervene was filed too late and has no legal standing. [emphasis added – Foreshadowing the Proclamation on the Family?]

‘We will oppose it and asked the court to sanction the church for this frivolous motion,’ Foley said.”  (“Church Joins Hawaii Fight Over Same-Sex Marriages,” Deseret News, February 24, 1995)

1686:

“The Church in Hawaii—with the support of the Roman Catholic Church in the state—has taken legal action to support traditional marriage and prevent state sanctioning of homosexual and lesbian marriages.

The churches action, taken February 23, is a request to the Circuit Court of Hawaii for permission to intervene in opposition to an attempt by three same-gender couples seeking the right to have a legal marriage. A lawsuit, Baehr v. Lewin, was originally thrown out by the trial court. The couples appealed, and the Hawaii Supreme Court ruled that state marriage law discriminates on the basis of sex unless there is a compelling state interest to deny marriage licenses to homosexual and lesbian couples. The Supreme Court sent the case back to the Circuit Court to make that determination.

Under Hawaii law, an entity may intervene in a legal action by proving that it has substantial interests in the outcome of the case. The trial is expected to be held in September.

The action by the Church supports the state of Hawaii in seeking to preserve its law against homosexual and lesbian marriages. If state law is overturned on this matter, Hawaii would be the first state in the nation in which that happened.

Donald L Hallstrom, regional representative in the Oahu Hawaii North Region, announced the Church’s action at a news conference on the day the request was filed with the court. He was joined by the Rev. Marc R. Alexander, diocesan theologian for the Hawaii Catholic Conference; Napua Baker, spokeswoman for the Church in Hawaii; and James M. Sattler, the attorney who is representing the Church in the case.

‘Our purpose and our intention is to be of help and assistance to the attorney general in defending the existing Hawaii law respecting marriage,’ attorney Sattler said, ‘ and our papers are all designed to put forth the facts and the arguments as to why we should be allowed to become parties to the case on the same side as the state and to seek to uphold the existing law.’

Elder Hallstrom said the news conference was not a forum ‘to attack homosexuals or lesbians.’

‘The position of the church … on homosexuality is a matter of record.  We are opposed to it on moral grounds.  Nevertheless, the Church has not attempted to oppose basic civil rights for homosexuals or any other group.  This is not our work nor our focus.’

He said the Church believes in sexual abstinence before marriage and total fidelity after marriage, ‘and we believe marriage should be between a man and a woman only.’

Elder Hallstrom said legalizing same-sex marriage goes far beyond basic rights for any individual or group.

‘There are times when certain moral issues become so compelling that churches have a duty to make their feelings known,’ he added.  ‘In rare cases, they may need to pursue their own constitutional rights to resist something they feel poses a serious threat to the moral fabric of society.  We have reached such a situation in Hawaii.’

The Church is resisting this major change in the law, he said, ‘because we feel it represents a threat to families, to our children, and to our way of life in Hawaii.’

He affirmed that the action was taken in consultation with Church headquarters in Salt Lake City.  ‘While this initiative is our own, we assure you that we have the approval and support of the Church … in the action we are taking.’

The Rev. Alexander said the Roman Catholic Church in Hawaii joins the LDS Church in opposing legalization of ‘homosexual marriages.’

‘The Catholic Church in Hawaii will pursue the same goal through other means,’ he added.  In response to a question, he explained that the ‘other means’ would be in the form of a petition to the court to allow the Catholic Church to participate in the case as amicus curiae or ‘friend of the court.’…

Elder Hallstrom said the LDS and Catholic churches, as the two largest churches in Hawaii, have united on this matter because of their common belief in the sanctity of traditional marriage.…

A single parent, Sister Baker said: ‘We … recognize and respect the growing number of single-parent families in Hawaii.  They play a vital role in raising children.  Our objection is to changing the basic definition of marriage in Hawaii and violating the traditional partnership of men and women.  We believe this is a serious threat to our values, and it is morally wrong.’”  (“Church opposes same-sex marriages,” Church News, March 4, 1995)

1208:

“Feb/Mar 1995: In the petition which was filed soon after the announcement by the Hawaii Public Affairs Council, the church argued that if same-sex marriage were legalized, (1) it feared that the state would revoke its ministers’ licenses to perform marriages, (2) the church could become subject to lawsuits charging discrimination when its ministers refused to perform same-sex marriages, and (3) because the church could help the Attorney General’s office to present a more complete case than would otherwise be done, given the limited time and resources available to the AG. 

Mar 1995: The Circuit Court of Hawaii rejects the church’s petition to become a party to the Baehr case.  The judge ruled that the request was without merit, since nothing in the licensing law REQUIRES a minister to perform ANY marriage in behalf of the state, rather it merely PERMITS them to do so when it is in harmony with their religious practice and belief.… The Church appealed this decision to the Hawaii Supreme Court.” (Richley H. Crapo, “Chronology of LDS Involvement in Same-sex Marriage Politics,” 1997)

1667:

“A circuit judge refused Tuesday to permit the LDS Church from entering the legal battle to keep same-sex marriages illegal in Hawaii.

The attorney for the couples had argued the church’s motion was filed too late and the church had no legal standing.”  (“Judge Bars LDS Church From Same-Sex Lawsuit,” Deseret News, March 29, 1995)

1668:

“Three Hawaii representatives of The Church of Jesus Christ of Latter-day Saints have appealed a circuit court’s ruling denying them the right to join with the state in the battle to keep same-sex marriages illegal. With support of the church’s leadership in Salt Lake City, the three representatives Wednesday filed a notice of appeal asking the Hawaii Supreme Court to allow them to become a party to a lawsuit that was filed against the state by three homosexual couples.…

Seeking a reversal of a lower court decision are president Charles W. H. Goo, a stake president who oversees a group of congregations in Laie; Bishop Delbert F. Kim, who presides over a congregation in Wahiawa; and Bishop Harry H. Brown, Jr., leader of a congregation in Laie.

The three, who have a local attorney hired by the church’s legal counsel, are representative of dozens of the church’s clergy throughout the state.…

‘If the lower court’s ruling is not overturned, Hawaii could be the first state to legalize homosexual and lesbian marriages. Gay couples could then be married in Hawaii, and other states could be required to legally recognize those marriages,’ Elder Hallström said.

The appeal of the church, which has repeatedly opposed efforts to legalize same-gender marriages, is based on the reasonable fear that the authority of Hawaii clergy to solemnize marriages could be lost if same-gender marriages are legalized and they (clergy) refused to perform them on the basis of their moral beliefs.…

In its original petition filed in February, the LDS Church said it could offer attorney general Marjorie Bronster additional legal manpower, expert witnesses and research results as she prepares the case, which goes to trial September 25.

State Judge Herbert Shimabukuro denied that petition March 30.…

In mid-March, Utah Gov. Mike Leavitt signed into law a bill, passed the last hour of the legislature, that would change the way Utah accept marriages made in other states.” (“3 LDS Officials Seek to Join Hawaii Suit,” Deseret News, April 14, 1995)

1685:

“On May 31, the Mormon church in Hawaii filed a motion with Hawaii’s Supreme Court to expedite their appeal of Circuit Court Judge Shimabukuro’s decision against them. They would like their appeal decided this summer in advance of the scheduled September 25 hearing date for Baehr v. Lewin in Circuit Court.

The Mormon church filed in February with Honolulu’s circuit court to become codefendants with the state against HERMP in Baehr v. Lewin. They were rejected in March by Circuit Court Judge Shimabukuro.The Mormons then appealed Shimabukuro’s rejection to Hawaii’s Supreme Court. Alas, for them, such appeals usually take one year and the Circuit Court is scheduled to hear Baehr v. Lewin on September 25. For this reason, the Mormons have filed for special treatment.” (“Mormons Back in Court, Filing Motion to Expedite Their Appeal,” Tom Ramsey, www.qrd.org {Queer Resources Directory}, June 2, 1995)

924:

As a result of meetings in Hawaii with McNeil Wilson, our legislative lobbyist—Linda Rosehill, James Hockberg and Bishop DeLorenzo of the Catholic Church, the following has been done: Reverend Marc Alexander, local Catholic theologian, and Jack Hoag have accepted assignments as Co-Vice Chairmen of the Committee on Same-Gender Marriage and will proceed to organize the committee and to also find a committee chairman, who is not visibly connected with either church.  We left with Brother Hoag and Reverend Alexander, names of potential committee members, but thought it wise for them to do the organizing.

The following matters need immediate attention regarding this issue:

• Legal advice is needed as to how the committee should best be organized to meet the requirements of Hawaiian law.  We have asked Lance Wickman to look into this matter when he is in Hawaii this weekend.

• A media experienced person on the ground working under the direction of the committee who could coordinate the various facets of this issue.  This is the most immediate need at the present time.  An ‘Art Anderson type’ called on a short-term mission would be ideal.

• The approval to provide funding so James Hockberg can hire a researcher to help him in his efforts as a minority member of the commission.  This should not be overly expensive, nor should it be long-term.

• To begin immediately with fund raising effort.  Someone will need to be in charge here in the United States and the money raised fairly rapidly.  Fund raising will also take place in Hawaii through Jack Hoag and the committee.

• An understanding that this whole matter might be settled in the legislature with a domestic partnership compromise that could reflect our commitment to basic family values.

• Richard Wirthlin is scheduled to be in the islands from November 8-11 to help guide the survey efforts and to advise the committee on strategy.

(Loren C. Dunn to Neal A. Maxwell, October 24, 1995)

923:

“On October 19, Bruce Olsen, Stuart Reid and myself met with Don Hallstrom to plan the organization of a committee that will take the lead in opposing same-gender marriage in Hawaii.

The questions that came from that meeting were:…

4. How can we engender broad range support so it does not appear to be the effort of one or two groups?

We next met with David Wilson of McNeil Wilson and three of his associates, including Linda Rosehill, the legislative lobbyist who is retained by McNeil Wilson to work on this project.  From this discussion came the following:…

2. The co-vice chairmen will look for a chairman, preferably a young to middle aged mother who is skilled and articulate but not visibly recognized as a leader in any church.…

4. Fund raising will occur in both Hawaii and the mainland but the major help will come from the mainland.…

7. The way is prepared for Richard Wirthlin to come to Hawaii November 8-11, to advise in developing strategy.…

For our final meeting, we went to the Catholic offices nearby and met with Bishop DeLorenzo, Reverend Marc Alexander and their media representative.  They stand with us on this issue.  The following came from the meeting:

1. Dallin Oaks meeting with the Catholic leadership in Chicago has borne fruit.  They have appointed a committee to study this issue and the Bishop says they will probably contribute to the fund raising which is a switch from earlier meetings.…

2. We are still not settled on the focus of the committee.  Family and family values is not specific enough.  Same-gender marriage is too narrow to get broad support because of fear of reprisal by homosexual radicals.  The issues of gambling, prostitution and same-gender marriage taken together may cause our issue to become obscured.…

We understand Lynn Wardle is researching the domestic partnership issue.…” (Loren C. Dunn, “Report to the Public Affairs Committee on Same-Gender Marriage Issue in Hawaii,” October 24, 1995)

925:

“A national coalition is being formed to support efforts preventing the legalization of same-gender marriages in Hawaii and other locations throughout the country.  As of this writing, the following religious groups have expressed interest in joining with the Church as part of a national coalition: Missouri Synod Lutherans, Church of the Nazarene, Rabbinical Council of America, National Association of Evangelicals, U.S. Conference of Catholic Bishops, and General Conference of Seventh Day Adventists.  Efforts are underway to recruit the Southern Baptist Convention, Christian Coalition, and representation from the Muslim community.

The U.S. Conference of Bishops is considering our request to convene a meeting of the national coalition at their headquarters sometime in late November.  If the Catholics decide to host this first meeting of the coalition, it will provide valuable support and coverage for the initiative to organize opposition to the legalization of same-gender marriage.”  (Stuart C. Reid [LDS Public Affairs] to Loren C. Dunn, October 31, 1995)

307:

“We are in need of getting McNeil Wilson started.  Their original proposal was half a million dollars.  This was redone and the figure is one quarter million which could go down if we don’t use all the planned paid media.  If the appropriation is approved, they can get started and we can transfer the matter to the coalition when they are organized.

Fund raising needs to begin immediately, with a chairman of the mainland. Contributions will be sent to the coalition through Vice Chairman Jack Hoag. One hundred thousand dollars is needed immediately so we can get the survey works started that was recommended by Richard Wirthlin. L.D.S. foundation will be asked not to raise funds in Hawaii for a few months until we get this matter settled.

As mentioned, Robert J. Morris, an attorney in Honolulu has asked to meet with Don Hallstrom and others. He says he is writing an article for Dialogue on same-gender marriage in Hawaii. We confirmed he was excommunicated in the 1980s for homosexuality. Our people are avoiding him. (Loren C. Dunn to Neal A. Maxwell, October 31, 1995)

926:

“I read your manuscript, ‘Some Objections to Same-Sex Marriage—Part One,’ over the weekend. It is brilliant and comprehensive and persuasive. I do not have adequate words to express my gratitude to you for what you and your associates have brought together for use at this time in such a needed area. You pay a price in time and possible vulnerability for such an effort (as your article makes brilliantly clear!), but I am sure you will be rewarded from the same Source that prompted you to work on the subject.”  (Dallin H. Oaks to Lynn D. Wardle, October 31, 1995)

927:

“Over the weekend I carefully studied Lynn Wardle’s manuscript, which I received just prior to our recent meeting.…

Wardle advises that he has sent his entire manuscript to Jim Hochberg and Fritz Rohlfing in Hawaii. He would also be pleased to send a copy of it to the Catholic diocese’s attorney in Hawaii, if we desire him to do so. I believe you are the one who should make that decision.…

Wardle’s work is absolutely first-rate, and extremely thorough. The publication of his article (if he can overcome the bias he discusses on pages 30-46 in order to get it published) may turn out to be one of the very most important resources we have in our national lobbying effort. We are very pleased to have had one so brilliant working so thoroughly on the very subject we needed.…

What seems clear to me is that we need to begin to study this issue so we will be well informed about any possible compromise that might be proposed in the legislative process. If we are well informed on the possible subjects of domestic partnership legislation, we will be able to determine what compromises we could agree to do without jeopardizing our essential interests. If we are better informed than our adversaries, we are likely to prevail in the arena of compromise (which I believe will be inevitable in the legislative process, in this session or a future one).

As a very modest introduction to the subject, I have put some thoughts on the attached sheet of paper. I have deliberately avoided putting my name or any other identification on it, so the sheet could be detached and shared as needed, without any danger of attribution to me.”  (Dallin H. Oaks to Loren C. Dunn, October 31, 1995)

Some Thoughts on Domestic Partnership Legislation

1. If legislation provides for an official registration of domestic partnerships, it would be unacceptable because this would give domestic partnerships a standing and effect equivalent to marriage for many purposes.
2. A more acceptable approach would be to have an enabling legislation to permit private parties to enter into private agreements that would grant some rights to a domestic partner that would otherwise be unavailable or difficult to establish. Some examples would include the following:

• Life insurance benefits (creating a new ‘insurable interest’).
• Health insurance benefits.
• Pension benefits.
• Visitation rights in hospitals and prisons.
• Bereavement leave from employment.
• Legal guardianships and power of attorney rights (in circumstances otherwise available only to ‘family members’ or ‘spouses’).
• Housing rights. (This one would need to be looked into quite carefully. There are some laws or lease provisions limiting which persons can reside in the same apartment. This valuable privilege might be extended somewhat.)…

306:

“Two days of strategy sessions were held in Hawaii to know how to proceed.  Present, in addition to myself, were Jack Hoag and Father Marc Alexander (Coalition Co-Vice Chairmen), Richard Wirthlin, Don Hallstrom, Debi Hartman (member of the Church and former chairman of the State Board of Education in Hawaii), Linda Rosehill, lobbyist, Arthur Anderson and members of McNeil Wilson Communications.  The results were:

Coalition: As I already reported, a corporation allowing tax exemption to donors was not likely because (1) We have a known lobbyist working for us, and (2) approval from the government would take months.… Major contributors will still be needed.  Linda Rosehill only has to report her retainer for actual lobbying work and it is likely most of the contributions can be kept from disclosure.  Checks should be from individuals and can go to ‘Hawaii’s Future Today’…

The coalition is looking for an articulate middle-age mother who is neither Catholic nor L.D.S. as chair but two have declined because they work for organizations who want to stay out of the issue (such as YWCA).… The coalition will include casino gambling and prostitution while concentrating on same-gender marriage, since it will give our lobbyist room to maneuver in the legislature.…

Strategy: Richard Wirthlin was invaluable in laying out principles of communication and attitude changes.

• A Wirthlin survey has cleared the coalition and final results will be available December 4.  This will help refine strategy and focus.

• The initial work will be with the legislature and this will be done as quietly as possible.

• Efforts are being made to discredit the government appointed commission appointed to study the issue.  They are 5-2 in favor of same-gender marriage.  They have held no hearings off island and the majority have met on occasion without the minority present.  A letter writing campaign has been started as to why the commission does not have hearings off island.…

• The opposition has a low profile and the coalition plans to work quietly with key groups, except in an instance or two when large crowds will be gathered to show the strength of the coalition.

• The initial thought is to influence the legislature to do nothing or if legislation is passed, have it severely diluted or even sustaining traditional marriages.

• We hear from all sources that this issue will recur and will only be put to bed with a constitutional amendment.  This is a hard road to take but a sitting justice of the supreme court has suggested it to Linda Rosehill and the Speaker of the House who has stood with us on this whole problem.  As you know, the Attorney General also supports an amendment.  Richard Wirthlin is seeking public attitude on an amendment and the coalition will need to study this fully as to how and whether this should be pursued.

• A media campaign will be planned but not used unless needed at the end of the campaign.

(Loren C. Dunn, “Report to the Public Affairs Committee on Same-Gender Marriage Issue in Hawaii,” November 21, 1995)

930:

“Re: Additional Resources for Minority Report of Hawaii Commission

For your information, I enclose a copy of a cover letter and 29 pages of resource material that I sent to Toni Sheldon and Jim Hochberg for use in polishing and developing the Minority Report.  I do not mean to bother you with paper flow.  However, I thought you might be interested to now of substantial ongoing developments of which I am aware.

[The title of Wardle’s manuscript is “The Social Purposes of Marriage and the Unique Contributions of Heterosexual Marriage.”]

[p. 2] There are at least a dozen social purposes of marriage as to which heterosexual marriages provides tremendous benefits to society that are unequalled by homosexual unions.  They include: (1) safe sexual relations, (2) procreation, (3) child-rearing, (4) fatherhood, (5) motherhood, (6) the status of women, (7) stability, (8) complementarity, (9) economic security, (10) democracy, (11) public morality, and (12) intercultural relations.…

[p. 10] The argument that a homosexual couple may ‘procreate’ through artificial insemination, surrogacy, some other assisted reproduction technique is both erroneous and evasive.  The same-sex couple are not procreating with each other, nor can they as a matter of gender linkage.  As well might a solitary man argue that he should be allowed to marry his pet rock, pine tree, or ewe—he is just as capable of ‘procreating’ alone, or with an inanimate object, or with a plant, or with another species of animal life, as same-sex couples are capable of ‘procreating.’…”

(Lynn D. Wardle to Elder Dallin H. Oaks, Elder Loren C. Dunn, Stewart Reid {LDS Public Affairs}, November 28, 1995)

931:

“The following is a brief summary of the status of the same-gender marriage issue and the efforts of the Coalition (Hawaii’s Future Today) to date:

• The remand trial, which has been continued twice, is set for July15, 1996.

• The Commission on Sexual Orientation and the Law, constituted because of an ordinance passed by the 1994 Hawaii Legislature which restated the definition of marriage as between one man and one woman, is presently completing its work.  As expected, the ‘majority report’ will recommend same-sex marriage, or in the alternative, domestic partnership, to the 1996 Legislature.  A ‘minority report’ is also being produced by two commissioners whom we have extensively assisted.  The Legislature is not bound by any product of the Commission.

• The 1996 Legislature begins January 17, 1996 and runs to early May.  Coalition leadership has already met with Joseph Souki, the Speaker of the House, and Rey Graulty, the Senate Judiciary Chairperson.  Souki is very supportive of our efforts, as is Terrance Tom, the House Judiciadry Chairperson.  It is Souki’s opinion that same-sex marriage or strong domestic partnership bills will not get through the House.…

• The Coalition is being formed and has Debi Hartmann, the former Chairperson of the State Board of Education, as Chairperson, and Father Marc Alexander and Jack Hoag as Co-Vice Chairpersons.  The name, Hawaii’s Future Today, has been reserved and legal incorporation is in process as a non-profit entity.  Due to the length of time such approval would take, the organization will not be tax exempt.

• Richard Wirthlin went to Honolulu in mid-November and spent two full days with Coalition leaders and hired professionals.  He offered valuable counsel as to the campaign and was provided sufficient background to prepare a poll to aid in strategy planning.  The poll of Hawaii residents has been completed with preliminary results available this week and final results next week.…

• Linda Rosehill has been retained as our governmental affairs specialist.  She is highly experienced and effective in this role.  Her background as a ‘liberal democratic lobbyist’ may appear conflicting with our position on this issue, however, we have had extensive discussion and time with her and are convinced her ‘heart’ is with us.  In fact, her persona probably works in the Coalition’s favor as it is easy for the group to be labeled as ‘right-wing conservative.’”

(Donald L. Hallstrom to Loren C. Dunn, November 28, 1995) 

932:

[The following day, Dunn sent essentially the same document as a “Report to the Public Affairs Committee on Same-Gender Marriage Issue in Hawaii.”  It included the following paragraph, which probably was in the November 28 memo but may have been on a page that is missing from my files:]

“It should be noted that no state legislature in the United States has passed a same-gender marriage bill, nor has the national Congress.  Everyone is looking to Hawaii with the feeling that if it should be the first, it would cause a domino effect.” [Emphasis added]

(Loren C. Dunn, “Report to the Public Affairs Committee on Same-Gender Marriage Issue in Hawaii,” November 29, 1995)

933:

“The following is a brief summary of the status of the same-gender marriage issue and the efforts of the Coalition (Hawaii’s Future Today) to date:…

• Church legal counsel, Lance Wickman, feels the battle must be fully joined in Hawaii.  ‘Its advocates really leave us no choice.  If such “marriages” are legalized in Hawaii, HLM [Homosexual and Lesbian Marriage] advocates then will demand that other states acknowledge their legality under the Full Faith and Credit clause of the U.S. Constitution.  Such a development would substantially escalate the battle, essentially narrowing the battlefield largely to the courts.’…

• Richard Wirthlin went to Honolulu in mid-November and spent two full days with Coalition leaders and hired professionals.  He offered valuable counsel as to the campaign and was provided sufficient background to prepare a poll to aid in strategy planning.  Preliminary results of the Wirthlin survey show that Hawaiians reject same-gender marriage by a 2 to 1 margin which upholds the finding of previous polls.…

The Wirthlin survey has provided the following results:

• There is strong public opposition to legalized homosexual and lesbian marriage.  A strong majority (63%) oppose legalizing homosexual and lesbian marriage (HLM), including 50% who strongly oppose it.  There is a 5:1 ratio of strong opponents to strong supporters of legalizing HLM – which indicates to us that there is strong grass roots support for our cause.

• Hawaii is different from most of the rest of the United States.  Hawaii is more liberal.  When asked whether they think the homosexual lifestyle is acceptable, 13% of respondents say that it is acceptable for themselves and others.  59% say it is acceptable for others but not themselves, and 26% say it is not acceptable at all.  In the U.S. generally, only about 6% say it is acceptable to themselves and others.…

• The LDS Church receives a lukewarm favorability rating in Hawaii.  On a scale of 0-100, where 0 is very cold and 100 is very warm or favorable, the LDS Church receives a mean rating of 49.  In contrast, the Catholic Church receives a much more secure rating of 57.  This information suggests that the Church should maintain a very low visibility in this campaign.  Given the Church’s lukewarm position in public opinion, we do not want to risk negative association with this issue either for the Church’s sake or for the issue’s sake.    A well-known tactic in political issue campaigns is to demonize the messenger if the issue itself cannot be demonized.  It is most advisable to keep a formal distance between the Church and the Coalition involved in fighting the issue.

• We can exercise political leverage using the message of family values.  Although the family values message may not be the easiest route to success in this battle, survey findings show that there is definite grass roots support for the theme of family values.  We can marshal this support as we work to influence public opinion.…

• There is overwhelming support for a public vote on the issue of legalizing HLM.  Three-quarters (74%) say they think the issue is so important that the public should vote on it.  This support, interestingly, comes from both supporters and opponents of legalizing HLM.

• A few considerations:

• In Hawaii we are fighting the battle, not the war.  Ultimately the war will be won or lost in the Supreme Court of the United States.

• Because of this fact, we should build fire walls to limit what happens in Hawaii and prevent it from becoming more widespread.

• One strategy is to pass laws like those in South Dakota, which refuse to recognize any homosexual or lesbian marriage.

• Another strategy is to introduce a constitutional amendment in Congress.  This would provide a vehicle to express deep support for traditional family values through a widespread constituency.…

• Our current position:…

• The Attorney General of Hawaii is committed to appeal any circuit court decision in favor of HLM.  This gives us a minimum of two years’ waiting time before another decision would be handed down.  We should use this time wisely, perhaps to set the groundwork for a constitutional amendment – but even this, ultimately, will likely be appealed to the Supreme Court of the Untied States.…

(Loren C. Dunn, “Report to the Public Affairs Committee on Same-Gender Marriage Issue in Hawaii,” December 5, 1995)

1208:

“8 Dec 1995: Report of the Governor’s Commission on Sexual Orientation and the Law is issued.  The 400+ page report concludes that the state of Hawaii has no compelling interest in refusing to recognize same-sex marriages.” (Richley H. Crapo, “Chronology of LDS Involvement in Same-sex Marriage Politics,” 1997)

934:

“In an historic first, a Hawaii state government-created commission, specifically charged with studying the freedom to marry that is denied same-gender couples, forwarded a report to the state legislature today recommending Hawaii marriage laws be amended ‘to allow two people regardless of their gender to marry.’

The report by the Hawaii Commission on Sexual Orientation and the Law, whose members were appointed by the governor, will now go to the state legislature.…” (National Freedom to Marry Coalition press release, December 8, 1995)

934:

“Hawaii’s Commission on Sexual Orientation met late Friday, Dec. 8, and approved the final draft of their report.  By a vote of 5 to 2, the commission recommends that the legislature accept same-gender marriages, and suggests domestic partnerships if the first recommendation proves too difficult to achieve.…

The key to opposition in the legislature is not yet known.  Certainly, taking up a controversial issue just before an election is not a pleasant prospect to most legislators.  Also, the Speaker of the House, Joe Souki appointed two people to the commission with close ties to the Rutherford Institute.  The Rutherford Institute opposes all aspects of gay rights, whenever possible.  They also oppose abortion; once they volunteered to defend the confessed assassin of an abortion doctor in Florida.  The Rutherford Institute has an over-all goal of recreating a theocratic state based upon the Old Testament (including criminalizing homosexuality).

Finally, Mormon opposition is more intense and sophisticated: they’ve hired Democratic part activist Linda Rosehill to lobby against the commission’s report.”  (Tom Ramsey, Hawaii Equal Rights Marriage Project [HERMP] press release, December 8, 1995)

305:

“[Steve] Michaels [Hawaii Deputy Attorney General] does not want this to turn into a homophobic argument.  If he separates the homosexual issue from the same-gender marriage, it will probably be to our advantage, provided he doesn’t make it too narrow.…

Regarding the organization of the coalition, we have Art Anderson acting as liaison between McNeil Wilson and the coalition.  Don Hallstrom is working with me and is our on-site liaison with the coalition, principally Jack Hoag.  In this way, we have distanced the Church from the coalition itself but still have input where necessary through our local source.  I am in periodic contact with Richard Wirthlin who also advises the coalition.  I have directed him to bill the coalition for the work he is doing.” (Loren C. Dunn to Neal A. Maxwell, December 20, 1995)

935:

“On Tuesday, the Governor of the State of Hawaii came out publicly and said that he felt that HL [Homosexual and Lesbian] marriages and traditional marriages should not be governed by law and if churches wanted to perform HL marriages, then that was their business but that the government should get out of the marriage business.

The chairmen of both the State House and Senate Judiciary Committees immediately made statements that such a proposal would never fly.

Such bazaar [sic] statements could well drive a lot of people into our camp.  Things are heating up!” (Loren C. Dunn to Neal A. Maxwell, January 11, 1996)

936:

“When you mentioned that Marlin Jensen would be going back to meet with the religious leaders in the United States relative to HLM, I felt relief, perhaps selfishly, because I wasn’t anxious to be known as the HLM expert in the Church.…

The following is a brief summary of the status of the same-gender marriage issue in Hawaii and the efforts of the Hawaii’s Future Today (HFT) Coalition, as of January 16, 1996:…

What is currently most needed by national interests are:

• Prominent national voices to combat the liberal national press which is predominantly pro same-gender marriage.
• Funds to assist Hawaii’s Future Today in its work to defeat any same-gender marriage and domestic partnership legislation in Hawaii.
• Well researched and documented professional articles which intelligently counter the case for same-gender marriage, especially combating the ‘civil right’ argument.

(Loren C. Dunn to Neal A. Maxwell, January 16, 1996)

938:

“I write to share two bits of information relative to the movement to legalize same-sex marriage. Since you were involved in an effort to build a national religious coalition of opposing same-sex marriage, this may be of interest to you.

The first is a copy of a message sent on the Internet to one of the user groups or lists for supporters of same-sex marriage. David Coolidge forwarded it to me. One point that stands out in the letter is the broad organization that supporters of same-sex marriage are forging. I think it is a ‘Missouri River’ coalition—it looks like it’s a mile wide, but it’s only an inch deep. But it may [be] the appearance of being a mile wide that catches the attention of political-minded law-makers.

Second, I wanted to thank you for referring Shahar v. Bowers to my attention. I have done a quick analysis of the opinion. Clearly, the rationale is pregnant with potential for mischief, but the holding (as you mentioned) actually it is quite narrow—essentially determining the celebration of the religious marriage ceremony by a deeply religious individual who does not claim that it has any legal effect is protected by a constitutional right of ‘intimate association.’…The Eleventh Circuit seems to have a strong attachment to ‘intimate association’—that was the basis for their decision striking down the Georgia sodomy law in Bowers v. Hardwick, which the U.S. Supreme Court overturned in 1986.”  (Lynn D. Wardle to Marlin K. Jensen, January 19, 1996)

1689 & 1638:

“PROCEDURAL POSTURE: Applicants, three clergy members and a church, sought review of a decision of the First Circuit Court (Hawaii) that denied their motion for intervention in a declaratory relief action brought by plaintiffs, same-sex couples, challenging the denial of their applications for marriage licenses.

OVERVIEW: … The court found that Haw. Rev. Stat. § 572-12 (1993) did not require an officer of any religious denomination to solemnize a marriage that was not in accordance with the customs of that religious denomination or society.  Therefore, the court held that under § 572-12, applicants would not be required to solemnize a same-sex marriage, or any other marriage, and would not risk losing their licenses for refusing to do so.…

OPINION OF THE COURT BY NAKAYAMA, J.

… The circuit court entered final judgment on the pleadings on October 1, 1991  Plaintiffs filed a timely appeal, and, on May 5, 1993, this court vacated the circuit court’s order and judgment and remanded the case to the circuit court for further proceedings.… Trial had been set for September 25, 1995, and has been subsequently continued to a later date. [NOTE THAT THE PROCLAMATION ON THE FAMILY WAS READ PUBLICLY ON SEPTEMBER 23, 1995]

{Supreme Court of Hawai’i] Applicants for Intervention-Appellants (Applicants), three clergy members [Charles W. H. Goo, Harry Haleakala Brown, Jr., Delbert F. Kim] of the Church of Jesus Christ of Latter-Day Saints (LDS) and the LDS church itself, contend that, in late 1994, they

became aware, for the first time, that the Attorney General, acting on behalf of [the State of Hawai’i], might not be willing to assert at the upcoming trial all of the known compelling state interests that are furthered by [HRS] § 572-1 which have been determined, in other jurisdictions, to be legally sufficient to justify similar legislation.

Applicants contend that, in January 1995, representatives of the LDS church read papers furnished by the Office of the Attorney General (Attorney General) and were able to confirm the aforementioned information.  Following this confirmation, Applicants filed their motion to intervene.  On March 15, 1995, oral arguments were heard on the motion.  On April 12, 1995, without comment, the circuit court denied Applicants’ motion to intervene.  On April 12, 1995, Applicants timely filed their notice of appeal.

On appeal, Applicants contend that the circuit court erred in denying Applicants’ motion to intervene ‘by right’ pursuant to Hawai’i Rules of Civil Procedure (HRCP) Rule 24(a)(2).  Additionally, Applicants contend that the circuit court abused its discretion in denying Applicants’ motion to intervene ‘permissively’ pursuant to HRCP Rule 24(b)(2).…

According to Applicants, their interest in this case is to preserve their state-issued licenses to solemnize marriages under HRS § 572-11 (1993).  Applicants contend that, because they are licensed by the State of Hawai’i (State) to solemnize marriages pursuant to HRS § 572-11, refusal to solemnize a same-sex marriage may result in revocation of their state-issued licenses under HRS § 572-13.5 (1993).… Therefore, Applicants contend that they have a right to intervene pursuant to HRCP Rule 24(a)(2).  We disagree.…

We agree with the Plaintiff’s persuasive analysis that HRS § 572-12 does not require a minister, priest, or officer of any religious denomination or society to solemnize a marriage that is not in accordance with the usages, rules, and customs of that religious denomination or society. Likewise, it does not require or mandate a minister, priest, or officer of any religious denomination or society to solemnize a marriage that is in accordance with the usages, rules, and customs of that religious denomination or society.  Nor does it unconditionally require a minister, priest, or officer of any religious denomination or society to perform marriage ceremonies at all.  Instead, HRS § 572012 authorizes such a minister, priest, or officer to perform a marriage ceremony according to the usages, rules and customs of that religious denomination or society.  Therefore, under HRS § 572-12, Applicants would not be required to solemnize a same-sex marriage, or any other marriage, and would not risk losing their licenses for refusing to do so.

Applicants also contend that, if Hawai’i permits same-sex marriages, their refusal to solemnize such marriages could result in a gender discrimination lawsuit against Applicants.  We agree that a groundless lawsuit could be filed against Applicants stemming from their refusal to solemnize a same-sex marriage.  However, the mere chance that a non-meritorious lawsuit may be filed against a party seeking intervention does not create an interest requiring intervention in the present action. In order to show the requisite interest in the present case, based on the possibility of facing future litigation, a potential lawsuit must be shown to be meritorious.  Therefore, for the following reasons, we disagree with Applicants’ assumption that their refusal to solemnize a same-sex marriage could result in a meritorious gender discrimination suit.

The free exercise clause of the first amendment to the United States Constitution prohibits the government from imposing burdens on persons because of their religious beliefs.  Likewise, it prevents the government from interfering with the tenets and principles of a religious entity.…

In the present case, ‘Applicants are unequivocal in their refusal to solemnize or to authorize the solemnization of a “marriage” between persons of the same sex.’  If Hawai’i permits same-sex marriages, and the Applicants’ religious beliefs forbade them from solemnizing marriages of same-sex couples, then the state could not require them to do so.  Koolau Baptist Church, 68 Haw. At 417, 718, P.2d at 271.  Such a requirement would create excessive entanglement between government and religion, resulting in a violation of the free exercise clause.…

Thus, Applicants have failed to describe ‘an interest relating to the property or transaction which is the subject of the action.’  Because the requirements of intervention by right are stated in the conjunctive, it is necessary for Applicants to meet all four criteria set forth in Ing. Failure to meet even one prevents intervention ‘by right’ under HRCP Rule 24(a)(2).  Accordingly, we hold that, because Applicants have failed to present such an interest in this case, the circuit court did not err in denying Applicants’ motion to intervene ‘by right’ pursuant to HRCP Rule 24(a)(2).…

Based on the foregoing reasons, we affirm the order of the circuit court.”

(Decision of Hawaii Supreme Court, January 23, 1996, Baehr v. Miike, 910 P.2d 112 (Haw. 1996))

940:

“At the Polynesian Cultural Center Board, David Wilson of McNeill Wilson (who represents PCC public relations as well as our same-sex marriage opposition effort) gave our board a briefing on the status of this matter.  Most of the briefing covered matters of which you are already well aware, but the attached conclusion was such a good short summary of his estimate of future developments, that I thought I ought to share it with you.

It is anticipated that little will happen at the legislature this session regarding either same sex marriage or domestic partnership, which will throw the ball back to the courts, which will continue Baehr v. Lewin (now Baehr v. Miike) in July 1996.

It seems likely that the court will rule in favor of the plaintiffs, and that the decision will be appealed.

The only real solution to the issue would be a constitutional amendment restricting marriage to unions between a man and a woman.  A constitutional amendment vote is unlikely to pass this year, but if legislation favoring a plebiscite on such an amendment were to pass both Houses ’97 and ’98 legislative sessions, the constitutional amendment would be placed on the ballot in the ’98 elections.

This, of course, would not resolve any of the issues regarding potential domestic partnership bills.…

If a domestic partnership bill is enacted, it is unclear how this would affect the court case.  A very limited domestic partnership act is unlikely to mute the case.  A comprehensive domestic partnership act could mute the case, because the benefits the plaintiffs seek would, to a degree, be available.”

(Dallin H. Oaks to Neal A. Maxwell and Loren C. Dunn, January 23, 1996)

941:

“The battle has begun!  On Saturday, January 20, 1996, a successful rally, called by Hawaii’s Future Today, was held at the Hawaii State Capitol building.  Over 2,000 were in attendance with their signs and banners.… Coalition is referred to as ‘broad-based’ and ‘grass roots.’  No mention of involved churches.

