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NINIA BAEHR, GENORA DANCEL, TAMMY RODRIGUES, ANTOINETTE PREGIL, PAT LAGON, JOSEPH MELILIO, Plaintiffs-Appellants, v. JOHN C. LEWIN, in his official capacity as Director of the Department of Health, State of Hawaii, Defendant-Appellee

No. 15689

Supreme Court of Hawaii

May 5, 1993 May 5, 1993, Filed

SUBSEQUENT HISTORY: [***1] Motion for Reconsideration Denied May 27, 1993, Reported at: <=1> 1993 Haw. LEXIS 30.

PRIOR HISTORY: Appeal from the First Circuit Court; Civ. No. 91-1394.

DISPOSITION: Vacated and remanded.

HEADNOTES: PRETRIAL PROCEDURE -- dismissal -- involuntary dismissal -- pleading, defects in general -- clear and certain nature of insufficiency -- availability of relief under any state of facts provable. PRETRIAL PROCEDURE -- dismissal -- involuntary dismissal -- proceedings and effect -- construction of pleadings.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. The duty of the appellate court is therefore to view the plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternative theory. For this reason, in reviewing an order dismissing the plaintiff's complaint for failure to state a claim, the appellate court's consideration is strictly limited to the allegations of the complaint, which must be deemed to be true. PLEADING [***2] -- motions -- judgment on pleadings -- in general. PLEADING -- motions -- judgment on pleadings -- application and proceedings thereon -- time for pleadings.

A motion for judgment on the pleadings serves much the same purpose as a motion to dismiss for failure to state a claim, except that it is made after the pleadings are closed. A motion for judgment on the pleadings has utility only when all material allegations of fact are admitted in the pleadings and questions of law alone remain. PLEADING -- motions -- judgment on pleadings -- in general.

A claim that is evidentiary in nature and requires findings of fact to resolve cannot properly be disposed of under the rubric of a motion for judgment on the pleadings. JUDGMENT -- on motion or summary proceeding -- hearing and determination.

Consideration of matters outside the pleadings transforms a motion seeking dismissal of a complaint into a motion for summary judgment. But resort to matters outside the record, by way of unverified statements of fact in counsel's memorandum or representations made in oral argument or otherwise, cannot accomplish such a transformation. CONSTITUTIONAL LAW -- personal, [***3] civil, and political rights -- constitutional guarantees in general -- privacy in general.

It is now well established that a right to personal privacy, or a guarantee of certain areas or zones of privacy, is implicit in the United States Constitution. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general.

Article I, section 6 of the Hawaii Constitution expressly states that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." The privacy concept embodied in this constitutional principle is to be treated as a fundamental right. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general.

At a minimum, article I, section 6 of the Hawaii Constitution encompasses all of the fundamental rights expressly recognized as being subsumed within the privacy protections of the United States Constitution. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general. CONSTITUTIONAL LAW -- personal, [***4] civil, and political rights -- constitutional guarantees in general -- marriage, sex, and family. MARRIAGE -- persons who may marry.

The federal construct of the fundamental right to marry -- subsumed within the right to privacy implicitly protected by the United States Constitution -- presently contemplates unions between men and women. CONSTITUTIONAL LAW -- construction, operation, and enforcement of constitutional provisions -- general rules of construction -- relation to former or other Constitutions. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general.

As the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, the Hawaii Supreme Court is free to give broader privacy protection under article I, section 6 of the Hawaii Constitution than that given by the United States Constitution. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- marriage, [***5] sex, and family. MARRIAGE -- persons who may marry.

A right to same-sex marriage is not so rooted in the traditions and collective conscience of Hawaii's 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. Neither is a right to same-sex marriage implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- privacy in general. CONSTITUTIONAL LAW -- personal, civil, and political rights -- constitutional guarantees in general -- marriage, sex, and family. MARRIAGE -- persons who may marry.

Article I, section 6 of the Hawaii Constitution does not give rise to a fundamental right of persons of the same sex to marry. MARRIAGE -- power to regulate and control. MARRIAGE -- nature of the obligation. MARRIAGE -- persons who may marry. MARRIAGE -- licenses and licensing officers. MARRIAGE -- solemnization or celebration. DIVORCE -- grounds [***6] -- causes for divorce in general.

The power to regulate marriage is a sovereign function reserved exclusively to the respective states. By its very nature, the power to regulate the marriage contract includes the power to determine the requisites of a valid marriage contract and to control the qualifications of the contracting parties, the forms and procedures necessary to solemnize the marriage, the duties and obligations it creates, its effect upon property and other rights, and the grounds for marital dissolution. In other words, marriage is a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship. MARRIAGE -- nature of the obligation.

Marriage is a partnership to which both partners bring their financial resources as well as their individual energies and efforts. MARRIAGE -- power to regulate and control. CONSTITUTIONAL LAW -- construction, operation, and enforcement of constitutional provisions, validity of statutory provisions.

Notwithstanding the state's acknowledged stewardship over the institution of marriage, the extent of permissible state regulation of the [***7] right of access to the marital relationship is subject to constitutional limitations or constraints. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- in general.

By its plain language, article I, section 5 of the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex. STATUTES -- construction and operation -- general rules of construction. The fundamental starting point for statutory interpretation is the language of the statute itself. Where statutory language is plain and unambiguous, it must be construed according to its plain and obvious meaning. CONSTITUTIONAL LAW -- equal protection of laws; equal rights; sex discrimination -- particular discriminatory practices. MARRIAGE -- persons who may marry.

On its face, Hawaii Revised Statutes (HRS) @ 572-1 (1985) restricts the marital relation to a male and a female. Accordingly, on its face and as applied, HRS @ 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits. CONSTITUTIONAL LAW -- equal protection of laws; equal rights [***8] -- sex discrimination -- particular discriminatory practices.

It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- bases for discrimination effected in general -- rational or reasonable basis; relation to object or compelling interest.

Whenever a denial of equal protection of the laws is alleged, as a rule the initial inquiry has been whether the legislation in question should be subjected to "strict scrutiny" or to a "rational basis" test. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- bases for discrimination effected in general -- rational or reasonable basis; relation to object or compelling interest.

"Strict scrutiny" analysis is applied to laws classifying on the basis of suspect categories or impinging upon fundamental rights expressly or impliedly granted by the constitution, in which case the laws are presumed to be unconstitutional unless the [***9] state shows compelling state interests which justify such classifications and that the laws are narrowly drawn to avoid unnecessary abridgments of constitutional rights. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- bases for discrimination effected in general -- rational or reasonable basis; relation to object or compelling interest.

Where suspect classifications or fundamental rights are not at issue, the appellate courts of this state have traditionally employed the rational basis test. Under the rational basis test, the inquiry is whether a statute furthers a legitimate state interest. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- in general.

HRS @ 572-1 establishes a sex-based classification. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- in general. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- "strict scrutiny" analysis.

Sex is a "suspect category" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution; HRS @ 572-1 is therefore subject to the "strict scrutiny" test. [***10] CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- "strict scrutiny" analysis. CONSTITUTIONAL LAW -- equal protection of laws; equal rights -- sex discrimination -- "strict scrutiny" analysis.

