Get Used to It: Ep. 41, "Hawaii, Part 2"

uh [Music] hi i'm sheila kuhl your erstwhile host for get used to it and today once again we're going to revisit this hawaii case because i know how fascinated not only our community but given my experience in the state legislature just about the whole world is about the prospect that same gender couples just might be able to marry legally since we last talked about this case we've had a decision from the lower court as i'm sure the whole world now knows indicating that the state did not have a very good reason to deny marriage licenses and that's why we're here to talk today about that decision about the kind of evidence and the issues that were presented by the state and to talk a little bit about what the state of hawaii is is like before the million of you out there decide you're going to move there tomorrow and get married so let me introduce you to our guests today uh professor chris littleton who is a professor of law and women's studies at ucla and the former president of the board of the california women's law center welcome chris thanks great to be here good that you're here um dr deborah stewart who is a um let's see professor of uh pediatric and adolescent medicine at the college of medicine at uc irvine and also president of the orange county pediatric society although i know it has another name right that's right thanks a lot well very glad you're here thank you for being here we're doing we're doing pretty well so far um and our last guest charlie mckinney who is actually the city manager of the city of west hollywood who grew up in hawaii and is our a resident expert on hawaii here welcome charlie thank you glad you're all here let's start with you chris um tell us a little bit about how this case was really set sort of the legal theory and how the state of hawaii did in the trial this this case is so much fun to talk about um actually i have to tell you a little personal story when i went to law school we had a moot court competition and our case was whether a same-sex couple could collect in a wrongful death action and we researched of course everywhere and could not find one place where a same-sex couple was allowed to do anything that other people but at night and this was in 1980 1980 1981 and so even then there were all of these challenges to marriage laws that reserved marriage for two sex couples for a man and a woman and all of them failed and we couldn't figure out why because logically they should have been they should have been no-brainers right logically if any state law treats differently someone because they're male or because they're female that law has to meet an incredibly high burden to be constitutional in under the federal constitution it has to be the distinction that the government makes has to be substantially related to an important governmental interest or else it's gone and under state law the burden is frequently even higher california and hawaii both use the highest level of scrutiny for sex discrimination you gotta you can't have a sex just you can't have a difference in treatment by the state based on your sex unless the government has a compelling reason and unless the distinction is necessary so if it's nearly tailored now who would ever think that it was necessary to say to me if you want to get married you cannot marry the person you love because of her sex or you cannot marry the person you love because of your sex no that would purely be two different things though wouldn't they i mean one of the things that's interesting is if it's about the gender of the person you want to marry and you're the plaintiff then you're really talking about sexual orientation right your sexual orientation but wasn't it different in in terms of the way it came to the court in hawaii i mean what you've said about gender discrimination thanks to all those cases in the 70s that ruth bader ginsburg brought to this bless her heart we have a very high standard i mean i think this notion of level of scrutiny when we talk about it people picture you know i don't know exactly what that means but when you go in and you sue the state because you can't get married if it's sex discrimination or any race discrimination the state has to put on their case and they have to say okay we're this is why we're doing it and that's what you were indicating is is there a compelling reason i mean one thing to remember is that it wasn't until 1971 that the u.s supreme court for the first time struck down a state law or any law on the basis that it discriminated on the basis of sex that it was sex discrimination so it took a long time i mean they had been they had been striking down laws uh for race discrimination for a long time before they finally got around to sex discrimination of course it took them a hundred years to start on race discrimination but that's another story um so that it it takes a while for the logic of these things to work their way through the courts even though it's fairly elementary logic and we're not talking a really hard question here the issue is okay i'm standing in front of you and you say to me i'm sorry if you were a man we would give you a a license to marry her but since you're a woman we will not give you a license now on what basis are you discriminating against me you've even asked me what my sexual orientation is you don't know i haven't told you don't ask don't tell you know i say nothing i always say is you know we want to get married and they say if you were a man sure since you're a woman forget it now that's straight up sex discrimination but all through the 1970s all through the 1980s you know couple after couple argued that and the courts would say you know i understand what you're saying but this is not sex discrimination and he's like why not because marriage by definition means a man and a woman you say yes so who who made up that definition oh well the state did because it's a matter of state law uh yeah isn't that definition unconstitutional next case please i mean that's exactly how those cases read they read here they claim sex discrimination but this is really just a definitional problem as if the state doesn't figure this doesn't define marriage then of course in the 1990s what has made a huge splash so to speak in the late 80s and the 90s were attempts to use the constitution on behalf of gay people gay men lesbians bisexuals and transgender transgendered people by making claims that that we were being discriminated against on the basis of sexual orientation now no court well actually for a short period of time some courts in california did treat that as a kind of discrimination that was so dangerous to engage in that the state would have to have a really good reason in fact under the most law all the state needs is a rational reason anything that could possibly make sense will allow you to allow the state or the government or the government agency to discriminate against you on the basis of your sexual orientation just like if you were it was blue eyes or the color of your hair or something that they don't find is a dangerous form of discrimination right although in the case of our community it's not that no one thought it was dangerous it's that everyone thought it was just fine even though it was dangerous to us right right that the majority did not see it at the heterosexual majority did not see this as something that they needed to change right they thought that it was natural to treat gay people worse and that was okay but since 1971 nobody has been willing to say it's okay to treat people worse because of their sex and since the mid 1800s it has been gradually less and less okay to treat people badly because of their race so when we're talking about the classification it makes a big difference how much do you have to establish so the state so in i mean this this case is