I received the David Wilson assessment that came from Dallin Oaks.  The assessment is accurate.  For a constitutional amendment to pass this year, it would need a two-thirds vote of the legislature which would be a small miracle.  The other way is a simple majority two years running (beginning the second year of the biennium in 1997) shows possibility.  The court case will likely be appealed to the state supreme court which will give the Coalition two years from July to mount such a campaign, if that is the decision.

Yesterday, January 23, the Hawaii Supreme Court affirmed the order of the Circuit Court to deny the Church intervention in the Baehr v. Lewin (now Miike) case.  No surprise.

The Coalition has made personal contact with the Hawaii Attorney General.  They were not happy with our intervention motion but she did say they would welcome any help on the case.  We may want to consider having Vaughn Keech contact her to find out exactly what that means.  At this point, Vaughn knows the attorney general and assistant attorney general the best.  It might open the door for Lynn Wardle’s excellent work to be used by the state.”  (Loren C. Dunn to Neal A. Maxwell, January 24, 1996)

1666:

“Hawaii’s Supreme Court has denied a request by the LDS Church to get involved in the case between the state and three gay couples who were denied marriage licenses.

The Church of Jesus Christ of Latter-day Saints wanted to join with the state Attorney General’s Office to fight the granting of marriage licenses to same-sex couples.  The church argued it had a stake in the issue because legalizing same-sex marriage would force its ministers to perform ceremonies that are against their religious belief.

The court disagreed, saying the state simply authorizes marriages and does not require the performing of any marriage ceremony.

The lawsuit by the three couples is scheduled for trial in July.”  (“Hawaii Court Rejects LDS Request,” Deseret News, January 25, 1996)

563:

“The Brethren have encouraged us to oppose attempts to weaken marriage and family ties.…

We are in full support of the First Presidency’s counsel and encourage Church members to let their voices be heard on this important issue in California.…

It has been brought to our attention that Assembly Bill 1982, that would prohibit California from recognizing same-sex marriages legalized in other states, has been favorably reported out of committee in the California Legislature and will be coming forward for a full vote on Wednesday, January 31, 1996.  Any effort that members, acting as individual citizens, can make to contact their own legislators in support of this measure would be in harmony with the Church’s proclamation on the family.…” (North America West Area Presidency, Loren C. Dunn, C. Max Caldwell, Cree-L Kofford, to “Dear Brothers and Sisters,”, January 26, 1996)

945:

“History of the Lawsuit

On May 5, 1993, the Hawaii Supreme Court handed the gay and lesbian community what legal experts are calling our ‘biggest legal victory ever.’  This landmark ruling, known as Baehr v. Lewin, represents the first time in American legal history that any court has ruled in favor of the idea that it is discriminatory to deny gay men and lesbians the right to marry the partner of their choice.…

Background of the Hawaii Same-Gender Marriage Case:

In 1993, three couples—two lesbian, one gay—filed a lawsuit in Honolulu, Hawaii challenging the state’s denial of their applications for marriage licenses.  The state of Hawaii argued that since civil marriage, by definition, is only for couples consisting of one man and one woman, the state could not grant marriage licenses to same-gender couples.  The trail court agreed, supporting the state’s rejection of the couples’ marriage license applications.  The couples promptly appealed the trial court’s ruling to the Hawaii Supreme Court.

The Ruling of the Hawaii Supreme Court:

In May 1993, the Hawaii Supreme Court ruled in Baehr v. Lewin that the denial of marriage licenses to same-gender couples appears to violate the Hawaii state constitution’s prohibition against sex discrimination.… (Simply put, sex discrimination has occurred when men are allowed to do something women are not allowed to do, or vice versa.  According to the Court’s reasoning in Baehr v. Lewin, by denying marriage licenses to same-gender couples, the state commits sex discrimination because while it will allow a man to marry a woman, it will not allow a woman to marry a woman.)

The Case is Returned to the Lower Court for ‘Strict Scrutiny’

The Hawaii Supreme Court returned the case to the trial court, directing it to examine the state’s marriage statute, applying ‘strict-scrutiny.’  This requirement forces the state to meet the most rigorous legal standard to justify its discrimination: it must demonstrate a ‘compelling state interest’ in prohibiting same-gender couples from marrying.… According to the Hawaii Supreme Court’s ruling, if the state cannot demonstrate a ‘compelling’ interest in prohibiting same-gender marriage, it must stop refusing marriage licenses to same-sex couples.

Backlash – What’s Next?

Reacting to the Court’s decision, the Hawaii state legislature passed a law in June 1994 reaffirming its desire to perpetuate its ‘different-sex’ restriction on marriage.  Legal experts agree, however, that this law does not change the fact that the state is unlikely to meet its burden under strict scrutiny—that is, to produce a reason for discriminating that is logical, let along compelling.  Thus, there is good reason to anticipate that the trial court will rule against the state and strike down the ‘different-sex’ restriction on marriage.  And if appealed, it is also likely that the state Supreme Court will follow the reasoning of its earlier decision, making equal marriage rights a reality in Hawaii.

The case is now on track in the lower court; the couples are represented by co-counsel Daniel R. Foley of Honolulu, and Evan Wolfson of Lambda Legal Defense and Education Fund.  A trial date is set for July 15, 1996, with a final decision expected perhaps within the year following the lower court decision.

On the Mainland:

… As with interracial marriage 30 years ago, the radical right will invoke the rhetoric of states’ rights in its attempt to thwart recognition and benefits for people who return from Hawaii as married couples.  Some of this is already happening, and several states have passed laws in anticipation of our success in Hawaii.”  (“History of the Lawsuit,” The Freedom to Marry Coalition, printed 1/29/96)

594:

January 31, 1996: Assembly Bill 1982 passes the California Assembly by a vote of 41 to 31 and is transmitted to the California Senate.  The author of the bill is William J. “Pete” Knight.  After amendment in the California State Judiciary Committee, the bill is placed in the inactive file, and dies at the end of the legislative session.  Knight is the author of Proposition 22 in 2000.  (David Combe Compilation)

951:

“Regarding the legal brief to separate the civil rights issue from HLM, as it turns out, Rex Lee, with the help of Alan Wilkins and Lynn Wardle will supply the statement from his hospital bed.…

I want Lynn [Wardle] to help but he has strong views and is perceived as being extreme enough to put him in the conservative right column which would not help our cause in Hawaii.

Since the help is offered behind the scenes, the Coalition doesn’t see a need to be directly involved but we probably need to temper Wardle’s help, possible through Vaughn Keech, if that is acceptable to the attorney general.…

The work of the Coalition goes on daily and significant progress in determining each legislator’s position on these issues has been made.  Linda Rosehill is of tremendous help in lining up legislators opposed to HLM and also those who would support a constitutional amendment outlawing same-sex marriage.…” (Loren C. Dunn to Neal A. Maxwell, February 1, 1996)

1208:

“ca. Feb 1996: The LDS church instructs its contracted marketing agency in Hawaii, Hill and Knowlton, to develop a plan for setting up a group, now known as Hawaii’s Future Today, to serve as the formal lobbying group which will approach the legislature, the courts, and the public on issues regarding same-sex marriage.  Hill and Knowlton had been contracted several years earlier by the Church to monitor and promote its efforts in state legislatures and the U.S. Congress.  Its top heads are now offered ‘unlimited funds’ to develop and conduct the marriage campaign in Hawaii.  The marketing agency completes the initial planning and then bows out of further work, fearing potential repercussions from its other clients, who include gay-rights interests.…

The costs for setting up Hawaii’s Future Today and facilities for its use were provided by the church and by Hawaii Reserves, a property management company that is solely church-owned, and which took over the properties previously managed by Zion’s Securities.  Hawaii Reserves paid the initial bills from [to?] the first marketing agency and the consultant’s fees from the Democratic party’s National Committeewoman [Linda Rosehill]. One of the largest contributors to Hawaii’s Future Today is the political action committee Hana Pono (named for the LDS hymn ‘Do What is Right!’) which had been organized by the LDS church on 21 August 1977 to spearhead its anti-ERA political effort in Hawaii.  Hana Pono contributes $1,860.95 during the first year’s efforts.…

After Jack Hoag’s LDS connection is highlighted in the media, he is replaced as President of Church-owned Hawaii Reserves.  The new President is Dan Ditto, the Church’s lawyer who supervised the marketing agency’s work in planning the establishment of Hawaii’s Future Today in LDS affiliated newspapers, such as Garden Island, avoid mentioning the organization’s LDS origins and affiliation, so this change was perhaps to help perpetuate the image of Hawaii’s Future Today as a grass-roots movement.” (Richley H. Crapo, “Chronology of LDS Involvement in Same-sex Marriage Politics,” 1997)

1665:

“President Gordon B Hinckley, president of The Church of Jesus Christ of Latter-day Saints, met Monday with Honolulu Catholic Diocese Bishop Francis X. DiLorenzo and Father Marc Alexander.

Both Catholic leaders are working with local LDS Church leaders as part of a grass-roots coalition opposed to same-sex marriage.…

President Hinckley was updated briefly during the visit concerning proposed legislation related to the issues at hand.

“Let’s go forward together in our support of this coalition,” President Hinckley said.…

In the Hawaiian Islands there are approximately 240,000 Catholics and 50,00 members of the LDS Church.”  (“LDS and Catholic Coalition Opposes Hawaii Legislation,” Deseret News, February 21, 1996)

955:

“Enclosed are two significant articles which appeared in this morning’s Honolulu Advertiser. The first (a front page story) presents an Advertiser/Channel 2 news poll which reports 71% opposed to same-sex marriages. Although we realize there is a margin of error in both this and past polls, it still suggest a strengthening of our position among the general public. It is important to note that only 18% are in favor.…

The second article reports the results of yesterday’s Senate Judiciary Committee hearing. Ray Graulty date told Linda Rosehill before the hearing that he was going to kill the bills legalizing same-sex marriage and establishing a constitutional amendment, and pass out of committee the domestic partnership bill. At the end of the hearing, Graulty delayed the voting until Monday, saying some of the committee members had become ‘confused’ as to the question of this being a civil rights issue and they wanted more time to ponder. This means the Rex Lee material had impact as previously they all clearly believed it was a civil rights issue.”  (Donald L. Hallstrom to Loren C. Dunn, February 23, 1996)

956:

“At the end of the hearing, Graulty delayed voting until Monday, saying some of the committee members were ‘confused’ as to whether this was a civil rights issue and wanted more time to think about it. This means the Rex Lee material had impact since previous to this, the committee were all in agreement that this was a civil rights issue.”  (Loren C. Dunn to Neal A. Maxwell, February 23, 1996)

1664:

Eight state representatives, backed by a national religious organization, have filed a motion in Circuit Court to intervene in the same-sex marriage case, contending the state attorney general’s failing to adequately argue the case.

The motion filed Tuesday cites First Deputy Attorney General Steven Michael’s statement that he would not argue any issue that might be considered homophobic. Rep. David Stegmaier said raising issues of eroding the family, ‘the building block of our society,’ public health concerns and economic impact same-sex marriages would have on the state is not homophobic.…

Attorney General Margery Bronster said these are the same issues raised by The Church of Jesus Christ of Latter-day Saints, whose motion to intervene in the case was rejected by the Circuit Court in a decision upheld by the state Supreme Court.”  (“Officials Aim to Intervene in Same-Sex Case,” Deseret News, February 29, 1996)

957:

“There is concern that we not let [Daniel] Foley paint us, or Hawaii’s Future Today, with the ‘homophobic’ label. One of HFT’s strengths has been its success in convincing legislators that it is the voice of reason, not extremes.

May I have your permission to send the enclosed letter?…

We are shocked and disappointed by your recent comments to Hawaii Public Radio regarding The Church of Jesus Christ of Latter-day Saints’ motion to intervene in the Baehr v. Lewin case. You well know that these remarks are totally baseless and malicious.

The LDS Church, in its motion to intervene, did not make any ‘homophobic’ arguments. Indeed, the LDS Church does not support measures which would remove civil rights from any individuals. We simply believe that same-sex marriage is not a civil rights issue, and that there is an important distinction between tolerating a lifestyle and endorsing it.

The LDS motion to intervene was in part based on a concern that if same-sex marriage were legalized, it could affect the marriage licensing of LDS clergy because of the Church’s doctrinal position against same-sex marriage.… (Donald L. Hallstrom to Daniel R. Foley, Esq., DRAFT letter, February 28, 1996)

(Donald L. Hallstrom to Loren C. Dunn, February 28, 1996)

959:

“Dan Foley, lawyer for the opposition, in an interview on Hawaii Public Radio, tried to paint at the LDS position as being ‘homophobic,’ and that ‘homosexuals are an abomination, that they should be eradicated from the face of the earth, that they attack children.’ Donald Hallstrom wanted to respond directly, pointing out that our intervention had to do with the sustaining and supporting of family, which we feel is the real issue and has nothing to do with civil rights or prejudice against the minority. I advised him not to write the letter since Foley would love to get in an argument in the media over these issues.…” (Loren C. Dunn to Neal A. Maxwell, March 1, 1996)

960:

“The most likely legislative scenario, when all the dust settles, is a stalemate between the Senate and House, supporting a domestic partnership and a constitutional amendment, respectively.  It is important to note that even with the Commission recommending same-sex marriage, any bill legalizing such was not given a thought in either body.  We hope that clear message, the constitutional amendment movement, and the overwhelming recent poll results, all have effect on judicial opinion.

Further good news! Rex Lee’s statement prominently appeared in yesterday’s paper.  As you can see, it carried the perfect headline.…

All in all, we are currently in a position only dreamed of a few months ago.…” (Donald L. Hallstrom to Loren C. Dunn, March 4, 1996)

961:

“The end result may be a stalemate with the Senate supporting a domestic partnership and the House behind a constitutional amendment.…

Further good news.  Rex Lee’s statement appeared prominently in this last Sunday’s [Honolulu] Advertiser, taking up half a page.  The timing was ideal considering the House actions on Friday.…

The moderating voice of the coalition has gained respect.  We hope that these clear messages, along with a constitutional amendment movement and the overwhelming recent poll results, all have effect on judicial opinion.” (Loren C. Dunn to Neal A. Maxwell, March 5, 1996)

Same-sex unions: Let voters decide

By Rex E. Lee

Same-sex marriage is not a constitutional civil rights issue.…

“Civil rights,” therefore, including only such rights as those enunciated in the Bill of Rights and the Fourteenth Amendment.…

While race is irrelevant to any possible state goal related to marriage, sexual orientation, by contrast, goes to the very heart of marriage—as evidenced by laws prohibiting the marriage of brothers and sisters or fathers and daughters.…

While these observations demonstrate the overblown nature of the rhetoric used in current courtroom wrangling, they do not avoid one obvious point: The propriety or impropriety of same-sex marriage looms as an exceptionally important (and divisive) social issue.

Accordingly, I suggest that this exceptionally important (and divisive) social issue be resolved the way such issues should be decided in a democracy—by the people.

The recognition or nonrecognition of same-sex marriage is essentially a political, not a judicial, question.

As such, this debate should be decided by the people of Hawaii.  It should not be decided by the courts.…

It is time to turn the debate over to them.  If a super-majority consensus of the people of Hawaii reflects that the basic structure of society should be reformulated to prefer and foster homosexual unions, let the people adopt an amendment to the state Constitution setting forth that proposition.

However, if a super-majority consensus of the people is to the contrary, then that constitutional consensus should not be undone—either by the Hawaii Supreme Court or by the enactment of a domestic partnership statute.…

The only way to resolve the issue fairly and properly is to let the people speak for themselves. (Letters and Commentary, The Honolulu Advertiser, March 3, 1996)

310:

“In response to your inquiry about area presidencies and the HLM issues, there is a decided advantage to having each area presidency manage this issue in their own area with perhaps some organization guidelines and coaching from Public Affairs. When issues go beyond the area boundaries, let Public Affairs handle it.

Our opponents in the past have attacked the individuals that pose a threat to their cause. They do it on the basis of what they call ‘homophobia’ and robbing them of their civil rights. When each area presidency takes on this issue there is no one person to attack and so the church or better yet, the coalition, in general carries the cause. They can’t single out people which is their favorite approach.

One reason I wanted us organized in Hawaii the way we are is because President Hinckley wanted it that way. A coalition is hard to attack and particularly a young mother who was Chair of the State Board of Education (Chairman), a popular Catholic Priest with a Jewish–Buddhist background who is noted for his work with the socially disadvantaged (Vice-Chairman) and a businessman who is a trustee of the University of Hawaii, a University that is known for its diversity (Vice-Chairman).

Don Hallstrom calls me almost every day.  Our input to the coalition is through Don to Jack Hoag.  The ideas are introduced but the Church is not visible.…”  (Loren C. Dunn to Neal A. Maxwell, March 6, 1996)

962:

“We are at a critical time regarding HLM in Hawaii.  As we reported last week, the House suspended rules and reported out a constitutional amendment rejecting HLM which was passed by the needed two-thirds majority.

The Senate reported out a domestic partnership bill that has also passed but is unacceptable to us and the majority in the House.  In spite of Rex Lee’s excellent brief, there are still some in the Senate who see this as a civil rights issue and if they don’t address it in some other way, the courts will legalize same gender marriage which at this point neither House nor Senate want, nor do the public by a 71% majority.…

It may be time to bring Richard Wirthlin back and survey the districts of these key Senators to let them know specifically how their constituents feel.

Since politics is a matter of compromise, the coalition may find itself facing a mild package of economic benefits (not domestic partnership or anything that would suggest marriage by another name) to answer Senate concerns so that the Senate, in turn, can adopt the House’s constitutional amendment.  This would make the court case almost unimportant but it will open the way for the public battle that could come as soon as next fall provided all these other pieces fall into place.  At this point, we can expect the opposition to come out of their hiding places and a well-financed battle to take place with financial support coming from homosexual groups on the mainland.  However, we’ll start with a lead anywhere from 3-to-1 to 4-to-1.

The coalition is in need of more fundraising.  They have done their part of this with a few thousand dollars raised locally and a $50,000 contribution from the mainland.  Another $50,000 donation is needed now.…” (Loren C. Dunn to Neal A. Maxwell, March 11, 1996)

963:

“We are in great need of the National Coalition.  When papers as conservative as The Christian Science Monitor run articles on gay rights which are full of the HLM agenda and very little of the opposition’s position, it is clear that we have a lot of work to do.”

“Gay Rights Issues Reverberate in Courts, on Campaign Trail”

… All sides are watching the outcome of a case in Hawaii that could legalize same-gender marriages.  The state supreme court has ruled that the state must show why Hawaii’s law banning such marriages (which has been challenged by three homosexual couples) should not be overturned on the grounds that it violates equal protection provisions of the state constitution.

Scrambling to avert the possible impact of the Hawaii case on other parts of the country, 24 states have taken action to prevent same-sex marriages from being legally recognized outside Hawaii.…

This legal action comes against the backdrop of considerable state and local activity.  The Salt Lake City school board recently voted to ban all extracurricular school groups in order to prevent one, the “Gay/Straight Alliance,” from operating in city high schools.

(Loren C. Dunn to Marlin K. Jensen, March 21, 1996)

573:

“We are at a critical time with our negotiations in Hawaii.  As before reported, the House favorably reported out a constitutional amendment rejecting same-gender marriage by the required two-thirds majority. The Senate, on the other hand, reported out a domestic partnership bill which was unacceptable. The Senate Judiciary also considered a constitutional amendment rejecting same-gender-marriage but it did not get out of committee on a 4-to-3 vote.…  We now believe we have changed one Senate Committee vote in our favor which would get them measured to the floor of the Senate on a 4-to-3 vote.…

Two challenges: (1) We have shielded previous donors from recognition because of how the funds were used in the preparation of this project, but in the worst case scenario, current donors might be ferreted out… The coalition continues to raise money locally but as expected, the majority needs to come from us.  We have had so many things happen to get us this far that, in my opinion, we can’t afford to pass up this opportunity.  A two-thirds majority in the Senate would put the amendment before the people which would probably settle the court case before it got started.” (Loren C. Dunn to Neal A. Maxwell, March 21, 1996)

964:

“What we have is seventy percent of the population of Hawaii opposed to any form of same-gender marriage and leaders in the Hawaii Senate who are resisting a constitutional amendment that would settle the matter once and for all.… As we get down to crunch time, our demonstrators will be out literally twenty-four hours a day to bring this to the attention of the Senate.” (Loren C. Dunn to Neal A. Maxwell, March 25, 1996)

965:

“The media campaign begins.  The actual ad was two-thirds of a page and is part of a television, radio and newspaper campaign.”  (Loren C. Dunn to Neal A. Maxwell, March 27, 1996)

1782:

“’Hawaii’s Future Today,’ with deep connections to leaders of the Mormon Church and the Roman Catholic hierarchy, has broadcast numerous messages on TV and radio, asking constituents to contact 13 Senators (listed by name) to ‘Let The People Decide’ same-gender marriage.  These 13 Senators are among the 14 who voted for Senator Graulty’s domestic partnership bill (which passed the Senate 14 to 11, but is stalled in the House).  Hawaii’s Future Today wants two-thirds of the Senate to approve a constitutional amendment banning same-gender marriage, which would then be voted upon by the public in the fall election (requiring only a majority vote then).

Simultaneously, ¾ page ads were placed in Honolulu’s daily papers with the same message and demonstrations were staged on three islands (including Senator Graulty’s district on Oahu).  The three leaders of Hawaii’s Future today are working the Senate everyday, trying to pick off one vote or another (the three leaders are Debbie Hartman, formerly of the elected school board; Father Mark Alexander, chief theologian of the Roman Catholic diocese; and Jack Hoag, Mormon leader and member of the Board of Regents of the University of Hawaii, former executive of First Hawaii Bank). (“Religions political extremists increase the pressure on Hawaii’s Senators,” tripod.com, March 27, 1996)  [NOTE THAT DEBI HARTMANN RECEIVED A BACHELOR’S DEGREE FROM BYU-PROVO AND WAS AN ASSISTANT PROFESSOR OF POLITICAL SCIENCE AT BYU-HAWAII FROM 1993 TO 2009]

966:

“I was asked to consider what might be done to provide resources to assist church leaders to keep abreast of developments relating to the campaign to legalize same-sex marriage, and to provide expert information, advice, and counsel to them (and, I suppose, probably to others with whom the church leaders might be working or associating in efforts to oppose the legalization of same-sex marriage, such as community groups, public interest organizations, etc.) These resources would need to be provided on a service-donation basis.…

The momentum that the movement to legalize same-sex marriage is developing and the breath of that movement (across numerous disciplines and jurisdictions) is too great for any one individual to monitor with expertise. Thus, I recommend that a resource group of expert consultants be assembled.

1. A group of carefully invited experts would be assembled (most, but not all, faculty at BYU and other nearby universities) who are willing to make a firm commitment to donate about 2 to 4 hours per week every week (and occasionally to give additional time, when asked) for the next 15 months to monitor developments in a particular area, discipline or focus pertaining to same sex marriage and domestic partnership, and to provide additional expert advice when requested. They would be neither ‘called’ nor paid for their service, but they would be informed that the material they produce Will be provided to the general authorities and to others with whom you are working to help respond to the effort to legalize same-sex marriage.

2. Participants would be asked to monitor developments relating to a specific theme, discipline, topic or jurisdiction and provide a weekly or bi-weekly report on those developments, including (a) description of those developments (with proper citations), (b) brief analysis [of] them, (c) assessment of their significance, and (d) suggestions for responses to them. For example, someone might be asked to monitor developments in international law regarding legalizing same-sex marriage and domestic partnership. He or she would spend an hour or two each week looking for such developments (in the international and comparative law reviews and journals, specialty service publications, on Lexis and Westlaw, in some of the Internet groups, etc.), and then write a brief report on the developments in international law relevant to same-sex marriage that occurred during the past week.… the compiler would receive that report and all other similar reports, and summarize or compile them into one overall report containing various sections. That summary or overall report would be sent to you on a weekly basis.

3. Additionally, participants might be asked on an ad hoc basis to provide further information and assistance to you or others. Four instance, if in Hawaii a psychological argument for same-sex marriage was having a big impact, a psychological expert working in the resource group might be asked to specifically evaluate that argument and suggest responses, draft an affidavit, help someone prepared testimony to rebut the argument, etc., in addition to providing the weekly report on developments.…

I believe that a fair number of good experts willing to donate such services could be identified, particularly if some indication of the desire for such service were manifest by you. BYU aspires to be a community of scholars of faith. Many of the faculty here are willing and ready to apply their professional and academic talents in the service to the church and in the broader public interest.…

On the other hand, reluctance to get involved in controversial issues that have political and moral overtones (and especially issues of moral and political dimensions combined) is an obstacle that prevents some capable-but-cautious persons from getting involved in an enterprise such as this without a clear signal that a solid and reputable institution endorses that endeavor. And in the case of same-sex marriage, the professional and academic taboo against openly opposing the gay and lesbian initiative suggests that some penalties may be imposed on those who violate the taboo, creating another source of reluctance to get involved. Thus, your willingness and ability to support (with thanks, not money) and endorse the work of the resource group would certainly help facilitate getting some of the best experts in our community to participate in the research group. To validate that this service contribution would be welcomed and used by the church leaders, one (or both) of you might participate personally or by telephone (speaker phone) in an early organizational meeting to discuss the mission of the resource group with the participants, and how their contribution would be welcome and useful.” (Lynn D. Wardle to Loren C. Dunn and Lance B. Wickman, March 26, 1996)

967:

“The enclosed ad appeared in yesterday’s [Honolulu] Star-Bulletin and today’s Advertiser.… Simultaneously, television and radio spots have been strategically placed to maximize the impact for the dollars spent.” (Donald L. Hallstrom to Loren C. Dunn, March 27, 1996)

“Constitutional Amendment or Same Sex Marriage?  The Choice Should be Yours.

Over 70% of the people are against same sex marriage.  But without a constitutional amendment, the courts will force same sex marriage on the people of Hawaii this summer.…

The following Senators do not want to let the people decide.  Call or fax them NOW and say you want a constitutional amendment, not same sex marriage.…

Demand Your Right to Vote

This message has been paid for by HAWAII’S FUTURE TODAY”

969:

“Thank you for your phone call on the issue of the offer to get the HLM amendment through the Hawaii Senate if we wanted to back away from our opposition to shipboard gambling. As I told Elder Maxwell, as much as we want to defeat HLM, I could not see how we could enter into this agreement without offending the Lord.…

My only concern was that this might be an effort to divide the coalition because the Catholics are not as strong against gambling as we are. However, word came back this morning that the coalition is still united and has strongly rejected the proposal.” (Loren C. Dunn to James E. Faust, March 29, 1996)

308:

“This will confirm the decision made in the meeting of the First Presidency on March 22, 1996, that monies previously budgeted for other purposes may be released to the coalition for purposes of media programming and lobbying.”  (F. Michael Watson to Neal A. Maxwell, April 1, 1996)

970:

“I am currently serving as the Chair of the coalition, ‘Hawaii’s Future Today,’ while in my spare time I am a graduate student at the University of Hawaii.… I have attached a copy of my Statement of Objectives for my dissertation subject, as you can see, it is on same-sex marriage.

My specific reasons for wanting to discuss this topic with you are based on your legal background, as both a lawyer and a Utah Supreme Court Justice. I was anticipating having the opportunity to discuss the ramifications of same-sex marriage is a civil right, protected by the Hawaii Constitution[,] with Rex Lee. The work that he did for and in behalf of the Coalition was exactly what we needed. His death has left a void that will be difficult to fill. I turn it to you to help fill some of the void for me personally.…

There are very few legal minds in Hawaii who look at this issue as I do, most are trying to prove it a civil right under the current civil right standard.…

Dr. Milner has been studying the legal ramifications of faith healing, specifically in England with charismatic evangelicals. When he discovered that I was LDS, he inquired about my knowledge of priesthood blessings.…

Statement of Objectives

… One of the arguments raised by the proponents of same-sex marriage is that it is clearly a civil rights issue. The Hawaii Supreme Court disallowed This argument, as stated in their brief, on the basis that justice and liberty would not be sacrificed if same sex marriage is denied.…

Several states have introduced a language, by way of their legislature, not to recognize same-sex marriages in their state. Should Hawaii allow same-sex marriages and other states refuse to recognize such marriages, it could create an opportunity for the same-sex marriage issue to go before the US Supreme Court.…

The question of a society’s ability to reproduce itself has been argued strongly by the opponents of same-sex marriage. They contend that the institutionalization of same-sex marriage would bring about a societal inability to reproduce itself. It is also argued that children raised by same-sex couples would be socially traumatized and unable to function as fully developed individual.…”

(Deborah B. Hartmann to Dallin H. Oaks, April 1, 1996)

971:

“Although miraculously we are still alive in the Senate, this might be a good time to look at future options and determine where it is we want to go with the HLM issue in Hawaii.…

Through the work done by the coalition, the favorable HLM report by the majority of the committee was virtually disregarded by the legislature which was one initial goal.

Another major goal was to make sure no significant legislation passed the Hawaii Legislature supporting HLM or domestic partnership.  Through the work of Linda Rosehill, McNeil Wilson and the coalition, not only was there no HLM legislation, but the House actually reported out a constitutional amendment by the two-thirds majority necessary to send it to the people.  The bill was revived twice in the Senate.  Finally, Senator Holt, gutted another bill as a means of getting the amendment introduced.  This has worked, so the issue is still alive.

As a direct result of coalition efforts and a McNeil Wilson media campaign, public support for the coalition position on HLM has risen to 73% and domestic partnership 66%.

The public want to decide the issue but one or two liberal leaders in the Senate say it is a civil rights issue and have tried to block it.

Rex Lee (Mary Ann Glendon is also preparing material) has made a case that the matter is not civil rights, but a defense of the traditional family.…

If, of course, the Senate gives us a two-thirds majority on the constitutional amendment, then the matter will go to the people and the court case then would probably not be a significant factor.…

If, for any reason, the amendment does not make it through the Senate, it may be wise for us to develop some options, such as:

• During elections this fall, help to identify for the public key Senators who, by their actions, chose not to let HLM be settled by vote of the people.

• Press for a constitutional convention which the legislators do not want because it will bring to light perks they enjoy which they would have to defend.  A case could be made to the public for such a convention.

• Start now to develop public and legislative support for getting a constitutional amendment (two-thirds majority in one session or simple majority over two years running).

• Keep alive this issue with the public as a means of supporting our efforts in the court.

Our original survey tells us we can get greater public support by working with the coalition than if we tried to do this as a Church.…

Donald Hallstrom and I talk daily, but we are careful not to get ahead of the coalition, which would not be in the interest of Don Hallstrom, his business or the Church.…

If things do not work out in the Senate, we will need an affirmation that we are still in this to the end, with the understanding that we can’t and don’t want to tell the coalition what to do.  However, we have an effective way, thanks to Jack Hoag through Don Hallstrom, to make the necessary input when we feel the need.  If the decision is to continue, we may want to encourage the coalition to develop specific plans and we could make our input as needed.”  (Loren C. Dunn to Neal A. Maxwell, April 5, 1996)

972:

“I am grateful to Elder [Loren C.] Dunn for giving me a blind copy of the above [April 5] letter.  I am glad to be kept informed.

For what it is worth, I urge in respect to the alternatives on page three that we not press for a constitutional convention to obtain our desires on HLM.  A convention would open the door for many other issues, and our own interests could well be caught up and submerged in other issues.  We might even wind up worse off than we are now.  If we are going the constitutional route, we ought to go by way of a constitutional amendment on which we can focus our efforts and as to which the public would not be distracted.”  (Dallin H. Oaks to Neal A. Maxwell, April 8, 1996)

1783:

“Fierce Parliamentary Maneuvering

… Hawaii’s Future today praised the Senate’s action as keeping the issue alive and permitting a later opportunity to turn the bill into a constitutional amendment to ban same gender marriage (the key threat to HERMP’s successful court case).…” (Tom Ramsey, Hawaii Equal Rights Marriage Project Co-Coordinator, Blog, April 9, 1996)

973:

“How delighted I was to see Richard Wirthlin come into the Seventy…

Richard Wirthlin, with his connections and national reputation, seems to be the ideal person to come in and get a national anti-HLM coalition going, with a non-member national council that can rally the troops at the right level.  Marlin Jensen has done remarkable work, but the effort seems to have slowed some and perhaps with Richard’s help, the national group can get beyond the talk stage, which Marlin says they are at now.…

Now [Richard Wirthlin] is a Church leader and the coalition, who paid his bills, will not be as free to use him as in the past.

Following President Hinckley’s admonition, from the beginning we have not wanted the Church or anyone representing the Church to get ahead of the coalition.  This has been hard at times, as Don Hallstrom and others have wanted to lead out on some issues but we have had them defer to the coalition.  This continues to be our wisest course.

As Vaughn Keech, under Lance Wickman’s able direction, pursues the trial phase, the coalition has given them something that was not present three months ago and that is growing legislative and public support.  We will have to move carefully during the trial phase, however, so the coalition does not appear to be another arm of the Church.”  (Loren C. Dunn to Neal A. Maxwell, April 9, 1996)

975:

“We have been approached by the leaders of the coalition for a contribution of $15,000.00 to help carry on their activities.

Because the coalition upholds positions that we consider to be moral, we would recommend that such a donation be favorably considered.”  (North America West Area Presidency (Loren C. Dunn, C. Max Caldwell and Cree-L Kofford) to Bruce Olsen, Director of LDS Public Affairs, April 12, 1996)

976:

“After talking to Richard Wirthlin and Don Hallstrom, I feel we need to be careful not to compromise the Hawaii Coalition and lose the ground the Coalition has gained as an influential and independent entity.

As of now, when Lance [Wickman] goes over next week, Jack Hoag will take him to meet the new assistant attorney general.  Then the plan is for Lance to meet with various members of the Coalition to determine what the Coalition can do to help.

Richard and I both feel that the court case and the Coalition should run on independent but harmonious paths and it might be a mistake to have Jack Hoag introduce Lance to the attorney general’s office.

Perhaps Fritz Rolfing could do this better.  Lances private visits with Coalition leaders could be helpful if no decisions are made until he comes back and discusses the matter here.  That way we can get the same things done without it appearing to the Catholics, McNeal Wilson, and others that the Coalition is an arm of the Church’s Legal Department.”  (Loren C. Dunn to Neal A. Maxwell, April 15, 1996)

977:

“Another small miracle.  Yesterday afternoon, the Hawaii Senate leadership undid the step they had taken last week to kill the constitutional amendment bill.  It is now back in the Judiciary Committee where it was first considered.  The Senate Democratic leaders still say that there are not enough vote to pass it, but up until now, they will not let it come to the floor for a vote.  Continue to pray.”  (Loren C. Dunn to Neal A. Maxwell, April 17, 1996)

978:

“State House negotiators have hinted at a special legislative session to get a constitutional amendment opposing Same-Gender Marriage.  The House leadership supports the issue and the Senate Judiciary Chairman tried to head it off with a ‘new proposal’ spelling out a ‘compelling state interest’ for limiting marriage to a man and a woman.… If approved, it is too late to make the November ballot for voters to ratify and that is one reason for suggesting a special session.

We are down to the wire, but still alive.”  (Loren C. Dunn to Neal A. Maxwell, April 23, 1996)

979:

“The latest on the Hawaii situation is that Rey Graulty, Chairman of the Senate Judiciary Committee held public hearings with two very liberal constitutional lawyers to try to show the proposed House constitutional amendment was flawed and in this way, try to deflect pressure to pass the amendment.

The coalition pressed for an additional hearing and presented a retired Hawaii Chief Justice who spoke in favor of the amendment, as well as a statement prepared by Lynn Wardle and Vaughn Keech, supporting the constitutional amendment and containing a list of endorsing names from constitutional lawyers in the United States.

Neither the name of Lynn Wardle or Vaughn Keech appeared on the statement, nor was the Church mentioned, in keeping with our policy of not getting ahead of the coalition.”  (Loren C. Dunn to Neal A. Maxwell, April 24, 1996)

980:

“Last Thursday, the Senate made a counterproposal to the House to support a constitutional amendment, but simultaneously to authorize what essentially was domestic partnership.  The House rejected it outright.…

The full Senate met at 10:00 p.m. to vote on bills needing to come out of the body before a midnight deadline.  Nine brave senators invoked a never-used right to pull a bill from committee, doing so to the House constitutional amendment bottled-up by Rey Graulty.  This required a floor vote, but without the Senate leadership’s endorsement was defeated 15 to 10.

Although everyone said at the beginning of the session that a constitutional amendment was not remotely possible, after getting such legislation through the House by a two-thirds vote, and coming so close in the Senate, we are deeply disappointed.  Our main solace is that we do not now what more the coalition could have done.  The hours and effort of so many are incalculable.  HFT [Hawaii’s Future Today] was there at every step, even literally being brought into the behind closed doors negotiating meetings.…

All but a handful of legislators have publicly stated their opposition to same-sex marriage, but certain in key positions could not overcome the ‘civil rights’ perspective and thus desired some form of domestic partnership.  HFT will now regroup to determine the best course for the future.”  (Donald L. Hallstrom to Loren C. Dunn, April 29, 1966)

961:

“The HLM issue has now passed to the courts. Last Thursday of the Senate made a counter proposal, including the constitutional amendment but they tacked on a domestic partnership that was unacceptable to the House.…

Towards the end, coalition members were invited into committee deliberations.… The challenge was, a few Senate leaders could not overcome what they considered the ‘civil rights’ perspective. The coalition will now regroup to determine the best course for the future.…

The coalition and the court case will follow separate but supportive roles and by prior arrangement, Lance Wickman and I will confer as to how the coalition can be most supportive.

