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News - October 1996

Hawaii Marriage Trial highlights

Summary of Testimony in Baehr v. Miike: Lesbian and Gay Plaintiffs Begin Case in Hawaii Marriage Trial

Day One of Plaintiffs' Case: Monday, September 16, 1996

Lambda Legal Defense and Education Fund presented the first witness on behalf of the lesbian and gay plaintiffs in Baehr v. Miike on Monday as the Honolulu trial began its second week in the challenge to anti-gay discrimination by Hawaii marriage law. Pepper Schwartz, a professor of sociology at the University of Washington, discussed at length her 1983 book, American Couples, which reported on 12,000 married and co-habitating couples and about 1,000 gay male couples and 800 lesbian couples in the late 1970s to early 1980s.

The lesbian and gay plaintiffs in Baehr v. Miike are represented by Lambda senior staff attorney Evan Wolfson and Honolulu civil rights attorney, Dan Foley, through the Hawaii Equal Rights Marriage Project.

Schwartz, whose book is now considered to be the most cited textbook in the field of sociology concerning this topic, concluded on the witness stand that, "Marriage as an institution buffers you as a couple...married couples have an advantage that keeps them together longer than any of the other three categories of couples. Marriage has protective qualities."

Asked if she felt marriage for gay and lesbian couples would do harm to society or to the institution of marriage, she replied, "No, I do not. Marriage will strengthen gay and lesbian relationships which ultimately will be good for society."

Also during direct examination by Wolfson, Schwartz reinforced the findings of nine other studies conducted by her colleagues which had come under fire last week from the state's expert witnesses. Those studies, including one by Charlotte Patterson who is scheduled to testify today, find that lesbians and gay men raise happy, healthy, and well-adjusted children.

Schwartz took the stand in Hawaii's First Circuit Court on the fifth day of the non-jury trial before Judge Kevin Chang. Hawaii's highest court has ruled that the state must show it has a compelling interest in discriminating against lesbians and gay men if it is to continue to refuse to allow same-sex couples to marry.

Schwartz, who earned masters and doctorate degrees in sociology from Yale University, is a full professor at the University of Washington, considered by many to have one of the top 10 sociology departments in the country. An expert on the topics of families, sex, human sexuality, gay and lesbian couples and their families, and research methodologies, Schwartz is the author of hundreds of published research journal articles and seven books.

For the state's cross examination, Deputy Attorney General Rick Eichor raised inflammatory questions toward Schwartz, often interrupting her, prompting Judge Chang to repeatedly instruct him to allow the witness to finish her answers. In a ploy apparently directed to the media and against the objections of Wolfson, the state even repeatedly tried to equate civil marriage for gay and lesbian couples with incest and polygamy. The Hawaii Supreme Court, in sending this case back to the circuit court, already addressed the fact that this case would in no way affect incest and polygamy laws already in place.

The state also tried to twist Dr. Schwartz's own data to imply, as a state witness said last week, that lesbian and gay couples break up more often than do heterosexual married couples and so provide unstable and unsuitable environments for children. But Dr. Schwartz reiterated that this very finding leads her to conclude that it is the institution of marriage or lack of marriage which account for variations in break-up rates not the sexual orientations of the couples.

On Tuesday, testimony on behalf of the lesbian and gay couples was to continue, with child psychologist Charlotte J. Patterson taking the stand. Patterson has expertise in the development of children raised by lesbians or gay men and same-sex couples, and was to testify on those issues as well as respond to issues raised by state witnesses, such as the significance of biological relationship, family and parental configuration, and parents' sexual orientation, sex, or gender in the development of their children.

Day One of State's Case: Tuesday, September 10, 1996

Last Tuesday, the trial opened promptly at 8:30 a.m. HST before Judge Chang. Eichor made opening remarks for the state, displaying in the front of the courtroom a poster with the statement that the state has a compelling interest in the healthy well-being and development of children. Foley responded in his opening argument, telling the judge that experts would testify that lesbians and gay men have been found to be good parents who protect their children. The rest of the day was spent on the state's lead witness Dr. Kyle D. Pruett of Yale University School of Medicine and Yale Child Study Center.

