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MAJORITY RESPONSE TO MINORITY OPINION
I. Introduction Because of the strict time limitations on the Commissions' work and the obvious differences between the majority and the two minority members, it became obvious that there would be two opinions: one of the majority of the Commissioners and one for the minority. The minority members invited witnesses, participated in the examination of all witnesses, introduced copious amounts of material in support of their position, and participated at great length in the discussion of items proposed by the majority to be included in the report. Since the minority's basic position was that the Commission should "do nothing" which would extend any marital rights and obligations to same-gender couples, the Chair suggested, and the majority agreed, that the minority should prepare their own chapter without input or interference from the majority.
However, the majority reserved the right to comment on the basic points raised in the minority opinion and point out any errors or misrepresentations. That is the purpose of this Response.
II. Majority Comment on Points Raised A. The
Underlying Position of the Minority is Based on the Religious
Doctrine of Certain Churches or Groups
However, testimony and written statements from various Christian churches and Buddhist groups made it clear that the minority position was by no means universal in the religious community.
The basic position of the minority then becomes that their religious-based position should determine the marriage law of the State of Hawaii, regardless of other religious beliefs or the civil rights of the individuals involved.
This is, of course, unacceptable to the majority, which seeks to protect the right of every church or religious group to believe and preach as they wish. But such groups have no right under our constitution to impose their beliefs on others through state law.
B.The "Moral" Position of the Minority is Based on the Presumption that Homosexuality is Completely Voluntary on the Part of the Individuals Involved and Therefore They are Intentionally Committing an "Immoral" Act and Should be Sanctioned The minority opinion quotes selectively and at great length, from various sources in Section E of the minority opinion, which supposedly upholds its position. However, reading the statements selected is instructive: many of them point out that psychological "treatment" fails about as often as it succeeds. See particularly pages 82 and 83 of chapter 5 and quotes in Appendix F from one of the minority's main authorities, Dr. Socarides, which claims success with "nearly fifty percent." See also Dr. Hatterer in Appendix F where he states that he, over a period of years, treated some two hundred homosexual patients and of this group "...forty-nine patients recovered, nineteen partially recovered, seventy-six remained homosexual."
So what happens to the roughly half who do not "recover"? Are their actions purely "voluntary," and therefore "immoral"?
An article in the New England Journal of Medicine, published on October 6, 1994, and written by Richard Friedman, M.D. and Jennifer Downey, M.D.(1), discusses the multitude of issues resulting from, and the possible causes of, homosexuality at length and from an objective viewpoint. They state on page 926: "the origins of sexual orientation appear to be multifactorial and diverse." On page 928 the authors state:
Preliminary evidence suggests that to some extent sexual orientation is influenced by biological factors, although the intermediate mechanisms remain to be described(2).
The minority does not cite opposing view points in the psychological literature or the official positions of the professional associations that do not mesh with their position(3). In assessing the credibility of the "experts" cited and quoted by the minority, the majority noted that both the American Psychological Association and the American Psychiatric Association hold different or opposite positions (see Appendix F). It should also be noted that one of the minority's most important "experts," Paul Cameron, has been expelled from the American Psychological Association(4). The minority claims that the contrary position taken by the American Psychiatric Association was based on "political grounds" (minority opinion of this report, page 79). This might be called "symptomatic"--to borrow a phrase of the minority in claims of abuse and mistreatment by the majority of the Commission. At the very least the jury is still out on the question of the causes of homosexual behavior.
The majority is not trapped in this long continuing argument. Whether the behavior is voluntary or not, the individual concerned is entitled to equal rights under the law.
C.The Minority's Basic Tactic to Achieve the End They Desired Was to Claim There Were No "Benefits" from Marital Status and Therefore Nothing to Extend to Same- Sex Couples
The first step was to get the Commission to adopt a definition of benefits which, when applied to various items, including those mentioned by the Supreme Court in Baehr, would show that they were not benefits. This attempt, described more completely in the majority report, was rejected twice(5). Commissioner Hochberg, the main proponent of this device, was asked by the chair to apply his definition to benefits mentioned by the Court and others; he did so, and as expected, they turned out not to be benefits(6).
The second and major attempt to eliminate benefits was the misapplication of an economic theory supported by the minority witness, Dr. Moheb Ghali. This theory apparently values a benefit on the basis of some value to the community and not to the individual who received it.
Chapter 1 contains a more complete explanation of Dr. Ghali's approach, but in simple terms, it would value a given benefit by dividing the value to the individual by the probability of someone taking advantage of it. For example, if a given benefit is worth $500 to the individual who received it, but only one person in a thousand is likely to take advantage of it, then $500 is divided by 1000 and the value is fifty cents.
The majority report found this concept rather difficult to apply when we are trying to determine benefits to individuals, but the minority would hang most of its case on this rather tenuous hook.
D.Another Basic Minority Argument Against Extending Marital Rights to Same-Gender Couples Might be Called the "Ultimate Disaster" Approach
Basically, this argument is that legalizing same-gender marriage would cause a flood of homosexuals to come to Hawaii which would not only damage our society but also repel other tourists. The minority presented no hard evidence to support this claim. Some of their witnesses did present very emotional statements based on their individual or religious beliefs. Interestingly this predicted flood is not consistent with the minority position that there are no benefits to be gained by marriage.