In a previous memo we suggested some alternatives as to the coalition’s future role and the Church’s possible involvement. After the coalition meets, we will get back with more specific alternatives for consideration.” (Loren C. Dunn to Neal A. Maxwell, April 30, 1996)

3083, 1709:

“The Honolulu Star Bulletin recently reported that Gordon Hinckley, the president of the Mormon Church, visited the Mormon Temple in Hawaii and told a meeting of 20,000 people that they were enough to stop unwanted social change in Hawaii (an indirect but clear reference to same-gender marriage).

In addition, the Advertiser also reported the Mormon president would meet privately with the Roman Catholic bishop of Hawaii, to coordinate opposition to same-gender marriage.” (Affinity 18(5):5, May 1996)

982:

“There have been Internet references to the fact that ‘Mormons and Catholics’ are heavily involved with the Hawaii coalition.  As we discussed with Lance [Wickman], it is important that we keep our legal efforts separated from the coalition, except for the procedures that we have previously worked out.”  (Loren C. Dunn to Neal A. Maxwell, May 21, 1996)

3085:

“The Mormon-owned business Hawaii Reserves Inc. has been ensnared in controversy over environmental and land-use questions.…

In 1993, when the Hawaii Supreme Court handed down Baehr vs. Lewin, which ruled that denying licenses to same-sex couples was sex discrimination, HRI turned its longtime PR firm Hill and Knowlton Hawaii, who turned down the job. According to Kitty Lagareta, who runs the Honolulu office of Hill and Knowlton, ‘We ended the relationship because we declined to take on this project to defeat any same-sex marriage legislation.’ Jack Hoag, president of HRI and a top Mormon official, denies that Hill and Knowlton was approached and calls Lagareta’s statement ‘entire incorrect and a falsehood.’…

‘[Hawaii’s Future Today] just formed by spontaneous combustion, exclaims HFT spokesman Hoag, who claims to have a 1,500-member mailing list. But others don’t buy the argument that 1,500 angry Hawaiian citizens rose up in righteous indignation. ‘I don’t believe this is a grass-roots movement,’ says Hawaii gay activist Bill Woods.  ‘This is from the top down. I mean, a church [hired] a marketing firm to develop strategies!’

The chief strategy was hiring Rose Hill, a pro-choice politico who was then a Hawaiian representative of Clinton/Gore ‘96 and is still a member of the Democratic National Committee. An intimidating, powerful figure 2 small fry politicians, she may well be the best messenger to the majority democratic Hawaii Legislature: when Linda Rosehill talks, Democrats listen.…” (“Shotgun Wedding,” Out, June 1996, p. 106)

572:

“Our people know who to vote for but not enough are registered. Does the First Presidency letter preclude use of our chapels in a general drive for voter registration?…

The coalition is holding together well and the Jack reports that even the evangelists have been helpful behind the scenes, although we are going down different roads.

Jack has been interviewed by the Wall Street Journal and the Salt Lake Tribune keeps wanting to talk to him about coalition financing. Thus far, he has avoided them. We have organize things so the Church contribution was used in an area of coalition activity that does not have to be reported.” (Loren C. Dunn to Neal A. Maxwell, June 5, 1996)

1784:

“Rallied by a call to action from their church, many Latter-day Saints are playing prominent roles and the political war against same gender marriages in Hawaii. The question of whether gays and lesbians can marry legally is scheduled to go before a Hawaiian Court this September. Meanwhile, members of The Church of Jesus Christ of Latter-day Saints have led efforts aimed at preventing the Hawaii Legislature from validating homosexual wedlock.

Retired Salt Lake City advertising executive Arthur Anderson was enlisted into the fight last November with a phone call from Mormon Elder Loren C. Dunn, President of the church’s North America West Area.…

Now returned home, Anderson said he is glad for his chance to serve. ‘Gay and lesbian marriages are really destructive to the social order,’ he said.

According to a statement from the Mormon Church’s Salt Lake City headquarters, church members such as Anderson are responding to a plea by the ruling First Presidency to get involved as citizens.…

‘The Church is indeed, politically neutral when it comes to parties and candidates and most issues,’ said the LDS statement.  ‘However, when a political issue has moral overtones, the Church has not only the right but the responsibility to speak out and become involved.’

Some Hawaiians deeply resent what they see as interference from powerful outside influences in a local issue.

James Cartwright, a Honolulu-based member of Affirmation, an advocacy Group for gay Mormons, called it an example of ‘individual bigotry that hides behind institutional skirts.’

‘This is not an issue of marriage,’ said Cartwright, born and raised in Draper before becoming a faculty librarian at the University of Hawaii. Those involved in Hawaii’s Future Today, he said, ‘are not opposed to gay and lesbian marriages, but to gay and lesbian human rights.’…

Homosexual behavior is part of a Satanic strategy to divert humans from God’s plan, according to a lengthy Oct. 1995 article on same-sex attraction published in the church magazine Ensign, written by Elder Dallin H. Oaks, a member of the Quorum of the Twelve Apostles.…

Hawaii’s future today grew out of fears the politically liberal state would be the first to sanction gay marriages. Begun through a dialogue between leaders of the Mormon and Catholic churches, the group now has some 2,000 members, organization treasurer George P. Shea, Jr. said in an interview from Honolulu.

And to hear Shea and others tell it, the movement sprang from actions by individuals, rather than edicts from top ecclesiastical leaders.…

While playing down any direct links between his group and the Mormon Church, [Jack] Hoag acknowledges that ‘we’ve had a lot of encouragement from church leaders. There’s no question that doctrinally, we’re tuned into the church’s feelings.’

The movement began quietly.

Pamphlets circulated at select Mormon Church meetings throughout the Pacific islands, urging members to support anti-gay marriage legislation pending in the Hawaii Legislature. Key statements were faxed to legislative committees, from LDS Church facilities.

Meanwhile, in Utah, the church’s proclamation prompted state legislators, 80% of whom are Mormon, to vote in 1995 in favor of the law that purports to free Utah from having to recognize same-sex marriages that might be performed in other states.

Drafted by BYU law professor Lynn Wardell in Provo, the bill passed with little opposition, making it the first law of its kind in the country. Other states now are crafting similar laws, hoping to carve gay marriage exemptions to the U.S. Constitution’s ‘full faith and credit clause,’ which requires states to honor each other’s laws and decrees, including marriages.

Just as Utah passed its law, leaders of the Mormon Church sought to inject themselves directly into the Hawaii controversy, petitioning unsuccessfully to join the same-sex marriage lawsuit before the Hawaii Supreme Court.

‘There are times when certain moral issues become so compelling that churches have a duty to make their feelings known,’ Donald Hallstrom, the LDS Church’s regional representative in Hawaii, said at the time.

The state high court denied the request and later ordered the issue of same-sex marriages be put to trial. That, in turn, sparked attempts in the state Legislature to short-circuit a possible ruling in favor of such marriages with a constitutional amendment.

Moves to allow gambling in Hawaii—the only state other than Utah to forbid all gaming—and a call for legal prostitution in the Waikiki area died early in the part-time legislature, allowing the lobby group to focus exclusively on gay marriage.

Hawaii’s Future Today moved from citizen rallies and distributing leaflets to a full-blown lobbying campaign early in the year, around the same time LDS Church President Gordon B. Hinckley visited Hawaii in February 1996, welcomed by massive crowds of well-wishers.

On the visit, Hinckley huddled with Honolulu Catholic Bishop Francis X. DiLorenzo, devoting part of their discussions to the same-sex marriage campaign. Efforts by Hawaii’s Future Today stepped up a few weeks later, culminating in a TV, radio and newspaper advertising blitz during April and May.…

About $25,000 went to advertising, and surveys indicate the ads had their affect. Roughly 70% of Hawaiians oppose same-sex marriages today, polls indicate, compared with a little more than half of state residents before the advertising campaign began.…

William E. Woods, spokesman for the Honolulu-based Gay and Lesbian Education and Advocacy Foundation, called the group’s state spending reports ‘totally false.’  He claims the Mormon Church has pumped substantially more money than it has reported into backing the state constitutional amendment to make same gender marriages illegal.

Woods lodged formal charges to that effect with Hawaiian Ethics Commission in late April, but little state action has been taken.…

The constitutional amendment, which would have enshrined male-female unions as the only legal marriages, remained bottled up in a Senate committee—until the last night of the Legislature. It then was defeated April 29 by a 15-10 vote on the Senate floor.

Gay activist hailed the vote is a victory, while members of Hawaii’s Future Today are vowing to hold the amendment’s opponents accountable in state Senate elections this fall.…” (Tony Semerad, “A Mormon Crusade in Hawaii: Church Aims to End Gay Union,” Salt Lake Tribune, June 9, 1996, p. B1)

1704:

“[Abstract] The couples have already won a partial victory from Hawaii’s Supreme Court. The case returns in September to a lower court, where the state must show a “compelling” reason to discriminate against same-sex couples. That is a tough standard, and the U.S. Supreme Court’s action last month in a separate fight won’t make it any easier. The justices struck down a Colorado provision that banned laws protecting homosexuals from discrimination. That ruling doesn’t apply directly to the marriage issue but makes the overall legal climate friendlier to gays.

Ninia Baehr and Genora Dancel, now both 35, had met only six months before the case started. Fixed up by Ms. Baehr’s mother, they say romance blossomed right away, but it was an acute earache that clarified the practical advantages of marriage. Ms. Baehr, the patient, lacked insurance to pay hefty doctors’ bills. “I wanted to get her on my insurance, but only married people can do that,” says Ms. Dancel, a television-station engineer. “It was more than insurance, of course,” injects Ms. Baehr, who works for a nonprofit housing agency. “I had been searching for Ms. Right, and now I’d found her.” The third couple, Tammy Rodrigues and Antoinette Pregil, decline interviews, but also are said to be concerned about the economic advantages of marriage, including shared pension benefits.…

[Full Text] HONOLULU — The national debate over the propriety of gay marriages got its start nearly six years ago in an office at the Hawaii Department of Health. Three gay couples showed up to apply for marriage licenses; they were politely, but firmly, turned away.

No one from the American Civil Liberties Union, or any leading gay-rights group, was there that day. Nor would those groups throw themselves fully into the cause for years to come.

So how did it come to this stage, where an issue that has so polarized the homosexual community and the country at large now stands to be decided by state judges more than 2,500 miles from the American mainland?

Conservative critics, and some other observers, have assumed that the gay couples in this case have, from the beginning, been fronts for larger forces. “They were put up to it by a very powerful liberal-homosexual movement,” speculates the Rev. Lou Sheldon, head of the Traditional Values Coalition in Anaheim, Calif.

In fact, the case started with no budget and no big names. It became a precedent-setter because of an unusual coincidence of circumstances and personalities. Critical to its progress were an unusual clause in Hawaii’s constitution, a tenacious lawyer willing to pursue the case for minimal fees and a state Supreme Court that had just undergone a sharp shift to a younger, more liberal bench.

If Hawaii’s courts do eventually allow gay marriages, critics fear that other states would be required to honor them, much as they now honor Nevada’s drive-by divorces.…

The couples were introduced to each other by Bill Woods, a local — and controversial — gay activist who knew about their common interest in marriage. They agreed in December 1990 to apply together for marriage licenses but didn’t make arrangements for legal representation or financial backing. After the state refused to process their applications, the couples, accompanied by Mr. Woods, headed to the local ACLU chapter, hoping for a joining of arms. It didn’t happen. “Basically, they said, `Don’t call us, we’ll call you,'” Mr. Melillo says.

One reason, says Vanessa Chong, the Hawaii ACLU’s executive director, was a lack of staff. Beyond that, though, ACLU attorneys in Honolulu and at the group’s New York headquarters figured the case was a loser and could generate a conservative backlash as well as a bad legal precedent. “New York was not encouraging this; there were serious strategic questions,” says one attorney familiar with the situation. “No one foresaw where it would go.”

In the following months, the couples contacted national gay and lesbian groups, including the New York-based Lambda Legal Defense Fund, the top gay legal organization. The response was tepid. Attorney Evan Wolfson, Lambda’s leading marriage advocate, says he wanted to take the case. But “there was an internal argument. I lost, and we were not involved.” The reasons mirrored the ACLU’s fears.

There was also considerable ambivalence throughout the gay community. Some activists saw marriage as an unnecessary accommodation to mainstream society; others simply didn’t see it as a major priority. The Hawaii case was a big topic at the twice-yearly meetings of the Roundtable, a group of high-profile gay and lesbian lawyers. “We had arguments, discussions, debates, some very heated,” recounts Mr. Wolfson, a participant.

As the case progressed, the couples separated from Mr. Woods, who has often been accused of grandstanding for his causes in Hawaii. (Mr. Woods acknowledges he is a controversial figure and says he “pulled out for the good of the project.”) The plaintiffs turned to Daniel Foley, a former ACLU staffer who also does personal-injury and criminal-defense work. Mr. Foley says he had previously handled only one gay-rights case: a suit that stopped local officials from shutting down a male cross-dressing pageant on the island of Molokai.

His preliminary research showed that going back to the 1970s, same-sex couples seeking to wed had lost an uninterrupted series of suits. Court opinions had stressed that marriage, by traditional definition, united a man and a woman.

Mr. Foley took the case anyway, filing suit in May 1991. “It seemed about time that someone try this issue again, and Hawaiian law offered possibilities.” He based his case largely on two expansive provisions in the state constitution. One explicitly protects privacy, while the other bars sex discrimination. Those rights are only implied in the U.S. Constitution. From the sidelines, the ACLU weighed in as a “friend of the court” on behalf of the plaintiffs.

The reception couldn’t have been much chillier. The trial judge dismissed the suit after only a preliminary hearing. The case got little attention outside Hawaii.…

Mr. Foley honed a two-pronged argument based on privacy and equal protection. He asked the state Supreme Court to recognize that a logical extension of the state’s privacy protection was the right to marry, regardless of sexual orientation. His fallback argument was that homosexuals constituted the sort of oppressed group that couldn’t be denied equal protection of the law — in this case, the marriage law. The state countered that the right to marry applied only to heterosexuals and that marriage was designed to promote procreation.

During a lull in the case, the Hawaii high court changed drastically. Younger, more-liberal jurists were succeeding an older generation on the five-person tribunal. The panel that ultimately heard the case included two new permanent justices and three temporary substitutes filling spots that were vacant or held by a judge who had disqualified himself.

When the state’s lawyer, Deputy Attorney General Sonia Faust, came to the lectern, James Burns, one of the fill-in justices, confronted her with this scenario: “OK. A male and a female walk in, and they’re not married and they want a license; you give it to them. A male and a male walk in and want a license; you won’t give it to them. You are discriminating against them.”

“Our position is that that is permissible discrimination,” Ms. Faust responded.

“It was at that moment,” Mr. Foley recalls, “that I thought, `We could win this thing.'”…

Writing what would become the court’s main opinion, Justice Levinson rejected both the state’s arguments about procreation and most of the plaintiffs’ contentions as well. The case wasn’t about homosexuality at all, he said; it was about discrimination based on gender. Noting the Hawaii constitution’s ban on gender bias, he said the state impermissibly favored different-sex couples over same-sex couples. Justices Levinson and Moon voted to send the case back to the circuit court for a trial on whether the government could justify this discrimination with a “compelling” reason. That standard, in practice, is almost impossible to meet.

Justice Burns agreed there should be a trial, but added a confusing caveat. In a separate opinion, he said that to win, the plaintiffs should have to prove that homosexuality is “biologically fated,” a function of nature, not nurture.

These opinions, issued on May 5, 1993, constituted a huge but fragile victory for the plaintiffs, because they rested on the votes of two judges, plus an equivocal third. The attorney general unwittingly solidified the ruling when he asked the court to reconsider its decision. That provided an opportunity for a new justice who hadn’t participated in the original hearing, Paula Nakayama, to add her vote to the Levinson opinion, creating a firm three-person majority.

The trial was postponed to give the Hawaii Legislature a crack at addressing the issue. But after rancorous hearings, a push to amend the constitution to ban same-sex marriage failed this spring, as did a competing proposal to allow same-sex couples to register as domestic partners. Now the state has signaled that it will use expert witnesses to argue in September that a “compelling” reason to prohibit gay marriages is to promote childrearing by heterosexual couples. Because there is no question of federal law in the case, it won’t be reviewed by U.S. courts.” (Paul M. Barrett, “I Do/No You Don’t: How Hawaii Became Ground Zero in Battle Over Gay Marriages,” Wall Street Journal, June 17, 1996, p. A1)

985:

“As you know, $50,000 was approved for HFT and I arranged for $15,000 to be sent as part of the previous campaign. This means that we can use the remaining funding to help keep the coalition in operation for the remainder of the year without going over budget.…

This does not include the retainer which the Public Affairs Department has directly with McNeil Wilson Communications.…

If you feel it appropriate, we could have Bruce Olsen forward to HFT the $35,000 dollars they have budgeted for this project. As we are all aware, the coalition continues to collect money; however, the larger donations are essential for its operation.” (Loren C. Dunn to Neal A. Maxwell, June 28, 1996)

989:

“That does lead me to an interesting question: Has HFT thought yet about its planned media strategy during the trial?  If Bill Woods is out there doing his daily report, maybe HFT needs to get the PR firm to do the same.  Maybe there should be a ‘daily report’—like one sometimes gets at conferences.  Since I will hopefully be inside the Court, I could help with the writing in the evenings, if that would be useful (and cheaper!).” (Lunn D. Wardle to Loren C. Dunn, August 8, 1996)

991:

“The results of a recent newspaper/TV poll in Hawaii show that 72% of the people in the Island of Oahu, where the poll was taken, still oppose HLM.  Only 19% came out in favor of HLM.  This shows that the efforts of our recent campaign are continuing to hold up with Hawaiian citizens.

Also of great interest is that 67% say the legislature should have taken a stand on the issue.

HFT continues to work on all appropriate fronts.”  (Loren C. Dunn to Neal A. Maxwell, August 9, 1996)

993:

“Attached is the Renewal Order Form for The Christian Science Monitor.  The subscription is needed in order to follow ‘same-gender marriage’ information in Hawaii and California.  The cost ($168.00) of this renewal should be allocated to Cost Center No. 5105-013-1282.”  (Loren C. Dunn to Jesse J. Judd, Assistant Secretary to the Seventy, August 28, 1996)

994:

“The LDS Church motion for filing an amicus brief was approved by Judge Kevin Chang today, as was a similar motion by the Catholic Church.” (Donald L. Hallstrom to Loren C. Dunn, September 4, 1996)

996:

“The Hawaii trial is ending and the judge has given two weeks for the submittal of Amicus briefs and another two weeks after that for written summaries by the trial lawyers.”  (Loren C. Dunn to Neal A. Maxwell, September 20, 1996)

999:

“This is a rundown of the recent election results in Hawaii:…

• Four representatives who voted against the constitutional amendment were defeated by political neophytes who had opposition to same-sex marriage as a primary platform issue.…

Overall, the elections gave Hawaii’s Future Today added strength and status and we could not have hoped for more significant results.” (Loren C. Dunn to Neal A. Maxwell, November 8, 1996)

571:

“I have been reflecting on a question you asked the did not get answered properly. I was with Elder Maxwell when President Hinckley told us to go to Hawaii and get the coalition organized and tried to head off the legalization of same-gender marriage. If it gets reported on every week by Elder Maxwell, that could be the reason. With all the talk of same-gender marriage, it has not been legalized in one single state. Their movement has turned to the courts in recent years and when the Hawaii Supreme Court instructed the legislature to show cause, the HLM movement was sure this was their breakthrough. Get the law passed in Hawaii and depend on ‘full faith and credit’ to get it throughout the United States. People on both sides of this issue have been holding back to see what would happen in Hawaii.

The Lord has blessed the coalition because it has given Hawaiians who oppose HLM a voice and focus without the Church being singled out for attack by the opposition. We have been able to make our input into the coalition by having Don Hallstrom poised in such a way that we can get our message through to the leadership without appearing to dominate. On the number of occasions, Don has wanted to play more active role, but I have kept him back. The coalition was able to neutralize the last legislature on this issue and even exerted influence the turn legislators out of office and affected the leadership of the State Senate. This has required day today working over the past six months but none of us will ever doubt that the hand of the Lord is driving it.

We are now poised for a constitutional amendment in the State that could settle the issue once and for all.” (Loren C. Dunn to Henry B. Eyring, November 19, 1996)

1688:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW (Baehr v Miike)

VI. SPECIFIC FINDINGS 

116. The following are specific findings of fact for this case based on the credible evidence presented at trial. 

117. Defendant presented insufficient evidence and failed to establish or prove any adverse consequences to the public resulting from same-sex marriage. 

118. Defendant presented insufficient evidence and failed to establish or prove any adverse impacts to the State of Hawaii or its citizens resulting from the refusal of other jurisdictions to recognize Hawaii same-sex marriages or from application of the federal constitutional provision which requires other jurisdictions to give full faith and credit recognition to Hawaii same-sex marriages. See Article IV, Section 1 of the U.S. Constitution (The Full Faith and Credit Clause). 

119. Defendant presented insufficient evidence and failed to establish or prove the legal significance of the institution of traditional marriage and the need to protect traditional marriage as a fundamental structure in society.…

123. However, there is diversity in the structure and configuration of families. In Hawaii, and elsewhere, children are being raised by their natural parents, single parents, stepparents, grandparents, adopted parents, half parents, foster parents, gay and lesbian parents, and same-sex couples.…

125. The evidence presented by Plaintiffs and Defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child. More specifically, it is the quality of parenting or the “sensitive care-giving” described by David Brodzinsky, which is the most significant factor that affects the development of a child.… 

126. The sexual orientation of parents is not in and of itself an indicator of parental fitness. 

127. The sexual orientation of parents does not automatically disqualify them from being good, fit, loving or successful parents. 

128. The sexual orientation of parents is not in and of itself an indicator of the overall adjustment and development of children. 

129. Gay and lesbian parents and same-sex couples have the potential to raise children that are happy, healthy and well adjusted.…

131. Gay and lesbian parents and same-sex couples can provide children with a nurturing relationship and a nurturing environment which is conducive to the development of happy, healthy and well-adjusted children. 

132. Gay and lesbian parents and same-sex couples can be as fit and loving parents, as non-gay men and women and different sex couples. 

133. While children of gay and lesbian parents and same sex couples may experience symptoms of stress and other issues related to their non-traditional family structure, the available scientific data, studies and clinical experience presented at trial suggests that children of gay and lesbian parents and same-sex couples tend to adjust and do develop-in a normal fashion. 

134. Significantly, Defendant has failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children.

135. As noted herein, there is a benefit to children which comes from being raised by their mother and father in an intact and relatively stress-free home. However, in this case, Defendant has not proved that allowing same-sex marriage will probably result in significant differences in the development or outcomes of children raised by gay or lesbian parents and same-sex couples, as compared to children raised by different-sex couples or their biological parents. In fact, Defendant’s expert, Kenneth Pruett, agreed, in pertinent part, that gay and lesbian parents “are doing a good job” raising children and, most importantly, “the kids are turning out just fine.” 

136. Contrary to Defendant’s assertions, if same-sex marriage is allowed, the children being raised by gay or lesbian parents and same-sex couples may be assisted, because they may obtain certain protections and benefits that come with or become available as a result of marriage.…

138. In Hawaii, and elsewhere, people marry for a variety of reasons including, but not limited to the following: (1) having or raising children; (2) stability and commitment; (3) Pmne1onal closeness (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) recognition by society; and (8) certain legal and economic protections, benefits and obligations. In Hawaii, and elsewhere. gay men and lesbian women share this same mix of reasons for wanting to be able to marry. 

139. Simply put, Defendant has 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.…

CONCLUSIONS OF LAW

12. Article IV section 1 of the U.S. Constitution provides, in pertinent part, that all states must recognize the “public acts, records and judicial proceedings of every other state.”

Whether other states will recognize or avoid recognizing same-sex marriages which take place in Hawaii and the consequences to Hawaii residents of other states’ recognition or non-recognition of same-sex marriage (and all of the rights and benefits associated with marriage) is an important issue.

However, except for asking the court to take judicial notice of the Defense of Marriage Act, P.L. 1-4-199 (“DOMA”), Defendant introduced little or no other evidence with regard to this significant issue of comity and same-sex marriage, conflict-of-laws, and/or the effects, if any, of the Full Faith and Credit Clause of the U.S. Constitution.

13. Except for the affidavit testimony of Kenneth K. M. Ling and Michael L. Meaney, which provided statistical, budgetary and operational information regarding the Family Court of the First Circuit Court and the Child Support Enforcement Agency, State of Hawaii, respectively Defendant presented little or no other evidence which addressed how same-sex marriage would adversely affect the public fisc. Defendant did not offer any testimony which explained the significance of the above and Defendant did not specifically explain or establish how same-sex marriage would adversely impact the Family Court or the Child Support Enforcement Agency.

14. Defendant presented meager evidence with regard to the importance of the institution of traditional marriage, the benefits which that relationship provides to the community and, most importantly, the adverse effects, if any, which same-sex marriage would have on the institution of traditional marriage and how those adverse effects would impact on the community and society. The evidentiary record in this case is inadequate to thoughtfully examine and decide these significant issues.

15. Finally, Defendant’s argument that legalized prostitution, incest and polygamy will occur if same-sex marriage is allowed disregards existing statutes and established precedent [for example, State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)(upholding ban on prostitution)] and the Supreme Court’s acknowledgment of compelling reasons to prevent and prohibit marriage under circumstances such as incest. Baehr v. Lewin, 74 Haw. 530, 562 n.19, 852 P.2d 44, 59 n.19 (1993).

16. In Dean v. District of Columbia, 653 A.2d 307 (D.C.App. 1995), two homosexual males filed a complaint against the District of Columbia which sought an injunction to require the Clerk of the Superior Court to issue them a marriage license. The trial court granted summary judgment in favor of the District of Columbia. On appeal, the District of Columbia Court of Appeals affirmed the trial court’s order granting summary judgment.

In the Dean case, Judge Ferren wrote a lengthy opinion concurring in part and dissenting in part, and in which the majority joined in part.

Judge Ferren would have reversed summary judgment and remanded the case for trial to decide (1) the level of scrutiny constitutionally required, and (2) whether the District of Columbia has demonstrated a compelling or substantial enough governmental interest to justify refusing plaintiffs a marriage license. The portion of Judge Ferren’s opinion which deals with the question of whether the District of Columbia could demonstrate at trial a substantial or compelling state interest is useful and informative.

In pertinent part, Judge Ferren wrote the following.

[I]f the government cannot cite actual prejudice to the public majority from a change in the law to allow same-sex marriages . . . then the public majority will not have a sound basis for claiming a compelling, or even a substantial, state interest in withholding the marriage statute from same-sex couples; a mere feeling of distaste or even revulsion at what someone else is or does, simply because it offends majority values without causing concrete harm, cannot justify inherently discriminatory legislation against members of a constitutionally protected class – as the history of constitutional rulings against racially discriminatory legislation makes clear.

Suppose, on the other hand, that scientifically credible “deterrence” evidence were forthcoming at trial, so that either the heterosexual majority or the homosexual minority would be prejudiced in some concrete way, depending on whether the marriage statute was, or was not, available to homosexual couples. In that case, the ultimate question of whose values should be enforced, framed in terms of what a substantial or compelling state interest really is, would pose the hardest possible question for the court as majority and minority interests resoundingly clash. Dean at 653 A.2d at 355-356 (1995) (footnotes omitted).

17. In this case, the evidence presented by Defendant does not establish or prove that same-sex marriage will result in prejudice or harm to an important public or governmental interest.

18. Defendant has not demonstrated a basis for his claim of the existence of compelling state interests sufficient to justify withholding the legal status of marriage from Plaintiffs.

As discussed hereinabove, Defendant has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. Nor has Defendant demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of traditional marriage, or any other important public or governmental interest.

The evidentiary record presented in this case does not justify the sex-based classification of HRS 572-1.

Therefore, the court specifically finds and concludes, as a matter of law, that Defendant has failed to sustain his burden to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating or proving that the statute furthers a compelling state interest.

19. Further, even assuming arguendo that Defendant was able to demonstrate that the sex-based classification of HRS 572-1 is justified because it furthers a compelling state interest, Defendant has failed to establish that HRS 572-1 is narrowly tailored to avoid unnecessary abridgments of constitutional rights.  Nachtwey v. Doi, 59 Haw. 430, 435, 583 P.2d 955, 958 (1978) (citations omitted) (quoting San Antonio School District v. Rodriquez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973).

20. If any of the above conclusions of law shall be deemed findings of fact, the court intends that each such conclusion be construed as a finding of fact.

21. Based on the foregoing, in accordance with the mandate of the Hawaii Supreme Court, and applying the law to the evidence presented at trial, judgment shall be entered in favor of Plaintiffs Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon and Joseph Melillo as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. The sex-based classification in HRS 572-1, on its face and as applied, is unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution.

(Filed in the First Circuit Court, State of Hawaii, December 3, 1996)

1003:

“Despite Judge Chang’s decision, the fact remains that the majority of Hawaii residents oppose the legalization of same-sex marriages. Thus, it remains the responsibility of the legislature to pass a constitutional amendment reaffirming that marriage is exclusively a union between one man and one woman.

A constitutional amendment is the only guaranteed we have for preserving traditional marriage in Hawaii.” (Press statement, Hawaii’s Future Today, December 3, 1996)

1002:

“While we were disappointed by yesterday’s circuit court ruling, it was not unexpected.  Hawaii’s Future Today (HFG) has always looked to the legislature as the solution to this complex issue.…

This morning, State attorneys are in court to halt enforcement of the decision pending appeal to the Hawaii Supreme Court.  We anticipate this will be granted, allowing one to two more years to work out a legislative resolution.” (Donald L. Hallstrom to Loren C. Dunn, December 4, 1996)

1003:

“We believe that in light of the recent elections, support of a constitutional amendment will be seen as the prudent thing to do by the majority of the legislators.…

Hawaii’s future today continues to function well and the communication lines to the coalition continue to allow us proper input while at the same time not appearing to dominate the coalition or make the Church appear as if it is out in front of the coalition efforts.

The advice and input of the brethren is always appreciated.” (Loren C. Dunn to Neal A. Maxwell, December 4, 1996)

1004:

“Our office has been retained by Hawaii’s Future Today (‘HFT’) to develop alternative language for a constitutional amendment that will, in effect, avoid judicially imposed same-sex marriage, answer most of the concerns of uncooperative legislators, and be constitutionally sound.”  (J. Stevens Keali’iwahamana Hoag to Von Keetch, Esq., Kirton & McConkie, December 10, 1996)

1007:

“Attached is a copy of a letter, dated December 10, 1996, from a lawyer in Honolulu to Von Keetch setting forth the text of a proposed amendment to the Hawaii Constitution. This proposed amendment would take a different tack than the amendment proposed in the last legislative session.…

This new amendment seeks only ‘to clarify that the statutory definition of a valid marriage contract as being only between a man and a woman is not in violation of {several sections of the Hawaii constitution}.’ In other words, the state constitution remains neutral on the issue of whether there should be same gender marriage, merely removing the tortured Beahr ruling the traditional marriage is a violation of due process and equal protection. This new proposed amendment would leave to the Legislature to determine whether same gender marriage should be allowed.…

Von Keetch and Lynn Wardell of the BYU Law School are reviewing this proposed amendment, particularly in light of the recent Romer decision, to make sure that it does not run afoul of federal constitutional requirements.” (Lance B. Wickman to Neal A. Maxwell, December 17, 1996)

1690:

“The Supreme Court of Hawaii held that the Hawaii Constitution does not grant to persons of the same sex a “fundamental right” to marry. The statute restricting the marital relation to persons of the opposite sex, however, established a sex-based classification that was subject to a strict-scrutiny test in order to survive an equal protection challenge under article I, 5 of the Hawaii Constitution. The Hawaii Supreme Court thus vacated the circuit court’s order and remanded the case back to the circuit court for further proceedings at which the state would have to show a compelling state interest that justified the sex-based classification.…

The Hawaii Supreme Court was careful to point out that it had not held that there is a civil right to a same-sex marriage, and it had not held that the statute restricting marriage to persons of the opposite sex was unconstitutional. All it had held was that the statute, on its face, denied same-sex couples access to the marital status and concomitant rights and benefits, thus implicating the equal protection clause of the Hawaii Constitution.…

In response to the Hawaii court’s actions, legislation called the “Defense of Marriage Act” was introduced in the United States Congress.…” (“Editorial: A Short Critique of the ‘Defense of Marriage Act,’” National Legal Research Group, Inc., 1996; http://www.divorcesource.com/research/dl/marriageact/96jul135.shtml)

2955:

Hawaii’s Future Today is a group composed mainly of Mormons and Roman Catholics. They raise 6 concerns about same-sex marriages:

1. “Regardless of parental wishes, schools will be forced to teach our children that homosexual relationships are just as desirable as heterosexual ones.” Their comment is probably valid. Homophobic parents will probably be unhappy when the reality of sexual orientation is taught to their children. This concern is vaguely similar to those expressed a few decades ago in Southern US states that schools will be forced to teach that African-Americans are just as good as Caucasians.

2. “Laws regarding the adoption and fostering of children will be affected.” While it is true that laws regarding adopting children and placing children in foster care would naturally be expected to change, it is not obvious that such change would have a negative influence on society. One can easily argue that a gay or lesbian youth could thrive better with homosexual foster parents.

3. “If parents divorce and one partner remarries a homosexual, who would have custody of any children, the single mother or the newly married gay men?” We do not see this as a problem. We assume that the decision would be made, as always, based on the best interest of the child.

4. “Our tourist industry will suffer as our usual visitors abandon Hawaii and its image as the ‘gay wedding and honeymoon capital.'” The implication here is that the number of extreme homophobes in North America is greater than the total number of gays, lesbians and heterosexuals who value diversity and equality. This is a debatable assumption. Some estimate that gay and lesbian marriages could bring 2 billion dollars per year of tourist business to the Islands. We find it distasteful that moral questions should be debated from a financial perspective. Again, we can hear echoes from decades-old debates over the ending of racial segregation.

5. “Promoting Hawaii as a haven for those practicing a high risk lifestyle will increase the burden on the social services and the health care system which we all pay for.” The word “lifestyle” has been defined as “the consistent, integrated way of life of an individual as typified by his or her manner, attitude, possessions, etc.” (Webster’s New World Dictionary, 2nd College Edition). The term is improperly used here. It is normally used to refer to changeable, choosable factors in a person’s life, not an unchangeable quantity like one’s sexual orientation. It is true that gays, on a per-capita basis, have a higher rate of AIDS and of some other STD’s than do heterosexuals. However, lesbians have much lower rates of such diseases.

6. “Extending the economic benefits of marriage to everyone will lead to a reduction in the real value of those benefits to families and traditional married couples – the foundation of our society.” This statement means that there will be more benefits available for heterosexuals to use if we deny those same benefits to homosexuals. Again, we find it offensive to use economics to debate a moral question. They are implying that gays and lesbians are sub-human individuals who are expected to pay the same in taxes as everyone else, but are not sufficiently worthy to get an equal share of society’s benefits. One has to be very careful with this type of belief; The Nazi Holocaust has shown that genocides are proceeded by the reclassification of the victim group as sub-human. Using the HFT logic, one could deny marriage benefits to mixed-race spouses; that would make more benefits available for “traditional” same-race couples. One part of their statement is correct: “traditional” married couples (i.e. those with heterosexual spouses) are the foundation of society. And they will remain so. Even when same-sex marriages become generally available, they will probably never constitute more than 5% of the total.

(“’Hawaii’s Future Today’ Statement,” Religious Tolerance.org, 1996; http://www.religioustolerance.org/hom_hft.htm)

1014:

“The attached two clippings from the Honolulu Advertiser from last week gives us an update on HLM and the legislature.

The January 22 report states the House Judiciary Committee reported out a constitutional amendment bill and companion civil rights legislation on a 12 to 1 vote.  This means we cleared the first hurdle.

The January 23 article reports when Chief Justice Ronald Moon spoke to a joint session of the Hawaiian Legislature, he said the Legislature holds the ‘highest trumps’ which some lawmakers interpret as meaning that final action on HLM is up to them. If this is true, it is a major statement and means we won’t have to worry about the Hawaii Supreme Court second guessing the Legislature on passing this legislation. As was expected, it is in the hands of the Legislature and we see this as a good development.” (Loren C. Dunn to Neal A. Maxwell, January 24, 1997)

1015:

On Friday, January 24, 1997 the Hawaii House passed an amendment to the Hawaii Constitution that would restrict marriage to male-female couples only (H.B. 117). It passed the full House by a 44 to 7 margin (two-thirds or 34 votes were all that were needed).

It now goes to the Senate where the battle will narrow to the issue of domestic partnership and making sure HLM doesn’t raise its head under a different name.”  (Loren C. Dunn to Neal A. Maxwell, January 24, 1997)

1016:

“The rally was a great success! Although the enclosed Star–Bulletin article stated there were 5,000 attendees, television stations estimated 6000 to 7000.…

Now the battle turns to the Senate. The co-chairman of the Senate Judiciary Committee submitted a bill yesterday which ties a constitutional amendment to a requirement that ‘… the laws of the state ensure the application of this reservation does not deprive any person of civil rights on the basis of sex.’ HFT [Hawaii’s Future Today] is now studying this bill and preparing to testify at related hearings.” (Donald L. Hallstrom to Loren C. Dunn, January 24, 1997)

“Across the street, Brigham Young University-Hawaii student Corbin Thomander, 18, arrived with more than 200 people filling six buses.  His sign read, ‘If I marry my dog, can I get a tax deduction?’