HRS @ 572-1 is presumed to be unconstitutional unless it can be shown that the statute's sex-based classification is justified by compelling state interests and that it is narrowly drawn to avoid unnecessary abridgments of constitutional rights.

COUNSEL: Daniel R. Foley (Partington & Foley) for plaintiffs-appellants Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon, and Joseph Melilio.

Sonia Faust (Judy M. C. So with her on the briefs), Deputy Attorneys General, for defendant-appellee John C. Lewin.

On the briefs:

Kirk Cashmere and Evan Wolfson, for amicus curiae Lambda Legal Defense and Education Fund, Inc.

Carl M. Varady (William B. Rubenstein, Ruth E. Harlow, and Matthew A. Coles of American Civil Liberties Union Foundation with him on the brief) for amicus curiae American Civil Liberties Union Foundation of Hawaii.

Lloyd James Hochberg, Jr. (Donald A. Beck and Robert R. Taylor [***11] of Beck & Taylor with him on the brief) for amicus curiae Rutherford Institute of Hawaii.

JUDGES: Moon, Acting C.J., Levinson, J., Intermediate Court of Appeals Chief Judge Burns, in place of Lum, C.J., Recused, Intermediate Court of Appeals Judge Heen, in place of Klein, J., Recused, and Retired Justice Hayashi, * Assigned by Reason of Vacancy. Opinion by Levinson, J., in which Moon, C.J., Joins; Burns, J., concurring in the Result. Concurring Opinion by Burns, J. Dissenting Opinion by Heen, J.

* Retired Associate Justice Hayashi, who was assigned by reason of vacancy to sit with the justices of the supreme court pursuant to article VI, @ 2 of the Constitution of the State of Hawaii and HRS @ 602-10 (1985), and whose temporary assignment expired prior to the filing of this opinion, would have joined in the dissent with Associate Judge Heen.

OPINIONBY: LEVINSON

OPINION: [*535] [**48] The plaintiffs-appellants Ninia Baehr (Baehr), Genora Dancel (Dancel), Tammy Rodrigues (Rodrigues), Antoinette Pregil (Pregil), Pat Lagon (Lagon), and Joseph Melilio (Melilio) (collectively "the plaintiffs") appeal the circuit court's order (and judgment entered pursuant thereto) granting the motion of the defendant-appellee [***12] [*536] John C. Lewin (Lewin), in his official capacity as Director of the Department of Health (DOH), State of Hawaii, for judgment on the pleadings, resulting in the dismissal of the plaintiffs' action with prejudice for failure to state a claim against Lewin upon which relief can be granted. Because, for purposes of Lewin's motion, it is our duty to view the factual allegations of the plaintiffs' complaint in a light most favorable to them (i.e., because we must deem such allegations as true) and because it does not appear beyond doubt that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to the relief they seek, we hold that the circuit court erroneously dismissed the plaintiffs' complaint. Accordingly, we vacate the circuit court's order and judgment and remand this matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

On May 1, 1991, the plaintiffs filed a complaint for injunctive and declaratory relief in the Circuit Court of the First Circuit, State of Hawaii, seeking, inter alia: (1) a declaration that Hawaii Revised Statutes (HRS) @ 572-1 (1985) n1 -- the section of [***13] the Hawaii Marriage Law enumerating the [r]equisites of [a] valid marriage contract" -- [*537] is unconstitutional insofar as it is construed and applied by the DOH to justify refusing to issue a marriage license on the sole basis that the applicant couple is of the same sex; and (2) preliminary and permanent injunctions prohibiting the future withholding of marriage licenses on that sole basis.

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n1 HRS @ 572-1 provides:

Requisites of valid marriage contract. In order to make valid the marriage contract, it shall be necessary that:

(1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate;

(2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit court within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2 [relating to consent of parent or guardian];

(3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living;

(4) Consent of neither party to the marriage has been obtained by force, duress, or fraud;

(5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party;

(6) It shall in no case be lawful for any person to marry in the State without a license for that purpose duly obtained from the agent appointed to grant marriage licenses; and

(7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony.

HRS @ 572-1 (1985) (emphasis added). In 1984, the legislature amended the statute to delete the then existing prerequisite that "[n]either of the parties is impotent or physically incapable of entering into the marriage state[.]" Act 119, @ 1, 1984 Haw. Sess. Laws 238-39 (emphasis added). Correlatively, section 2 of Act 119 amended HRS @ 580-21 (1985) to delete as a ground for annulment the fact "that one of the parties was impotent or physically incapable of entering into the marriage state" at the time of the marriage. Id. at 239 (emphasis added). The legislature's own actions thus belie the dissent's wholly unsupported declaration, at 594-95 n.8, that "the purpose of HRS @ 572-1 is to promote and protect propagation . . . ."

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In addition to the necessary jurisdictional and venuerelated averments, the plaintiffs' complaint alleges the [*538] following facts: (1) on or about December 17, 1990, Baehr/Dancel, Rodrigues/Pregil, and Lagon/Melilio (collectively "the applicant couples") filed applications for marriage licenses with the DOH, pursuant to HRS @ 572-6 (Supp. 1992); n2 (2) the DOH denied the applicant couples' [*539] marriage license applications solely on the ground that the applicant couples were of the same sex; n3 (3) the applicant couples have complied with all marriage contract requirements and provisions under HRS ch. 572, except that each applicant couple is of the same sex; (4) the applicant couples are otherwise eligible to secure marriage licenses from the DOH, absent the statutory prohibition or construction of HRS @ 572-1 excluding couples of the same sex from securing marriage licenses; and (5) in denying the applicant couples' marriage license applications, the DOH was acting in its official capacity and under color of state law.

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n2 HRS @ 572-6 provides:

Application; license; limitations. To secure a license to marry, the persons applying for the license shall appear personally before an agent authorized to grant marriage licenses and shall file with the agent an application in writing. The application shall be accompanied by a statement signed and sworn to by each of the persons, setting forth: the person's full name, date of birth, residence; their relationship, if any; the full names of parents; and that all prior marriages, if any, have been dissolved by death or dissolution. If all prior marriages have been dissolved by death or dissolution, the statement shall also set forth the date of death of the last prior spouse or the date and jurisdiction in which the last decree of dissolution was entered. Any other information consistent with the standard marriage certificate as recommended by the Public Health Service, National Center for Health Statistics, may be requested for statistical or other purposes, subject to approval of and modification by the department of health; provided that the information shall be provided at the option of the applicant and no applicant shall be denied a license for failure to provide the information. The agent shall indorse on the application, over the agent's signature, the date of the filing thereof and shall issue a license which shall bear on its face the date of issuance. Every license shall be of full force and effect for thirty days commencing from and including the date of issuance. After the thirty-day period, the license shall become void and no marriage ceremony shall be performed thereon.

It shall be the duty of every person, legally authorized to issue licenses to marry, to immediately report the issuance of every marriage license to the agent of the department of health in the district in which the license is issued, setting forth all the facts required to be stated in such manner and on such form as the department may prescribe. HRS @ 572-6 (Supp. 1992).