Related to this argument is the controversial estimate of an increase in gay tourists who would come here to be married, given in the recent Southern California Law Review in May 1995(7). The author, Ms. Brown, estimated that each same-gender marriage could generate about $6,000, and this could increase tourist revenue by some $153 million per year. Both economists who testified--Dr. Ghali and Dr. La Croix--discounted or did not agree with--the methodology and some of the assumptions used by Ms. Brown.
However, after noting some assumptions, Dr. La Croix along with Dr. Mak, both of whom are professors of economics at the University of Hawaii, estimated that legalizing same-gender marriage could generate some $127 million per year over a period of five years(8). Dr. La Croix also gave his opinion that the number of same-gender couples who might respond to the legalization of same- gender marriage would not be so substantial when compared to the number of other tourists, to cause a "tipping" or loss of such tourists(9). We should also note a subsequent letter from Dr. La Croix which points out various distortions of his position by the minority (see Appendix I).
The protection of family values is another reason claimed by the minority and their witnesses for the banning of same-gender marriages. When you consider the high proportion of divorces, teenage pregnancies, single parent families, and the not uncommon practice of couples living together without marriage, it would seem a bit ironic that the minority and their supporters would seek to prevent one group that wishes to promote marriage from doing so. Is it possible that there are many more troublesome areas where the minority and its supporters could productively promote family values than the one they have chosen here?
E.Other Minority Positions Which Seem Questionable are the Rejection of the Relevance of the Loving v. Virginia Case and the Claim that Homosexuals Are Not a Suspect Class and Therefore--Like Criminals--Can be Subject to Legal Discrimination
The United States Supreme Court some thirty years ago struck down a statute of the State of Virginia that prohibited interracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)). This case, which was cited by the Hawaii Supreme Court in its Baehr decision, raises the question of equal protection of the law. The opposition to interracial marriage (called miscegenation) was as emotional and passionate in the 1960's as the opposition to same-gender marriage now. Many of the same reasons, including destruction of existing society, were given then as they are now. The Loving case did not cause the collapse of society in Virginia or elsewhere, and the arguments now seem ridiculous, particularly in Hawaii. The minority apparently thinks our Supreme Court was misguided when it cited Loving. The majority agrees with the Supreme Court.
The minority attempt to reduce the status of homosexuals to that of a group that is somehow not entitled to certain constitutional rights deserves notice but not credence.
F.A Final Argument by the Minority Is to Claim Mistreatment by the Majority
The Commission understood and agreed early on that it had to address the tasks assigned to it by Act 5 with speed and decisiveness if it was to complete its work within the limited time allowed. Minority Commissioner Hochberg was told clearly by the Chair, on more than one occasion, that intentional delay would not be tolerated. It seemed obvious to all concerned that if the minority could delay the work of the Commission to the extent that no report would be issued, the minority would have achieved its end--to do nothing. In spite of this, an inordinate amount of time at Commission meetings was consumed by Mr. Hochberg picking over the details of the minutes, making repetitive motions, and trying to strike portions of the proposed report. He consumed far more time than any other Commissioner.
Mr. Hochberg is entitled to speak his piece, and has been given a minority opinion in which to do so, and he has. Each successive minority opinion grows longer and longer. The November 27 draft had already exceeded the length of the majority's report.
In that draft, Commissioner Hochberg adopted a further variation to his claim of "mistreatment"--he now has also been "railroaded." If the reader will excuse a brief attempt to inject a little humor into these rather vehement proceedings, we would suggest that Mr. Hochberg's claim to having been "railroaded" is not a completely inept use of the metaphor. While the use of steam locomotives in Hawaii as a means of transportation largely died out in World War II, some may still remember how they worked and the impressive noises they made.
In this context, we would note that early on, in September when the Commission started work, self-appointed assistant engineer Hochberg jumped into the cab of the locomotive and attempted to jam the throttle so the train wouldn't start. He did this by writing self-serving letters to the Governor and others complaining about the Commission and its procedures (see Appendix H). This didn't work and the train kept moving.
Undeterred, Mr. Hochberg attempted to stuff wet logs into the locomotive's fire box so that the engine would never get up steam. Unfortunately, that didn't work either. (Some of these logs are cited or referred to in the minority opinion.)
Still determined, assistant engineer Hochberg attempted to either derail the train or at least get it onto a dead-end track. This included jumping out of the cab at every whistle stop to complain to the television cameras. However, that also failed. Now we have arrived at the designated station, on time, with a little steam left!
Our train is now dragging a caboose (read Minority Opinion) which continually grows in size and complexity. Commissioner Hochberg can now be expected to proclaim to any available lens or forum that his is the real report and that the majority's efforts should be disregarded because they are hopelessly prejudiced.
The majority appreciates Mr. Hochberg's persistent and single- minded efforts--they have been more helpful than he might have intended!
III. Conclusions
The majority of the Commission--while not all agree on every point--believe that they have prepared a reasonable Report and suggested appropriate action to be taken by the Legislature. The majority also is aware that its first recommendation--to allow same-gender couples to marry under state law--is vehemently opposed by many people of certain religious persuasions. The majority has also recommended the adoption of a comprehensive Domestic Partnership law. This would apply to all couples, regardless of gender, and apply most of the benefits and burdens of marriage to many in the community who do not only live together, but also raise children without being married. We propose either of these solutions, or both.
The Legislature's job is to make tough decisions when required. We hope it can do so.
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