But most didn’t see any humor in the issue.” (Jennifer Hong, “Same-sex marriage opponents show the strength of their view,” Honolulu Star-Bulletin, January 25, 1997, p. A-3)

1023:

“I. 1997 Legislature…

• Senate Judiciary Committee co-chairmen have privately told HFT leaders that their intention is to pass some type of constitutional amendment bill and some type of rights package out of committee (and they hope through the full Senate) to get conference committee with house for negotiation. Both bills will clearly be ‘worse,’ from our perspective, than H.B. 117 and H.B. 118.…

II. Hawaii’s Future Today (HFT) Efforts

• HFT lobbyist and leaders have individually met with every legislator who would see them (all but a few).…

• HFT, at the request of the House Judiciary Chairman, Terrance Tom, brought in Professor Lynn Wardle of B.Y.U. Law School to testify in support of H.B. 117.  He also met with Senate Judiciary Committee leaders.…

• Sponsored major rally on grounds of State Capitol January 24, 1997 attended by approximately 7,000.  Capitol police reported largest rally previously ever held on grounds was about 3,500.  Many legislators attended.

III. Perspective

When HFT was formed in late 1995, legislative leaders, political observers and the mediate unanimously counseled not to even attempt a constitutional amendment as this was an issue that should be left to the courts. Public opinion polls showed 61% of Hawaii residents against same gender marriage, 24% in favor and the rest undecided. Through the significant efforts of the coalition, an amendment passed the house in 1996, but was defeated in the Senate. By the close of the 1996 session, a poll by the Honolulu Advertiser (which was and is editorially pro) indicated 74% against and 12% in favor, a remarkable movement of public opinion.…

Alternatives

… If nothing is acceptable to us and no action is taken, there is danger of the matter ending up with the Supreme Court upholding HLM. If the constitutional amendment is important enough to us, then we might find ourselves stepping back while HFT agrees to some restrictions to civil rights legislation that would give some basic rights but stop short of any kind of registration and therefore keep the matter in Hawaii and hopefully take away the full faith and credit argument.

The Church would not propose such a thing but HFT could do it with the Church taking a step back and even making their own statement of objection on this particular issue.…

Constitutional Convention

With regard to a Constitutional Convention, such a convention might be called in 1998. We would then be in the battle of lining up candidates to be elected to the convention. There is much less control over how the makeup of such a convention might be. When last held, it was captured by a group of liberal Democrats. The greatest concern, however, is that if the Legislature does not act, it is highly likely that in the meantime, the Supreme Court will uphold its original position and same-gender marriage will be an accomplished fact all the full faith and credit problems before the convention is held.…

Challenges

… One problem we face is that Terrence Tom has authored HB 118 and he has also been HFT’s strong advocate and getting the constitutional amendment in place. We are working hard to get the registration requirement either dropped or further modified in HB 118, but we don’t know what will happen in conference.…

IV. Summary

• With previous ruling of Hawaii State Supreme Court and December 1996 ruling by Judge Kevin Chang in Circuit Court, there is little optimism for successful appeal by State. Consequently, if there is no legislative solution, the consensus of opinion is that full same-gender marriage will be law in Hawaii, significantly exposing entire country to legal challenge.…

• HFT’s objective is to ensure that strong constitutional amendment legislation is passed and to eliminate or limit any rights measure. If rights package appears inevitable, HFT adamantly objects two any bill which specifically gives recognition the same gender couple relationship.

(Loren C. Dunn and Marlin K. Jensen, “Same-Gender Marriage Status Report,” February 3, 1997)

1025:

“I have just sent to you by fax a copy of the final edited letter I have sent to Senators Matsunaga and Chumbley, and copied to Chairman Tom. I have modestly revised the final paragraph and made a few editorial corrections that Don Hallstrom caught.

Some additional thoughts regarding HB 118 and full faith and credit relating to our telephone conversation this morning. A registration procedure is certainly undesirable because registration connotes formal governmental status and legitimation. But the Hawaii reciprocal beneficiary registration proposed in HB 118 is significantly less problematic than a general domestic partnership like the Scandinavian countries have, or like the Hawaii Senate proposed last year. First, it is limited to registration for four specific benefits (at least two of which nonmarital couples already have or can achieve through other legal means). Second, it is defined as applying to a class not limited to same-sex couples, but can include siblings, parent-child registrants, etc. Third, it is explicitly limited to persons that are not eligible for marriage, further distinguishing marriage.  Fourth, the name or label ‘reciprocal beneficiaries’ is much less political, and not identified with same-sex couples, like the term ‘domestic partnership’ is.  As far as registrations go, it is pretty modest.

There is no doubt that it would be better to not have the registration procedure, if it can be eliminated from the HB 118. Since HB 118 was introduced by the leading supporter of HB 117 (the constitutional amendment that will overturn Baehr v. Lewin), the chairman of the House Judiciary Committee, and it reportedly passed the house by a vote of 47 to 4 (by a larger margin even than HB 117), it may be difficult to get it modified at this point, but it might be worth approaching him.  He might consider dropping the registration part, or, alternatively, adding language that says, in effect, ‘The registration and benefits provided by this bill are intended to have effect only in the state of Hawaii, not extraterritorially, and may not be effective in any state or country where they would be contrary to public policy,’ which might reduce the potential for interstate damage (as I mentioned in my fax letter to you this morning).…

If any benefits are given to same-sex couples in Hawaii, with or without registration, there will be some full faith and credit problem.… Of course, the issue is less complicated without the additional factor of the registration, but even without registration, there will be conflict of laws (and possibly constitutional full faith and credit) issues if any benefits are extended to same-sex couples. I suspect that sooner or later that is going to happen (indeed already it has happened in some states that have extended some government employments benefits to domestic partnerships).” (Lynn D. Wardle to Loren C. Dunn, February 3, 1997)

 1788:

“In a way, the debate over same-sex marriage might never have happened without John Travolta.

It was 1977 when Joseph Melillo offered to help a friend with the dance class on Saturday mornings. Since the film ‘Saturday Night Fever’ was sweeping the country, the students, most of them senior citizens, wanted to learn to disco. Unbeknownst to Melillo, the teacher had also recruited Patrick Lagon to help with the class after seeing him do the freak, a disco dance, one night at a local club.

‘I was busy with the students,’ Melillo recalls. ‘Then I turned and looked at him, and he looked at me. We instantly fell in love. We’ve been together ever since.’

Their commitment led Melillo and Lagon to seek a marriage license in 1990—along with two lesbian couples, Tammy Rodrigues and Antoinette Pregil, and Ninia Baehr and Genora Dancel and, when they were denied the license, to sue the state of Hawaii.  The upshot: a ruling by circuit court judge Kevin Chang on December 3 declaring the state’s ban on same-sex marriages to be unconstitutional under state law.…

For months the state chapter of the American Civil Liberties Union held the case under consideration before finally turning it down.…

The earliest ruling in the lawsuit dismissed the challenge to state marriage law out of hand on the grounds that the existing law was ‘obviously designed to promote the general welfare interests of the community by sanctioning traditional man-woman family units and procreation.’ It wasn’t until May 1993 that the case finally took off when the state Supreme Court returned it to a lower court for trial, with a strong suggestion that the ban on same-sex marriage was unconstitutional.

In the meantime, the couples found little sympathy from national gay groups or indeed from many gays and lesbians. ‘They had valid concerns that we were never going to win, so why waste resources?’ says Baehr. ‘Then there was the whole debate that maybe we shouldn’t ape hetero-sexuals. Then there was another argument that maybe we shouldn’t win because it would make the right wing angry and there would be a terrible backlash.’

For the couples, who endured more than two years tilting at the marriage windmill with little support, attitudes toward them changed overnight with the state Supreme Court ruling.…

That first victory in the state Supreme Court could have been undone by the state legislature, but so far supporters of gay marriage have succeeded in staving off any legislative moves. In its last session of 1996, the Hawaii House of Representatives voted in favor of a constitutional amendment limiting marriage to couples of the opposite sex, but the state Senate rejected such a measure.…

Lawmakers have two options for amending the state constitution, which at this point is the only way to stop same-sex marriage. They could pass an amendment directly by a vote of the legislature, in which case, says Foley, the measure would certainly be a hybrid bill that would include domestic partnership rights and other benefits rather than simply ban same-sex marriage.…

Gay marriage advocates are betting that such an amendment would create so much turmoil that it would never pass. ‘If we have a constitutional amendment where you have to vote up or down on both marriage and domestic partner benefits, people will go all sorts of ways,’ says Foley. A similar strategy effectively killed a measure to outlaw same-sex marriage in the California legislature last year. And even if the amendment passed in Hawaii, it would have to be approved by voters in November 1998.

Another option for legislators opposed to same-sex marriage would be to clear the way for a constitutional convention… voters approved such a convention last November, But the results are being challenged in court.…

Foley is also betting that the reality of gay marriage will seem less threatening than the picture painted by its opponents. ‘Once we have legalized gay marriage, those arguments can be seen for their speciousness,’ he says. ‘Desegregation met with resistance because it forced a group of people to be with people they didn’t want to be with. It changed quite peoples’ lives. Gay marriage doesn’t do anything like that. The composition of the workplace will not change; your neighbors will not change. Nothing else happens.’ Or, as Melillo puts it, ‘The sky doesn’t fall; the world doesn’t end.’…

The organized opposition to the marriage decision, a group called Hawaii’s Future Today, is composed primarily of Mormon and Roman Catholic leaders. So far they have avoided alliances with inflammatory conservative leaders from the mainland.…

LANDMARKS ON THE ROAD TO LEGAL GAY MARRIAGE

• December 17, 1990 – Three same-sex couples apply to the Hawaii state health department for marriage licenses.  Officials deny the licenses, saying state law allows only a man and a woman to marry.

• May 1, 1991 – The couples sue the state for the right to marry, citing equal-protection and privacy laws.

• September 9, 1991 – Hawaii circuit court judge Robert Klein finds that the same-sex couples are not protected by state laws in regard to the right to marry.  His ruling further states that restricting marriage to a man and a woman is a ‘rational, legislative effort to advance the general welfare of the community.’

• May 5, 1993 – Overruling Judge Klein, the Hawaii state supreme court finds that same-sex couples do have a right to marry unless the state can provide a compelling reason why it should ban such unions. The case returns to the lower court. The new trial, however, is delayed while third parties, including the Church of Latter-Day Saints and Hawaii lawmakers, make unsuccessful attempts to intervene.

• February 2, 1995 – Spurred on in part by the case in Hawaii and by fear that the US Constitution’s ‘full faith and credit’ clause would require other states to recognize gay marriages performed there, South Dakota State representatives introduced a bill that would outlaw gay marriages in that state. By the time the bill is signed into law on February 21, 1996, nineteen ninety-six, a similar bill has also passed in Utah.

• March, 1996 – With the campaign season underway, the drive for states to introduce legislation banning gay marriage picks up momentum. By March 12, the date of seven presidential primaries, such bills are pending in 18 state legislatures. By year’s end 37 states will have considered similar measures; 16 of them will have passed into law.

• May, 1996 – Conservative republicans introduced the defense of marriage act into both houses of the US Congress. The bill would deny federal benefits to same-sex spouses and allow states to ignore homosexual marriages legalized in other states.

• September 10, 1996 – DOMA sails through the Senate, 85-14, and is signed by President Clinton on September 21. It had passed the House of Representatives by a vote of 342-67 and July.

• September 10-20, 1996 – In a nonjury trial before Hawaiian circuit court judge Kevin Chang, lawyers for the state argue for upholding the ban on same-sex marriage on the grounds that it benefits children. Lawyers for the plaintiffs produce experts who say children raised in gay households are as well-adjusted as those raised in heterosexual households.

• December 3, 1996 – Judge Chang finds that the state failed to show a compelling reason to justify sex discrimination in the marriage law and orders the state to start issuing marriage licenses to same-sex couples. The next day, however, he grants a state motion to delay his order pending one more appeal to the Hawaii State Supreme Court.”

(John Gallagher, “Marriage, Hawaiian Style,” The Advocate, February 4, 1997)

569:

“With regard to H.L.M. in Hawaii and California, we have followed your initial instructions and in Hawaii the coalition has been able to exert great influence without the church being singled out. While our people have not been able to block this issue in the courts, the coalition has been able to galvanize public feeling and the legislature is in the process of acting so it won’t be left to the courts. The Hawaii House supports the coalition’s point of view, the Senate is more liberal. Both sides have submitted legislation and it is now in conference committee where the final decision will be made. It is likely a constitutional amendment will be passed but political realities suggest some sort of companion civil rights legislation will be passed to bring the Senate on board. The challenge will be to keep the legislature from acknowledging H.L.M. under another name.…” (Loren C. Dunn to Gordon B. Hinckley, February 11, 1997)

1030:

“Enclosed is an article from today’s Star-Bulletin reporting the results of their recent poll. With a margin of error of 5% and the ‘approve’ rating showing the same percent decrease as the ‘disapprove,’ I do not believe it notes any erosion of support. Also, the way the newspaper is headlining and reporting the story only helps our cause. The timing of this is excellent with the conference committee meetings beginning.

I had breakfast with Elder Oaks yesterday and at his request gave him a thorough briefing. My impression is that his perspective is consistent with ours.” (Donald L. Hallstrom to Loren C. Dunn, February 24, 1997)

1031:

“The attached Hawaii Star–Bulletin news story is self-explanatory. Not only is opposition to same-gender marriage holding fairly firm, but 55% oppose alternative legislation that may grant gay and lesbian couples some marital benefits through domestic partnerships or a similar arrangement. 42% approve. The matter now is in conference committee, but the committee has not yet met.…  We have reminded the legislators, in a non-threatening way, that things have been rather quiet because we feel they are acting in good faith as they determine the final outcome concerning HLM. However, the barrage of telephone calls, letters and faxes will begin again if the final outcome does not meet the expectations of the majority of the Hawaiian people.

It is expected that a constitutional amendment defining marriage as being between a man and a woman will probably pass. The question will be accompanying legislation directed at people who cannot marry, which will try to provide some ‘basic rights.’

In the political process, it is clear that some sort of accommodation will need to be made in order for the Senate to come aboard on the constitutional amendment.” (Loren C. Dunn to M. Russell Ballard, February 28, 1997)

227:

“As we watch to see what the Legislative Conference Committee is going to do with H.L.M. in Hawaii and as the first overtures to the Catholic Church in California have been made, it is a good time to see what has been learned and to review strategy.

Background

When we first became involved Hawaii three years ago, the Hawaii Supreme Court had asked the legislature to show cause as to why H.L.M. should not be legalized in Hawaii. The two daily newspapers supported this position, as did the Hawaii Senate and a special commission set up to review the matter. Surveys put public opposition to this matter had about 60% but it was soft. When Elder Maxwell took me to meet the First Presidency on this matter, President Hinckley said we better move ahead. But he also said the church should be in a coalition cannot out front by itself.

We held a preliminary meeting at Church headquarters which included, among others, Dallin Oaks, Lynn Wardell of B.Y.U. who is recognized as a top legal scholar on this subject, Richard Wirthlin who was not get a General Authority, and representatives from the Church Public Affairs Department. The meeting reaffirmed that:

• Because of our late arrival, it will be an uphill battle.

• The Hawaii issue is critical because if H.L.M. were passed into law, it could force other states to accept H.L.M. on the basis of constitutional ‘full faith and credit.’

• Proposed domestic partnerships need to be watched carefully. While offered as alternatives to H.L.M., they can become H.L.M. by another name.

• Elder Oaks was the first to recognize that in the political process that in order to win this battle, there may have to be certain legal rights recognized for unmarried people such as hospital visitation so opponents in the legislation will come away with something. This is proving to be the case.

Organization

I went to Hawaii in Company with Richard Wirthlin and Bruce Olsen. I asked Don Hallstrom to arrange an all-day session with representatives of McNeil-Wilson, the public relations firm that represents the Polynesian Cultural Center, Linda Rosehill, a Hawaiian liberal Democrat female lobbyist, Jack Hoag, our Hawaii D.P.A. [Director of Public Affairs], father Marc Alexander of the Catholic Church and others. Later that day I called on Bishop DeLorenzo of the Catholic Church whose unfailing support has made the coalition possible. It was here the coalition took shape. Its name reflects an organization designed to rise above current issues and look at what kind of life Hawaii people want to have in the future–Hawaii’s Future Today. We decided on three major issues: Casino gambling, legalized prostitution and H.L.M. in order to broaden our base and appeal. Richard Wirthlin was extremely valuable here drawing on his past experience in other campaigns and also doing a survey in Hawaii to determine our strengths and weaknesses. We were careful to make this an Hawaii-based group. Hawaiian’s worrying about Hawaii.

We brought in as the leadership of  Debi Hartmann, a young mother who gained prominence as Chairman of the State Board of Education. To serve as Vice Chairmen, Father Marc Alexander, a Catholic Priest with Jewish and Buddhist roots and Jack Hoag, a prominent businessman. Although Hartman and Hoag are members, they are known more in the community for the titles just mentioned.

The Coalition

Hawaii’s Future Today was officially announced at a Press Conference set up by McNeil-Wilson. The conference got broad coverage. Hawaii’s Future Today immediately began to enlarge its base primarily among L.D.S. and Catholic members, the two largest Churches in Hawaii. A carefully crafted letter approved by the First Presidency and Twelve was read in Sacrament Meetings in Hawaii restating the Church’s position on traditional marriage and urging support for the coalition. A similar letter went to Catholic congregations. The coalition membership went to over 2,000, and the Wirthlin survey showed opposition to H.L.M. had risen to 73% and support for H.L.M. has diminished.

The real show of strength came when the coalition got 2,000 people out to a rally during the last legislature and 7,000 out during this legislature. Support is holding.

1996 Hawaii Legislature

Thanks to the tireless work of Linda Rosehill and the influence of the coalition, the issue of a constitutional ban on H.L.M. in the 1996 Hawaii Legislature moved from absolutely no chance to pass, to the House reporting out a constitutional amendment with two-thirds vote and the Senate barely falling short in conference committee.  Our position was helped by intense lobbying, increased media awareness and a barrage of letters and faxes from Hawaii’s Future Today members to legislators.

1997 Hawaii Legislature

Due to some key legislators losing the election over H.L.M., the Senate has expressed a need to cooperate with the House and resolve the matter.  It is currently in conference committee.

Courts

Although this matter is also traveling through the courts, everyone is aware that the final decision rests with the Legislature. The Chief Justice of the Hawaii Supreme Court told the legislature as much. H.L.M. has been upheld in the appeals court and will undoubtedly be upheld in the Hawaii Supreme Court unless the legislature acts. The matter is in conference committee and the issue is what accommodations will the House be willing to offer in order to bring the Senate onboard. Amicus Briefs were filed in this case. The church legal department handled this matter.…

The Major Players 

• Debi Hartmann, Marc Alexander and Jack Hoag, as officers of Hawaii’s Future Today, have been working day and night with the legislators, public and news media.  As we planned in the beginning, neither ourselves or the Catholics have been singled out on this issue and the coalition is looked on by both sides of the isle [sic – aisle] as a responsible, moderate voice.  These three, however, have taken some abuse.…

• Lynn D. Wardle.  His expertise on this subject is unsurpassed.  He was invited to testify before a Hawaii House Committee and to meet with the leadership of the Senate.  He has been helpful to the coalition by suggesting areas of accommodation that might extend a few fundamental rights so the marriage amendment can get passed.…

• Donald Hallstrom. The success of Hawaii’s Future Today is based on its ability to be an independent voice representing the Hawaiian people. As Area Authority, Don is the Church’s representative in Hawaii. The Church’s input to the coalition is from myself to Don to Jack Hoag. When things were beginning, Don and I talked daily but now it is every few days as we pass information back and forth. He stays in the background and this protects the integrity of the coalition and is a show of good faith to the Catholic Church that we are not trying to dominate things, although they rely on us for help on this issue.

H.L.M. activists have attacked the Church in one or two interviews and tried to bait us into a public fight. I would not let Don responds but we had him refer everything to the coalition. This killed the controversy and kept everyone focused on the issues.”

(Loren C. Dunn to M. Russell Ballard, March 4, 1997, “H.L.M. Strategy for California and Hawaii”)

1343:

“Speaking to a Los Angeles World Affairs Council audience, the leader of the 9.7-million-member worldwide church traced its 167-year history and its impact on the settlement of the West.…

He disclosed that the church will enter the controversy in Hawaii over efforts to recognize same-sex marriages, which the church opposes.

That state’s Supreme Court ruled in 1993 the denying marriage licenses to same-sex couples was unconstitutional without a compelling public interest.

Since then, the state Legislature has become embroiled in competing measures, including a constitutional amendment to ban same-sex unions.

‘We’re engaged right now in the same-sex marriage problem in legislation in Hawaii,’ Hinckley said. ‘We just made a decision today concerning the filing of a brief in that case. That’s spreading across the country now pretty largely and we’ve become rather actively involved in that kind of thing,’ he said.” (Larry B. Stammer, “Mormon Leader Takes Stock of Church’s Progress,” Los Angeles Times, March 7, 1997, p. B-1, 5)

1033:

“The Hawaii Legislature is still in Conference Committee and if things don’t turn out in an appropriate way, there is still the Constitutional Convention which is been approved by the voters and it will give us another opportunity if the Legislature doesn’t come through.” (Loren C. Dunn to L. Tom Perry, March 10, 1997, “H.L.M. Strategy for California and Hawaii”)

1034:

“As you know, I was in Hawaii over the weekend for a stake conference… I also met with our Hawaii Coordinating Council having to do with H.L.M. My major concern is to keep our people from getting ahead of the coalition. Your original charge was to work through the coalition.… The voters have approved a Constitutional Convention in the future and if we don’t get everything we want in the Hawaii Legislature, then there may be another opportunity in the convention.…” (Loren C. Dunn to Gordon B. Hinckley, March 12, 1997)

1789:

“Of most assistance are the polygamy cases.  Beginning in 1878 and continuing to modern day, several courts have determined that the state has a compelling interest in

protecting traditional marriage.  The leading case is Reynolds v. United States (1878). In that case the Court found a compelling interest in prohibiting polygamous marriages.

Since Reynolds, several other state and federal courts have applied strict scrutiny to various issues raised by anti-polygamy laws. Without exception, each court has determined that the government possesses a strong societal interest which outweighs the claimants’ constitutionally protected civil rights.  Many of these cases also provide additional insight into the overriding interest which society has in maintaining and protecting the traditional institution of marriage between one man and one woman.…

Perhaps the most persuasive of all the polygamy cases is the district court’s opinion in Potter v. Murray City (1984). In that case, the district court took “a fresh look at the problem” in light of the “more current authority” and the “present societal conditions and attitudes.” It determined, however, that despite testimony from enlightened social experts to the contrary, the State’s compelling governmental interest in protecting and advancing traditional marriage was as strong as ever.

The similarities are striking between those who have attempted to assert their civil rights to force society to recognize polygamous marriage, and those who today attempt to assert their civil rights to force society to recognize homosexual marriage. In both instances, plaintiffs have convinced the controlling court that their civil rights have been violated by state marriage laws, have attempted to redefine marriage in our society to mean something that it has never meant before or have claimed a change in “social attitudes” which allegedly dilutes any interest government may previously have had in preserving traditional marriage. In both instances, government has not only moved in decisive terms to prohibit recognition of such marriages, it has also “established a vast and convoluted network of other laws clearly establishing its compelling governmental interest in and commitment to a system of domestic relations” based exclusively on marriage between one man and one woman. And perhaps most importantly, in both instances the traditional marriage relationship lies at the heart of society.  It is the preferred basis for nurturing children, for teaching public virtue, and for the development of humankind.  “Upon it society may be said to be built and… on [it] the government of the people, to a greater or less extent, rests.”

The polygamy cases provide strong support for a similar finding in this case.” (Amicus Brief, Baehr v. Miike, in behalf of Hawaii’s Future Today, March 17, 1997) THE IRONY OF HAWAII’S FUTURE TODAY CITING REYNOLDS V. UNITED STATES TO BOLSTER ITS VIEW THAT “TRADITIONAL MARRIAGE” MUST BE MAINTAINED IS BREATHTAKING!

1039:

“Thank you for the e-mail relative to invalidation of the Hawaii Constitutional Convention.  The Hawaii Supreme Court ruling actually came down two days ago – The Honolulu Advertiser story on the ruling is attached.

The news is both potentially good and bad.  It will either serve as further motivation for the legislature to act responsibly or the Hawaii Senate may pull back and block any legislation which would put the curt case on a fast track and H.L.M. will probably be approved.  The latter would amount to political suicide, so I expect the House and Senate to come up with something.

If the Senate passes a Constitutional Amendment, it will probably render the court case and the Amicus mute.  If they do not, then your Amicus will probably be our last hope.”

“The state Supreme Court has ruled that a majority of voters failed to choose last year to hold a constitutional convention.

Blank ballots should be included when determining the number of ballots cast, the court ruled yesterday.…

The question put to Hawaii voters on Election Day 1996 received 163,869 ‘yes’ votes—3,716 more than ‘no’ votes.  But ballot boxes also contained 45,245 blank ballots.  In a unanimous decision, the five justices ruled that a majority of voters did not choose to hold a constitutional convention.…” (Angela Miller, “Court finds blanks outweigh ‘yes’ vote,” Honolulu Advertiser, March 25, 1997, p. A1)

(Loren C. Dunn to Lance B. Wickman, March 27, 1997)

236:

“First launched by three same-sex couples in 1990, the case was the subject of a dramatic 1993 opinion by a divided Hawaii State Supreme Court, which ordered a full trial in a lower court.  After three years of delay, that trial was final held, and on December 3, 1996, Judge Kevin Chang ruled that the refusal of the State of Hawaii to grant marriage licenses to same-sex couples violated the Hawaii State Constitution, and that the state had failed to demonstrate a ‘compelling state interest’ that could justify this ‘discrimination.’  Judge Chang has delayed ordering the state to issue same-sex marriage licenses until the Supreme Court hears the state’s appeal.…

Though Judge Chang’s decision in the Baehr case makes same-sex marriage more likely to succeed in the Hawaii courts, it may also make it more likely to lose in the long run.  The people of Hawaii have begun to realize that they cannot count on their courts to defend their own laws.  Despite overwhelming public rejection, the state Supreme Court is poised to force the legal recognition of same-sex marriages, unless it is stopped by the citizens themselves.… As people realize that they have been excluded from their own lawmaking process, the momentum to pass an amendment grows steadily stronger.

Some have argued that the case in Hawaii is the result of an orchestrated legal campaign.  Yet when Baehr began in 1990, the issue of same-sex marriage was nowhere to be found. The homosexual community had debated the desirability of same-sex marriage in the 1950s, and from the 1960s on, gay and lesbian litigators had launched repeated attempts to legalize same-sex marriage in a variety of state and federal courts.  But all of these efforts had been unsuccessful. When the Supreme Court’s 1986 decision in Bowers v. Hardwick upheld the right of the states to criminalize sodomy, national gay rights organizations dropped whatever little interest they had in the issue, and focused mostly at the state level on repealing sodomy laws and passing statutes affirming rights based on ‘sexual orientation.’

Between 1990 and 1995, however, seventy-five law-review articles on same-sex marriage appeared, seventy-two of them by pro-gay law students and scholars (sixty-nine supporting same-sex marriage, three attacking marriage altogether.)…

The Baehr case, however, was launched by local activists without support from national gay-rights organizations.  When even the local ACLU turned down the case, the plaintiffs hired Dan Foley, a former local ACLU staff attorney.  Because the state constitution and Supreme Court were known to be more liberal than their federal counterparts, Foley framed the case entirely as a claim under Hawaii law, to make it immune from transfer or appeal to the federal courts.… Even so, trial judge Robert Klein—who now sits on the Supreme Court—dismissed the case, holding that no valid legal claim had been made.  It appeared that the case was over, and the national organizations had been right.

When Judge Klein dismissed the case, however, he chose to address many of the substantive issues that had been raised by the plaintiffs and the local ACLU.  This opened the door for the plaintiffs to appeal, on the grounds that no formal evidence had been taken on the issues.  At this point the Lambda Legal Defense and Education Fund and the national ACLU offered support.  The plaintiffs appealed Judge Klein’s verdict directly to the state Supreme Court, on the grounds that denial of same-sex marriage violated the Due Process and Equal Protection Clauses of the Hawaii Constitution.  Lambda and the ACLU filed amicus briefs, while a local lawyer filed the only amicus brief in favor of the existing law.…

Between October 1992 and May of 1993, the ‘Gay Moment’ arrived in American politics.  Bill Clinton became President, the gay and lesbian community got their ‘place at the table,’ and the ‘gays-in-the-military’ debate began.  During this same period, Associate Justice Levinson drafted the opinion for Baehr. The time was ripe, Levinson may have sensed, to strike a decisive blow for gay rights.

On May 5, 1993, Hawaii’s Supreme Court announced its opinion that the marriage law was a form of ‘sex discrimination.’… Even the plaintiffs were astonished. The national gay rights groups scrambled to respond, realizing that while they had an astonishing victory, it would be a challenge to keep it.  Lambda launched the Marriage Project, the Freedom to Marry Coalition was born, and nationally coordinated efforts began to get sympathetic media coverage.…

The plaintiffs had argued in their second line of reasoning that under the Equal Protection clause the court should treat gays and lesbians as a protected class, striking down existing marriage law as a form of discrimination based upon sexual orientation. Not surprisingly, the court ignored this argument: Not only is the category of ‘sexual orientation’ missing from the state constitution, but proposals to add it had been roundly defeated as recently as a 1978 constitutional convention.

Had the justices left their analysis at this point, the Baehr case would have joined the other failed attempts to litigate same-sex marriage.  But Justice Levinson, the author of the Supreme Court’s decision, was apparently eager to find grounds for overturning the lower court’s ruling.  To achieve this he constructed an ingenious argument, one that even the plaintiffs had never suggested.  Though ‘sexual orientation’ is not a classification requiring special protection, ‘sex’ certainly is, mentioned in both the original state constitution of 1950 and a state Equal Rights Amendment added in 1972.  Existing marriage law, he argued, should be treated as a ‘sexual classification’ for Equal Protection purposes, and the burden of proof for justifying this ‘sex discrimination’ should be shifted from the plaintiffs to the state.  Since any discriminations that involve the classifications specifically mentioned in the Equal Protection clause require the courts to examine them with strictest scrutiny, the existing marriage law can be justified only by the demonstration of a compelling state interest (which is usually defined as empirically demonstrable harm of an extremely large and damaging character).…

When the state moved formally for a reconsideration of the decision, newly appointed Justice Paula Nakayama joined without comment Levinson and Moon in mandating strict scrutiny.  The court then remanded the case to the trial court, setting into motion three years of constant delays by the state.…

For a variety of reasons, the state chose to take the third route in the case it presented, attempting to show that empirically demonstrable harm would be done to children by legalizing same-sex marriage.…

Yet even given the conditions under which the state’s lawyers had to work, and the weak ‘sociological’ line of defense taken by the Deputy Attorney General, the trial went poorly. The attempt to talk solely about children backfired, forcing the state’s lawyers to suggest that gays and lesbians were inadequate parents, even while the state’s own social scientists were declaring otherwise on the witness stand.…

[Judge Chang] had no choice, he declared, except to declare the law unconstitutional and to order the state to issue marriage licenses to same-sex couples.  He then delayed his order long enough for the state to appeal its decision to the Supreme Court, which will receive briefs in late spring and take up the appeal during the summer.…

In Hawaii, polls have consistently shown that over 70 percent of the citizens oppose the legalization of same-sex marriage, with the n8mber creeping upward as debate has intensified. Those most likely to favor same-sex marriage are whites and recent arrivals to the islands, while those most likely to oppose it are Filipinos and native Hawaiians, with Japanese-Americans falling between.…

Around the same time, the supporters of traditional marriage solidified their organizational efforts into two major groups: Hawaii’s Future Today, which is predominantly Catholics and Mormons, and the Alliance for Traditional Marriage, which is primarily evangelicals.…

That same week in January, the Hawaii House passed two bills: a constitutional amendment that would overrule Baehr and a ‘reciprocal beneficiaries’ bill offering limited benefits for unmarried couples.  Both passed by over a two-thirds margin. By early February, the Senate swung into action.  It passed its own two bills: a constitutional amendment which purports to protect marriage, but which does not overrule the Supreme Court’s interpretation of ‘sex,’ and an amended ‘reciprocal beneficiaries’ bill dramatically expanding benefits for unmarried couples.  As of mid-February, both bills were floating in conference committees.…

Unless the Supreme Court withholds its opinion until after a convention, or the legislature, pressured by traditional-marriage advocates supported by help from the mainland, manages to pass an amendment, Hawaii is likely to have some same-sex couples legally married (probably irreversibly) before a constitutional convention can take action.

If that happens, same-sex couples from the mainland can fly to Hawaii to get married.  When they return to their home states, some will file suits seeking to force recognition of their ‘marriages.’ It is these couples who offer the lever for Lambda’s lawyers to move the issue into the federal courts, arguing that every state must recognize the marriages performed in Hawaii.

Responding to this threat, the legislatures of other states and the U.S. Congress have begun to move.  Traditionally, the legal definition of marriage is up to each individual state, and if one state rejects a particular marriage as against its public policy, it need not recognize it when performed by another state.  How this tradition will be applied if same-sex marriage is legalized is unclear.  By the end of 1996, seventeen states has passed legislation stating that it was their public policy that marriage consists only of the union of one man and one woman.… Meanwhile, in 1996 Congress passed the Defense of Marriage Act, which established the traditional definition of marriage as the standard for federal law, and which permitted states, under the Full Faith and Credit Clause of the U.S. Constitution, to make up their own minds whether or not to recognize same-sex marriages.…

According to the January 1997 Wirthlin Report, 67 percent of the American people do not believe marriage should be redefined…” (David Orgon Coolidge, “Same-Sex Marriage: As Hawaii Goes…,” First Things, April 1997) [NOTE THAT DAVID COOLIDGE AND LYNN WARDLE WORKED HAND-IN-HAND ON THE HAWAII CASE.]

1041:

“Now just a word about H.B. 118.  The Senate’s original version of H.B. 118 is little more than same-sex marriage by another name.  It makes no sense to struggle so hard to reject the dangerous and disastrous legalization of same-sex marriage with one hand, and then to embrace it in substance and all but label with the other.  In short, your strength in this struggle is much needed and greatly appreciated.” (Lynn D. Wardle to Honorable Terrance Tom, Chair, Judiciary Committee, Hawaii House of Representatives, April 7, 1997)

1043:

“As you know, the Hawaii Constitutional Amendment is in conference committee.  Much activity has taken place in the last week.  Jack Hoag of the coalition has made arrangements so Lynn Wardle of B.Y.U. and David Coolidge have direct input to Terrance Tom on the language being discussed. Tom is Chairman of the House Judiciary Committee and a conference committee member.  The House supports our position and the Senate (majority) opposes.…

Last night (Wednesday), Chairman Tom called a conference committee meeting to propose the following compromise constitutional amendment language to the Senators: ‘The legislature shall have the power to reserve marriage to opposite-sex couples.’ Of this last proposal, Lynn Wardle says: 

This is excellent language!…

Thanks to our input, the language of the Amendment has greatly improved, but given the ‘give and take’ of the political process, we may be close to getting all we can.” (Loren C. Dunn to M. Russell Ballard, April 10, 1997)

1587, 1153:

“AMICUS CURIAE BRIEF OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS

FREDERICK W. ROHLFING III & ASSOCIATES

Attorneys for THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS

I. SUMMARY OF THE INTEREST OF THE CHURCH OF JESUS CHRIST

                          OF LATTER-DAY SAINTS

      The Church of Jesus Christ of Latter-day Saints has more than 9.5 million members worldwide, with more than 110 congregations in the State of Hawaii.  Central to the teachings and beliefs of the Church is the family, which the Church teaches is the foundation of society and the crucial relationship through which children are taught basic values and public virtue:

The family is ordained of God.  Marriage between man and woman is essential to His eternal plan.  Children are entitled to birth within the bonds of matrimony, and to be reared by a father and a mother who honor marital vows with complete fidelity. Happiness in family life is most likely to be achieved when founded upon the teachings of the Lord Jesus Christ…

…[W]e warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.

We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.

A Proclamation to the World, The First Presidency and Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, September 23, 1995 (attached hereto as Appendix A). [NOTE THAT THE PROCLAMATION ON THE FAMILY, IN ITS ENTIRETY, IS INCLUDED AS APPENDIX A]

…

III. ARGUMENT

A decision by this Court to strike down the requirement that marriage must be between a man and a woman will substantially and irreversibly weaken this venerable and indispensable institution, and thereby cause great harm to society as a whole.  Homosexual marriage is wrong, both from a moral and social point of view.  Its recognition will have grave consequences for every individual, for every family, for every community, for every state, and for American society.…

Recognizing the importance of this basic unit of society, courts in a wide variety of jurisdictions and in numerous varied contexts have moved to protect the family from destabilizing of destructive effects. Indeed, despite direct attacks from activists proclaiming the traditional family to be old fashioned and no longer necessary to human interaction, courts have afforded the traditional family the utmost in protection precisely because of its vital importance to society’s survival.…

Thus, ideally, it is in the family that a child first learns about honesty, trustworthiness, obedience, sacrifice, selflessness, and reverence for the basic freedom that we all enjoy.  Ideally, it is in the family that a mother and father learn about sacrifice, about selflessness, and about genuine concern for others.  And ideally, it is in the family that all members become aware of each other’s needs and each other’s dreams, focusing together on family goals which will also allow each member of the family to reach his or her full potential.… [BUT ISN’T THIS ACTUALLY A STRONG ARGUMENT IN FAVOR OF SSM? HOW BETTER TO TEACH THESE LESSONS THAN IN A STRONG FAMILY, EVEN IF SSM?]

The traditional family, ideally comprised of a mother, father, and children, provides the best environment for value, care, tolerance, and affection to all of its members – needs which are essential to the proper development of the individual and therefore to the proper development of society.…

In this context, both a male and a female role model are crucial.… [WITH THIS LINE OF REASONING, DIVORCE SHOULD BE OUTLAWED.]