HRS @ 572-5(a) (Supp. 1992) provides in relevant part that "[t]he department of health shall appoint . . . one or more suitable persons as agents authorized to grant marriage licenses . . . in each judicial circuit." [***15]

n3 Exhibits "A," "C," and "D," attached to the plaintiffs' complaint, purport to be identical letters dated April 12, 1991, addressed to the respective applicant couples, from the DOH's Assistant Chief and State Registrar, Office of Health Status Monitoring, which stated:

This will confirm our previous conversation in which we indicated that the law of Hawaii does not treat a union between members of the same sex as a valid marriage. We have been advised by our attorneys that a valid marriage within the meaning of ch. 572, Hawaii Revised Statutes, must be one in which the parties to the marriage contract are of different sexes. In view of the foregoing, we decline to issue a license for your marriage to one another since you are both of the same sex and for this reason are not capable of forming a valid marriage contract within the meaning of ch. 572. Even if we did issue a marriage license to you, it would not be a valid marriage under Hawaii law.

(Emphasis added.)

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Based on the foregoing factual allegations, the plaintiffs' complaint avers that: (1) the DOH's interpretation [***16] and application of HRS @ 572-1 to deny same-sex couples access to marriage licenses violates the plaintiffs' right to privacy, as guaranteed by article I, section 6 of the Hawaii [*540] Constitution, n4 as well as to the equal protection of the laws and due process of law, as guaranteed by article I, section 5 of the Hawaii Constitution; n5 (2) the plaintiffs have no plain, adequate, or complete remedy at law to redress their alleged injuries; and (3) the plaintiffs are presently suffering and will continue to suffer irreparable injury from the DOH's acts, policies, and practices in the absence of declaratory and injunctive relief.

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n4 Article I, section 6 of the Hawaii Constitution provides:

The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

Haw. Const. art. I, @ 6 (1978).

n5 Article I, section 5 of the Hawaii Constitution provides:

No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.

Haw. Const. art. I, @ 5 (1978).

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On June 7, 1991, Lewin filed an amended answer to the plaintiffs' complaint. In his amended answer, Lewin asserted the defenses of failure to state a claim upon which relief can be granted, sovereign immunity, qualified immunity, and abstention in favor of legislative action. n6 With regard to the plaintiffs' factual allegations, Lewin admitted: (1) his residency and status as the director of the DOH; (2) that on or about December 17, 1990, the applicant couples personally appeared before an [*541] authorized agent of the DOH and applied for marriage licenses; (3) that the applicant couples' marriage license applications were denied on the ground that each couple was of the same sex; and (4) that the DOH did not address the issue of the premarital examination required by HRS @ 572-7(a) (Supp. 1992) n7 "upon being advised" that the applicant couples were of the same sex. Lewin denied all of the remaining allegations of the complaint.

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n6 Lewin's motion for judgment on the pleadings relied exclusively on the ground that the plaintiffs' complaint failed to state a claim upon which relief could be granted, and the circuit court granted the motion and entered judgment in Lewin's favor on that basis alone. Accordingly, the merits of Lewin's other defenses are not at issue in this appeal, and we do not reach them. [***18]

n7 In substance, HRS @ 572-7(a) (Supp. 1992) requires "the female" to accompany a marriage license application with a signed physician's statement verifying that she has been given a serological test for immunity against rubella and has been informed of the adverse effects of rubella on fetuses. The statute exempts from the examination requirement those females who provide proof of live rubella virus immunization or laboratory evidence of rubella immunity, "or who, by reason of age or other medically determined condition [are] not and never will be physically able to conceive a child." Id.

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On July 9, 1991, Lewin filed his motion for judgment on the pleadings, pursuant to Hawaii Rules of Civil Procedure (HRCP) 12(h)(2) (1990) n8 and 12(c) (1990), n9 and to dismiss the plaintiffs' complaint, pursuant to HRCP [*542] 12(b)(6) (1990), n10 and memorandum in support thereof in [*543] the circuit court. The memorandum was unsupported by and contained no references to any affidavits, depositions, answers to interrogatories, or admissions on file. Indeed, the record in this case suggests that [***19] the parties have not conducted any formal discovery.

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n8 HRCP 12(h)(2) (1990) provides in relevant part that "[a] defense of failure to state a claim upon which relief can be granted . . . may be made . . . by motion for judgment on the pleadings . . . ."

n9 HRCP 12(c) provides:

Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.

HRCP 12(c) (1990).

HRCP 56 provides in relevant part:

(b) For Defending Party. A party against whom a claim . . . is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

. . . .

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in any affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. . . .

HRCP 56 (1990). [***20]

n10 HRCP 12(b) provides in relevant part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted . . . . A motion making any of these defenses shall be made before pleading if a further pleading is permitted. . . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

HRCP 12(b) (1990).

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In his memorandum, Lewin urged that the plaintiffs' complaint failed to state a claim upon which relief could be granted for the following reasons: (1) the state's [***21] marriage laws "contemplate marriage as a union between a man and a woman"; (2) because the only legally recognized right to marry "is the right to enter a heterosexual marriage, [the] plaintiffs do not have a cognizable right, fundamental or otherwise, to enter into state-licensed homosexual marriages"; n11 (3) the state's marriage laws do not "burden, penalize, infringe, or interfere in any way with the [plaintiffs'] private relationships"; (4) the state is under no obligation "to take affirmative steps to provide homosexual unions with its official approval"; (5) the state's marriage laws "protect and foster and may help to perpetuate the basic family unit, regarded as vital to society, that provides status and a nurturing environment to [*544] children born to married persons" and, in addition, "constitute a statement of the moral values of the community in a manner that is not burdensome to [the] plaintiffs"; (6) assuming the plaintiffs are homosexuals (a fact not pleaded in the plaintiffs' complaint), n12 they "are neither a suspect nor a quasi-suspect class and do not require heightened judicial solicitude"; and (7) even if heightened judicial solicitude is warranted, the [***22] state's marriage laws "are so removed from penalizing, burdening, harming, or otherwise interfering with [the] plaintiffs and their relationships and perform such a critical function in society that they must be sustained."

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n11 "Homosexual" and "same-sex" marriages are not synonymous; by the same token, a "heterosexual" same-sex marriage is, in theory, not oxymoronic. A "homosexual" person is defined as "[o]ne sexually attracted to another of the same sex." Taber's Cyclopedic Medical Dictionary 839 (16th ed. 1989). "Homosexuality" is "sexual desire or behavior directed toward a person or persons of one's own sex." Webster's Encyclopedic Unabridged Dictionary of the English Language 680 (1989). Conversely, "heterosexuality" is "[s]exual attraction for one of the opposite sex," Taber's Cyclopedic Medical Dictionary at 827, or "sexual feeling or behavior directed toward a person or persons of the opposite sex." Webster's Encyclopedic Unabridged Dictionary of the English Language at 667. 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. [***23]

n12 Lewin is correct that the plaintiffs' complaint does not allege that the plaintiffs, or any of them, are homosexuals. Thus it is Lewin, who, by virtue of his motion for judgment on the pleadings, has sought to place the question of homosexuality in issue.