Pruett, a psychiatrist, testified that, "Optimum development is best served for most children by being raised by intact families by their mothers and fathers." He said that "in terms of probabilities," same-sex marriages would provide "a more burdened nurturing domain."

Wolfson cross-examined Pruett and led him to comment that same-sex couples are as capable as heterosexuals of being positive parents; that gays and lesbians should be allowed to adopt and provide foster care for children; that a parent's sexual orientation does not disqualify her or him from being a good, fit, loving parent; and that in some situations, a gay parent could provide the best care and nurturing for a child. Wolfson, turning to the poster board displayed by the state, received agreement from Pruett that the state has a compelling interest in promoting the optimal development of children in all families, including those headed by single mothers, adoptive and foster parents, and same-sex couples.

Day Two of State's Case: Wednesday, September 11, 1996

Dr. David Eggebeen of Pennsylvania State University was the second state's witness. He testified that the majority of men and women expect to marry, they expect to stay married for life, and most expect to have kids. He cited data that lesbian and gay couples break up more frequently than co-habitating and married heterosexuals. Under cross-examination by Wolfson, Eggebeen, a sociologist, acknowledged that his information was based on a single study.

Agreeing that couples such as Bob and Elizabeth Dole do get married for reasons other than having children, Eggebeen was asked by Wolfson, "You wouldn't suggest their marriage is any less important or nurturing than other marriages?"

"No," the sociologist replied.

The state's witness further agreed with Wolfson that marriage can improve a relationship's stability and people's mental and physical health. Eggebeen said that gay parents can be the best parents in some circumstances for children. Despite three state objections, two of which were upheld by Judge Chang, Eggebeen also acknowledged that he is personally opposed to same-sex marriage based on his religious beliefs, and he thinks that homosexuality is wrong.

Day Three of State's Case: Thursday, September 12, 1996

A third state expert witness, Dr. Richard Williams, a Brigham Young University expert on scientific research methods, testified on Thursday about methodology flaws in nine U.S. studies in which researchers found no evidence that children of lesbian mothers developed differently from children of heterosexual mothers. During cross-examination by Wolfson, Williams admitted that he felt homosexuality was "morally wrong," and that any sexual activity outside the bonds of a male-female marriage was a sin. Williams also made it clear that he does not have high personal regard for the social sciences such as psychology and sociology, he does not believe in the theory of evolution, and he opposes the Equal Rights Amendment.

Testimony ended at noon HST, at which time Wolfson spoke to the media outside the Honolulu Circuit Court building. "In three days, the state has failed to show any evidence that gays and lesbians cannot ...make good parents for their children," he said. "All of these expert witnesses from the state concede that gay men and lesbians should be allowed to adopt and raise children, and that gays and lesbians can, and in fact do, raise happy, healthy, and well-adjusted children," he added. Wolfson said he thought it was unfortunate that the state is saying there is only one kind of optimal family for children the biological mother and father living together in a married arrangement. "What about single mothers, single fathers, adoptive parents, step-parents, as well as same-sex couples? For many children living in these alternative arrangements, if they have loving, nurturing parents who put the needs of their children first, for those children, they already have an optimal family," he concluded.

Day Four of State's Case: Friday, September 13, 1996

The state presented its fourth and last witness, Honolulu psychologist Thomas Merrill, who echoed the state's main argument, that biological mothers and fathers are the best parents for children. He also said data comparing gay parents to non-gay parents is sparse.

Under cross-examination by Dan Foley, he conceded that lack of data on children raised by interracial couples should not justify banning interracial marriages.


Lambda is the oldest and largest gay legal organization and is co-counsel for three lesbian and gay couples in Baehr v. Miike, the landmark equal marriage rights trial in Hawaii.
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