For this reason, commentators and family law experts have long recognized the unique responsibilities of traditional heterosexual marriage in providing an example to all children within the family relationship:

The heterosexual dimension of the relationship is at the very core of what makes marriage a unique union and is the reason why marriage is so valuable to individuals and to society.  The concept of marriage is founded on the fact that the union of two persons of different genders creates a relationship of unique potential strength and inimitable potential value to society.  The essence of marriage is the integration of a universe of gender differences (profound and subtle, biological and cultural, psychological and genetic) associated with sexual identity. (Lynn D. Wardle, “A Critical Analysis of Constitutional Claims for Same-Sex Marriage,” 1996 B.Y.U. L. Rev. 1, 39).  

Homosexual marriage obviously cannot provide society or children with this unique and indispensable benefit.…

In traditional equal protection terminology, it seems beyond dispute that the state has a compelling interest in fostering procreation of the race and providing status and stability to the environment in which children are raised.…

Like the State of New York, the State of Hawaii has a compelling state interest in prohibiting homosexual marriage in order to advance its policy of “nurturing and keeping alive the concept of marriage and family as the basic fabric of our society.”…

There is no real alternative to some over breadth in achieving this goal.  The state has chosen to allow legal marriage as between all couples of opposite sex.  The alternative would be to inquire of each couple, before issuing a marriage license, as to their plans for children and to give sterility tests to all applicants, refusing licenses to those found sterile or unwilling to raise a family.  Such tests and inquiries would themselves raise serious constitutional questions.

Thus, it seems to me that the state has chosen the least intrusive alternative available to protect the procreative relationship.  When the legislative classification is narrowly tailored to serve a compelling state interest, there is no constitutional infirmity even when there is a strict scrutiny requirement.  Such a narrowly tailored classification exists here.… [ADOPTION, IVF AND SURROGATE PARENTHOOD HAVE MADE THESE ARGUMENTS MOOT.]

Exactly as the court found in Adams, the Hawaii Legislature has made known its strong desire to protect the traditional family and the role it plays in “the propagation of the human race.”… [HOW DOES OUTLAWING SSM ACCOMPLISH THIS?]

Protecting the traditional family by “encouraging and fostering procreation of the race and providing status and stability to the environment in which children are raised” is a recognized compelling government interest. Moreover, given current societal and constitutional constraints, a ban on homosexual marriage is “the least intrusive alternative available to protect the procreative relationship.”

The traditional family is under assault on many fronts, but none so direct and none so potentially devastating as in this case.  The very definition of family is in peril here, a fact which leading homosexual rights activists fully understand, and even apparently advocate. Whether the traditional family can survive after its definition is expanded to include relationships which have never been viewed as familial before, and whether the traditional family can continue to provide crucial benefits to society after its structure is so fundamentally altered, is a question of deep concern for all.  Surely, it is a question which lies within the province of a state legislature, which after consulting with the people, determines that the protection of the traditional family as presently recognized and constituted presents an extremely important societal interest.

No matter how homosexual marriage advocates may characterize the homosexual relationship, that relationship simply cannot provide any of the essential benefits to society which are provided by the traditional family, such as (1) procreation and child bearing, (2) child rearing in the ideal setting with both a male and a female parent, and (3) social stability.  That is because homosexual relationships are built upon conduct that is wrong, both morally and socially.  As one court concluded when faced with the contention that a lesbian relationship should be afforded all of the respect, rights and obligations associated with heterosexual marriage:

The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race… Inherent in that definition [of marriage] is the union of a man and woman for the purpose of procreation and rearing of children…

…The same cannot be said for the lesbian relationship, whether it be analyzed from the traditional, legal or social point of view. Thus to equate it on the same level as the traditional family, by presuming equality with such a family, is a fallacy.

…The test of equality between the traditional family and the homosexual relationship cannot be met by the homosexual relationship.  Simply put, if the traditional family relationship (lifestyle) was banned, human society would disappear in little more than one generation, whereas if the homosexual lifestyle were banned, there would be no perceivable harm to society.  It is clearly evident that the concept of family is essential to society, homosexual relationships are not.  A primary function of government and law is to preserve and perpetuate society, in this instance, the family.

IV. CONCLUSION

Homosexual relationships will not and cannot provide the essential benefits to society that the traditional family has, and therefore should not be accorded the preferential status of marriage.  Recognition of homosexual marriage will trivialize the traditional family – the basic building block of society – thereby having deleterious effects upon society as a whole.” (Amicus Curiae brief, LDS Church, April 14, 1997)

1048:

“H.B. 117, the constitutional amendment, is superb in comparison to the various Senate versions which were proposed during the process.  It reads ‘The Legislature shall have the power to reserve marriage to opposite-sex couples.’ Involved attorneys and legal scholars are confident that this language can negate the Baehr case and stop the Hawaii Supreme Court from affirming the circuit court decision.…” (Donald L. Hallstrom to Loren C. Dunn, April 17, 1997)

1046:

“Late last night the House/Senate Conference Committee finally came to agreement on H.B. 117 and H.B. 118, after weeks of volatile negotiations.

H.B. 117, the constitutional amendment, is superb in comparison to the various Senate versions which were proposed during the process.  It reads ‘The Legislature shall have the power to reserve marriage to opposite-sex couples.’ Involved attorneys and legal scholars are confident that this language can negate the Baehr case and stop the Hawaii Supreme Court from affirming the circuit court decision.

H.B. 118 is the benefits package for couples who cannot marry.  The Senate version of this bill had approximately 200 of the 350 benefits afforded married couples.  The agreed upon 118 has about 60 such benefits. Some very important distinctions make this different from a domestic partnership.…

Hawaii’s Future Today (HFT) was always focused on a clean, strong constitutional amendment and was not supportive of 118.  However, HFT recognized 117, especially in any acceptable form, would not become reality without 118.  With that perspective, we believe 118 is far superior to what could have been.  With nothing passed, the Hawaii Supreme Court certainly would affirm the Baehr decision and full same-sex marriage would exist in Hawaii, exposing the entire country to full faith and credit challenges.…

We recognize the need to still obtain two-thirds votes in both the House and Senate and 50 percent plus one vote in the 1998 elections.  Also, the amendment will certainly be challenged legally, with simultaneous pressure put on the Hawaii Supreme Court to rule in the interim.

Viewing this from a multi-year perspective, having some knowledge of the complex dynamics, we consider the results a stunning victory.  Some may focus on 118 and suggest failure; however, we believe what has occurred will set back the opposition’s movement significantly, both in Hawaii and nationally.”  (Loren C. Dunn to M. Russell Ballard, April 17, 1997)

1055:

“Regarding Hawaii, let me briefly say that the people working on our behalf in Hawaii deserve enormous thanks, appreciation and gratitude. They have done a magnificent job in overcoming tremendous pressures by the gay/lesbian activists and gotten a good amendment and what seems to be a livable reciprocal beneficiary bill.…

H.B. 117 is not the ideal amendment. It is far from a model, and far short of what we would like to have seen proposed and adopted in Hawaii. But under the circumstances, it is an excellent achievement. It directly and explicitly empowers the legislature to reserve marriage to opposite sex couples. Thus, it overturns on narrow grounds the Baehr cases. However, the broader implications of the Baehr [case] holding that it is a violation of equal protection principles to treat same-sex couples differently than opposite sex couples has not been directly rejected, and that will trouble Hawaii for years to come. It leaves open the possibility for gay/lesbian advocates to achieve in little bites, a piece at a time (here a benefit, there a privilege) judicial extension of marriage benefits to same-sex couples. The distorted equality principle of Baehr needs to be repudiated, but this legislature was unwilling.…

H.B. 117 should be perceived as a rejection of same-sex marriage, and it could have a very positive impact in other states if we use it that way, and use it well. Thus, H.B. 117 ‘buys us time’ in Dave Coolidge’s words. It gives us a chance to prepare for the next round, next year, in other states. Unfortunately, I think many people will breathe a sigh of relief and say, ‘I’m glad Hawaii took care of that; that relieves us of the responsibility to do anything; that takes the pressure off.’ So while we have time to prepare and move forward, many people will want to relax, let down their guard, forget about the issue, and do nothing.

H.B. 117 is not a sure guarantee that the Hawaii Supreme Court will not legalize same-sex marriage.…

H.B. 118 is a livable compromise for Hawaii also. There are several good aspects (from what I have heard and read about it, without actually seeing the 100-page final bill yet). First, it creates a ‘reciprocal beneficiary’ relationship, not a ‘domestic partnership.’ Thus, it is not just for same-sex couples, but for all persons who are unmarried and unable to marry, who want to undertake certain support duties (father-son, sisters, roommates, etc.), and thus does not endorse same-sex relations. Second, it imposes no duties on the private sector regarding employment benefits, but only on public sector.… However, H.B. 118 also is very troublesome and a bad model for other states.  First, it creates a registered status which is more easily transportable from stat to state and creates more difficult Full Faith and Credit problems than if the benefits were just extended without a registration. Second, it contains (60 I am told) benefits.  Third, it provides extensive public benefits identical to those given married couples. Fourth, it is more than just a camels nose or thin edge of the wedge; it is the camel’s nose, head neck, and the thick edge of the wedge for mandatory private sector equipment benefits, and even more extensive public benefits.…” (Lynn D. Wardle to Loren C. Dunn, April 22, 1997)

1058:

“The attached Wall Street Journal article which many of you have seen, is an excellent summary of what has been going on. David Coolidge, the author, has been helpful to us in this battle, as has Lynn Wardell at B.Y.U., who in reality, helped to fashion the legislation on the house side of the Hawaii legislature so that we could bring the Senate aboard. Had this not happened, Hawaii today would have same-gender marriage upheld by the Hawaii Supreme Court and the couples being married would return to their respective states, demanding recognition under the full faith and credit clause of the constitution.

While the legislation is not perfect, it is being looked upon by the HLM movement in Hawaii and nationally, as a major defeat. The battle is by no means over. Both houses of the legislature will undoubtedly pass 117 and 118 by two-thirds majority. It will go on the ballot for next year when the major challenge will be to keep the seventy percent support for our position which is currently among the population of the state.… Hawaiians are famous for not voting and the Hawaii Supreme Court has already ruled that a ‘blank’ vote is a ‘no’ vote. McNeil Wilson will have to be brought back into the picture for the 1998 campaign.

The miracle this whole issue is that the focus has been on the coalition and not at any time has either our Church for the Catholics been singled out either in Hawaii or nationally. This required some careful orchestration.

There have been many people who have rendered outstanding service in our efforts to defeat HLM, but we are all in agreement that our lobbyist, Linda Rosehill, was the key to any success we have had. As a female, liberal Democrat and a native Hawaiian, she has paid a price in taking on this cause. The coalition has retained her and this year hired her for the entire year, which allowed us to take what would have been the total payment for her work during these months in the legislature and spread it out over at the entire year. This is to the coalition’s benefit because of lobbying reporting laws. It also means that we are in need of $10,000 which, if possible, should come from a private source. It will need to be reported as expenses for lobbying. The money that was contributed from Iowa last year was a good pattern because it met the requirements of the law and raised absolutely no questions.” (Loren C. Dunn to M. Russell Ballard, April 29, 1997)

1057:

“Requiring a two-thirds vote in both the Senate and House, the constitutional amendment bill (117) passed the Senate 24 to 0 (one senator was not present) and the House 44 to 6 (one not present). It was important a strong message be sent to the Hawaii Supreme Court so they will not act, and this should do it.

Bill 118 passed the Senate 22 to 3 and the House 41 to 9 (one not present).

This is a day they have long worked for, which many said could not happen.  Our satisfaction is only tempered by the existence of 118; however, we know there would be no constitutional amendment without it.” 

[Press released, dated April 29, from Hawaii’s Future Today:]

The passage of this amendment was needed this legislative session in order to pre-empt the State Supreme Court from ruling in favor of same-sex marriage later this year. Now the Court will likely delay its decision until after the question appears on the 1998 ballot. Voters will be asked if ‘the state constitution should be amended to specify that the legislature shall have the power to reserve marriage to opposite sex couples.’

“A simple YES vote on this amendment by the majority of Hawaii voters will preserve the special institution of marriage between one man and one woman, not only for Hawaii, but for the entire nation,” stated Father Marc Alexander, co-chair of Hawaii’s Future Today. “Finally, after four long years, the will of the people has prevailed,” Alexander continued.

“Our job now is to get out the vote,” stated [Debi] Hartmann. “We need to make the 1998 voter turn out the largest ever to show our support and unity for traditional marriage,” she concluded.

(Donald L. Hallstrom to Loren C. Dunn, April 29, 1997)

1059:

“Our satisfaction is only tempered by the existence of 118; however, we know there would be no constitutional amendment without it.” (Loren C. Dunn to M. Russell Ballard, April 30, 1997)

1061:

“The coalition and others were successful in defeating a handful of HLM supporters in the last election and it is clear that HLM will become a sort of political ‘litmus test’ in this election.” (Loren C. Dunn to M. Russell Ballard, May 13, 1997)

1065:

“I appreciated the opportunity of attending the HLM meeting on Thursday, May 22. My thoughts on the items discussed, for what they may be worth:

1. Mention was made the chances of the Hawaii Supreme Court deferring their HLM discussion until after the vote next year are at best 50-50. Hawaii’s Future Today, however, Indicates the chances are much better than that.…

2. Lynn Wardle’s excellent work dividing proposed legislation on HLM into three categories, with the possibility of future legislation canceling out what may have been accomplished earlier, deserves comment. While this may be true, the same could be said if there was no legislative action taken at all. Like pornography in gambling, no issue is legislatively fool proof and between the courts and the legislative process and public opinion, it requires the putting into place of ongoing entities to keep ‘right thinking people’ aware of what is happening. H.F.T. in Hawaii, for instance, was designed with this in mind. It can and will be scaled back financially after this battle is over, but it will perform a ‘watch dog’ role with the option of becoming fully mobilized at some future time if circumstances require it. H.F.T.’s reputation is it established so there will not be the need for a great investment of either time or money to have its voice heard in the future. What we do nationally or state-by-state should be with this in mind. This should be built into our public affairs strategy.

3. Finally, it is important that we keep in mind that if it were not for the support of the First Presidency and the Quorum of the Twelve and Neal Maxwell’s, Russell Ballard’s and your leadership, combined with the heroic work of the Hawaii’s Future Today coalition, Linda Rosehill, Lynn Wardle and David Coolidge, there would, at this moment, be legalized HLM in Hawaii, with a full faith and credit challenge in most, if not every state in the United States.  The legislation that Lynn Wardle helped the House Judiciary Committee craft is as good as we can do for now, and it has turned the matter into an Hawaiian issue, without the national ramifications that it had in the beginning.  It is important not to lose sight of what has actually happened.”

(Loren C. Dunn to Marlin K. Jensen, May 23, 1997)

1069:

“STATUS OF HAWAII

Since our commitment as a Church to the Hawaii initiative will naturally influence our decision on California, it is important to note the following considerations concerning the vote on a state constitutional amendment scheduled in Hawaii for November 1998:

• Legal experts feel there is a good chance the Hawaii Supreme Court will defer its decision on the Baehr case until after the November 1998 public ballot.

• Hawaii’s Future Today (HFT) is a strong, well-regarded coalition, fully organized and gearing up to lead the forces supporting the proposed amendment.

• The Church structure has been used to rally support for HFT and will be used to educate the electorate about voting and to get out the vote come November 1998.

• HFT projects a need to raise $400,000 for media and other initiative expenses.  A legal limit of $1,000 per donor exists, so that it will be necessary to identify approximately 300 potential donors within the Church, encourage their support of such causes, and have HFT follow up with direct solicitation of donations.  The balance of the funds will come from non-LDS HFT sources.

(Marlin K. Jensen, Loren C. Dunn, Richard B. Wirthlin to Public Affairs Committee, “Same Gender Marriage Initiatives: Hawaii and California,” July 1, 1997)

1070:

“One thing Marlin [Jensen] said they wanted was what it will take to finish in Hawaii. We can help the coalition prepare a list of people, both in Hawaii and on the mainland, where members of the Church and in a position to contribute to this cause. We would send to them a copy of the letter that the First Presidency and Twelve crafted so well and which was read over the pulpit both in Hawaii and California, which encouraged involvement with coalitions and other efforts that are established in the community. Then have the coalition follow up immediately with a request for financial support to the same people, with the specific instruction that they cannot accept any more than $1000 from any one individual or source. In this way, we would prepare potential donors, but the actual request for funds would come from the coalition. The development of names that would be in a position to contribute up to $1000 each could be assembled without too much difficulty.… In this way, we would encourage specific people to support this effort, but the actual fundraising would be handled by the coalition, as they approach the individual donor.…” (Loren C. Dunn to Richard B. Wirthlin, July 1, 1997)

1071:

“When the Hawaii Legislature passed H.B. 117, a constitutional amendment that states ‘The Legislature shall have the power to reserve marriage to opposite-sex couples,’ they finally moved this issue out of the courts and put it in front of the people to be voted on in November 1998.  The wording was approved by legal scholars, including B.Y.U.’s Lynn Wardle, as the best approach to counter a court case that got the whole matter started.…

All sides in this controversy recognized that it was the organization and involvement of the coalition, Hawaii’s Future Today that turned this matter around and led to the passage of H.B. 117.

With the Hawaii Senate in favor of SGM [Same-Gender Marriage] and the Hawaii House opposed to it, there was need for some political accommodation to bring the Senate aboard.  This was accomplished with H.B. 118.

The coalition did not like H.B. 118 or any effort to give support to SGM, but recognized without 118 there would be no 117 and the courts would rule. Through intense Hawaii’s Future Today lobbying and the input of B.Y.U constitutional scholar, Lynn D. Wardle, the Senate version of 118 was completely altered. What was proposed by the Senate was ‘Domestic Partnership’—another name for SGM, seeking 200 of the 350 benefits afforded married couples.  What they got were 60 such benefits, which under various laws, they might have claim to anyway.  The law influence by the coalition provided these very important distinctions from the Senate proposal:

• The term ‘reciprocal beneficiaries’ is used and not ‘domestic partnership’ which carries a connotation relating to same-gender couples.

• Reciprocal beneficiaries do not recognize a sexual relationship, indeed they can be a mother and son, brother and sister, or cousins.  Thus, there is not specific recognition of the same-gender relationship.

• Health benefits are not mandated on the private sector, thus no religious exemption is required.

• Health benefits for state and county workers has a two-year ‘sunset’ clause, giving the legislature time to study the financial impact.

• There are no benefits relating to family rights, i.e. adoption or custody.

• There are no personal income tax benefits, such as the filing of joint returns.”

(Loren C. Dunn to Robert D. Hales, “The Success of the Coalition, Hawaii’s Future Today in Hawaii and What Lies Ahead,” July 18, 1997)

1077:

“Yesterday I received a memo from Andy Pugno, an assistant to California State Senator ‘Pete’ Wilson [sic – Knight], regarding the obstacles facing the supporters of the proposed constitutional amendment in Hawaii. His memo is sobering and relevant. I did a little research and confirmed his assumption that the method of counting unmarked and defective ballots to determine whether enough voters have approved a legislature-proposed amendment to the Hawaii Constitution to ratify the amendment is the same as the method of counting unmarked and effective ballots to determine whether a constitutional convention shall be convened.

Mr. Pugno is urging an initiative run in California in 1998. He believes that if the Marriage Definition initiative were known to be coming up on the November ballot, that fact would improve chances for same-sex marriage nonrecognition legislation.… He believes that an initiative in 2000 may be too late, if either the Hawaii amendment does not pass, or if one of the other cases (Alaska, New York, or Vermont) reaches final judgment before then.…

It is widely expected the Hawaii Supreme Court will delay its final decision to legalize same-sex marriages until after the voters have the opportunity in November 1998 to vote on a proposed constitutional amendment empowering the legislature to ban gay marriages.

Throughout the debate in Hawaii, public opposition in that state to same-sex marriage has grown from 58% in 1994 to 74% in 1996.  During the Hawaii Legislature’s most fierce debate in February 1997, public opposition held steady at 70%.

However, even when Hawaii public’s opposition to same-sex marriages was at its highest (74% in March 1996), only a bare majority (51%) said they would support an amendment to the state constitution to ban same-sex marriages.  Recent reports from the measure’s proponents indicate no more than 56% support for the amendment.

The proposed constitutional amendment can become law in 1998 only if:

1. approved by a ‘majority of all the votes tallied upon the question,’ AND
2. this majority constitutes ‘at least 50 percent of the total vote cast at the election.’

The Hawaii Supreme Court recently announced in Hawaii State AFL-CIO v. Yoshina its final interpretation that ‘the total vote cast at the election’ includes blank and spoiled ballots.  The court’s decision gave a hypothetical example in which 200,000 voters to go the polls, 81,000 vote ‘yes’ and 75,000 vote ‘no.’ The court said this amendment would fail: ‘… because the 81,000 affirmative votes are less than fifty percent of the 200,000 “total vote cast at the election,” even though the affirmative votes constitute a majority of the 156,000 “votes tallied upon the question.”’

This ruling has the clear effect of requiring ‘an extraordinary majority’ to overcome the blank and spoiled ballots which will be added to the ‘no’ votes against the measure in 1998.”  (Lynn D. Wardle to HLM Committee Members: Marlin K. Jensen, Loren C. Dunn, Lance B. Wickman, Richard B. Wirthlin, Arthur S. & Jan Anderson, “Memo from Andy Pugno,” October 28, 1997)

1205:

“Mildred and I just received an e-mail indicating that Steve is presenting a seminar at the Hyatt Regency Hotel in Honolulu on November 20^th as a fund-raiser for Hawaii’s Future Today and their campaign opposing same-sex marriage.…

It is painful for us to realize that some people and institutions feel that our gay children should not be able to share their lives with someone they love and are attracted to in the same way that our heterosexual children can. We certainly support the right of the church to oppose same-sex relationships on religious grounds but are troubled when attempts are made to impose those beliefs on others through legislative or legal fiat.” (Gary M. Watts to Steve and Sandra Covey, November 10, 1997)

1790:

“In a prelude to what could be a costly and bitter battle, a political action committee has been formed to push a constitutional amendment that would give legislators the right to restrict marriage to opposite-sex couples.…

Stephen Covey, the best-selling author of The 7 Habits of Highly Effective People and The 7 Habits of Highly Effective Families, is the featured speaker at both the dinner and seminar.

The PAC’s leaders hope the two events will raise between $40,000 and $50,000.…” (Mike Yuen, “New isle PAC hopes to derail gay marriages,” Honolulu Star-Bulletin, November 12, 1997)

1204:

“May 1997: Hawaii’s legislators bow to pressure from conservative religious groups and pass a bill proposing a constitutional amendment that puts the question of whether marriage should be reserved for opposite-gender couples to voters on election day 1998. At the same time Hawaii becomes the first state to offer comprehensive domestic partnership benefits to same gender couples. Gays and lesbians move from 3^rd to 2^nd class citizenship.” (Friends of Marriage Project – Hawaii, “Marriage Project – Hawaii Update,” November 1997)

862:

“[p. 133] We shall examine the Mormons’ official “lying for the Lord” and abuse of the constitutional lawmaking process even at the very moment when the President of their Church was declaring to the world on CBS Television’s 60 Minutes that “we do not tell our people how to vote, and we do not tell the government how it should be run.” [60 Minutes (CBS television broadcast Apr. 7, 1996). Mormon Church President Gordon B. Hinckley was interviewed by Mike Wallace. Wallace, in a voice-over preface to that comment, stated, “The Church could wield political power if it wanted to, but President Hinckley says unlike the religious right, the Mormon Church does not have a political agenda.” Id.]…

[p. 137] B. The Same-Sex Marriage Lawsuit: On January 23, 1996, the Hawai’i Supreme Court, in a unanimous decision per Justice Paula A. Nakayama, held that the Church of Jesus Christ of Latter-day Saints and three of its officers could not intervene, either permissively or as of right, in the [p. 138] on-going same-sex marriage case, Baehr v. Miike, because the Church had no “interest relating to the property or transaction which was the subject of the action.”…

Thus ended more than a year of effort on the part of the Church, which was not an original party to the lawsuit, to obtain leave of the Court to participate as a party, and on behalf of the three same-sex couples (Plaintiffs) and the State Director of Health by the Attorney General (a Defendant) to keep the Church out.…

In December 1990, three same-sex couples, two female and one male, applied for and were denied marriage licenses by the Hawai’i State Department of Health solely on the ground that two persons of the game gender cannot marry each other. Their complaint alleging discrimination and invasion of privacy was filed on May 1, 1991.…

The three couples appealed, and the Hawai’I Supreme Court decided Baehr v. Lewin on May 5, 1993, and on reconsideration on May 27, 1993, remanded the case to the trial court for a determination of whether there was a “compelling state interest” in forbidding same-sex marriages. If not, the Court said, the State must issue them a license to marry. After the remand, and after a trial date had been set, the Mormon Church attempted to inter-[p. 139]vene on February 23, 1995, almost two years after the 1993 decision. The Applicants for Intervention were a stake president and two bishops, supported by the affidavit of the Church’s Hawai’i regional representative.…

In its most fundamental concept, the Court held that denying same-sex couples the right to marry was sex (gender) discrimination unless the State could show a “compelling interest” to the contrary. In order to do so, the Court, for the first time, defined gender (and therefore women whose need for protection is greatest) as a “suspect class” subject to the fullest Equal Protection the law can afford.…

[p. 141] In effect, the Church sought to “defend existing Hawai’i law” in order to preserve its right as a church to discriminate based upon sexual orientation in its representatives’ performance of civil marriages, even though they might not necessarily be religious in nature. The Church feared that its refusal to perform same-sex marriages, if they were to become legal, could result in its being sued on civil-rights claims by disgruntled same-sex couples whom the Church would refuse to marry. It also feared that the State of Hawai’i and the Attorney General were not being virulent enough in getting at gays and lesbians. Stating that the “traditional” male-female definition of marriage had always been “suppressed beneath the surface of the law,” the Church argued: 

[p. 142] The LDS’09 Applicants want and intend to present to the Circuit Court facts, evidence, and arguments involving the traditional interests that have prevailed with respect to the institution of marriage since the time Hawai’i was a kingdom and which are still in full force and effect today. These traditional interests have long been assumed and taken for granted as an inherent and ingrained part of Hawai’i’s law, culture, and society.

[p. 155] In the fall of 1995, the Church, through the First Presidency,225 James E. Faust,226 and Dallin H. Oaks,227 issued a number of anti-homosexual statements in the Church’s official pronouncements and publications. Although these did not add much new to the rhetoric, all were significant in that they delineated the Church’s position far more pointedly than any previous statements ever had. The final paragraph of the First Presidency’s Proclamation to the World gave these political marching orders: “We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.” This echoed an even more specific directive as announced by the Church’s Public Communications Department to the media on February 14, 1994:

We encourage members to appeal to legislators, judges, and other government officials to preserve the purposes and sanctity of marriage between a man and a woman, and to reject all efforts to give legal authorization or other official approval or support to marriages between persons of the same gender.

D. The 1996 Hawai’i Legislature

Perhaps in anticipation of the Church’s defeat in the Hawai’i Supreme Court’s decision on intervention, the Church in November 1995 helped to founded the radical activist “citizens” group “Hawai’i’s Future Today” to hire, through BYU-Hawai’i, Linda Rosehill, a professional lobbyist with the Clinton campaign and a national Democratic party committeewoman from Hawai’i, as well as a paid lobbyist for the oil industry, to advocate the Church’s position in the political arena of Honolulu. Beginning January 1996, the Church also provided representatives called “Hawai’i’s Future Today” in alliance with the Honolulu Catholic Diocese and other right-wing religious organizations to push for an amendment to the Hawai’i Constitution outlawing same-sex marriage.…

The details of one surreptitious event will serve to illustrate this reality.232 On Monday, April 1, 1996, the Senate Clerk, in cooperation with the clerk of the Senate Committee on Consumer Protection, filed and posted at the state capitol a standard public “Notice of Hearing” by the Committee on Consumer Protection, chaired by Senator Milton Holt, of House Bill No. 2524, House Draft No. 1, Proposed Senate Draft No. 1 (customarily abbreviated as H.B.2524, H.D.1, Proposed S.D.1), “A Bill For An Act Relating to Licensing.’233 Hearing was set for three days later, Thursday, April 4, 1996, at 5:00 in one of the Senate conference rooms. The Notice contained the notation, “DECISION MAKING TO FOLLOW, IF TIME PERMITS.” More significantly, the Notice contained the standard paragraph regarding the “public hearing process,” as follows:

[p. 156] Persons wishing to testify should submit 25 copies of their testimony with no holes to the committee clerk, Room 231, State Capitol, 24 hours prior to the hearing. Testimony may also be faxed if less than 5 pages in length, to the Senate Sergeant-At-Arms Office at 586-6659 or 1-800-586-6659 (toll free for neighbor islands), at least 24 hours prior to the hearing. FOR FURTHER INFORMATION, PLEASE CALL THE COMMITTEE CLERK AT 586-6880.

However, those who tried to obtain copies of “Proposed Senate Draft No. 1” were told by telephone and in person that Senator Holt’s office would not release copies until the time of the hearing. Hence, secrecy was afoot, the “sunshine” laws were flouted, and the process of public notice and participation was thwarted. The hearing did not commence until about 5:15 p.m. on the appointed date, until which time the door to the hearing room was locked while the members of the Committee met within. A large crowd had gathered in the hallway, including numerous members of the anti-gay lobby and Hawai’i’s Future Today. Conspicuous in the crowd was the Mormon liaison, Jack Hoag, an official of First Hawai’ian Bank and a Regent of the University of Hawai’i, and chief executive officer of the Mormon Church’s [p. 157] Hawai’i Reserves, Inc. All were overheard discussing among themselves the true intent and plan of the hearing, which was to “gut” the contents of H.B. 2524 HD.1, which related to the licensing and control of osteopaths and other health-care providers, and replace it with a statutory amendment prohibiting the “licensing” of same-sex couples for marriage. In other words, despite the fact that the general public was denied knowledge of and access to the true “Proposed S.D.1,” the anti-gay coalition had received advanced notice, were in collusion with the Senators who were advancing the secret measure, had come prepared to give both written and oral testimony, and were actively participating in this subversion of the democratic process. This would be a clever end-run around anybody who might be anticipated to speak against the plot in any way.

Among those testifying orally was Mormon Jack Hoag, who was among the first to present his prepared testimony.243 Just prior to the commencement of the hearing, Mr. Hoag was overheard to respond to someone’s question about the subject matter of the hearing by saying, “It’s about physicians and osteopaths, don’t you know that?” Yet he was also heard conferring with others in his coalition about the true intent of the meeting, and almost immediately thereafter, he took the seat at the Committee’s table reserved for testifiers and began a prepared narration about same-sex marriage.

[p. 158] The bill passed the Committee quickly.…

[p. 161] E. Brigham Young University’s Legal Research

Into the midst of this intense mix of politics and religion dropped two items of the Mormon agenda that were further designed to pull the center of gravity to the right. The first was the “60 Minutes” interview with Gordon B. Hinckley. The second was the publication of a lengthy article by BYU law professor Lynn D. Wardle, “A Critical Analysis of Constitutional Claims for Same-Sex Marriage,” in the 1996 Brigham Young University Law Review. Because this article (hereinafter the “BYU article”) figured largely in the post-trial amicus curiae brief of the Church, as well as the Church’s public persona throughout the political debate on same-sex marriage, and because Wardle became a player in the public hearings at the Hawai’i Legislature, it requires substantial attention here.

The article keyed on the allegation that, to date, the scholarly debate in the nation’s law reviews “has been extremely one-sided in advocating same-sex marriage.” This was due, the article said, to an “apparent academic taboo against publicly voicing opposition to homosexual interests.  Citing the “ideological bias of the contemporary American university” in favor of liberalism, the author took this to mean that “[t]olerance of ‘gay rights’ is a litmus test for academic credibility. “Thus, the defense of the unique legal status of heterosexual marriage clearly has not been fairly or adequately presented in the law reviews.”

This argument finessed an important consideration. Perhaps the “imbalance in the legal literature” reflects not academic bias or “taboo” but the reasoned opinion of the legal community that heterosexual-only marriage is indefensible and that such opinions are the honest views of the individual [p. 162] scholars…

[p. 172] Nevertheless, in Hawai’i the Church joined a coalition to become the prime movers advocating, at the expense of constitutional government, the addition of the following proposed clause to the language of due process and equal protection clauses in the Hawai’i Constitution:

Nothing in this section or any other section of this [Hawai’i State] Constitution shall be interpreted to create a constitutional right to same-sex marriages in order to reserve marriage as a legal relationship between a man and a woman as husband and wife which has been sanctioned by the State…

The carving out of the exception to Equal Protection would, if it were to become law in Hawai’i, be the first time in American history that civil rights guaranteed in a Constitution would have been subtracted from it.…

[p. 173] On the weekend of February 17-18, 1996, the Church held a Hawai’i Area Conference at Brigham Young University Hawai’i Campus in La’ie, O’ahu. President Gordon B. Hinckley and other general authorities were in attendance to tell the membership that their numbers in Hawai’i were sufficient to stop any “unwanted social change.” As part of his visit, President Hinckley met with Catholic Bishop Francis X. DiLorenzo in Honolulu to plan the two churches’ joint strategy for defeating, among other things, same-sex marriage.…” (Robert J. Morris, “’What Though Our Rights Have Been Assailed?’ Mormons, Politics, Same-Sex Marriage, and Cultural Abuse in The Sandwich Islands,” Women’s Rights Law Reporter 18(2):129-203, Winter 1997)

575:

“Even after the significant results of last year, in getting a constitutional amendment through the legislature, the work of Hawaii’s Future Today (HFT) is not over.  In the 1998 Legislature, HFT is working to assure that efforts to turn the reciprocal beneficiaries statute into a domestic partnership are not successful.… There is a need for $50,000 of the already budgeted allowance to be forwarded to HFT as soon as possible for them to continue their work.  The funds are in an account in the Public Affairs Department.

Save Traditional Marriage – ’98 (STM) is organized and progressing well.  The Covey seminar and dinner netted approximately $45,000.  Other local fundraising efforts have produced about $100,000 currently and should be over $150,000 by the end of January.…

STM’s benchmark poll has been organized and is to be completed by the end of the month.  This will give a clearer picture as to where we stand.…” (Loren C. Dunn and Richard B. Wirthlin to Marlin K. Jensen, “SGM – Hawaii,” January 8, 1998)

1094:

“As of today, STM-’98 had received the following in mainland donations, segregated by state…

Total: $387,117.” (Donald L. Hallstrom to Loren C. Dunn, June 1, 1998)

3097:

“[Linda] Rosehill is a lapsed Protestant whose daughter is a lesbian. (‘I want her to have every civil right,’ says Rosehill.  ‘But same-sex marriage is not a civil right.)” (“For Better or Worse: In Hawaii, a showdown over marriage tests the limits of gay activism,” Time, October 26, 1998, p. 44)

1700:

“The Commission on Sexual Orientation became a target for scrutiny.  Gay activists filed a lawsuit to remove the two Roman Catholics and two members of the Church of Jesus Christ of Latter-day Saints from the commission on grounds that having them on the commission violated the separation of church and state.  They were dismissed from the panel early in 1995.

As a result, accusations were made that the commission had been stacked with members who favored same-sex marriage to the exclusion of opponents of the issue.  In December 1995, the commission, by a vote of 5-2, recommended that Hawaii legalize same-sex marriage or set up a more comprehensive domestic partnership law… Pursuant to the commission’s decision, the Church of Jesus Christ of Latter-day Saints filed an Application for Intervention in the case. The LDS Church asserted that:

In late 1994 they became aware, for the first time, that the Attorney General, acting on behalf of [the State of Hawaii], might not be willing to assert at the upcoming trial all of the known compelling state interests. (1996)

The LDS Church’s Application for Intervention was denied by the Circuit Court.  The denial was appealed to Hawaii’s Supreme Court which upheld the Circuit Court’s denial.” (Phillip Davis and Robert Farwell, “Same-Sex Marriage: Interest Group to Moral Policy Theory,” Pi Sigma Alpha Review, 1998, p. 3)

1103:

“Enclosed is the final report of the Hawaii State Campaign Spending Commission reflecting activity up to November 3, 1998 which was election day.…

Total Spent in Support of the Amendment: $1,464,922.74

…

Yes votes 285,381

No votes 117,827

…

Save Traditional Marriage reported receiving $400,000 from the Church of Jesus Christ of Latter-Day Saints, Corporation of the President and $200,000 from the Church’s Corporation of the Presiding Bishop.… [The contributions were made on 9/24 ($85,000), 10/1 ($100,000), 19/9 ($215,000) and 10/12 ($200,000 from CPB)] (Loren C. Dunn to Marlin K. Jensen and Richard B. Wirthlin, “SGM – Hawaii,” February 17, 1999)

1104:

“There are two bills that were introduced to liberalize reciprocal beneficiaries law and also to introduce domestic partnership rights. It now looks like neither of these bills will get out of committee, which we attribute to the fact that we won the election by such a large margin.” (Loren C. Dunn to Marlin K. Jensen and Richard B. Wirthlin, “Update on Hawaii SGM,” February 24, 1999)

1109:

“Received word today from Linda Rosehill that one of the campaign ads, Daddy’s Wedding, has won an award from the local media.…

Interesting that the luminaries of the local media would do that. Maybe there’s hope for them.” (Gary Lawrence to Loren Dunn, March 3, 1999)

1108:

“We have been informed from Linda Rosehill that one of our campaign ads ‘Daddy’s Wedding’ has won an award from the local media. Interesting that the local media would do such a thing since they opposed us during the regular campaign. There will be an awards banquet on March 10^th in Hawaii. I suggest a member of the coalition, not a member of the church accept. This is further evidence of Gary Lawrence’s great work.” (Loren C. Dunn to Marlin K. Jensen and Richard B. Wirthlin, March 4, 1999)

1710:

“The Hawaii Supreme Court ruled on December 9^th [1999] that efforts by several gay/lesbian couples to legalize gay marriage was rendered moot by a 1998 amendment to the state constitution overwhelmingly approved by voters.” (Affinity 22(1):5, January 2000)

1114:

[This is a printout from the “Historical Material Management System,” done by Joseph Jay on January 31, 2006.  He is a gay ex-Mormon who at the time was an employee of the Church History Department.  Part of his job was to fill orders from General Authorities for items from the Church Archives.  Upon receiving multiple requisitions for the Loren C. Dunn Papers from Apostle Russell Nelson in 2005 (the year Nelson was assigned to chair the Public Affairs Committee), Jay noted that the papers constituted the playbook of the Church’s anti-gay-marriage initiative in Hawaii, and he copied some 700 pages.  He gave me a copy in 2014.]