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The plaintiffs filed a memorandum in opposition to Lewin's motion for judgment on the pleadings on August 29, 1991. Citing <=2> Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981), and <=3> Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887 (1962), they argued that, for purposes of Lewin's motion, the circuit court was bound to accept all of the facts alleged in their complaint as true and that the complaint therefore could not be dismissed for failure to state a claim unless it appeared beyond doubt that they could prove no set of facts that would entitle them to the relief sought. Proclaiming their homosexuality and asserting a fundamental constitutional right to sexual orientation, the plaintiffs reiterated their position that the DOH's refusal to [***24] issue marriage licenses to the applicant couples violated their rights to privacy, equal protection of the laws, and due process of law under article I, sections 5 and 6 of the Hawaii Constitution.

[*545] The circuit court heard Lewin's motion on September 3, 1991, and, on October 1, 1991, filed its order granting Lewin's motion for judgment on the pleadings on the basis that Lewin was "entitled to judgment in his favor as a matter of law" and dismissing the plaintiffs' complaint with prejudice. n13 The plaintiffs' timely appeal followed.

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n13 A final and appealable judgment in Lewin's favor and against the plaintiffs was filed contemporaneously with the order granting the motion for judgment on the pleadings.

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II. JUDGMENT ON THE PLEADINGS WAS ERRONEOUSLY GRANTED.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. <=4> Ravelo v. County of Hawaii, 66 Haw. 194, 198, 658 P.2d 883, 886 (1983) [***25] (quoting <=5> Midkiff, 45 Haw. at 414, 368 P.2d at 890); <=6> Marsland v. Pang, 5 Haw. App. 463, 474, 701 P.2d 175, 185-86, cert. denied, <=7> 67 Haw. 686, 744 P.2d 781 (1985). We must therefore view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternative theory. <=8> Ravelo, 66 Haw. at 199, 658 P.2d at 886. For this reason, in reviewing the circuit court's order dismissing the plaintiffs' complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true. <=9> Au, 63 Haw. at 214, 626 P.2d at 177 (1981).

An HRCP 12(c) motion serves much the same purpose as an HRCP 12(b)(6) motion, except that it is made after [*546] the pleadings are closed. <=10> Marsland, 5 Haw. App. at 474, 701 P.2d at 186. "'A Rule 12(c) motion . . . for [***26] a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.'" <=11> Id. at 475, 701 P.2d at 186 (citing 5 Wright and Miller, Federal Practice and Procedure: Civil @ 1357 (1969)).

Based on the foregoing authority, it is apparent that an order granting an HRCP 12(c) motion for judgment on the pleadings must be based solely on the contents of the pleadings. A claim that is evidentiary in nature and requires findings of fact to resolve cannot properly be disposed of under the rubric of HRCP 12(c). Cf. Nawahie v. Goo Wan Hoy, 26 Haw. 111 (1921) ("Only such facts as were properly before the court below at the time of the rendition of the decree appealed from and which appear in the record . . . on appeal will be considered. All other matters will be treated as surplusage and of course will be disregarded.") We have recognized that consideration of matters outside the pleadings transforms a motion seeking dismissal of a complaint into an HRCP 56 motion for summary judgment. See <=13> Au, 63 Haw. at 213, 626 P.2d at 176; [***27] <=14> Del Rosario v. Kohanuinui, 52 Haw. 583, 483 P.2d 181 (1971); HRCP 12(b) (1990); cf. HRCP 12(c) (1990). But resort to matters outside the record, by way of "[u]nverified statements of fact in counsel's memorandum or representations made in oral argument" or otherwise, cannot accomplish such a transformation. See <=15> Au, 63 Haw. at 213, 626 P.2d at 177; cf. <=16> Asada v. Sunn, 66 Haw. 454, 455, 666 P.2d 584, 585 (1983); <=17> Mizoguchi v. State Farm Mut. Auto. Ins. Co., 66 Haw. 373, 381-82, 663 P.2d 1071, 1076-77 (1983); HRCP 56(e) (1990).

[*547] A. The Circuit Court Made Evidentiary Findings of Fact.

Notwithstanding the absence of any evidentiary record before it, the circuit court's October 1, 1991 order granting Lewin's motion for judgment on the pleadings contained a variety of findings of fact. For example, the circuit court "found" that: (1) HRS @ 572-1 "does not infringe upon a person's individuality or lifestyle decisions, and none of the plaintiffs has provided testimony to the [***28] contrary"; (2) HRS @ 572-1 "does not . . . restrict [or] burden . . . the exercise of the right to engage in a homosexual lifestyle"; (3) Hawaii has exhibited a "history of tolerance for all peoples and their cultures"; (4) "the plaintiffs have failed to show that they have been ostracized or oppressed in Hawaii and have opted instead to rely on a general statement of historic problems encountered by homosexuals which may not be relevant to Hawaii"; (5) "homosexuals in Hawaii have not been relegated to a position of 'political powerlessness.' . . . [T]here is no evidence that homosexuals and the homosexual legislative agenda have failed to gain legislative support in Hawaii"; (6) the "[p]laintiffs have failed to show that homosexuals constitute a suspect class for equal protection analysis under [a]rticle I, [s]ection 5 of the Hawaii State Constitution;" (7) "the issue of whether homosexuality constitutes an immutable trait has generated much dispute in the relevant scientific community"; n14 and (8) HRS @ 572-1 "is obviously designed to promote the general welfare interests of the [*548] community by sanctioning traditional man-woman family units and procreation." [***29] (Emphasis added.)

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n14 For the reasons stated, infra, in this opinion, it is irrelevant, for purposes of the constitutional analysis germane to this case, whether homosexuality constitutes "an immutable trait" because it is immaterial whether the plaintiffs, or any of them, are homosexuals. Specifically, the issue is not material to the equal protection analysis set forth in section II. C of this opinion, infra at 557-580. Its resolution is unnecessary to our ruling that HRS @ 572-1, both on its face as applied, denies same-sex couples access to the marital status and its concomitant rights and benefits. Its resolution is also unnecessary to our conclusion that it is the state's regulation of access to the marital status, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution. See infra at 558-571. And, in particular, it is immaterial to the exercise of "strict scrutiny" review, see infra at 571-580, inasmuch as we are unable to perceive any conceivable relevance of the issue to the ultimate conclusion of law -- which, in the absence of further evidentiary proceedings, we cannot reach at this time -- regarding whether HRS @ 572-1 furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. See infra at 580-81.

In light of the above, we disagree with Chief Judge Burns's position that "questions whether heterosexuality, homosexuality, bisexuality, and asexuality are 'biologically fated' are relevant questions of fact[.]" Concurring opinion at 587. This preoccupation seems simply to restate the immaterial question whether sexual orientation is an "immutable trait."

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Although not expressly denominated as such, the circuit court's order also contained a number of conclusions of law. n15 These included: (1) "[t]he right to enter into a homosexual marriage is not a fundamental right protected by [a]rticle I, [s]ection 6 of the Hawaii State Constitution"; (2) the right to be free from the denial of a person's [*549] civil rights or from discrimination in the exercise thereof because of "sexual orientation [is] . . . covered under [a]rticle I, [s]ection 5 of the State Constitution"; (3) HRS @ 572-1 "permits heterosexual marriages but not homosexual marriages" and "does not violate the due process clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (4) HRS @ 572-1 "represents a legislative decision to extend the benefits of lawful marriage only to traditional family units which consist of male and female partners"; (5) "[b]ecause [entering into a] homosexual marriage [is not] a fundamental [constitutional] right . . ., the provisions of section 572-1 do not violate the due process clause of [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (6) "[h]omosexuals do not constitute a 'suspect class' for purposes of equal protection [***31] analysis under [a]rticle I, [s]ection 5 of the Hawaii State Constitution"; (7) "a group must have been subject to purposeful, unequal treatment or have been relegated to a position of political powerlessness in order to be considered a 'suspect class' for the purposes of constitutional analysis"; (8) "[a] law which classifies on the basis of race deserves the utmost judicial scrutiny because race clearly qualifies as a suspect classification. The same cannot be convincingly said with respect to homosexuals as a group"; (9) "the classification created by section 572-1 must meet only the rational relationship test"; (10) "[t]he classification of section 572-1 meets the rational relationship test"; (11) "[s]ection 572-1 is clearly a rational, legislative effort to advance the general welfare of the community by permitting only heterosexual couples to legally marry"; and, finally, (12) Lewin "is entitled to judgment in his favor as a matter of law[.]"

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n15 A "conclusion of law," for present purposes, is either: (1) a "[f]inding by [the] court as determined through application of rules of law"; (2) "[p]ropositions of law which [the] judge arrives at after, and as a result of, finding certain facts in [the] case[;]" or (3) "[t]he final judgment or decree required on [the] basis of facts found[.]" Black's Law Dictionary 290 (6th ed. 1990). The second category may constitute such "mixed questions of fact and law" as "are dependent upon the facts and circumstances of each individual case[.]" See <=18> Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991).

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In reviewing the circuit court's order on appeal, as noted above, we must deem all of the factual allegations of [*550] the plaintiffs' complaint as true or admitted, see <=19> Au, 63 Haw. at 214, 626 P.2d at 177; <=20> Marsland, 5 Haw. App. at 475, 701 P.2d at 186, and, in the absence of an evidentiary record, ignore all of the circuit court's findings of fact. See <=21> Au, 63 Haw. at 213, 626 P.2d at 177; <=22> Marsland, 5 Haw. App. at 475, 701 P.2d at 186; cf. <=23> Asada, 66 Haw. at 455, 666 P.2d at 585; <=24> Mizoguchi, 66 Haw. at 381-82, 663 P.2d at 1076-77; Nawahie, 26 Haw. at 111; HRCP 12(c) and 56(e). Ultimately, our task on appeal is to determine whether the circuit court's order, stripped of its improper factual findings, supports its conclusion that Lewin is entitled to judgment as a matter of law and, by implication, that it appears beyond doubt that the plaintiffs [***33] can prove no set of facts in support of their claim that would entitle them to relief under any alternative theory. See <=26> Ravelo, 66 Haw. at 198-99; <=27> Au, 63 Haw. at 214, 626 P.2d at 177; <=28> Marsland, 5 Haw. App. at 474-75.

We conclude that the circuit court's order runs aground on the shoals of the Hawaii Constitution's equal protection clause and that, on the record before us, unresolved factual questions preclude entry of judgment, as a matter of law, in favor of Lewin and against the plaintiffs. Before we address the plaintiffs' equal protection claim, however, it is necessary as a threshold matter to consider their allegations regarding the right to privacy (and, derivatively, due process of law) within the context of the record in its present embryonic form.

B. The Right to Privacy Does Not Include a Fundamental Right to Same-Sex Marriage.

It is now well established that "'a right to personal privacy, or a guarantee of certain areas or zones of privacy,' is implicit in the United States Constitution." <=29> State v. Mueller, 66 Haw. 616, 618, 671 P.2d 1351, 1353 [*551] (1983) [***34] (quoting <=30> Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1973)). And article I, section 6 of the Hawaii Constitution expressly states that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Haw. Const. art. I, @ 6 (1978). The framers of the Hawaii Constitution declared that the "privacy concept" embodied in article I, section 6 is to be "treated as a fundamental right[.]" <=31> State v. Kam, 69 Haw. 483, 493, 748 P.2d 372, 378 (1988) (citing Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 1024 (1980)).

When article I, section 6 of the Hawaii Constitution was being adopted, the 1978 Hawaii Constitutional Convention, acting as a committee of the whole, clearly articulated the rationale for its adoption:

By amending the Constitution to include a separate and distinct privacy right, it is the intent of your Committee to insure that privacy is treated as a fundamental right for purposes of constitutional analysis. . . . This [***35] right is similar to the privacy right discussed in cases such as <=32> Griswold v. Connecticut, [381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)], <=33> Eisenstadt v. Baird, [405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)], Roe v. Wade, etc. It is a right that, though unstated in the federal Constitution, emanates from the penumbra of several guarantees of the Bill of Rights. Because of this, there has been some confusion as to the source of the right and the importance of it. As such, it is treated as a fundamental right subject to interference only when a compelling state interest is demonstrated. By inserting clear and specific language regarding [*552] this right into the Constitution, your Committee intends to alleviate any possible confusion over the source of the right and the existence of it.

Comm. Whole Rep. No. 15, 1 Proceedings, at 1024. This court cited the same passage in <=34> Mueller, 66 Haw. at 625-26, 671 P.2d at 1357-58, in an attempt to determine the "intended scope of privacy [***36] protected by the Hawaii Constitution." <=35> Id. at 626, 671 P.2d at 1358. We ultimately concluded in Mueller that the federal cases cited by the Convention's committee of the whole should guide our construction of the intended scope of article I, section 6. Id.

Accordingly, there is no doubt that, at a minimum, article I, section 6 of the Hawaii Constitution encompasses all of the fundamental rights expressly recognized as being subsumed within the privacy protections of the United States Constitution. In this connection, the United States Supreme Court has declared that "the right to marry is part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." <=36> Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 680, 54 L. Ed. 2d 618 (1978). The issue in the present case is, therefore, whether the "right to marry" protected by article I, section 6 of the Hawaii Constitution extends to same-sex couples. Because article I, section 6 was expressly derived from the general right to privacy under the United States Constitution and because [***37] there are no Hawaii cases that have delineated the fundamental right to marry, this court, as we did in Mueller, looks to federal cases for guidance.

The United States Supreme Court first characterized the right of marriage as fundamental in <=37> Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). In Skinner, the right to marry [*553] was inextricably linked to the right of procreation. The dispute before the court arose out of an Oklahoma statute that allowed the state to sterilize "habitual criminals" without their consent. In striking down the statute, the Skinner court indicated that it was "dealing . . . with legislation which involve[d] one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." <=38> Id. at 541, 62 S. Ct. at 1113 (emphasis added). Whether the court viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled [***38] that the right to marry was fundamental. This is hardly surprising inasmuch as none of the United States sanctioned any other marriage configuration at the time.