“Summary: Files kept by Elder Loren C. Dunn, president of the North America West Area, and member of the Same Gender Marriage Advisory Committee.…

Files also include Homosexual and Lesbian Marriage (HLM) and Same Gender Marriage (SGM) Advisory Committee Meeting minutes, budget information and correspondence.…

Feet: 1.5…

Provenance:  Files kept by Elder Loren C. Dunn as president of North America West Area and member of the Same Gender Marriage Advisory Committee.  Turned over (1999) to Elder Jay E. Jensen who oversaw the Same Gender Marriage Advisory Committee.  Elder Jensen reviewed these files and turned the majority over to the archives in June, 1999.”

1819:

“A woman who once led the charge against gay unions in Hawaii is now lobbying for their passage. Debi Hartmann is working with gay activists and Democratic leaders in Hawaii to enact civil unions that carry the same rights as traditional marriage.

The move represents a stark change for Hartmann, who once led Hawaii’s Future Today, a conservative group of Mormons, Catholics and others who opposed gay unions.…” (Ian David, “Anti-gay activist Debi Hartmann now lobbying in favor of Civil Unions,” www.DemocraticUnderground.com, January 13, 2007)

1699:

“This decision, addressing at the state level the issue of gay marriage, came before Hawaii’s Supreme Court and had national, and, indeed, international, repercussions, because it determined that to forbid gay and lesbian marriage was unconstitutional in Hawaii.  It dealt only with Hawaii law, creating a standard of review for Hawaii’s marriage law.  However, the law would have consequences elsewhere, as every state in the United States was generally supposed to recognize marriages (as of the time of the ruling in Baehr) performed in other states.  Thus, while only a procedural ruling, Baehr was much more important (and created much more sound and fury) that most procedural rulings.

The opinion was written by Judge Levinson and joined by Chief Judge Moon.  Levinson first reviewed Hawaii’s marriage law, noting that sex was the sole reason that the marriage application of the plaintiffs was denied (the plaintiffs were three same-sex couples).  He then turned to the legal matters of the case, noting that the evidentiary record was very light, that judgment should not have been granted for Lewin, head of Hawaii’s Department of Health (DOH), which granted marriage licenses.  He examined Hawaii’s constitution, stating that it considered privacy a fundamental right.  However, he also said that the court did not ‘believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people’ that ‘failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions.’  The court then considered the equal protection issue, noting that marriage did create benefits, and holding that ‘the applicant couples correctly contend that the DOH’s refusal to allow them to marry on the basis that they are members of the same sex deprives them of access to a multiplicity of rights and benefits that are contingent upon that status.’  The court then ruled that ‘HRS &572-1, on its face, discriminates based on sex against the applicant couples in the exercise of the civil right of marriage, thereby implicating the equal protection clause of article I, section 5 of the Hawaii Constitution’ and that the state would need to provide a ‘compelling’ reason for the discrimination.  The opinion noted that Hawaii’s constitution went further than the U.S. Constitution and prohibited any discrimination based on sex. Levinson considered Lewin’s answer to the charge, which basically was that same-sex couples could not marry because marriage was defined as being between a man and a woman, and found that argument to be circular. The court reviewed past court decisions in other states advanced as defense of marriage between one man and one woman and argued that in the past, interracial marriage had been banned on the same rationale and reminded the parties that the Supreme Court had overturned bans on interracial marriage in 1967.  From this, the Hawaii court held that ‘constitutional law may mandate, like it or not, that customs change with an evolving social order.’

The main question remaining was what standard of review to use when considering questions regarding regulations based on sex. The court reviewed various Hawaii and U.S. Supreme Court decisions and held that ‘accordingly, we hold that sex is a “suspect category” for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution n33 and that HRS &572-1 is subject to the “strict scrutiny” test’.  From this, the court took the next step and held that the marriage regulation ‘is presumed to be unconstitutional … unless Lewin, as an agent of the State of Hawaii, can show that (a) the statute’s sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgements of the applicant couples’ constitutional rights.’

Judge Burns concurred in the decision. He agreed with the remand to the lower court, holding that judgment for the defendant had been too early. He added an issue that he thought should be considered, though—whether homosexuality was biologically determined. Burns believed that the Hawaii constitution protected only those elements of sex that are biologically determined, and so the lower court needed to decide whether homosexuality was controlled by our biological makeup.

Judge Heen dissented, holding that sex and race were not analogous, and so the logic of Loving could not be extended to this case. He also held that no sex discrimination occurred as both sexes were treated equally, as both were prohibited from being involved in same-sex marriages.  He also stated that since no sexual discrimination occurred, there was no need for an evidentiary hearing and no need to remand the case to a lower court. Heen also stated that the court was entering into an area better reached by the legislature and accused the majority of ‘creating’ a civil right.

The case was remanded to a lower court, which set the issue for trial. It did return to the Hawaii Supreme Court as Baehr v. Miike, in 1996, as the Latter-day Saints (the Mormons) had asked to intervene in the case. (To intervene, legally, means to be allowed to be heard by the court on a case because the group intervening has legal interests at stake.) The Mormons claimed that this case might force them to perform same-sex marriages, giving them an interest in the case. The court, however, found that no church would be forced to perform marriages ever against their precepts and forbade the Mormons from intervening. At trial in the lower court, witnesses for both sides were heard, and the state was not held to have met its burden of proof.  Thus, the regulation was struck down. The case then headed back to the Hawaii Supreme Court, but in 1998 Hawaii acted to amend its constitution, defining marriage as being between one man and one woman, ending the debate. On a national scale, while this case was going on, Congress in 1996 passed the Defense of Marriage Act (DOMA)…” (“Baehr v. Lewin,” in Scott A. Merriman, Religion and the Law in America: An Encyclopedia of Personal Belief and Public Policy, Santa Barbara: ABC-CLIO, Inc., 2007, pp. 135-7)

1683:

“Ever since Proposition 8 passed last November, leaders involved with the No on 8 campaign have insisted they were unaware of the role of the Mormon Church in trying to eliminate same-sex marriage rights. No on 8 officials were also caught unaware until after campaign finance reports released last October showed that proponents of Prop 8 received a windfall of contributions from members of the Mormon Church.

But documents unearthed by the Bay Area Reporter show that the Church of Jesus Christ of Latter-day Saints has had a consistent strategy to fight same-sex marriage that dates back more than two decades.…

Crapo, who is straight and Mormon, explained that when three same-sex couples sued the state of Hawaii for the right to marry in December 1990, in a case known as Baehr v. Miike , the Mormons already had Hill and Knowlton on payroll for two years helping to develop the HLM strategy.…

Crapo also described how the LDS first reached out to Catholics at the genesis of its HLM strategy in Hawaii, inviting then-Honolulu Bishop Francis X. DiLorenzo to vacation with Hinckley at the palatial LDS estate on the island. This was the beginning of a dialogue that eventually recruited the U.S. Catholic bishops to the LDS cause, according to Crapo, whose chronology calls into question the recent assertion by San Francisco Archbishop George Niederauer that he invited the Mormons to become involved in the Yes on 8 fight.…” (Dan Aiello, “The Mormon factor in marriage fight,” Bay Area Reporter, February 5, 2009)

2002:

“With the Hawaii Legislature now considering civil unions for same-sex couples, a former leader of the Mormon opposition to same-sex marriage in that state reiterated that she no longer believes what she spent years fighting to defend. Marriage rights, she now says, should be for everyone, though she stops short of actually supporting same-sex marriage.

Throughout a nearly two-hour telephone interview last weekend that was at times emotional, repentant, and remorseful, Debi Hartmann, a former co-chair of an anti-same-sex marriage organization in Hawaii, acknowledged she has come to understand that she was wrong. Marriage rights, she now concludes, should be granted to same-sex couples.…

Asked if she believes any single religion has the right to impose its beliefs unto the constitution of a secular government, Hartmann said, ‘I thought that having civil unions and having marriage was the perfect answer to that question, as long as all rights are provided. I absolutely believed that up until last year when I read the California Supreme Court’s ruling.’

The court ruling was the turning point for Hartmann on marriage equality.

‘It crushed my beliefs,’ explained Hartmann. ‘It taught me that words can be invidious. For example, if you and I had to walk into a doctor’s office and they ask us to fill out a form and you have to check ‘civil union’ and I check ‘marriage,’ that’s the invidious discrimination. The same rights have to be called by the same name. That’s the answer to removing the religion from our laws.’…

Hartmann is a former co-chair of Hawaii’s Future Today, which was created by the Church of Jesus Christ of Latter-day Saints.…

Hartmann acknowledged the damage she’s done.

‘A lot of people felt that not just me, but our organization, caused a lot of pain and a lot of grief,’ she said. ‘I have come to understand what that means. I did not at the time. Even in all my studies and through all my research, I did not grasp that.’

Hartmann is currently an assistant professor of political science at Brigham Young University, Hawaii.

It wasn’t until Hartmann was approached by JoAnn Adams, a former chair of the GLBT caucus of the Hawaiian Democratic Party, and asked by Adams to compare the reciprocal beneficiaries law Hartmann helped enact to Hawaii’s marriage law, that Hartmann first began to recognize what she had done to same-sex families in the name of protecting the definition of traditional marriage.…

‘What happened was I was shocked,’ Hartmann said. ‘Now a lot had happened to me in those 10 years [since Hartmann led the LDS fight against same-sex marriage]. I had become educated and enlightened. And when I began to review the reciprocal beneficiaries law, I wasn’t approaching it from an emotional standpoint or trying to defend something. I was simply approaching it. I wasn’t looking to find something, I was just looking. What Hawaii’s Future Today was looking for in the inclusion of benefits in the reciprocal beneficiaries law wasn’t there. When I went back and looked for the outline of the bill … what happened was in conference committee it had been gutted, rights had been stripped out of it. And then I compared it to the marriage law. That law automatically enjoins children, and spouse. Reciprocal benefits did not. That’s when I realized I had hurt families.’

At times emotional, Hartmann continued to speak in terms similar to those of a spiritual confession of sin.

‘I went back to JoAnn and said, ‘Okay, I’m on your team. I’ve hurt children. I may not be in agreement with other’s definition of marriage, but I’ve hurt children and I can’t live with that,’‘ Hartmann said.…

Hartmann said she hadn’t begun as an opponent of same-sex marriage.

In 1994, a year before the commission reported its findings, Hartmann, who had served on the state Board of Education, said she wrote a paper in the course of completing her master’s degree in law and justice at the University of Hawaii, Manoa, in which she concluded, as the commission would subsequently, that the court ruling had been correct and there was no compelling reason to deny marriage equality to Hawaii’s same-sex couples.

When LDS public relations spokesman Jack Hoag called Hartmann, asking her to join him as a co-chair of Hawaii’s Future Together, Hartmann said she explained to Hoag he likely didn’t want her, explaining her support of the court’s decision.

However, Hartmann said that a meeting at the offices of the marketing firm MacNeal Wilson (which is the agency that took over LDS-sponsored lobby work from Hill and Knowlton) with Hoag and Marc Alexsander, the Catholic Church representative, changed Hartmann’s opinion.

‘I told them I’d concluded the laws in Hawaii are correct, there’s not a compelling reason to deny these rights. But Marc said, ‘Isn’t marriage something that should be defended?’ The question for me then became ‘Is marriage something that needs to be defended?’ And can we defend marriage in the law?’‘ Hartmann said.

Hartmann concluded the answer to both of those questions was ‘yes’ and agreed to join Hawaii’s Future Together and lead the LDS effort to stop same-sex marriage. She claims that she did not know the group was the church’s front organization at the time.

‘I did not know until later that the first deposits were from LDS sources,’ Hartmann said.

An internal LDS Memo from elder Loren C. Dunn to M. Russell Ballard confirms that Hartmann was chosen by Mormon leaders to head their anti-same-sex marriage efforts. ‘We brought in as the leadership of Hawaii’s Future Today Debi Hartmann, a young mother who gained prominence as the chairman of the state Board of Education,’ wrote Dunn. ‘Although Hartmann and Hoag are [LDS] members, they are known more in the community for the titles just mentioned.’ Dunn confirms Father Marc Alexsander and Hoag were also chosen to head up operations and goes on to say that the leaders’ plan to keep the Hawaiian voter and legislature from knowing the LDS role was succeeding.

Hartmann became ‘the face of the opposition,’ to same-sex marriage, according to Morris.…

On December 8, 1995, the report from the Hawaiian Commission on Sexual Orientation and the Law was released. Its findings concurred with that of the Hawaii Supreme Court, that the Hawaii marriage law effectively denied same-gender couples equal protection rights in violation of article I, section 5 of the Hawaii Constitution.…

‘I did not grasp that I was supporting a bill that was not protecting and enjoining all rights and protections that all families with children should have a right to have. I was supporting a law that literally oppressed and repressed and I didn’t get that,’ said Hartmann.…” (Dan Aiello, “Marriage opponent regrets past, now supports equality,” Bay Area Reporter, February 12, 2009)

2016:

“Richard Wirthlin, not yet a general authority, polled the relative popularity of Mormons versus Catholics. When results showed Catholics had a better image in Hawaii, Mormon leaders decided to stay in the background. They hired a Hawaiian advertising firm, McNeil Wilson, on a $250,000 retainer. They tacked on gambling and legalized prostitution to give the anti-marriage front group “room to maneuver in the legislature’ and ‘broaden our base and appeal,’ Dunn wrote. They searched for an ‘articulate middle-age mother’ who was neither Mormon nor Catholic to be the face of the campaign.” (Rebecca Walsh, “LDS elders showed seasoned political savvy on California’s Prop. 8,” Salt Lake Tribune, March 25, 2009)

3065:

“1. The History and Context of Litigation Leading Up to Goodridge

[p. 1165] Goodridge was the first American case to legalize same-sex marriage, but neither it nor the Baehr decision in 1993 was the first lawsuit to challenge the limitation of marriage to heterosexuals. Indeed, within a few years of the Stonewall Riots in Greenwich Village in June 1969—the date usually cited as the birth of the modem gay rights movement—three test cases asserting a constitutional right to same-sex marriage had been brought and decided by appellate courts in Kentucky, Minnesota, and Washington. All three were won handily by the state governments, and none of them seems to have generated much real national attention. There was another case in Pennsylvania in 1984, but the issue did not make it onto the national radar screen until 1993.

In 1993, the Hawaii Supreme Court produced shock waves with a decision that seemed to come out of nowhere.… With shades of Thurgood Marshall’s tactical judgment about avoiding the miscegenation issue, litigators at the [p. 1166] major national gay rights organizations had declined to bring the suit, believing that the introduction of the marriage issue was premature. But Dan Foley, a former ACLU attorney who had moved into private practice, agreed to take the case. It is fair to say that Foley shocked both the gay rights bar and the world with the ruling he obtained in 1993. 

In Baehr v. Lewin, the Hawaii Supreme Court rejected other constitutional claims made by the plaintiffs, but accepted the argument that denying marriage licenses to same-sex couples was a form of sex discrimination that triggered strict scrutiny under the state constitution.  Based on that conclusion, the court remanded the case for trial on the question whether the State could show that it had a compelling state interest in preventing same-sex couples from marrying.  Given that the application of strict scrutiny usually means that the government loses, most observers expected the plaintiff couples to prevail on remand.

That prediction proved correct in 1996, when a trial court judge heard testimony from competing experts about whether there was a compelling state interest in limiting marriage to opposite-sex couples. The State had asserted an array of such interests, stressing in particular the idea that limiting marriage to opposite-sex couples would promote the optimal development of children. Judge Kevin Chang found for the plaintiffs but stayed his ruling while a proposed constitutional amendment was pending. Hawaiian voters later amended the state constitution to require legislative authorization of same-sex marriage. The legislature decided to restrict marriage to one man and one woman, while providing limited benefits to same-sex couples under a new reciprocal beneficiaries’ law. That ended the Hawaii litigation.…

[p. 1185] The nationalization of the conflict was highly successful. In 1995, two years after the Baehr decision and before the Hawaii trial court had even ruled on remand, Utah passed a law declaring marriages between same-sex couples to be void. Between 1995 and November 2003, when Goodridge was decided, an additional thirty-six states followed Utah’s lead and passed measures restricting marriage for same-sex couples in one way or another, and the measures generally passed by wide margins.…

(Jane S. Schacter, “Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now,” Southern California Law Review, 82:1153-24, 2009)

1693:

“[p. 1] Within days of the 2008 election, opponents of the measure had targeted its proponents, in particular the Mormon Church, as subjects for scorn. Singling out the Mormon Church on this issue was particularly ironic because to the extent that members of the Mormon Church were responsible for the success of Proposition 8, they simply did to the gay community what courts of the United States consistently did to their forebears: defined away their right to marry. In striking down individuals’ rights to enter into polygamous marriages, courts said that polygamy was not marriage and that monogamy was marriage, but they expended little energy explaining why. This article does not condone either the forceful effort to pass Proposition 8 or the counter-response from the gay community, but it will argue that part of the problem that same-sex marriage [p. 2] (‘SSM’) advocates encounter stems from the failure of courts to explain what marriage is. It is very hard to talk about a right to marry without a common understanding of why states license marriage. 

In the end, this article will offer a definition of marriage which suggests that marriage can be beneficial to the state, beneficial to the couple, and integrated into the rich social history of marriage without necessarily being gendered.…

The Supreme Judicial Court of Massachusetts found that the fundamental rights and equality arguments were inextricably intertwined and that gays and lesbians were entitled to get married, but not because they had a fundamental or equal right to do so. Instead, the Massachusetts court found that there was no rational basis for restricting marriage to opposite-sex couples.…

[p. 3] Ultimately, every argument requires a story about why marriage is important, with a definition of what marriage is.…

If the predominant story of marriage is one of an institution that exists to foster differentiated gender role development, then the equality theory rings hollow because same-sex couples and opposite-sex couples are not similarly situated in their ability to reify gender roles in marriage.

[p. 4] Many people will scoff at this understanding of marriage as a purposefully gendered institution. How can that be a legitimate definition in an era of gender equality? Perhaps it is not a legitimate definition of marriage, but it is an accurate description of contemporary marriage.…

At a doctrinal level, the fact that marriage is a gender factory may be constitutionally irrelevant. After all, those who believe that marriage is and should be gendered appear to believe in ‘the very stereotype the law condemns.’ What makes the gendered story relevant to legal discussions of SSM is its accurate reflection of the current state of heterosexual marriage and its ability to explain why and how marriage may be so important to people.…

[p. 5] Indeed, in both the employment and the marital context, the more pronounced the gender roles and traits, the more the law feels compelled to accommodate them.…

If enough people believe in or somehow know the gendered story of marriage to be true, equality arguments for SSM, whether rooted in gender or racial analogies, prove difficult.… To paraphrase Gertrude Stein, SSM advocates must tell a story of marriage that suggests there is a ‘there there’ after one takes the gender out of marriage.…

If we are to have state-sponsored marriage that includes same-sex couples, we need a story of marriage that explains what marriage is after the gender is gone.

To date, there have been three main stories told by SSM advocates about what marriage is and why gays and lesbians should be entitled to it. In the first story, marriage is a bundle of rights and obligations pertaining to how each member of the couple must treat each other and how outsiders must treat the couple. These rights and obligations usually include, inter alia, the right to receive a portion of a spouse’s estate if she dies intestate, the right to bring a wrongful death action, the right to access spousal health, disability and accident insurance plans, the right to [p. 6] assert evidentiary privileges, the right to hospital visitation and other incidents relevant to medical treatment of a family member, and the entitlements and responsibilities pertaining to spousal maintenance and marital property at separation.…

This narrative of marriage suggests that states create and sanction marriage because they benefit from it. It is a narrative that is particularly susceptible to equality arguments for SSM because opponents of SSM have difficulty explaining why gay and lesbian couples need to be denied the concrete benefits of marriage, or how the state could possibly be hurt by providing these stabilizing benefits to gay and lesbian couples.

The problem with this story of marriage is that while it often forces the state to provide all of the legal rights and obligations of marriage, it does not compel the state to provide the symbolic benefits of marriage. Thus, the Supreme Courts of Vermont and New Jersey found that gays and lesbians were entitled to Civil Union status, but not marital status. If the bundle of rights and obligations that accompanies marital status is what marriage is, then gays and lesbians are treated equally once they become entitled to that bundle of rights and obligations. The term ‘marriage’ is a peripheral issue in the first narrative of marriage because the first narrative of marriage defines marriage as the legal rights and obligations that accompany it, not the symbolism in the term itself.

The second story of marriage is the one that has been told most prominently by the U.S. Supreme Court, and it focuses much less on the concrete benefits of marriage and much more on the symbolic benefits of marriage—most particularly, its emotional and expressive benefits. Although not precisely clear about why or when this right exists, the Court has ruled that states cannot deny the right to marry [p. 7] to poor people or to prisoners.… Thus, marriage can be both ‘the most important relation in life’ and ‘the foundation of society.’…

[p. 8] The first story sees marriage as a legal construct, a state-created bundle of rights and obligations. The second story sees marriage as an institution—like religion, perhaps—that serves human interests and values and with which the state should not interfere.…

[p. 9] A third story of marriage was told by the California Supreme Court in the In re Marriage Cases. This story understands marriage to be a state-conferred title, a blessing of sorts, pursuant to which a couple secures status from the state.… The personal well-being that comes from marriage comes in part from the respect and dignity that is afforded marital status.…

In California, when the Court decided In re Marriage Cases, the legislature had already provided gays and lesbians with the full panoply of rights and obligations that marriage brings (story #1). Domestic Partnership (as it was called in California) was not enough, the court said, because Domestic Partnership did not command the same respect and dignity as marriage.…

[p. 11] By focusing on the 1998 statute, not the historical and almost universal understanding of marriage as between a man and a woman, it was easier for the Iowa court to say that an opposite-sex requirement was discrimination against gays and lesbians.…

[p. 12] Critics of SSM have their own stories of marriage. The first of these stories has to do with marriage as a procreative institution. This story of marriage has probably received the most attention,55 but it is also, I will suggest, the weakest. The second story has to do with marriage as an institution for child-rearing. The third story has to do with marriage as an institution for gender reification.…

[p. 13] Regardless of one’s view on the superiority of married heterosexual intercourse, any student of literature or history is well aware that marriage has never been particularly good at policing sexuality.… If marriage’s primary purpose had been to restrict sexual activity to marriage, marriage would have broken down as an institution. It simply is not up to the defined task.…

What marriage has been much better at is providing an institution for childrearing. Marriage is not about making babies (Story #4), but about taking care of them. This is the fifth story of marriage—marriage as an institution designed to ensure optimal child-rearing.…

[p. 14] The problem with this narrative of marriage, for opponents of SSM, is that gays and lesbians can rear children within marriage too. Indeed, the reason that many gays and lesbians want to get married is because they want to raise children.…

There are no reliable studies suggesting that bigendered role modeling really matters; nor are there studies proving that it does not matter, and many people think that a parent of each gender is good for children.…

[p. 18] This leads us then to the sixth marriage narrative, marriage as a promoter and producer of gender roles. This story of marriage will probably be jarring to some. Perhaps because it can be so jarring, courts have not engaged it significantly, except to dismiss it categorically and without discussion.…” (Katharine K. Baker, “The Stories of Marriage,” Journal of Law & Family Studies 12:1-55, January 1, 2010)

1342:

“Debi Hartmann’s transformation from a fierce opponent of same-sex marriage to ardent proponent of civil unions did not happen overnight.

It stemmed from the gradual realization, intensified by an analysis she did as part of her graduate work in political science, that a law she had helped create discriminates against the children of gay and lesbian parents. This Mormon mother of three and grandmother of six said she did not comprehend at the time that the reciprocal beneficiary agreements she promoted in the late 1990s as a fair and equal alternative to marriage rights were neither.

‘The RB (reciprocal benefits) law does not give children legal claim on their parents, and that’s just not right,’ said Hartmann, 58, now executive director of the state Democratic Party, the party’s Oahu county chairwoman and an outspoken supporter of House Bill 444. ‘I do this based on a legal justification—one that speaks to equal protection under the law.’…

Q: This is a transformation for you. You were a leader of Hawaii’s Future Today, which led the fight against same-sex marriage in the 1990s. What changed?

A: I had worked with the senator who created reciprocal beneficiaries and I believed that we had set up laws that gave protections and rights that were equivalent to what heterosexuals had under marriage. … Later, when I was working on my master’s and then doctoral (research), I used same-sex marriage as my thesis and dissertation. So I was doing an in-depth study … I still stayed very strong about not being for same-sex marriage, but I had always had a conviction that rights were important, that they be fair and equal. (As part of her research, she interviewed same-sex marriage proponents, including frequent adversary Bill Woods Bateman). They asked me if I had actually looked at the rights that reciprocal beneficiaries gave, done an actual comparison to marriage rights under the law. And I said ‘no.’ And they said, ‘Why don’t you try doing that.’ And then they added this: ‘Look at the language on what it takes to enter into a reciprocal beneficiary agreement and to get out of it, and then compare that to what it takes to go into a marriage and get out of a marriage. Then decide whether or not you would choose to enter into an RB.’

Q: So you did that?

A: Yes. It took me about two months, and by then I had sufficient academic knowledge to be able to legitimately do that kind of research and comparison. I was dumbfounded when I discovered that there’s no legal protection for children. That if a gay couple in an RB had children and one (partner) decided to leave, all they had to do was pick up and leave, and write a letter to the state Health Department. They didn’t even have to notify the partner that they were leaving. The child has no claim on the parent who left, no way for child support, no connection to the grandparents, nothing. No legal claim. And let’s say the one who left took the child because they were the legal parent of the child, then the other partner has no right to visitation. And the child has no legal right to ask to see that parent again. We had not put in real protections. And when I went back to the Legislature and said, ‘Can we open RB and make some of these changes?’ basically I got the door slammed in my face. I found out that the only way that we were going to make a change was to have civil unions.…” (“Debi Hartmann,” Honolulu Star Bulletin, February 5, 2010)

1151:

“[p. 705] In 1993, the Hawai‘i Supreme Court held in Baehr v. Lewin that excluding same-sex couples from marriage was presumptively invalid under the Hawai‘i Constitution because it discriminated on the basis of sex. Consequently, the exclusion could only be upheld if the State could demonstrate that it “further[ed] compelling state interests and [was] narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This decision marked the first victory in the marriage equality movement in America.…

We argue that, on balance, Baehr was an important step forward for lesbian, gay, bisexual, and transgender (LGBT) rights and gender equality. By asking the State to explain why same-sex couples could not be married, the Hawai‘i Supreme Court opened a dialogue that continues to this day.…

[p. 706] The possibility of same-sex marriage seemed audacious and improbable in 1990. First, many gay people were deeply closeted. Most Americans reported that they did not personally know a homosexual person… Employers, including public employers, openly discriminated against gay persons.…

[p. 707] Second, earlier challenges to the exclusion of same-sex couples from marriage in other states had been not only uniformly unsuccessful, but were treated with dismissive contempt. In 1986, the Supreme Court held in Bowers v. Hardwick that, as applied to homosexual people, federal constitutional norms of privacy and liberty did not bar the state from imposing criminal punishment on adult consensual sexual conduct in the home. Bowers was not overruled until 2003.

Third, the national leadership of the LGBT legal community had made a nearly unanimous judgment that it was premature to pursue constitutional litigation challenging state laws that denied same-sex couples access to marriage.…

On December 17, 1990, three same-sex couples sought marriage licenses from the Hawai‘i Department of Health.…

[p. 708] When the ACLU and Lambda Legal failed to accept the case, Woods and the couples sought help from Dan Foley, who was a leading Honolulu civil rights attorney in private practice.…

[p. 709] Foley agreed to represent the three couples. He believed they had plausible legal claims under the Hawai‘i Constitution, even though he informed the couples that, realistically, their suit had little chance of success.…

In May 1991, after the Department of Health denied their requests, the couples filed suit, presenting two straightforward claims under the Hawai‘i Constitution. First, they argued that denying same-sex couples access to marriage licenses violated the plaintiffs’ right to privacy as guaranteed by article I, section 6 of the Hawai‘i Constitution.… The plaintiffs argued that the concept of privacy requires that the State respect the interests of all individuals to have intimate, committed relations with people of their choice. 

Second, the plaintiffs argued that the State denied them the equal protection of the law as protected by the Hawai‘i Constitution.…

[p. 710] The State asserted that marriage was about procreation, but eight years earlier, the Hawai‘i Legislature eliminated the requirement that marriage applicants demonstrate that they were capable of reproduction. The State asserted that denying same-sex marriage was necessary to protect children and promote heterosexual parenting, but this assertion was found to be meritless when the case eventually went to trial.…

In one sense, the circuit court’s decision was a gift to the plaintiffs. In an effort to explain his reasons, Judge Klein offered contestable factual assertions that made judgment on the pleadings inappropriate and invited reversal. 

The plaintiffs were also blessed by serendipitous changes in the Hawai‘i Supreme Court’s membership. Between the case filing in May 1991 and the Supreme Court’s opinion in May 1993, “there was a marked [p. 711] generational shift in the court’s composition.” Governor John Waihe‘e appointed Steven H. Levinson to the Hawai‘i Supreme Court in 1992, and Ronald T.Y. Moon was elevated to Chief Justice in 1993.…

On May 5, 1993, the Hawai‘i Supreme Court issued its decision holding that excluding same-sex couples from marriage was presumptively invalid under the Hawai‘i Constitution because it discriminated on the basis of sex. The law could only be upheld if the State demonstrated that it “further[ed] compelling state interests and [was] narrowly drawn to avoid unnecessary abridgments of [p. 712] constitutional rights.”… This was the first time that any court, let alone the highest court of a state, held that a state must justify its reasons for denying marriage to same-sex couples. It was a watershed case. 

As a preliminary matter, Justice Levinson framed the issue as one of same- sex marriage rather than homosexual marriage. “‘Homosexual’ and ‘same-sex’ marriages are not synonymous.” Homosexual and heterosexual describe sexual attractions or behaviors. “Parties to ‘a union between a man and a woman’ may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals.” This framing is accurate. Marriage licensing authorities do not ask applicants about sexual attraction or behavior, and state laws do not require or authorize them to do so. This framing led the plurality to see the claim as one of discrimination on the basis of gender, rather than discrimination against homosexual people. 

[p. 713] Once Justice Levinson defined the dispute as one of gender discrimination, the resolution was relatively easy. The Hawai‘i Constitution creates a strong presumption against the validity of laws that discriminate on the basis of sex:

…sex-based classifications are subject, as a per se matter, to some form of “heightened” scrutiny…

Accordingly, the Baehr plurality held that the marriage statute created a sex- based classification and was “presumed to be unconstitutional” unless the defendant could show “that (a) the statute’s sex-based classification is justified [p. 714] by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples’ constitutional rights.”…

In May 1993, the Hawai‘i Supreme Court remanded Baehr v. Lewin to the trial court to give the State the opportunity to demonstrate its reasons for denying marriage licenses to same-sex couples. The State delayed the trial until the fall of 1996. It sought to demonstrate that same-sex couples were inferior parents, while the plaintiffs presented experts who testified as to the growing evidence that virtually no differences existed in development, self- esteem, and gender role behavior between the children of LGBT parents and those of heterosexual parents. On cross-examination, the State’s experts conceded that gay parents performed in a fully satisfactory manner. At trial on December 3, 1996, Judge Kevin Chang found that same-sex couples are just as qualified to be parents as heterosexual couples and that, far from harming children, recognizing same-sex marriage would help children of LGBT couples by offering them the legal benefits of two parents who are married to each [p. 717] other.… Opponents of same-sex marriage criticized the State for focusing on child rearing, urging the State to defend its marriage statute by demonstrating that same-sex marriage destabilized traditional heterosexual marriage. 

[Footnote 90, p. 716] Three clergy members of the Church of Jesus Christ of Latter-Day Saints and the church itself sought to intervene, arguing that if same-sex marriage were legal, they, as people authorized to solemnize marriages under Hawai‘i law, would be required to do so in violation of their religious beliefs. Id. The trial court denied the motion to intervene and the Hawai‘i Supreme Court affirmed. Id. Both courts allowed the trial to be delayed while the proposed interveners’ appealed. Id.; Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996). 

During the years between the Hawai‘i Supreme Court’s decision in 1993 and the trial court’s finding in 1996 that no rational, much less compelling, reason supported excluding same-sex couples from marriage, the issue of same-sex marriage was debated politically in Hawai‘i.… Opponents of same-sex marriage grew in political strength, particularly through an organization called Hawai‘i’s Future Today, which had the backing of the Catholic and Mormon churches, as well as support from conservative groups from the Mainland.…

At the same time, the Legislature approved a constitutional amendment that, if accepted by voters in November 1998, would give the Legislature the authority to limit marriage to one man and [p. 718] one woman. On November 3, 1998, Hawai‘i voters adopted the marriage amendment by a margin of sixty-nine percent to twenty-nine percent.…

Marriage equality was not seriously debated in Hawai‘i from 1998 until 2009.…” (Michael D. Sant’Ambrogio and Sylvia A. Law, “Baehr v. Lewin and the Long Road to Marriage Equality,” University of Hawaii Law Review 33:705-53, 2011)

3057:

“[p. 786] During the first trial in Hawaii in 1996, the state promised to present evidence demonstrating how banning same-sex marriage was necessary to ensure responsible procreation, but the state effectively abandoned any effort to support this argument at trial.…

[805] In 1993, the Supreme Court of Hawaii ruled that the denial of marriage to same- sex couples was a sex-based classification that would be unconstitutional unless the state could show that its denial furthered a compelling state interest and was narrowly drawn to avoid unnecessary abridgements of constitutional rights.…

[809] When the Hawaii trial finally began in September 1996, the political controversy had been raging for more than five years since the lawsuit was filed, and more than three years had passed since the Supreme Court of Hawaii had remanded the case to the trial court to allow the state an opportunity to demonstrate that the ban was narrowly drawn to further compelling state interests.…

For their defense of the same-sex-marriage ban, state officials initially proclaimed they would prove that the ban served the interest of ‘fostering procreation within a marital setting,’ among other interests. Just before the trial commenced, the state apparently modified this strategy, shifting focus to the argument that the state [810] has a compelling interest in promoting the optimal development of children, each of whom would be served best by being ‘raised in a single home by its parents, or at least by a married male and female.’ The state effectively abandoned any effort to support the procreative defense of the ban. 

Proceeding instead with its optimal-child-development defense, the state presented four expert witnesses at trial. Two of the state’s experts conceded that same-sex couples are able to raise children who are healthy and well adjusted, and a third proffered no opinion on whether children raised by same-sex couples could be healthy and well adjusted.… In short, none of Hawaii’s experts offered credible support for the assertions that sexual orientation is an indicator of parental fitness and that children raised by same-sex couples are less healthy or less well adjusted. One of the state’s experts testified, to the contrary, that gay and lesbian parents are ‘doing a good job’ and ‘the kids are turning out just fine.’ 

Against these key concessions by the state’s experts, the challengers to Hawaii’s denial of same-sex marriage presented testimony from four expert witnesses. These experts testified that sexual orientation is not an indicator of parental fitness and that same-sex couples are as fit and loving as married couples are and that their children are as healthy and well adjusted as children of [811] married couples are.…

Based on the paucity of support from the state’s experts and the persuasive testimony from the challenger’s experts, the trial court subsequently found that the state had ‘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.’…

Although the Hawaii trial court made detailed findings that rejected the state’s limited defense, the state courts did not have the final word. The now-familiar template of political backlash was set when a supermajority of state voters amended the Hawaii Constitution to grant authority to the state legislature to regulate marriage, which authorized recognition of ‘reciprocal beneficiaries’ but denied same-sex marriage.

[812] The substantive rulings of the Hawaii trial court proved to be not anomalous, however, as they were soon replicated by the Vermont Supreme Court in 1999. While Vermont’s high court conceded that the state has a legitimate interest ‘in promoting a permanent commitment between couples for the security of their children,’ it squarely rejected the procreation justification for the same-sex- marriage ban. The court held that Vermont extended the benefits of marriage to many opposite-sex couples ‘with no logical connection to the stated governmental goal’ because they do not procreate, and it also held that there was an ‘extreme logical disjunction’ between the state’s exclusion of same-sex couples and the state’s purpose of providing security for children because same- sex couples who are raising children ‘are no differently situated with respect to this goal than their opposite-sex counterparts.’” (Julie A. Nice, ‘The Descent of Responsible Procreation: A Genealogy of an Ideology,’ Loyola of Los Angeles Law Review, Vol. 45, 2012)

4091:

“To: All Bishops

(To be read in Priesthood and Relief Society)…

Members are encouraged to study this legislation prayerfully and then as private citizens contact your elected representatives in the Hawaii Legislature to express your views about the legislation. As you do so, you may want to review ‘The Family: A Proclamantion to the World’ and other Church publications available on the Church website at lds.org.…

Whether or not you favor the proposed change, we hope that you will urge your elected representatives to include in any such legislation a strong exemption for people and organizations of faith. Such an exemption should:…

Protect individuals and small businesses from being required to assist in promoting or celebrating same-sex marriages.