The United States Supreme Court has set forth its most detailed discussion of the fundamental right to marry in Zablocki, supra, which involved a Wisconsin statute that prohibited any resident of the state with minor children "not in his custody and which he is under obligation to support" from obtaining a marriage license until the resident demonstrated to a court that he was in compliance with his child support obligations. <=39> 434 U.S. at 376, 98 S. Ct. at 675. The Zablocki court held that the statute burdened the fundamental right to marry; applying the "strict scrutiny" standard to the statute, the court invalidated it as violative of the fourteenth amendment to the United States Constitution. <=40> Id. at 390-91, 98 S. Ct. at 683. In so doing, the Zablocki court delineated its view of the evolution of the federally recognized fundamental right of marriage as follows:

Long ago, in <=41> Maynard v. Hill, 125 U.S. 190[, 8 S. Ct. 723, 31 L. Ed. 654] [***39] (1888), the Court characterized marriage as "the most important relation [*554] in life," <=42> id., at 205, [8 S. Ct., at 726,] and as "the foundation of the family and of society, without which there would be neither civilization nor progress," <=43> id., at 211[, 8 S. Ct., at 729]. In <=44> Meyer v. Nebraska, 262 U.S. 390[, 43 S. Ct. 625, 67 L. Ed. 1042] (1923), the Court recognized that the right "to marry, establish a home and bring up children" is a central part of the liberty protected by the Due Process Clause, <=45> id., at 399, [43 S. Ct., at 626,] and in <=46> Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as "fundamental to the very existence and survival of the race," <=47> 316 U.S., at 541[, 62 S. Ct., at 1113].

. . . .

It is not surprising that the decision to marry has been placed on the same level of importance as [***40] decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see <=48> Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings . . . . Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only [*555] relationship in which the State of Wisconsin allows sexual relations legally to take place.

Id. at 384-86, 98 S. Ct. at 680-81 (citations and footnote omitted). Implicit in the Zablocki court's link between the right to marry, on the one hand, and the fundamental rights of [***41] procreation, childbirth, abortion, and child rearing, on the other, is the assumption that the one is simply the logical predicate of the others.

The foregoing case law demonstrates that the federal construct of the fundamental right to marry -- subsumed within the right to privacy implicitly protected by the United States Constitution -- presently contemplates unions between men and women. (Once again, this is hardly surprising inasmuch as such unions are the only state-sanctioned marriages currently acknowledged in this country.)

Therefore, the precise question facing this court is whether we will extend the present boundaries of the fundamental right of marriage to include same-sex couples, or, put another way, whether we will hold that same-sex couples possess a fundamental right to marry. In effect, as the applicant couples frankly admit, we are being asked to recognize a new fundamental right. There is no doubt that "[a]s the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, we are free to give broader privacy protection [under article I, section 6 of the Hawaii Constitution] than that given by the federal [***42] constitution." <=49> Kam, 69 Haw. at 491, 748 P.2d at 377 (citations omitted). However, we have also held that the privacy right found in article I, section 6 is similar to the federal right and that no "purpose to lend talismanic effect" to abstract phrases such as "intimate decision" or "personal autonomy" can "be inferred from [article I, section 6], any more than . . . from [*556] the federal decisions." <=50> Mueller, 66 Haw. at 630, 671 P.2d at 1360.

In Mueller, this court, in attempting to circumscribe the scope of article I, section 6, found itself ultimately "led back to" the landmark United States Supreme Court cases "in [its] search for guidance" on the issue. <=51> Id. at 626, 671 P.2d at 1358. In the case that first recognized a fundamental right to privacy, <=52> Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965), the court declared that it was "deal[ing] with a right . . . older than the Bill of Rights[.]" <=53> Id. at 486, 85 S. Ct. at 1682. [***43] And in a concurring opinion, Justice Goldberg observed that judges "determining which rights are fundamental" must look not to "personal and private notions," but to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." . . . The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' . . . ." <=54> Id. at 493, 85 S. Ct. at 1686-87 (Goldberg, J., concurring) (citations omitted). n16

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n16 In Mueller, this court cited <=55> Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), for the proposition that only rights that are implicit in the concept of ordered liberty can be deemed fundamental. Pursuant to that standard, this court held that a prostitute did not have a fundamental right under article I, section 6 of the Hawaii Constitution to conduct business in her own home. <=56> 66 Haw. at 628, 630, 671 P.2d at 1359-60.

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Applying the foregoing standards to the present case, we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our [*557] 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. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise.

Our holding, however, does not leave the applicant couples without a potential remedy in this case. As we will discuss below, the applicant couples are free to press their equal protection claim. If they are successful, the State of Hawaii will no longer be permitted to refuse marriage licenses to couples merely on the basis that they are of the same sex. But there is no fundamental right to marriage for same-sex couples under article I, section 6 of the Hawaii Constitution.

C. Inasmuch as the Applicant [***45] Couples Claim That the Express Terms of HRS @ 572-1, which Discriminates against Same-Sex Marriages, Violate Their Rights under the Equal Protection Clause of the Hawaii Constitution, the Applicant Couples Are Entitled to an Evidentiary Hearing to Determine Whether Lewin Can Demonstrate that HRS @ 572-1 Furthers Compelling State Interests and Is Narrowly Drawn to Avoid Unnecessary Abridgments of Constitutional Rights.

In addition to the alleged violation of their constitutional rights to privacy and due process of law, the applicant couples contend that they have been denied the equal protection of the laws as guaranteed by article section 5 [*558] of the Hawaii Constitution. On appeal, the plaintiffs urge and, on the state of the bare record before us, we agree that the circuit court erred when it concluded, as a matter of law, that: (1) homosexuals do not constitute a "suspect class" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution; n17 (2) the classification created by HRS @ 572-1 is not subject to "strict scrutiny," but must satisfy only the "rational relationship" test; and (3) HRS @ 572-1 satisfies the rational relationship [***46] test because the legislature "obviously designed [it] to promote the general welfare interests of the community by sanctioning traditional man-woman family units and procreation."

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n17 For the reasons stated, infra, in this opinion, it is irrelevant, for purposes of the constitutional analysis germane to this case, whether homosexuals constitute a "suspect class" because it is immaterial whether the plaintiffs, or any of them, are homosexuals. See supra note 14.

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1. Marriage is a state-conferred legal partnership status, the existence of which gives rise to a multiplicity of rights and benefits reserved exclusively to that particular relation.

The power to regulate marriage is a sovereign function reserved exclusively to the respective states. <=57> Salisbury v. List, 501 F. Supp. 105, 107 (D. Nev. 1980); see <=58> O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973). By its very nature, the power to regulate the marriage relation includes the power [***47] to determine the requisites of a valid marriage contract and to control the qualifications of the contracting parties, the forms and procedures necessary to solemnize the marriage, the duties and obligations it creates, its effect upon property and other rights, and the [*559] grounds for marital dissolution. Id.; see also <=59> Maynard v. Hill, supra.

In other words, marriage is a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship. This court construes marriage as "'a partnership to which both partners bring their financial resources as well as their individual energies and efforts.'" <=60> Gussin v. Gussin, 73 Haw. 470, 483, 836 P.2d 484, 491 (1992) (citation omitted); <=61> Myers v. Myers, 70 Haw. 143, 154, 764 P.2d 1237, 1244, reconsideration denied, <=62> 70 Haw. 661, 796 P.2d 1004 (1988); <=63> Cassiday v. Cassiday, 68 Haw. 383, 387, 716 P.2d 1133, 1136 (1986). [***48] So zealously has this court guarded the state's role as the exclusive progenitor of the marital partnership that it declared, over seventy years ago, that "common law" marriages -- i.e., "marital" unions existing in the absence of a state-issued license and not performed by a person or society possessing governmental authority to solemnize marriages -- would no longer be recognized in the Territory of Hawaii. Parke v. Parke, 25 Haw. 397, 404-05 (1920). n18

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n18 In Parke, a "common law" petitioner sought unsuccessfully to derive the benefits of inheritance rights unique to a married spouse, apparently having affirmatively chosen not to seek the state-conferred status of a lawful marriage "partner." Id. at 398, 405. A "same sex spouse" suffered the identical fate in <=66> De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984) (two persons of same sex cannot contract common law marriage, notwithstanding state's recognition of common law marriage between persons of different sex), a decision on which Lewin relies in his answering brief. It is ironic that, in arguing before the circuit court that Hawaii's marriage laws do not "burden, penalize, infringe, or interfere in any way with the [plaintiffs'] private relationships" and in urging before this court that their "relationships are not disturbed in any manner by" HRS @ 572-1, Lewin implicitly suggests that the applicant couples should be content with a de facto status that the state declines to acknowledge de jure and that lacks the statutory rights and benefits of marriage. See infra at 560-62.

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[*560] Indeed, the state's monopoly on the business of marriage creation has been codified by statute for more than a century. HRS @ 572-1(7), descended from an 1872 statute of the Hawaiian Kingdom, conditions a valid marriage contract on "[t]he marriage ceremony be[ing] performed in the State by a person or society with a valid license to solemnize marriages[.]" HRS @ 572-11 (1985) accords the DOH sole authority to grant licenses to solemnize marriages, and HRS @ 572-12 (1985) restricts the issuance of such licenses to clergy, representatives of religious societies (such as the Society of Friends) not having clergy but providing solemnization by custom, and judicial officers. Finally, HRS @@ 572-5 and 572-6 vest the DOH with exclusive authority to issue licenses to marriage applicants and to ensure that the general requisites and procedures prescribed by HRS chapter 572 are satisfied. 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. Although it is unnecessary in this opinion to engage in [***50] an encyclopedic recitation of all of them, a number of the most salient marital rights and benefits are worthy of note. They include: (1) a variety of state income tax advantages, including deductions, credits, rates, exemptions, and estimates, under HRS chapter 235 (1985 and Supp. 1992); (2) public assistance from and exemptions relating to the Department of Human Services under HRS chapter 346 (1985 and Supp. 1992); (3) control, division, acquisition, and disposition of community [*561] property under HRS chapter 510 (1985); (4) rights relating to dower, curtesy, and inheritance under HRS chapter 533 (1985 and Supp. 1992); (5) rights to notice, protection, benefits, and inheritance under the Uniform Probate Code, HRS chapter 560 (1985 and Supp. 1992); (6) award of child custody and support payments in divorce proceedings under HRS chapter 571 (1985 and Supp. 1992); (7) the right to spousal support pursuant to HRS @ 572-24 (1985); (8) the right to enter into premarital agreements under HRS chapter 572D (Supp. 1992); (9) the right to change of name pursuant to HRS @ 574-5(a)(3) (Supp. 1992); (10) the right to file a nonsupport action under HRS chapter 575 (1985 and Supp. 1992); [***51] (11) post-divorce rights relating to support and property division under HRS chapter 580 (1985 and Supp. 1992); (12) the benefit of the spousal privilege and confidential marital communications pursuant to Rule 505 of the Hawaii Rules of Evidence (1985); (13) the benefit of the exemption of real property from attachment or execution under HRS chapter 651 (1985); and (14) the right to bring a wrongful death action under HRS chapter 663 (1985 and Supp. 1992). For present purposes, it is not disputed that the applicant couples would be entitled to all of these marital rights and benefits, but for the fact that they are denied access to the state-conferred legal status of marriage.

2. 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.

Notwithstanding the state's acknowledged stewardship over the institution of marriage, the extent of permissible [*562] state regulation of the right of access to the marital relationship is subject to constitutional limitations or constraints. See, e.g., <=67> Zablocki, 435 U.S. at 388-91, 98 S. Ct. at 682-83; [***52] <=68> Loving v. Virginia, 388 U.S. 1, 7-12, 87 S. Ct. 1817, 1821-24, 18 L. Ed. 2d 1010 (1967); <=69> Salisbury, 501 F. Supp. at 107 (citing <=70> Johnson v. Rockefeller, 58 F.R.D. 42 (S.D.N.Y. 1972)). It has been held that a state may deny the right to marry only for compelling reasons. <=71> Salisbury, 501 F. Supp. at 107; <=72> Johnson, supra. n19

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n19 For example, states, including Hawaii, may and do prohibit marriage for such "compelling" reasons as consanguinity (to prevent incest), see, e.g., HRS @ 572-1(1), immature age (to protect the welfare of children), see, e.g., HRS @@ 572-1(2) and 572-2 (1985), presence of venereal disease (to foster public health), see, e.g., HRS @ 572-1(5), and to prevent bigamy, see, e.g., HRS @ 572-1(3). See also <=73> Zablocki, 434 U.S. at 392, 98 S. Ct. at 684 (concurring opinion of Stewart, J.); <=74> Salisbury, 501 F. Supp. at 107.

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The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." Hawaii's counterpart is more elaborate. Article I, section 5 of the Hawaii Constitution provides in relevant part that "[n]o person shall . . . be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry." (Emphasis added.) Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly [*563] pursuit of happiness by free [people]." <=75> Loving, 388 U.S. at 12, 87 S. Ct. at 1824. So "fundamental" does the United States Supreme Court consider the [***54] institution of marriage that it has deemed marriage to be "one of the 'basic civil rights of [men and women.]'" Id. (quoting <=76> Skinner, 316 U.S. at 541, 62 S. Ct. at 1113).

Black's Law Dictionary (6th ed. 1990) defines "civil rights" as synonymous with "civil liberties." Id. at 246. "Civil liberties" are defined, inter alia, as "[p]ersonal, natural rights guaranteed and protected by Constitution; e.g., . . . freedom from discrimination . . . . Body of law dealing with natural liberties . . . which invade equal rights of others. Constitutionally, they are restraints on government." Id. This court has held, in another context, that such "privilege[s] of citizenship . . . cannot be taken away [on] any of the prohibited bases of race, religion, sex or ancestry" enumerated in article I, section 5 of the Hawaii Constitution and that to do so violates the right to equal protection of the laws as guaranteed by that constitutional provision. <=77> State v. Levinson, 71 Haw. 492, 499, 795 P.2d 845, 849-50 (1990) (exclusion of female jurors solely because of [***55] their sex denies them equal protection under Hawaii Constitution) (emphasis added).