This is an important issue.  As your stake presidency, we urge every family to discuss this issue together and then respond as you feel appropriate.…” (Michael K. Matsuraki, Brook K Parker, Matthew A. J. K. Lung, Honolulu Hawaii West Stake Presidency, September 15, 2013)

3986:

“In a letter dated September 15, 2013, Church of Jesus Christ of Latter-day Saints members of the Honolulu West Stake in Hawaii were asked to study pending marriage equality legislation ‘prayerfully’ and with thought to ‘The Family:  A Proclamation to the World,’ a document delivered to Mormons by late LDS President Gordon Hinckley in 1995, which forms part of the basis of LDS opposition to marriage equality. In the letter, read at church services and relief society meetings, the leaders ask members to contact their legislators to express their views about the legislation. The letter also instructs church members to review other publications at lds.org, and asks them to ‘consider donating your time or resources to one of the community organizations addressing this issue.’

The letter, signed by three members of the stake presidency, also asks members ‘whether or not [they] favor the proposed change’ to urge their legislators to include in any new law a ‘strong exemption for people and organizations of faith.’  They request that the exemption should include language that would protect religious organizations and officials from being required to support or perform same-sex marriages, or being forced to host them in their buildings and that would protect small businesses from being forced to assist in promoting or celebrating same-sex marriages.

The letter bears striking resemblance to the organization’s involvement in California’s Proposition 8 debate, where church leaders asked for 30 members from each California congregation to donate 4 hours per week to the campaign.  The Los Angeles Times estimates that Mormons accounted for roughly 43% ($8.4 million) of the money spent in the Prop 8 campaign.

Calls to the LDS public relations department for comment were not returned prior to press time.” (“LDS leadership instructs members to ‘study’ Hawaiian marriage equality legislation,” Q Salt Lake, September 17, 2013)

2174:

“After keeping quiet while Maine, Maryland, Minnesota and others approved gay marriage, the LDS Church is once again speaking up — but with a new, post-Prop 8 tone and emphasis.

This time, it’s in Hawaii, which is poised to debate proposed legislation making same-sex marriage legal.…

The letter did not tell members which side of the issue to take, only to study the church’s ‘The Family: A Proclamation to the World,’ a document that endorses one man/one woman as the ideal for marriage.…

Ruth Todd, spokeswoman for The Church of Jesus Christ of Latter-day Saints, said LDS officials at the faith’s Salt Lake City headquarters ‘are aware of the letter recently read in local Relief Society and Priesthood meetings in Hawaii.’…

‘The Church’s positions on these issues are well established,’ she wrote in an email, ‘including our encouragement for members to be good citizens and to be involved in their communities. As the stake presidents’ letter says, members in Hawaii have been asked to study these issues and to consider becoming involved as private citizens.’

Owen Matsunaga, one of those stake presidents over a number of Mormon congregations and the church’s spokesman in Hawaii, affirmed that stance, saying that ‘senior church leaders … are certainly aware of the issues in Hawaii and elsewhere in the world, and are available to us to provide expertise as needed, but expect local leaders and members to make decisions specific to local circumstances.’…

This new approach in Hawaii is ‘significant,’ said Quin Monson, a political scientist at LDS Church-owned Brigham Young University. ‘It doesn’t seem to be asking for direct involvement in the direction of the legislation, but asking people to defend religious liberty.’

It echoes sentiments unveiled on the LDS Church’s website last week, including the belief that ‘essential freedoms of conscience, embedded in religious liberty, must be diligently preserved and protected.’

The letter’s language seems to ‘signal a kind of resignation that there’s a shift in society that we can’t stop,’ Monson said, ‘but we can ask for exceptions.’

It’s far different from the tenor and tactics the Utah-based faith unleashed in 2008 to help pass California’s Proposition 8, which limited marriage to a man and a woman.…” (Peggy Fletcher Stack, “Mormons join Hawaii’s gay-marriage fight, but with a new approach,” Salt Lake Tribune, September 19, 2013)

4099:

“With the Hawaii Legislature poised to usher in the legalization of same-sex marriage, the Church of Jesus Christ of Latter-day Saints appears to be shifting its approach from offense to defense.…

‘Whether or not you favor the proposed change, we hope that you will urge your elected representatives to include in any such legislation a strong exemption for people and organizations of faith,’ says the letter, dated Sept. 15.

That includes protecting ‘individuals and small businesses from being required to assist in promoting or celebrating same-sex marriages,’ the letter says.…

The heavily Democratic state House and Senate are expected to approve the legislation, which does include an exemption for clergy whose churches do not wish to perform them. Supporters of the same-sex marriage bill say the state constitution also protects the rights of religious institutions.

‘The proposed law to allow marriage for same-sex couples very clearly protects the rights of Hawaii’s clergy: It says, unequivocally, that no clergy member will be required to preside over any wedding against her or his will, and that no clergy member can be sued, fined, or otherwise punished for refusing to officiate at any wedding,’ Vanessa Chong, executive director of the American Civil Liberties Union of Hawaii, said in a statement.…

James Hochberg, head of Hawaii Family Advocates, called even the clergy exemption ‘absolutely meaningless.’ He predicted that it would be challenged quickly in court by gay-rights advocates who argue that churches are public accommodations and thus cannot discriminate against gays, blacks or other protected groups any more than hoteliers and restaurant owners can.…

Opposing the ballot option are gay-marriage advocates at Hawaii United for Marriage, a coalition that includes lawmakers, businesses and religious leaders from, among others, the Unitarian and Methodist churches.

‘We definitely do not believe this should go before the voters,’ said Donald Bentz, spokesman for Equality Hawaii. ‘The rights of the minority should never go before the majority for approval. As we’ve seen over and over again, it’s something that tears communities apart.’

In 1998, Hawaiian voters passed a constitutional amendment that gave the state Legislature authority to ‘reserve marriage to opposite-sex couples,’ after which Hawaii became the second state to explicitly refuse to recognize same-sex unions as marriages.” (Valerie Richardson, “Mormons try a more muted strategy against gay marriage second time around in Hawaii,” Washington Times, October 6, 2013)

4102:

“With a special session of the state Legislature two weeks away, local leaders of the Roman Catholic Church, the faith-based Hawaii Family Forum and Hawaii Family Advocates, and The Church of Jesus Christ of Latter-day Saints have independently coalesced around the position that lawmakers should not pass proposed legislation to legalize gay marriage.…

A letter read Sunday by local LDS Church leaders to adult members strongly opposed the bill, but didn’t directly mention the option of amending the state constitution. It did encourage church members to educate themselves on the issue, call their lawmakers and ‘join your voices with others in organizations who share your views.’…

Voters responded by amending the state constitution in 1998 giving the Legislature authority to reserve marriage for opposite-sex couples. Lawmakers passed a civil unions law for gay couples in 2011. A bill legalizing same-sex marriage was introduced in early 2013 but went nowhere.…

On Sunday, local LDS Church leaders read a letter to the adult men and women organizations of local congregations stressing the church’s position against same-sex marriage and the bill:

‘There are two reasons for our opposition: First, it attempts to redefine marriage. The church is firm in its belief that marriage as the union of a man and a woman is essential to the well-being of children, families, and society. Second, the protections offered in the current draft are completely inadequate to safeguard constitutionally guaranteed religious freedoms. Traditional marriage and religious liberty are among the most cherished and historically vital elements of society, and both deserve careful protection.’

The letter signed by local stake leadership expressed respect for those ‘who choose to live by other values,’ and urges church members to ‘educate yourselves on these matters and to let your voice be heard through the democratic process. We encourage you to call, write and visit your elected representatives to let them know where you stand. Join your voices with others in organizations who share your views.’

Second statement

The letter was the second the LDS Church has presented to members about the bill and upcoming special session. A letter read by local leaders on Sept. 14 advised members to study the church’s 1995 Proclamation on the Family, which speaks out against gay marriage, and call their legislators to express their views.…

The earlier letter didn’t sit right with some of the leading opponents of gay marriage who saw it as emphasizing an exemption instead of opposing the bill.…

Mililani Stake President Owen Matsunaga, a local Mormon leader involved in the campaign against the current bill, said in an email Sunday there was some confusion in the local press about the church’s position and that the new leter is ‘a reaffirmation of our position in relation to same-sex marriage and religious liberty issues.’…” (Matthew Brown, “Hawaii’s largest faiths oppose same-sex marriage bill,” Deseret News, October 15, 2013)

4105:

“Reports that the Mormon church had given up the fight over gay marriage were premature. Earlier this year, Mother Jones and other news outlets noted the Church of Jesus Christ of Latter-Day Saints was making a concerted effort to mend its tortured relationship with gay members and their families and to stay out of divisive political fights over gay marriage. The church sat out virtually every state ballot measure on the issue in 2012, helping assure that marriage equality bills passed in Maine, Maryland, Minnesota, and elsewhere. It launched a website, mormonsandgays.org, to urge better treatment of LGBT members. Mormons even marched in pride parades in Salt Lake City.

Now that the 2012 election is over, and Mitt Romney, the nation’s most famous Mormon, is no longer running for president, it seems the church is back in the ring. This week, the Hawaii state legislature began a special session to consider a bill that would legalize gay marriage in the state. The church is actively working to kill that measure.

One Sunday in September, local Mormon bishops read a letter from top Hawaii Mormon leadership instructing churchgoers to contact public officials about the same-sex marriage bill.

The letter was not the full-throated call to action the church issued during the fight over California’s anti-gay marriage measure, Proposition 8, when church leaders read letters directing members to ‘do all you can to support the proposed constitutional amendment by donating of your means and time.’ The September Hawaii letter was far subtler, and even acknowledged that some Mormons might actually be in favor of the marriage bill. Nonetheless, it urged members to ‘review’ the church’s ‘proclamation to the world,’ a 1995 speech given by church president Gordon Hinckley that spelled out the church’s belief that marriage can only be between a man and woman. This latest letter also recommended members donate time and resources to groups working on the bill, though it didn’t say on which side they should be working.…

The church also suggested that regardless of how members felt about the marriage bill, they should advocate for an exemption that would protect religious organizations from having to perform same-sex marriages and to allow individuals and small businesses to refuse to cater to such marriages (a nod to the famous cases of photographers and bakeries that have refused to serve customers celebrating a same-sex wedding in states where it’s now legal). The language the Mormon church favors mirrors the religious freedom argument the Catholic Church has adopted in its fights over everything from contraceptive coverage to gay marriage.

But Salt Lake City’s focus-grouped language didn’t sit well with Hawaii church leaders, who wanted a more forceful message. On October 13, Hawaii church leaders read another letter to their flocks, this time stating flatly that the church’s position on same-sex marriage had not changed and that the church ‘is opposed to the proposed legislation in Hawaii.’ The state church’s letter argues that traditional marriage is ‘fundamental to successful families and a strong society,’ and directs members to actively oppose the legislation.

Cynics have suggested that the Hawaii campaign is evidence that the church was only temporarily backing away from the marriage fight to help Romney.…

Officials in Salt Lake City would not answer questions about why the church didn’t get involved in state marriage battles last year but are doing so now that the presidential election is over. A spokeswoman suggested asking a ‘political science’ professor about that issue and forwarded the following statement from Owen Matsunaga, a local church leader in Hawaii:

The Church’s position in relation to same-sex marriage is unchanged. The Church is opposed to the proposed legislation in Hawaii for two reasons: first, it attempts to redefine marriage.  The Church is firm in its belief that marriage as the union of a man and a woman is most beneficial to children, families, and society. Second, the protections offered in the current draft are completely inadequate to safeguard constitutionally guaranteed religious freedoms.…”

(Stephanie Mencimer, “Election Over, the Mormon Church Quietly Re-enters the Gay Marriage Fight,” Mother Jones, October 29, 2013)

4106:

“While the Mormon Church has been busy working to regain favorability and shift activist and media attention away from themselves on LGBTQ issues—particularly during the presidential campaign of prominent Mormon Mitt Romney in 2012—it has become increasingly apparent that its ideological agenda has never truly deviated and is moving ahead full steam.…” (Eric Ethington, “Mormon Church Pushing For Second Prop 8 in Hawaii,” www.politicalresearch.org, October 29, 2013)

4110:

“It is true that the letters read in Hawaii wards were signed by local leaders, and don’t give any indication that anything is being orchestrated from Salt Lake. This is, of course, in stark contrast to what happened in California, where the letters read were signed by the First Presidency, not by local stake leaders.…

I have not heard anything on the grapevine about any Church leaders actually organizing more concerted lobbying efforts. It looks like everything boils down to reading this strong statement against marriage equality and encouraging members to get involved in these letters, read once over every LDS pulpit in Hawaii.…” (John Gustav-Wrathall to Sharon Groves, Human Rights Campaign, October 28, 2013)

4110:

“When, as most everyone expects, Gov. Neil Abercrombie signs into law same-sex marriage here in the coming days, it may almost seem like a routine event. Hawaii is poised to be among 16 states to approve gay marriage, along with Illinois and shortly after Minnesota, New Jersey and Rhode Island.

But the step in Hawaii has special resonance because the contemporary battle over same-sex marriage was born here two decades ago. Such marriages existed nowhere when Ninia Baehr and Genora Dancel, along with two other couples, filed what seemed like an utterly quixotic lawsuit seeking a marriage license. To near universal shock, Hawaii’s Supreme Court granted them a victory in 1993, ruling that a refusal to allow gay and lesbian couples to marry was discriminatory and illegal.

It was the first judicial expression of an idea that soon caught fire across the country and the world.

The ruling prompted a national backlash, with Congress barring federal recognition of same-sex marriage and dozens of states amending their constitutions to define marriage as between a man and a woman, and it was even overruled by Hawaii’s voters. But it also opened a huge new front for the gay rights movement, laying the groundwork for scores of legal and political battles ever since.…

‘The case in Hawaii launched the global movement for the right to marry,’ said Evan Wolfson, president of Freedom to Marry, based in New York, and a longtime strategist on the issue who became co-counsel with Mr. Foley in the follow-up litigation.…

As it endorsed the bill, the House Judiciary Committee warned in July 1996 of ‘an orchestrated legal assault’ on traditional marriage emanating from Hawaii.

‘Just as it appears that judges in Hawaii are prepared to foist the newly coined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,’ the committee declared, other states could ‘be forced to follow suit.’…

The shift here within the Democratic Legislature since the 1990s has followed a sea change in public opinion. But resistance from religious conservatives remains strong.

Bishop Larry Silva of the Roman Catholic Diocese of Honolulu warned in a letter to parishioners that allowing same-sex marriage would open the door to incest and polygamy and cause poverty and juvenile suicides.…

Both sides claimed to represent the true ‘aloha spirit.’ Some ethnic Hawaiians tearfully said the bill would destroy their culture, and the opponents’ television and radio ads described as endangered the Hawaiian heritage of ‘ohana,’ or family, of ‘mothers and fathers caring for each other and their keiki,’ or children.

But ethnic historians noted that the pre-European island culture did not have marriage in the modern sense and accepted homosexuality.…” (Eric Eckholm, “Gay Marriage Battle Nears End in Hawaii, the First Front Line,” New York Times, November 8, 2013)

4441:

[xi] “A ruling by the Hawaii supreme court in 1993 that strongly implied that same-sex couples had a right to marry unleashed a powerful political backlash across the country.  Within a decade, more than thirty-five states and Congress passed laws to ‘defend’ traditional marriage.  (Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))

4441:

[48] “In 1989, Tom Stoddard, Executive Director of Lambda Legal, stated, ‘As far as I can tell, no gay organization of any size, local or national, has yet declared the right to marry as one of its goals.’ Most gay activist evinced little interest in pursuing a right to marry. Polls showed much greater concern among gays and lesbians for securing equal rights in employment, housing, and health care.…

[49] Many gay activists at the time wanted nothing to do with marriage. Some lesbian feminists noted that marriage had long been ‘the focus of radical-feminist revulsion’ because it was part of ‘a patriarchal system that looks to ownership, property, and dominance of men over women as its basis.’…

These gays did not want the right to be treated the same as straights; they were different and wanted to be treated as such. They also worried that enabling gays to marry would inevitably stigmatize those who chose not to do so.…

As a practical matter, marriage would confer significant legal benefits— joint tax filing status, Social Security survivors’ benefits, and spousal immunity in court testimony, to name just a few. Many of these benefits could not be duplicated outside of marriage.

More important, pro-marriage activists argued that because marriage was the centerpiece of society’s social structure, no other political issue more ‘fully tests the dedication of people who are not gay to full equality for gay people.’ Same-sex relationships would ‘continue to be accorded a subsidiary status until the day that gay couples have exactly the same rights as their heterosexual counterparts.…

The AIDS epidemic had highlighted how vulnerable gay and lesbian partnerships were. By 1988, 46,000 people had died of AIDS, two thirds of them gay men. The median age of the deceased was 36, not typically an age at which most people are focused on end-of-life planning. Yet now an entire generation of gays had to contemplate hospital visitation, surrogate medical decision making, and estate planning.…

[51] An earlier generation of gays and lesbians, in denial of their homosexuality, had entered opposite sex marriages and had children. Upon divorce, they frequently had trouble maintaining custody or even securing visitation rights, particularly if they were now open about their homosexuality.

By the early 1980s, with the advent of reproductive technology, a younger generation of lesbians were creating their own baby boom.…

By the early 1990s, opinion polls showed growing public support for the right of gays and lesbians to adopt children. In turn, once same-sex couples were permitted to adopt children, explaining why those couples should not be permitted to marry became much harder.…

[52] Moreover, as traditional gender norms in society have evolved and more women have assumed jobs outside the home, marriage has become less about the gender roles of husbands and wives and more about equal partnerships. For patriarchal religious fundamentalists, one reason that same-sex marriage has proved so threatening is that it further destabilizes traditional gender roles. By contrast, those who hold more progressive gender views have found gay marriage easier to accept.”

(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))

1168:

“In 2005, M. Russell Nelson’s office was calling all sorts of ‘gay’ material from the stacks in the archives. A lot of stuff like old Advocate magazines they have archived that mentioned Mormons or BYU speeches which focused on the issue.  It was fast and a flurry of material in 2005. I only mention that cause I would assume the SGM committee was still in full swing or other higher GAs were working on this issue by tinkering with establishing a SSM opposition front group.…” (Joe Jay to GAP, August 16, 2014)

2655:

“‘I [Nikki Boyer] was one of the people saying, ‘Shut up! This is not the issue to push for. Start with anti-discrimination laws,’‘ she says.

But things changed. Her partner of more than 20 years, Ann Hart, died three years ago. A medical examiner would not release Hart’s body to Boyer for a funeral ‘because I wasn’t family.’ Hart’s mother, in her 90s, had to sign a waiver from her nursing home to give Boyer custody. Meanwhile, marriage was happening in other states. It was real. The institution, so long a pie in the sky, was changing attitudes.…” (Erin Alberty, “Longtime Utah LGBT advocates recount brutal history,” Salt Lake Tribune, October 8, 2014)

2863:

“Our trip in time will help us to understand the context for the creation of the LDS Proclamation on the Family. While there were other places dealing with same-sex marriage and gay rights at the time, notably Colorado and Alaska, Hawaii’s issues were pivotal. Perhaps our historical insights will make a difference in how we view the document.

After September’s arguments in Baehr v. Lewin, it is only a couple of weeks before the ruling is issued. In early October 1991, Hawaii’s Regional Representative Donald L. Hallstrom picks up a newspaper to read that the first same-sex marriage case in the state has been decided. The verdict: Case dismissed for, among other things, failing to state a relievable claim, and the couples appeal to the state’s supreme court. If Hawaii’s highest court takes the case, same-sex marriage could come to Hawaii. Hallstrom makes sure his priesthood leaders are aware of the situation.

Despite the flurry of activity surrounding October’s General Conference and the illness of President Benson, within weeks the First Presidency still comes up with a letter addressing homosexuality. On November 14, 1991, their letter titled ‘Standards of Morality and Fidelity‘ reads in part:

We call upon members to renew their commitment to live the Lord’s standard of moral conduct. Parents should teach their children the sacred nature of procreative powers and instill in them a desire to be chaste in thought and deed. A correct understanding of the divinely appointed roles of men and women will fortify all against sinful practices. Our only real safety, physically and spiritually, lies in keeping the Lord’s commandments.

The Lord’s law of moral conduct is abstinence outside of lawful marriage and fidelity within marriage. Sexual relations are proper only between husband and wife appropriately expressed within the bonds of marriage. Any other sexual contact, including fornication, adultery, and homosexual and lesbian behavior, is sinful. Those who persist in such practices or who influence others to do so are subject to Church discipline.

Justices heard the case in October 1992, and the appellate ruling came down on May 1993: If the government planned to prevent same-sex marriages, it needed a compelling reason to do so. Otherwise, limiting who one may marry is sex-based discrimination, which is unconstitutional in Hawaii. The high court sent the case back to the trial court for review using the higher court’s guidelines, which gave the legislature time to take action during its next session in January 1994.

Legislatively, Mormons and Catholics worked to influence the outcome of bills aimed at keeping marriage between a man and a woman by providing expert testimony, hiring lobbyists and reviewing legislation, and generally working behind the scenes and out of spotlights.

Publicly, the First Presidency issued another letter dated February 1, 1994, presaging the language that would be found in the Proclamation on the Family. An excerpt from this letter appeared in the Church Handbook of Instructions beginning in 1998 and remained there until its 2010 revision:

… We encourage members to appeal to legislators, judges, and other government officials to preserve the purposes and sanctity of marriage between a man and a woman, and to reject all efforts to give legal authorization or other official approval or support to marriages between persons of the same gender.

… Over on the Mainland, an ailing President Howard W. Hunter died. He’d served as LDS president from the time Benson died in May 1994 until March 3rd, 1995. On March 12, 1995, Gordon B. Hinckley became the president of the Church. It was still less than one month after the announcement that the Church would be intervening in the Baehr case, but before the petition to intervene was denied. Priesthood leaders were hearing reports from Hawaii about the progress of same-sex marriage cases and Area President Loren C. Dunn prepared to fly out to Hawaii and begin gathering a coalition together in the Fall.

Two weeks before the October 1995 General Conference, President Hinckley met with the General Relief Society presidency to discuss their plans for their general meeting that would be held the last Saturday in September. At that time, he informed President Elaine Jack and her counselors Aileen Clyde and Chieko Okazaki that he had a Proclamation on the Family that he was going to introduce at conference and that during the course of their meeting, he had decided that he would like to make it public during the Relief Society meeting. He also asked the General Relief Society presidency to adjust the focus of their remarks so that they would address the idea of ‘traditional families’ rather than the diversity curriculum they had previously prepared.…

Back in Hawaii, legal work surrounding the Baehr case continued. This time, it was Baehr v. Miike and over the summer both the LDS Church and its political organization Hawaii’s Future Today filed amicus briefs for the lower court to consider. The lower court heard the case on September 10, 1996 and issued its ruling on December 3, 1996, finding that same-sex couples were entitled to receive marriage licenses.

The case was again appealed to Hawaii’s Supreme Court and this time, on April 14, 1997, the LDS Church filed an amicus brief. In this brief, the Church cited the Proclamation on the Family as evidence of the centrality of tradition marriage in Mormon doctrine and practice for the first time. One of the requirements for filing an amicus curiae, or ‘friend of the court’ brief is that the petitioner submitting the brief must present to the court valid reasons why the court should allow the petitioner, who is not a party to the case, to be heard on the matter. Conveniently, the Proclamation ties all of the major family-related policies and teachings together in one place, making it easy to include as an exhibit in a legal brief. Two decades later, it has become quasi-scriptural for many Mormons, further confirming the notion that, as it proclaims, ‘the family is central’ not only to ‘the Creator’s plans’ but also to Mormon religious beliefs and practices as well.

In 1998, Hawaii’s legislature passed a constitutional amendment exempting same-sex marriage from sexual discrimination and noting that marriage in Hawaii would be between one man and one woman. LDS and Catholic lobbyists and political groups, working together under the banner Save Traditional Marriage ’98 (which grew out of the group, Hawaii’s Future Today, organized in late 1995) were influential in getting both the legal language and the grass-roots support for the amendment. When the Baehr appeal was finally heard again in 1999, same-sex marriage was found unconstitutional in Hawaii, and it remained so until December 2013.” (Laura Compton, “From Amici to ‘Ohana: The Hawaiian Roots of the Family Proclamation,” RationalFaiths.com, May 15, 2015)

2828:

“Hawaii: Early steps

After a nine-hour first date and a fairly short courtship, Genora Dancel produced a ring and asked Ninia Baehr to marry her. Baehr said yes, although neither of the women could envision precisely what that might mean.

It was 1990, and there was not a place on Earth where two people of the same sex could legally marry.…

Dancel and Baehr did not set out to make Hawaii a place where a gay couple could wed. But a local activist named Bill Woods, an abrasive fellow who alternated between irritating the straight establishment and irritating the gay establishment, was putting together a lawsuit and looking for plaintiffs.…

And there were reasons to think Hawaii would be more receptive to a suit than elsewhere: The state’s constitution forbade sex discrimination and specified a right to privacy. Foley and a student volunteer scoured the state’s laws and found hundreds of rights and benefits that accompanied marriage in Hawaii and thus were withheld from his clients.

He even noted a favorable history: Traditional Hawaiian culture recognized homosexual relationships, and for a time, King Kamehameha III had made his lover, called an aikane, his co-ruler.…

The justices ruled that Hawaii’s denial of marriage to gay couples violated the state’s ban on sex discrimination and sent the case back to a lower court to determine whether the state had a legitimate reason for its restrictions.

‘Hawaii really launched this ongoing global movement,’ said Evan Wolfson, who has been a pioneer in the legal strategy to secure gay couples’ right to marry. ‘Hawaii was the first time the country took it seriously, the first time a court took it seriously.’

The negative reaction was immediate. Within five years, 30 states had passed laws banning same-sex marriage or recognition of marriages performed elsewhere. Congress passed the Defense of Marriage Act, which for the first time declared that the federal government would recognize marriages only between a man and a woman.…

Hawaii’s legislature would eventually return to the issue and approve same-sex marriage in 2013. The state now beckons the marriage-seeking gay tourists it once feared it would attract.…” (Robert Barnes, “Decades of battles converged for momentous decision: From Hawaii to White House, gays’ right to marry seemed far from inevitable,” Washington Post, June 27, 2015)

1421:

“Constitutional Amendment 2 of 1998 amended the Constitution of Hawaii, granting the state legislature the power to prevent same-sex marriage from being conducted or recognized in Hawaii. Amendment 2 was the first constitutional amendment adopted in the United States that specifically targeted same-sex partnerships.…

Amendment 2 differed from amendments that followed in other states in that it did not write a ban on same-sex marriage into the state’s constitution; rather, it allowed the state legislature to enact such a ban. On November 3, 1998, Hawaii voters approved the amendment by a vote of 69.2–28.6%, and the state legislature exercised its power to ban same-sex marriage.

The language added by the amendment reads:

The legislature shall have the power to reserve marriage to opposite-sex couples.”

(“Hawaii Constitutional Amendment 2,” Wikipedia, accessed 2/25/2016)

1115:

Press releases prepared by the LDS Church in advance of a circuit court decision in Baehr v. Lewin:

“(If We Win)

We commend the Hawaii Circuit Court for affirming the sanctity of marriage between a man and a woman. We pledge our continue efforts in strengthening and upholding this sacred union, which is ordained of God and which contributes to the strengthening of the family as the fundamental unit of society.

(If We Lose)

We are troubled by the Court’s decision. Scripture teaches that marriage between a man and a woman is ordained of God, and to alter that sacred union is to lay an axe to the root of civilization’s well being and disqualify society for the blessings, stability, and happiness promised by our Creator. This decision is most unfortunate especially at a time when America is experiencing so many severe consequences from failed families.

Fortunately, other states and the federal government have recently adopted legislation strengthening traditional marriages.”

(“Baehr Vs. Lewin,” undated memo in document collection from the Loren C. Dunn papers given to GAP by Joseph Jay.)

4441:

[47] “The president presented ‘don’t ask, don’t tell’ as a compromise that would end military witch hunts against gays, but it was, in fact, the thinly veiled defeat for Clinton, and gay activists regarded it as a betrayal.…

In the midst of the Clinton administration’s gays-in-the-military fiasco, the Hawaii Supreme Court issued a decision that seemed to portend the arrival of same-sex marriage.”

(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))

4441:

[55] “In December 1990, three gay couples in Hawaii apply for marriage licenses— thus commencing the modern epic of gay marriage in the United States.…

None of the major national gay rights organizations wanted these lawsuits filed.…

The Hawaii litigation began to attract attention after a loss in the trial court was appealed to the state supreme court. At that point, Evan Wolfson, a pioneer in the gay marriage movement, persuaded his colleagues at Lambda Legal to file an amicus brief— the first one that the organization had ever submitted in a marriage case.…

[56] In May 5, 1993, by a vote of 3 to 1 (with one seat on the court vacant), the Hawaii supreme court ruled in Baehr v. Lewin that a law restricting marriage to a man and a woman constitutes a sex classification— in the same way that a ban on interracial marriage constitutes a race classification. Under the Hawaii constitution’s equal rights amendment, the law was therefore subject to the most rigorous standard of judicial scrutiny. The court remanded the case to the trial court for a hearing on whether the state could demonstrate a compelling justification for the exclusion of same-sex couples from marriage. Most commentators predicted that when the case return to the supreme court, it would rule that Hawaii was constitutionally required to permit gay marriage.…

On gay rights specifically, Hawaii has also been one of the most liberal states.…

Yet even in such a liberal state, Gay marriage was ‘on the frontier’ in 1993. Opinion polls revealed that between two thirds and three quarters of Hawaiians opposed to gay marriage.…

The Catholic Church hierarchy was ‘shocked and dismayed’ by the ruling. The Mormon Church also expressed strong opposition.…

Money poured in— especially from the mainland— in an effort to reverse the decision.

[57] In the spring of 1994, the Hawaii legislature denounced the court’s usurpation of legislative authority and enacted a bill defining marriage as the union of a man and a woman. In response to the court’s requirement of a compelling justification for excluding same-sex couples from marriage, the legislature declared that only opposite-sex marriages promoted the state’s interest in fostering procreation. Even in liberal Hawaii, the bill passed the state Senate by an overwhelming margin of 21 to 4. Simultaneously, the legislature created the Commission on Sexual Orientation and the Law and instructed it to produce a report describing the benefits of marriage in determining whether sound public policy justified extending some of those benefits two same-sex couples through domestic partnerships.

The commission’s work was delayed by a federal lawsuit challenging its membership on Establishment Clause grounds: the legislature had appointed two Catholics and two Mormons to sit on the commission as representatives of their faiths. The trial in Baehr was postponed until the legislature could appoint a new commission without religious quotas for its membership.

The commission finally issued its report in December 1995. Over several dissents, the commission majority agreed with the state supreme court that excluding same-sex couples from marriage constituted sex discrimination without any compelling justification. It recommended either extending marriage to gay couples or creating a comprehensive regime of domestic partnerships. The trial in Baehr was then rescheduled for September 1996. The legislature declined to take further action until after the trial court’s decision.

The Hawaii supreme court’s decision in Baehr received prominent newspaper coverage across the nation. Gay-rights leaders, who were said to be ‘ecstatic,’ called the decision ‘a major breakthrough.’ Evan Wolfson of Lambda Legal predicted a ‘tidal wave out of Hawaii that will reach every corner of the country and affect every gay issue.’… An Associated Press article speculated that if the Hawaii court ruled in favor of gay marriage, it could ‘throw bombshells across America.’…

Most states recognized marriage is lawfully performed elsewhere, even if those marriages could not be validly performed under their own laws. For example, even a state not permitting marriages between first cousins will ordinarily recognize such marriages as valid if performed in a jurisdiction [58] that authorizes them. Only if a state legislature has expressly declared a certain category of marriages to be contrary to the state’s public policy would that states courts refuse to recognize them.

Within months of the Baehr decision in 1993, Utah amended its law to clarify that marriage was between a man and a woman. A poll showed that 68% of Utahns opposed gay marriage.

Two years later, Utah was the first state to enact a law mandating that its courts not recognize gay marriages lawfully performed elsewhere. That law was necessary, according to the legislature who introduced it, to prevent gay Utah couples from flying to Hawaii to get married once the courts there approved same-sex marriage.… The bill passed both houses of the Utah legislature by nearly unanimous votes.…”

(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))

4441:

[63] Meanwhile, back in Hawaii, where all the hubbub had begun, Democrats faced a dilemma. Firmly in control of the state legislature, they were torn between wishing to accommodate gay rights supporters, who voted overwhelmingly Democratic and with whom many Democratic lawmakers genuinely empathized, and avoiding voter backlash over gay marriage, which seven out of 10 Hawaiians opposed.

In 1996, the state Senate passed a domestic partnership bill, while the house endorsed a constitutional amendment to ban gay marriage, which would go on the ballot in 1998 if it passed the Senate. Neither proposal advanced, however, as the two bodies stalemated.

The trial in Baehr that had been ordered by the Hawaii Supreme Court took place over nine days in September 1996 in the courtroom of Judge Kevin Chang. It featured several expert witnesses for the state testifying the children fared better when raised by their biological parents and several experts for the plaintiffs arguing the opposite. After the trial concluded, Judge Chang took the case under advisement.…

[64] In December, Judge Chang ruled that the state had no compelling justification for excluding same-sex couples from marriage.…

[65] Chang stated his decision pending appeal. Yet, given the Hawaii Supreme Court’s earlier decision and is generally liberal reputation, most commentators predicted that it would eventually affirm the trial court. The appeal was expected to take 12 to 18 months to resolve. An opinion poll taken around this time showed that 74% of Hawaiians opposed to gay marriage.…

Members of the House, which during the previous year had passed a marriage amendment but no partnership bill, now proposed combining the two.… The partnership law would go into effect only if voters approved the constitutional amendment.…

In April 1977, after prolonged bargaining between the two houses, the legislature reached a compromise. It passed a constitutional amendment, to go on the ballot in November 1998, that would authorize, but not require, the legislature to limit marriage to opposite sex couples.…

Most legislators and commentators assumed that Hawaiians would approve the amendment… It was unclear whether the Hawaii Supreme Court would defer its ruling on same-sex marriage in the Baehr appeal until after voters had an opportunity to vote on the amendment.

Each side in the 1998 ballot campaign on gay marriage spent about $1.5 million, most of which came from the mainland. Mormons contributed a majority of the pro-amendment funding, though they sought to cloak their participation and urged Catholics to take the lead on the amendment instead. Catholic, [66] Mormon, and fundamentalist Protestant churches were the backbone of the Save Traditional Marriage ‘98 campaign.…

One opinion poll showed that Hawaiians opposed gay marriage by 72% 18% but supported amending the Constitution to ban by only 52% to 40%.

In November 1998, Hawaiians voted by 69% to 31% to authorize the legislature to limit marriage to unions of one man and one woman. By then, the Hawaii Supreme Court had sat on the Baehr appeal for nearly 2 years, the justices having apparently decided not to race against the referendum. A year after passage of the amendment, the court vacated the trial judge’s ruling and directed him to dismiss the lawsuit as moot in light of the change to the state constitution.…

By the time the Hawaii litigation had concluded, more than 30 states and Congress had enacted defense-of-marriage acts.”

(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))

INTERVIEWS

Prince: And Hawaii in 2013, where this time around it was legislation that was initiated within the state legislature rather than by a voter initiative or a court case.  It’s not clear to me yet whether that was a local initiative, or whether somebody in Salt Lake was quietly pulling the strings.  The correspondence went out over the signatures of stake presidencies.

Baker: Yes.  But even then, that was a new leaf for the Church.  The message that was sent out in that was, “We don’t care whether you support same-sex marriage or not.  We care that there is protection for religious entities.”  That was a new leaf for the Church.  That was a much more nuanced approach.  The ask in the Hawaii correspondence was not “Vote Against Same-Sex Marriage.”  It was not even whistle-toning that.  At least when I read it, it was very much, “Call your legislators and make sure that they are putting a religious protection clause in the bill.”

(David Baker, July 27, 2014)

Evans: I’ve told you this before, but I’ll say it again.  Where Fred Karger got it completely wrong was looking at one or more of those Loren Dunn memos that surfaced out of the History Department.  I can see why.  I could read it and come to the same conclusion, that we had a blueprint of engaging in all of these marriage battles, and we were going to go forward following it.  But there was never a blueprint, and we were very inconsistent in our following of it.  That’s why I think that the inspiration came around unintended consequences not to fight the marriage battle.  We never fought outside the U.S. where it was going on, and we only inconsistently fought it here.

(William Evans, November 17, 2014)

Prince: Go back to Hawaii.  What I am seeing so far is that it was not a broadly based, grassroots mobilization like Prop 8 turned out to be.

Evans: I think that’s true.

Prince: It was mostly through church lobbyists—

Evans: —and the media.

Prince: And funneling money into Hawaii’s Future Today.

Evans: Yes, but it was a public vote; it wasn’t the legislature.

Prince: Yes.  But you didn’t have the canvassing, you didn’t have the phone banks.

Evans: No, none.  That’s true.  Part of that might be that the opposition didn’t either, and therefore the response was measured to what was happening on the other side.

Prince: And as a public issue, it was not in favor at that time.

Evans: That’s right.  Good point.

(William Evans, November 17, 2014)

Gedicks: In the early 1990s—and I don’t remember precisely when—I got two calls.  I was doing a lot of work defending institutional religious freedom, which I backed away from in the last decade.  But anyway, back then I got a call from BYU’s general counsel, who remains a good friend and is one of the more reasonable people ever to sit in that chair.

Prince: Were you at the BYU law school at the time?

Gedicks: Yes.  I had been there just a few years.  I arrived in 1990.  I think the case might even have been pending.  My vague recollection is that I told them that I thought they were going to lose, that I thought it would be really show that there was a rational basis for restricting marriage to heterosexuals.  That’s all I remember at that point.

Prince: What was the legal case that they were looking at?

Gedicks: What happened in Hawaii was that the Hawaii Supreme Court in the early 1990s held that the Hawaii Constitution required same-sex marriage. Then, it was reversed by a constitutional amendment that the Church spearheaded.