Rudimentary principles of statutory construction render manifest the fact that, by its plain language, HRS @ 572-1 restricts the marital relation to a male and a female. "'[T]he fundamental starting point for statutory interpretation is the language of the statute itself. . . . [W]here the statutory language is plain and unambiguous,'" we construe it according "'to its plain and obvious meaning.'" <=78> Schmidt v. Board of Directors of Ass'n of Apartment Owners of The Marco Polo Apartments, 73 Haw. 526, 531-32, 836 P.2d 479, 482 (1992); <=79> In re Tax Appeal of Lower Mapunapuna Tenants Ass'n, [*564] 73 Haw. 63, 68, 828 P.2d 263, 266 (1992). The non-consanguinity requisite contained in HRS @ 572-1(1) precludes marriages, inter alia, between "brother and sister," "uncle and niece," and "aunt and nephew[.]" The anti-bigamy requisite contained in HRS @ 572-1(3) forbids a marriage between a "man" or a "woman" as the case may be, who, at the time, has a living and "lawful wife . . . [or] husband[.]" And the [***56] requisite, set forth in HRS @ 572-1(7), requiring marriage ceremonies to be performed by state-licensed persons or entities expressly speaks in terms of "the man and woman to be married[.]" n20 Accordingly, on its face and (as Lewin admits) as applied, HRS @ 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits. It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution.

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n20 That the legislature, in enacting HRS ch. 572, obviously contemplated marriages between persons of the opposite sex is not, however, outcome dispositive of the plaintiffs' claim. Legislative action, whatever its motivation, cannot sanitize constitutional violations. Cf. <=80> City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448, 105 S. Ct. 3249, 3259, 87 L. Ed. 2d 313 (1985) ("It is plain that the electorate as a whole, whether by referendum or otherwise, could not order . . . action violative of the Equal Protection Clause.")

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Relying primarily on four decisions construing the law of other jurisdictions, n21 Lewin contends that "the fact that [*565] homosexual [sic -- actually, same-sex] n22 partners cannot form a state-licensed marriage is not the product of impermissible discrimination" implicating equal protection considerations, but rather "a function of their biologic inability as a couple to satisfy the definition of the status to which they aspire." Lewin's answering brief at 21. Put differently, Lewin proposes that "the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman." Id. at 7. We believe Lewin's argument to be circular and unpersuasive.

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n21 The four decisions are <=81> Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); <=82> Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, <=83> 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); <=84> De Santo v. Barnsley, supra; and <=85> Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, review denied, <=86> 84 Wash. 2d 1008 (1974). [***58]

n22 See supra note 11.

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Two of the decisions upon which Lewin relies are demonstrably inapposite to the appellant couples' claim. In <=87> Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, <=88> 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), the questions for decision were whether a marriage of two persons of the same sex was authorized by state statutes and, if not, whether state authorization was compelled by various provisions of the United States Constitution, including the fourteenth amendment. Regarding the first question, the Baker court arrived at the same conclusion as have we with respect to HRS @ 572-1: by their plain language, the Minnesota marriage statutes precluded same-sex marriages. Regarding the second question, however, the court merely held that the United States Constitution was not offended; apparently, no state constitutional questions were raised and none were addressed.

<=89> De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (1984), [***59] is also distinguishable. In De Santo, the court [*566] held only that common law same-sex marriage did not exist in Pennsylvania, a result irrelevant to the present case. The appellants sought to assert that denial of same-sex common law marriages violated the state's equal rights amendment, but the appellate court expressly declined to reach the issue because it had not been raised in the trial court.

<=90> Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973), and <=91> Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, review denied, <=92> 84 Wash. 2d 1008 (1974), warrant more in-depth analysis. In Jones, the appellants, both females, sought review of a judgment that held that they were not entitled to have a marriage license issued to them, contending that refusal to issue the license deprived them of the basic constitutional rights to marry, associate, and exercise religion freely. In an opinion acknowledged to be "a case of first impression in Kentucky," the Court of Appeals summarily affirmed, ruling as follows:

Marriage was a custom long before the state commenced [***60] to issue licenses for that purpose. . . . [M]arriage has always been considered as a union of a man and a woman . . . .

It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Clerk . . . to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.

. . . .

In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.

<=93> 501 S.W.2d at 589-90. [*567] Significantly, the appellants' equal protection rights -- federal or state -- were not asserted in Jones, and, accordingly, the appeals court was relieved of the necessity of addressing and attempting to distinguish the decision of the United States Supreme Court in Loving. Loving involved the appeal of a black woman and a caucasian man (the Lovings) who were married in the District of Columbia and thereafter returned to their home state of Virginia to establish their marital abode. <=94> 388 U.S. at 2, 87 S. Ct. at 1819. The Lovings [***61] were duly indicted for and convicted of violating Virginia's miscegenation laws, n23 which banned interracial marriages. <=95> Id. n24 In his sentencing decision, the trial judge stated, in substance, that Divine Providence had not intended that the marriage state extend to interracial unions:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

<=96> Id. at 3, 87 S. Ct. at 1819 (quoting the trial judge) (emphasis added).

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n23 Virginia's miscegenation laws "arose as an incident to slavery and [were] common . . . since the colonial period." <=97> 388 U.S. at 6, 87 S. Ct. at 1820-21. It is noteworthy that one of the "central provisions" of the statutory miscegenation scheme automatically voided all marriages between "a white person and a colored person" without the need for any judicial proceeding. <=98> Id. at 4, 87 S. Ct. at 1820. [***62]

n24 As of 1949, the following thirty of the forty-eight states banned interracial marriages by statute: Alabama; Arizona; Arkansas; California; Colorado; Delaware; Florida; Georgia; Idaho; Indiana; Kentucky; Louisiana; Maryland; Mississippi; Missouri; Montana; Nebraska; Nevada; North Carolina; North Dakota; Oklahoma; Oregon; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; and Wyoming. <=99> 388 U.S. at 6 n.5, 87 S. Ct. at 1820 n.5. When the Lovings commenced their lawsuit on October 28, 1964, sixteen states still had miscegenation laws on the books. <=100> Id. at 3, 6 n.5, 87 S. Ct. at 1819, 1820 n.5. The first state court to recognize that miscegenation statutes violated the right to the equal protection of the laws was the Supreme Court of California in <=101> Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948). <=102> 388 U.S. at 6 n.5, 87 S. Ct. at 1820-21 n.5.

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[*568] [***63] The Lovings appealed the constitutionality of the state's miscegenation laws to the Virginia Supreme Court of Appeals, which, inter alia, upheld their constitutionality and affirmed the Lovings' convictions. <=103> Id. at 3-4, 388 S. Ct. at 1819. n25 The Lovings then pressed their appeal to the United States Supreme Court. Id.

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n25 See <=104> Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966). The Virginia Supreme Court of Appeals, however, modified as "so unreasonable as to render the sentences void" the trial court's twenty-five year suspension of the Lovings' jail sentences "upon the condition that they leave the . . . state 'at once and . . . not return together or at the same time to [the] . . . state for a period of twenty-five years.'" <=105> Id. at 930, 147 S.E.2d at 82-83. The Virginia high court deemed it sufficient that the Lovings be prohibited from "again cohabit[ing] as man and wife in [the] state" in order to achieve the objectives of "securing the rehabilitation of the offender[s and] enabling [them] to repent and reform so that [they] may be restored to a useful place in society." <=106> Id. at 930, 147 S.E.2d at 83.

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