Prince: That was Baehr v. Miike.

Gedicks: Yes.

Prince: So it was that case that they were asking for your opinion.

Gedicks: Yes.  Around that same period of time—I believe it as after the case—I got an inquiry from Marlin Jensen, asking me what I thought, long-term, about the issue.  I wrote a very short memo, a one-page memo, which I didn’t keep a copy of.  It exists in the bowels of the Church Office Building somewhere, but I doubt that anyone will ever see it.  I have to say, Greg, that memory is tricky.  I think I remember roughly what I said, but of course what I remember about what I said is obviously colored by my sense that I accurately predicted the future.  But with those disclaimers, I said something like I thought the Church would lose in the courts, which is what I had told Gene Bramhall earlier.  It was hard to articulate any palpable harm to individuals or to the Church from same-sex marriage.  My thought would be to focus on legislatures and to focus on exemptions—that is, not to try to block same-sex marriage wholesale, but to try and negotiate for broad exemptions that would give the Church elbow room to practice its beliefs without difficulty from the government.

(Fred Geddicks, September 11, 2014)

Jay: What all has Reed [Cowan] told you about myself?

Prince: He said that you worked in Church Archives, and that as you were filling the orders that were coming from the Red Chairs, that you were seeing documents that caught your interest.  That’s a benign way of saying it.

Jay: They were pulling very specific things that were not relevant to normal research.  They’d have me bring them copies of the Advocate, things like that; things that would specifically mention a person and that they were LDS.  It’s a gay publication.  Specifically, I remember it was Elder [Russell] Nelson’s office that had requested this copy of the Advocate from the early 80s or late 70s about this gay Mormon.  There was no reason for that specific material to be pulled.  You could find it on Google.  But they specifically were searching for any material in the archives that was gay related, gay based.  So I was getting the sense that they were doing something.

In the meantime, while I was in there I was working for the Church, but at the same time knowing that I was gay, I was feeling the separation start to kick in.  I knew my time at the archives was limited, that I wasn’t going to stay there forever.  I was setting up to jump ship, to move out of the position.

When I realized they started pulling everything, as things would come across I would start making copies myself, as I was processing things for research requests.  Then, I started searching the database myself for things that aren’t even searchable for the readers—anything, any materials.  That’s when I started running into things.  You’ll find a news article in an issue of the Advocate here and there, but when I started doing research, I’d come across entire boxes that, as General Authorities either passed away or went emeritus, their office material just got cataloged and thrown into the mix.  So I would systematically take that information and make copies of it.

At the time, I was thinking I was going to go up to the University of Utah and do a research paper or a master’s thesis, something on this material.  I just wanted a chance to see all of this after the fact.  I hadn’t even processed it.  It was just simple, basic raw material.

Prince: Were these men doing this on assignment?

Jay: There was an actual committee, same-sex/gender marriage committee, from the 90s.  They had an entire committee based on this issue.

Prince: Is that when the committee started?

Jay: From what I can tell, the committee was in full swing in 1995 through 1999.

Prince: Wasn’t 1995 about the time of the Hawaii battle?

Jay: All my material really focuses on that window of time, between 1994 and 2000.  The Hawaii issue was in the middle.

Prince: But you didn’t go to the University of Utah for that purpose?

Jay: No.  I kept dragging my feet up at the history program at Weber State.  I got distracted.  So I had all this material that I was sitting on.

When they released the memo to be read over the pulpit in I guess it was June of 2008, for members in California, when I saw that on KSL that night, I went to my grandfather’s insurance office, in his basement in Ogden, and copied everything that I had and took that material and gave it to a source in Salt Lake.

I was looking at it as research material, but I realized that it contemporary value for what was going on with Prop 8 at the moment.  It was showing what the Church’s actions were in Hawaii.  There was a documented history as to what they had done and what they were doing currently, and if that were shown, then that might make them maybe draw back their actions in 2008.  But it didn’t.

Prince: So somebody had this material before the November 2008 election?

Jay: Yes.  It was June.  They had known that I had had it.  It was the office of an elected politician, and they knew I had the material.  They had always said, “Why don’t you let us look at it?  We’re really kind of curious.”  I said, “I’m not ready for it.”  They actually said, “There will come a time when you will get so upset with what the Church is doing.”  They weren’t thinking about Prop 8; they were just saying this in general, as people that were outside the Church who were tired of the Church being involved in politics.  They said, “There will come a time when you will get so frustrated with how the Church interacts with any issue that you will want to do something with this material.”  I said, “Maybe one night I’ll just drop it off on your doorstep with a bottle of wine, and you can just go to town.”  And that’s basically what happened.  I made a full copy of it, took it down to Salt Lake, and dropped it on the doorstep.  The door opened and I heard him laugh.  He knew exactly what it was, and as I was walking away he said, “Thank you,” and I said, “No problem.”

That’s how Fred Karger got the documentation.  It wasn’t Fred, but this personal basically had all of this, and Fred came from California so they just gave it to Fred.

Prince: Is all of that on the website that Fred generated?

Jay: No.  I have about 2,000 pages.

Prince: And that’s how much you gave to Fred?

Jay: Correct.

Prince: Is that the same material that you later gave to Reed Cowan?

Jay: Yes.

Prince: What he said was that what he got from you went beyond what Fred had given him, which probably means that Fred just gave him selections.

Jay: I think that’s what happened.  At that point, I hadn’t gone through it.  I wasn’t sure what was in the fine print in this ream of documents.  But I knew it needed to get out.

When I handed it on, and they handed it on to Fred, I believe Fred had someone go through and just kind of surface-analyze what was in the material.  From that, Fred parsed out what he figured to be bombshell things, the top-level stuff.

Prince: But to the historian, those materials may not be as important as some of the fine print.

Jay: Yes.  You can look at the memos and see who was cc’d, what came from what offices, whether it was Maxwell’s or Oaks’s or Hinckley’s.  Fred just saw General Authorities because he is not in the Church.  He doesn’t get that Loren Dunn was in this position, and Oaks was doing this at the time.  [Loren Dunn died on May 16, 2001; Neal Maxwell died on July 21, 2004.]  There is some of that material that would be a lot more interesting to an academic who is familiar with the Church, rather than somebody who is looking for exposé material.

Prince: Has anybody been through the material with that kind of fine-tooth comb?

Jay: No.  I haven’t done it myself.

(Joseph Jay, June 15, 2014)

Kendell: I left the ACLU in 1993, and I started at NCLR, as legal director, in 1994.

Prince: In San Francisco?

Kendell: In San Francisco.  It was just as the Hawaii case was getting going.  We weren’t directly involved in that case.  Evan Wolfson, who was then at Lambda Legal and now runs Freedom to Marry, was involved in the litigation, along with a local attorney there.  I was new to this whole body of work, the whole issue of marriage.  I thought the idea that same-sex couples would be marrying and those marriages would be recognized by the government was fanciful and not likely to happen anytime soon.  So NCLR was not involved in that marriage litigation, but it was something that I was just observing.  We were talking about it, Evan came out here and spoke, it was something that we referenced in our newsletters.

In 1995 things got heated, and it was about 1996 that I first saw something about the Church’s involvement.  I don’t know if it was a pastoral letter, or a newspaper article about the Mormon Church getting involved.  I remember a conversation with my colleagues about what I knew, that the Mormon Church was enormously influential in Hawaii, which people knew.  But my approach was, “This is not a religion that gets really deeply enmeshed in these social issues.  They do not have that nasty anti-gay edge that some of the evangelical denominations do.”

So they were going to be opposed to gay people getting married, and that seemed like an unsurprising position that the Church would take.  But I didn’t really think they would be, in any way, significantly influential or that they would put a whole lot of resources into it.  And I had no idea, at that time, that Marlin was the chair of the committee that was doing this work.

Prince: He came on a little bit later.  Initially it was Loren Dunn, and then there was a handoff to Marlin in about 1996 or 1997.  Ironically, that was how I met Marlin.  I had corresponded with him on the McKay biography, but he was going to be back at Catholic University in 1997 for a meeting on the marriage issue.  He called and said, “I’m going to be in town.  Do you want to get together?”  We spent eight hours together that afternoon and evening.  But that’s why he was in town, because he was the Church’s point man at that stage.

Kendell: Got it.  That’s helpful.  It was about that time, probably 1997 or maybe 1998, that I got a call from Marlin out of the blue.  It was one of those spooky calls, out of the blue, where my receptionist said, “Kate, there is a Marlin Jensen on the phone for you.”  I was like, “What?”  I hadn’t seen Marlin in years.  We were at Van Cott, Bagley together, but I left in 1990 or 1991 to go to the ACLU.  I think we had had some conversation about me being out, just before I left.  But getting this call was certainly unexpected.

So I picked up the phone and said, “Brother Jensen, how are you doing?”  “Sister Kendell, I’m just calling to check in.  I was reviewing some documents here in my office, and I saw your name.”  I remember thinking to myself, “What documents could he be reviewing?  That’s kind of odd.”  I said, “What is it about?”  “It’s about the marriage work in Hawaii.”  I said, “Yes, we are supporting the right of same-sex couples to marry, and this is work that I care about.”  But I had no idea what he was talking about, if it was a newspaper article or there was some conference where I had said something.  But that should have been a tip-off that he was pretty deeply involved in this.

We had a very pleasant conversation and exchanged information.  I said, “The next time I’m in town, I’d love to see you.”  That preceded my visit to the Church Office Building some months later.

In my naiveté, I did not put two and two together, that, “Wow, the Church must really be paying much closer attention to this and is much more involved than I thought they were.”  It just seemed coincidental to me.  I certainly didn’t realize that Marlin himself was a key point-person.

So that kind of ended that chapter, and I really didn’t pay attention.  The Church didn’t get involved in anything else.  I’m not aware of what role and how deep a role the Church played in Hawaii.  It was definitely present and significant, but whether it was game changing, I don’t know.…

There was a whole cascade of states that had passed similar laws, many Defense of Marriage Acts to not recognize marriage and to not allow marriage.

Prince: Let me stop you there.  Do you think that was because of Hawaii?  That’s in the church documents, that Hawaii was the wakeup call for them.  They were fearful that if Hawaii legalized same-sex marriage, Utah would have to recognize those marriages if those people moved to the state.  Was that the national reaction?

Kendell: Absolutely.  Hawaii was the ignition switch for all of those DOMAs, and they just spread like wildfire.  And we were totally unprepared to mount a response.  The idea of gay couples of marrying was still a little bit distant in the LGBT community itself, let along the mainstream, non-gay community.  It was a preposterous idea, at best, and an offensive and revolting idea at worst.

Prince: So it was just a knee-jerk, homophobic reflex for the whole country?

Kendell: Yes, totally.  But rounded in just a general revulsion of the idea that there would be same-sex people at all.  It was not something that was discussed openly.  There weren’t very many openly gay elected officials.  In popular culture were still mostly portrayed as sick or depraved.  There weren’t very many things you could point to, to say, “Wow!  In the main, LGBT people can be just as contributing, just as accomplished, just as kind and decent and thoughtful and giving as anyone else.”  The messages were exactly the other direction.  Keep in mind, we were barely coming out AIDS.  AIDS was now a pandemic, and being gay was still associated with AIDS.  It was starting to move away from the gay community, to affect more poor people of color, but that was just starting, and in the popular imagination we were still a threat to all that was good and decent.

Even people who hadn’t really thought that much about it and weren’t actively homophobic, and say or do things that were homophobic—just the idea that gay people should be able to able to marry and have the government recognize it, it just seemed ludicrous to people.

(Kate Kendell, December 3, 2014)

Lee: What this seemed like was a repeat of the Equal Rights Amendment efforts of the Church.  We were for the amendment, and we remember that the Church was organizing Relief Societies, in all these different states, to go out and not be representing the Church.  They were encouraging women to get involved in organizations trying to keep this constitutional amendment from being ratified by the states.  In fact, they got so good that some of the states that had ratified the ERA were then considering methods to undo their ratification.  Of course, it did not pass, so the Church was successful there.  But they were doing it below the radar.

Anyway, I felt like that was going on in Hawaii and Alaska at the time, too.

(Lee Oldham, January 14, 2015)

Prince: What do I need to know about Lynn Wardle?  Should I try to interview him?

Ord: I would try to interview him, but if you are going to interview him be careful what you ask him.  He is one who will stop the interview right there and be done.  I think Lynn Wardle would be a good one to interview, but you want to be careful how you work that.  Lynn was just as influential as Richard, probably more in some regards.  Lynn was always seen as the policy builder, and Richard was seen as the academic.

Prince: Lynn’s name is all over the Hawaii documents, and it looks to me like a fair amount of it was because he wanted his name to be all over, that he was pushing himself on them and they said, “OK.”

Ord: Oh, absolutely.  The other thing was that Lynn was a rising star at BYU, and he wanted to be the family law guy.  That wasn’t Richard.  He had already been Assistant Solicitor General of the United States.  There were different career paths there.  Richard had nothing to prove; Lynn had everything to prove.

(James Ord, February 2, 2016)

Prince: The first lawsuit, which was in Hawaii, immediately changed the world.

Rosky: By the way, it wasn’t the first lawsuit.  There were three in the early 70s, right after Stonewall, that were very different.  One of my dear friends wrote an incredible article about those lawsuits.  In fact, the one out of Minnesota, the Supreme Court said, “There is no claim here,” and that is now being regarded as a precedent in these cases.  That was 1971.

Prince: Send me a link to that article.

Rosky: Absolutely.

Prince: I have to get the context, not only for the Mormon Church, but also for the country.

Rosky: Back then, these were the radicals.  They said, “We’re filing this lawsuit because we want to destroy the institution of marriage.  That’s the whole point.”  It was a very different kind of lawsuit.

Twenty years later in Hawaii, it was, “No, we want access to the institution of marriage.”  And by the way, some people think discriminating against a gay person is sex discrimination, and that’s what the Hawaii court held.

Prince: Because the Hawaii Constitution was different than the other state constitutions.

Rosky: Yes, and they said, “This is sex discrimination, which is in violation of our Equal Rights Amendment.”

(Clifford Rosky, March 31, 2015)

LATE NOTES

HAWAII NOTES – ADENDUM

[29] Legislation was subsequently passed in the 1994 legislative session which criticized the Hawai’i Supreme Court’s decision and reaffirmed the legislature’ s understanding of the proper definition of marriage. Although a statute was clearly insufficient to overturn a decision of the Hawai’i Supreme Court, its passage offered an opportunity for the legislature to go on record in several respects. The bill included a lengthy preface expressing its displeasure with [30] the supreme court’s ruling.” It also made explicit what the supreme court had already held: that the clear intent of the Hawai’i marriage law was to define marriage as the union of one man and one woman. It also clarified that it would recognize out-of-state marriages “between a man and a woman.” In addition, it stated that private solemnizations “of same-sex relationships by religious organizations” were not unlawful.'” Finally, it created an eleven-member Commission on Sexual Orientation and the Law.…

In the midst of the campaign, the Commission on Sexual Orientation and the Law began to meet. Before it could complete its deliberations, however, four of its members were removed by a federal judge who concluded that because they represented religious [31] organizations, this was a violation of the First Amendment. The report issued by that Commission, in February 1995, did not address the question of a constitutional amendment.

Early in 1995, due to the controversy surrounding the first Commission, the legislature created a second Commission on Sexual Orientation and the Law, this time appointed by the Governor.” Governor Cayetano chose Thomas Gill, a well-known liberal politician and former lieutenant governor, as its chairman. Chairman Gill and four other commissioners were supportive of legalizing same-sex marriage. Two commissioners opposed such an idea. Unlike the first Commission, which reportedly had functioned quite smoothly, the second Commission was a contentious process from start to finish. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[38] The failure of the proposed amendment [1996] was seen widely as presaging an almost certain victory for supporters of same-sex marriage. Alarm bells went off across the country, and within two weeks the Defense of Marriage Act was introduced in the United States Congress. Before May ended, President Clinton announced his support for the bill. By the end of summer, Congress passed the Defense of Marriage Act, and the President signed it into law. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[40] The day after the Baehr v. Miike trial ended, primary elections were held. The first and central casualty of the elections was Senate Judiciary Chair Rey Graulty, who was soundly defeated by a newcomer, Norman Sakamoto, who pledged his support for a marriage-related amendment. Senate President Mizuguchi was also challenged by a newcomer, Diane Ho Kurtz, in what was considered an entirely safe district, and barely won his own re-election. On the other hand, supporters of same-sex marriage and their allies succeeded in defeating Senator Milton Holt. They also fought hard to defeat Chairman Tom, but he was narrowly re-elected. These results were compounded on November 5, when some important supporters of same-sex marriage and domestic partnerships were defeated in House races, some as a complete surprise. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[41] On December 3, 1996, to no one’s surprise, Judge Chang ruled that the marriage law was unconstitutional.” Based on the test required by the Hawai’i Supreme Court, and given the lack of evidence provided to him by the State, Judge Chang concluded that the State had failed to prove a compelling state interest to justify the marriage law. The following day, at the State’s request, he suspended the implementation of his decision, in order to provide time for the case to be reviewed, once again, by the Hawai’i Supreme Court. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[41] If the Legislature were ever going to act, 1997 would have to be the year. On April 29, 1997, the proposed Marriage Amendment was passed by both chambers. The process of passage, however, was neither simple nor straightforward. This process offers important clues for understanding the meaning of the Marriage Amendment. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[44] That same day, January 22, [1997] Hawai’i Supreme Court Chief Justice Ronald T.Y. Moon delivered his State of the Judiciary Address to the Legislature. In that address, he offered the following remarks: 

[T]he courts are sometimes characterized as legislating from the bench, that is, making or remaking the law. When deciding cases, judges often apply common law, statutory law, or constitutional law to new facts and circumstances. In so doing, we do not intend to usurp the legislative function. However, under our system of checks and balances, if we stray into legislative perogative [sic], the legislature has the ability to cure the trespass. As you know, in our legal system, statutes trump common law, and constitutions trump statutes. We are ever mindful that the legislature – the peoples’ representatives – hold the highest trumps. That is, the peoples’ representatives have the authority, within constitutional limits, to write or rewrite statutes and to propose amendments to our state constitution.

The chief justice’s words were not lost on the Legislature. Referring to his remarks, the Advertiser noted that “[s]ome lawmakers took that as a message that if they didn’t like the recent state court decisions legalizing same-sex marriage in Hawai’i, the changes are up to them.” (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[45] At the same time that the proposed Marriage Amendment was making its way through the House, a second bill was proposed and advanced by Speaker Souki, Chairman Tom and nineteen other co-sponsors. House Bill No. 118, a bill “Relating to Unmarried Couples,” aimed to establish “Reciprocal Beneficiaries” a new legal category in Hawai’i law for adults otherwise ineligible to marry.” The Senate had demanded a bill offering benefits to unmarried persons in return for its support for a constitutional amendment. House Bill 118 was the House’s attempt to respond to the Senate, without endorsing the Senate’s 1996 Domestic Partnership bill.

The purpose of House Bill 118, as stated in proposed Section I of the new chapter, was “to make certain rights and benefits presently available only to married couples available to couples comprised of individuals who are legally [46] prohibited from marrying one another. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[47] In addition to reiterating the statement of purpose in the text of House Bill No. 118, the Committee report stated that, “[b]ecause this [reciprocal beneficiary] structure is not available to those couples who can legally marry, it does not threaten to undermine marriage between couples of the opposite sex.” Indeed, the Committee continued, the measure “will be of substantial benefit to many people in our community.” (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[67] On March 21, Hawai’i’s Future Today and the Alliance for Traditional Marriage turned up the heat by announcing “The Final Push” – a citizens’ “stand-in” at the state capitol on April 2 and 3. Announcing the rally and urging fellow citizens to come, Reverend Alexander wrote:

We have no choice at this junction …. We are asking everyone to come to the capitol on either or both days, for one hour or four, and stand in the senate offices …. No signs are allowed in the capitol, but you are encouraged to wear appropriate shirts and buttons. At all times act with dignity and respect. We cannot assume that the Senate will act in accord with the wishes of the over 70 percent of the people of Hawai’i who do not want “same-sex marriage.” We must be ready to demand that our right to govern ourselves be respected. I know most of us are not accustomed to such action, but how can we allow our democratic rights and the rights of marriage to be subverted by 15 senators?

(David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[73] On April 2 and 3, supporters of the Marriage Amendment jammed the State Capitol. They stood peacefully in the offices of Senators Chumbley, [74] Matsunaga, McCartney and Metcalf. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[79] Dan Foley told the Honolulu Advertiser that the Amendment wouldn’t end the Baehr v. Miike case because, in his opinion, the proposed text did not ban same-sex marriage, it only stated that in the future the Legislature has the power to reserve marriage to opposite-sex couples. Therefore, Foley insisted that even if the Amendment were to be ratified, the Legislature would still have to pass a bill in the 1999 session. The newspaper story also reported that “[l]awmakers believe, however, that the constitutional amendment and benefits package for ‘reciprocal beneficiaries’ would put an end to the case, since there is already a law on the books that states marriage is between a man and a woman. Ultimately, the courts would decide.” (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[96] After the passage of the Marriage Amendment by the Legislature, the focus shifted to the public campaign for and against the ratification of the amendment. By the end of the 1997 legislative session, the appeal of Judge Chang’s decision was complete. All the parties and amici had filed their briefs with the Hawai’i Supreme Court.”‘ At any point thereafter, the court could have ruled on the case. From start to finish, the possibility of a pre-emptive court decision loomed over the campaign.” Neither side was able to get the court to commit to make a decision either before or after November 1998. As time went on, it appeared likely that the court was going to wait.

In November 1997, Save Traditional Marriage ’98 (“STM ’98”) was formed to urge passage of the Marriage Amendment.” (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[100] As might be expected, the Amendment continued to receive strong support from the Most Reverend Francis DiLorenzo, Bishop of Honolulu. In his 1997 Thanksgiving Letter, for instance, Bishop DiLorenzo noted that “[e]ven the bedrock institution of marriage, so basic and crucial to our community’s health and well-being, is not safe from redefinition and devaluation anymore.” As evidence of the Bishop’s breadth of concerns, this sentence appeared amid discussions of domestic violence, unemployment, and the importance of economic and social reform. “Thanksgiving,” he concludes, “is a holiday of gratitude and appreciation. We thank God for all of his many blessings. But in the midst of our celebration we cannot forget the pain of our wounded community.” In a letter dated October 21, 1998, Bishop DiLorenzo issued a final plea to Catholics and others to support the Amendment. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[101] An interesting twist in the fundraising story came when activist Bill Woods, the original initiator of the Baehr case, accused STM ’98 of violating the $1,000 limit on campaign contributions. Woods was trying to prevent large donations from coming to supporters of the Amendment. The challenge was dismissed by the Campaign Spending Commission, however, when the Attorney General issued an opinion that the campaign spending limitation was unconstitutional. Ironically, this made it possible for groups such as the Human Rights Campaign to make the largest donations of all. Between 1996 and October 1998, STM ’98 raised $845,224 and Protect Our Constitution raised $1,145,388.” Nevertheless, although POC raised more, including a contribution of $985,000 from the Human Rights Campaign, it was the $600,000 donation from The Church of Jesus Christ of Latter-day Saints that caused the biggest stir in the media. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[108] Almost a year passed with no word from the court. Finally, on December 9, 1999, the court finally issued a four-page summary disposition signed by [109] three justices (Justices Moon, Levinson, Nakayama) and one judge (Chief Judge Burns, sitting in for Justice Klein, who had earlier recused himself). The court announced it was taking “judicial notice” of the Marriage Amendment. It then announced that in light of the passage of the Marriage Amendment, the case was moot. It reversed the circuit court’s decision and directed it to enter judgment for the State. (David Orgon Coolidge, “The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate,” U. Haw. Law Rev. 19:20-119, 2000)

[22] Jack brought Mike to religious services at the university’s Newman Center Chapel. One Sunday, they asked the priest, Reverend William Hunt, “Do you feel that if two people give themselves in love to each other and want to grow together with mutual understanding, that Jesus would be open to such a union if the people were of the same sex?” Reverend Hunt said, “Yes, in my opinion, Christ would be open.” Elated, the couple planned a religious ceremony. But they realized they needed a marriage license for the Reverend to legally marry them. Accompanied by several colleagues from FREE, Jack Baker and Mike McConnell appeared at the Hennepin County Courthouse on May 18, 1970, to apply [23] for a marriage license.…

Coming from a different point of view, many radical feminists and gay liberationists were highly critical of marriage of any kind. Why should lesbians and gay men join an essentially patriarchal, heterosexist institution? Even the leading progressive organizations, such as the national ACLU and the Kinsey Institute (both of which declined Baker and Mc-Connell’s requests for help on their petition), felt the idea of gay marriage was not a viable civil rights issue in 1970–72.…

None of this deterred McConnell and Baker from pursuing civil marriage. In December 1970, with the assistance of the local ACLU, they filed a lawsuit challenging the discrimination on both statutory and constitutional grounds. Trial judges summarily dismissed the complaint in Baker v. Nelson, the [24] Minnesota Supreme Court affirmed with little discussion, and the U.S. Supreme Court dismissed their appeal for lack of a “substantial federal question.”…

A year after Baker and McConnell’s Hennepin County application, two African American lesbians, Donna Burkett and Mononia Evans, applied for a marriage license in Milwaukee County, Wisconsin.…

[25] The sex discrimination argument was also made, prominently, by John Singer and Paul Barwick, a Seattle, Washington, couple whose application for a marriage license was made and declined on September 10, 1971.…

In-your-face gay pride and gay-is-good activism were critically important motivations for other early marriage equality lawsuits, including the first lawsuit to follow Baker and McConnell’s application. On June 6, 1970, Marjorie (Margie) Jones and Tracy Knight applied for a marriage license in Jefferson County, Kentucky (Louisville): “The boys had just applied, and we couldn’t let the boys get ahead of us,” cracked Jones.… Like “the boys,” Jones and Knight were rebuffed by the legal process.… (William N. Eskridge, Jr., “The First Marriage Cases, 1970-74,” in Kevin M. Cathcart and Leslie J. Gabel-Brett, eds., Love Unites Us: Winning the Freedom to Marry in America (New York: The New Press, 2016), pp. 21-7.

Opponents of same-sex marriage declared a victory today after House and Senate conferee agreed last night to let voters decide on a constitutional amendment.

The amendment, which could appear on the November 1998 ballot, would give lawmakers the right o restrict marriage to opposite-sex couples.  (“Gay marriage ban in voters’ hands,” Honolulu Star-Bulletin, April 17, 1997)

In a prelude to what could be a costly and bitter battle, a political action committee has been formed to push a constitutional amendment that would give legislators the right to restrict marriage to opposite-sex couples.

Save Traditional Marriage-’98 intends to raise several hundred thousand dollars in the next 12 months, its leaders said yesterday.…

The group’s co-chairman, Bill Paul, the former chairman of the Hawaii Chamber of Commerce and the then-Hawaii Visitors Bureau, said the PAC needs to be well financed because he and others see national gay rights organizations financing a big-bucks campaign to defeat the proposed amendment.…

John Hoag, a member of the PAC’s steering committee …

Shortly after the compromise was struck, traditional-marriage advocates — such as Hoag, who’s also vice chairman of Hawaii’s Future Today, and Mike Gabbard, chairman of the Alliance for Traditional Marriage and its PAC — began wondering what needed to be done to ensure voter approval of the proposed amendment.

The result: A PAC was born whose sole purpose is supporting passage of the constitutional proposal.  (Mike Yuen, “New isle PAC hopes to derail gay marriages,” Honolulu Star-Bulletin, November 11, 1997)

Reggie White, all-star professional football player and ordained fundamentalist Christian minister, has repeatedly preached that homosexuality is a sin.…

Officials of the local political action committee, Save Traditional Marriage-’98, have confirmed that White, who earlier this year stereotyped Asians, Hispanics, blacks and whites in a rambling sermon to the Wisconsin Legislature, has been videotaped for a TV spot on behalf of Save Traditional Marriage.

Jennifer Diesman, a spokeswoman for Save Traditional Marriage, said the broadcast ad hasn’t been put together yet. The group’s consultant, Linda Rosehill, said White “wants to help us pass this amendment because he cares about Hawaii’s future.” She said he is a natural ally because of his fondness for Hawaii and his personal commitment to preserving marriage as a union between one man and one woman.

For 12 years, White, a Green Bay Packers defensive lineman, has played here in the Pro Bowl.… (Mike Yuen, “Group plans ad campaign against gay marriages,” Honolulu Star-Bulletin, July 21, 1998)

Proponents of traditional marriage have launched an intensive voter registration and volunteer recruitment drive, and they’re mining what they believe is a mother lode of like-minded voters at Catholic, Mormon, Pentecostal, evangelical Christian and new nondenominational churches like New Hope.…

If statewide public-opinion polls, including the Star-Bulletin’s, are any indication, their effort should strike a sympathetic cord beyond churches and religious conservatives, because those surveys have found that 70 percent of voters oppose gay marriages, Alexander said. (Mike Yuen, “Same-sex marriage already an election hot button,” Honolulu Star-Bulletin, August 3, 1998)

You can be an isle voter or someone who has never been in Hawaii. But if you feel strongly about the proposed amendment to the state Constitution that would allow the Legislature to ban same-sex marriage, you can now give as much as you want to support or oppose the measure.

The state Campaign Spending Commission yesterday disclosed that the attorney general’s office has issued an opinion that the state’s law limiting contributions to $1,000 to influence ballot questions such as the one on gay marriage is unconstitutional. (Mike Yuen, “Sky’s the limit on same-sex fund raising,” Honolulu Star-Bulletin, August 12, 1998)

Save Traditional Marriage spokesmen say the group’s advertising campaign against same-gender marriage depicts “reality.”

“The ads clarify exactly what is at stake in a charitable and clear way,” said the Rev. Marc Alexander…

Diesman described the two television commercials that they have used. “In the first ad we have a boy reading from the book ‘Daddy’s Wedding,’ which shows a picture of two men kissing as they get married. The ad says, ‘If you don’t think homosexual marriage will affect you, how do you think it will affect your children?’

“The second ad began this Monday. A man and a woman in wedding attire are running toward each other, and he runs past her into the arms of a man,” Diesman said. The commercial says that only a yes vote will stop same-gender marriage.

The Rev. Joan Ishibashi, of the United Church of Christ Hawaii Conference, said the ads “appeal to our deepest prejudices. We urge them to stop their campaign of intolerance.” She said “using the child for their purposes is a very subtle way to hit the triggers of intolerance.”  (Mary Adamski, “Christian groups at odds over ads against same-sex,” Honolulu Star-Bulletin, October 1, 1998)

Verbal warfare over a proposed state constitutional amendment that could prohibit same-sex marriage has escalated, with debate veering to another issue — abortion.

Igniting the latest round of rhetorical fireballs is a 30-second television spot now airing that is sponsored by Protect Our Constitution/Human Rights Campaign. The campaign is the nation’s largest gay rights organization.

In it, Dr. Jennifer Frank says she is “frightened” that groups advocating a “yes” vote on the ballot measure that would give the Legislature the power to limit marriage to one man and one woman also “intend to repeal abortion laws — taking away a woman’s right to choose. (Mike Yuen, “Linking of marriage debate, abortion called ‘outrageous,’” Honolulu Star-Bulletin, October 6, 1998)

In the most recent public poll in the Honolulu Advertiser, in September, the amendment led 52% to 40%. Still, the side that supports gay marriage has more money in the bank, and everyone expects that the campaign will end in a close vote.…

Strangely, it’s hard to tell whether Hawaii is the best or worst laboratory in the nation for this unusual political experiment. On one hand, it’s a place where the institutions of statehood–constitution, courts, parties–were designed in the 1950s by people who had recently suffered raw discrimination. Asian Americans who remembered the internment camps of World War II, laborers who worked for white plantation owners on the mainland, minority war veterans who fought side by side with white G.I.s who called them names–these folks wrote the constitution in 1950. In it, they enshrined protections for minorities and unions. Discrimination based on sex was also specifically outlawed, years before the rest of the country failed to ratify the Equal Rights Amendment.…

Even Ben Cayetano, the state’s Democratic Governor and a man who proudly calls himself liberal, told TIME that same-sex marriage shouldn’t be legal for the same reason that “marrying your sister” isn’t legal.…

The ads for Save Traditional Marriage are unvarnished in their appeals. In the most inflammatory and demagogic one, an eight-year-old boy, the son of the group’s leader, Linda Rosehill, reads aloud from Daddy’s Wedding, a children’s book meant to educate kids about gay relationships. In the ad, the boy (who isn’t identified) looks very confused, and a voice-over says ominously, “If you don’t think homosexual marriage will affect you, how do you think it will affect your children?”

The Daddy’s Wedding ad enraged campaign workers on the opposing side. “Look,” one said, “they’re dealing with gut-level emotions–I mean, my God, insinuating that this kid is going to be harmed by us being able to marry? We’ve got to fight fire with fire: whack ’em back with a f______ abortion ad.” They have that ad. It features a female physician looking as concerned as Rosehill’s son did. “We need to stop them before they get to a woman’s right to choose,” the doctor says. The rather strained argument seems to be that if voters allow the legislature control over court decisions regarding marriage, foes of abortion rights could seek similar power on that issue. Polling has shown that if voters can be convinced that the amendment may lead to the end of abortion rights, they will be much less likely to support it. (Hawaii takes pride of place as the first state to legalize abortion, in 1970.)

The campaign has got bitter in recent days. The same-sex marriage advocates occasionally demonize their opponents as Christian conservatives in thrall to Pat Robertson. But Rosehill is a lapsed Protestant whose daughter is a lesbian. (“I want her to have every civil right,” says Rosehill. “But same-sex marriage is not a civil right.”)…

The emotionalism of the campaign is clear even in quieter settings. Before a group of Japanese-American seniors, Jackie Young of Protect Our Constitution, the group fighting the amendment, offers a reason to vote against it: “Never before have we amended our constitution here in Hawaii, a land of aloha, to specifically discriminate against one group of people. What if that group were you?” These are people who remember the internment camps, and Young–a former vice speaker of the state house of representatives and longtime activist–expects her argument to resonate. But during Q and A, a man asks her about “all those weirdos from the mainland coming here.” Young sighs, objects to his choice of words and pushes on. Later, she laments, “I have never seen any discrimination in my state like this. It is so open.” (John Cloud, “For better or worse: In Hawaii, a showdown over marriage tests the limits of gay activism,” Time October 19, 1998)

The Salt Lake City-based Mormon church, whose adherents are estimated to comprise 3.5 percent of Hawaii’s 1.1 million population, has poured $600,000 into the state to prevent the legalization of same-sex marriage. (“Mormons help fight same-sex with $600,000,” Honolulu Star-Bulletin, October 27, 1998)

Public opinion polls show that the majority of the public disapproves of same-sex marriage.  But given the way Hawaii tallies votes on constitutional measure, the initiative to prohibit same-sex marriage can still fail even if there are more “yes” votes than “no” votes.  That’s because blank votes are counted as “no” votes.  To pass, the measure must be approved by at least 50 percent of all ballots submitted on the question.…

A leading opponent of the Hawaii initiative is the Washington-based Human Rights Campaign, the nation’s largest gay-rights organization, which so far has raised more than $985,000 to defeat the measure.  (Mike Yuen, “Same-sex marriage: The entire nation is watching Hawaii,” Honolulu Star-Bulletin, October 29, 1998)

A majority of Hawaii voters support the proposed constitutional ban on same-sex marriage, according to a poll conducted this week for the Honolulu Star-Bulletin and NBC Hawaii News 8.

But the results stand in sharp contrast to another statewide survey for the two that was taken just two weeks ago. That survey showed the constitutional amendment being voted down by a wide margin.…

The earlier survey, taken Oct. 16-19, found that 62 percent opposed the anti-gay marriage amendment, while 25 percent were in favor. Thirteen percent were undecided.…

Del Ali, Mason-Dixon senior vice president, noted that in the earlier poll, 73 percent said they found the wording of the measure confusing. Twenty-six percent didn’t.…

Previous statewide surveys commissioned by the Star-Bulletin, which simply asked registered voters if they approved or disapproved of same-gender marriages, consistently showed that large majorities — as high as 70 percent — rejected homosexual unions.…

The latest poll found that 59 percent of men and 51 percent of women favor the anti-gay marriage amendment, while 34 percent of men and 36 percent of women are against it. (Mike Yuen, “55% favor ban on same-sex,” Honolulu Star-Bulletin, October 31, 1998)

A better-focused and easily understood message.

Control of “fringe” elements.

Serious missteps by the opposition, including a legal challenge that backfired, causing the state to lift the $1,000 limit on campaign contributions meant to influence ballot measures.…

Even the opposition acknowledged that Save Traditional Marriage’s portrayal of the measure as a referendum on same-sex marriage trumped the opposition’s efforts to place the vote within a civil-rights context.

“They had an easy, emotional message,” said David Smith, a senior strategist with the Human Rights Campaign — the nation’s largest gay-rights organization, which spent about $1 million in its failed effort to defeat the constitutional amendment.

“We had a complex, technical message about government and civil rights: If this (denying marriage to gays) can be done to us, discrimination can also happen to you.”…

Rosehill said “a big difference” in the campaign came when gay activist Bill Woods accused Save Traditional Marriage of receiving more than the $1,000 limit from contributors. That complaint was dismissed by the state Campaign Spending Commission as the attorney general’s office concluded that the contribution cap on ballot measures was unconstitutional.

With no cap, that opened the door for the Mormon Church to contribute $600,000 to the yes-vote effort, Rosehill said.

The “educational campaign” — that “yes” votes supported traditional marriage and that “no” votes legalized same-sex unions — was crucial to the passage of the amendment, Rosehill added.

Since only 2 percent of the ballots cast were blank, that meant voters were aware that a blank ballot counted as a “no” vote, she said. (Mike Yuen, “’Yes’ won with focus, clear message,” Honolulu Star-Bulletin, November 5, 1998)