amazing because for the first time a court actually followed the logic of sex discrimination and said you know this isn't just about sexual orientation this isn't just straight couples versus gay couples this really is you sheila if you were a man we would let you marry her but since you're a woman we won't oh yeah we get it it's sex discrimination so therefore the state has to prove that in hawaii it has a compelling reason and that that reason can't be done by any other way so what do they offer is their compelling reasons they have to think really hard right the state has a compelling interest in protecting the health and welfare of children yeah so um state has a compelling interest in fostering procreation yeah so i mean it's as if we're all sterile the state has compelling interest in securing or ensuring recognition of hawaii marriages and other jurisdictions now since when has a state ever allowed some other jurisdiction to tell them what their law can be and they have an interest in protecting the public fisk because it would because why it would cost some money to give marital benefits to anybody who wants to get married now of course every time some straight couple walks up to the altar and get or walks up to their office and takes a marriage license what happens it costs the state money right do they ever complain about that now as a matter of fact they said one of their major reasons is to encourage people to get married right just not us you want to encourage people to get married but not other people and you claim money reasons so that didn't make any sense the one thing that really came down to was the effect on children children raised in families and so the state put on experts because this was the one reason that wasn't laughed out of court early on and they looked and looked for experts to figure out to tell them to tell the court here here we are at trial and we have to prove this so we got to find an expert to testify that same-sex couples are bad for children so what do they do they call up a bunch of experts and of course all the experts say no that's not true all the studies indicate that there's not really much of a problem uh so finally they come up with four people they're going to put on stand right one of them says that the studies that show that same-sex couples are good parents or okay parents are flawed they have real problems in the methodology then of course on on the stand as they're at questioning this person he says well you know all those psychological studies are flawed and all the sociology studies are flawed and in fact you can never prove anything with us with one of these studies and as a matter of fact he said you know there's not even any real proof that evolution occurred their witness said this they're witnessing the state's witness so the judge [Laughter] well that's like a lawyer's dream on the other side hey see this guy self-destruct understand well in fact i mean that was the great thing about this was the case was proved the case for the plaintiffs was proved by the defendant's experts the other thing they used was a chart that pepper schwartz had developed uh what was it in the 1970s about how long couples stayed together right and they found that in fact married couples stayed together longer than anybody else longer than unmarried heterosexuals longer than lesbians longer than gay men and so this was their big evidence right hey married heterosexual couples stay together longer so that's better for the kids right now this is 19 this is what was done in the 1970s the latest thing in it is like 1981 and so they present this as one of their key features in their argument well guess who decided to testify for the plaintiffs pepper schwartz the author of the book the person who did the study says hey i did that study in the 70s things have changed radically since then and besides which you know we couldn't ask whether married gay or lesbian couples were stayed together longer because why they could get married because she wouldn't let us get married well it sounds as though i mean there was a lot of rejoicing when this obviously when this decision came out and a lot of speculation about what it could mean but i wanted to ask you debra talk a little bit more about these studies as a as a pediatrician as a professor of pediatric medicine and i know with a specialty in adolescent medicine as well your own reading on what might have been presented did the did the state just blow it and there's all these studies out there showing that our same-sex couples really are bad for kids or um is this really the what the evidence shows in your own experience actually what chris said was true when the defendants were questioned about the literature every defendant agreed that there were no studies showing that gay or lesbian parents the children of gay and lesbian parents actually feared any differently than the children of heterosexual parents in fact every witness for the defense said that the gays and lesbians could do adequate if not very good parenting equal to that of heterosexual single people or coupled people so there really was there was never any information and not one single study that was really put forward to to really say that gay or lesbians could not be good parents now is this a well-studied area now dr charlotte patterson probably put together the largest number of studies in a recent monograph that she put together for the american psychological association in that she cites over 125 studies and book chapters and articles that based on this studies have not been have not been done on this field since about 1978 and uh so about the last 18 20 years people have really looked at whether or not gays and lesbians can make good parents the reason though that this has been looked at is because of custody issues whether or not a gay or lesbian parent should have cussed the primary custody of a child versus the other perhaps heterosexual parent and not really no one's really studied because we can't because there's no marriage what the effects of of gays and lesbians actually marrying together are what we on on kids welfare what we do have is studies that show the effects of particularly lesbians coupling on the welfare of kids so charlotte patterson really reviewed this for the psychologist and she looked at a number of different areas and her her viewpoint was really guided by what kinds of things the court tended to look at when trying to decide whether or not to give custody to gay or lesbian parents and one of the first things of course the court looked at was whether or not the children's gender role gender identity sexual orientation were affected by their parents homosexuality i.e you know were their parents homosexuality was that an infectious disease that they could pass on you know to the child not only were they going to be gay themselves but i think there's probably even more concern about gender identity because you always hear about well there's no man in the house how is that boy going to know how to act and of course since so many men are sort of rejecting this overt masculinity you know we make war we beat up women kind of image anyway that i guess they're saying maybe it's better if he you know if he uh gets a little mitigation but this notion of gender identity too i think is a major character there's only the other issue before i kind of talk more about that gender identity issue was was the classic issue as if children were in families headed by gay and lesbian folks were they more likely to be sexually abused that's the other the big you know issue that that gets brought forward to the courts that's unsaid but really is part of of uh people's thoughts when they make decisions the the notion that there might be differences in gender identity and gender role of kids has been studied by at least 15 investigators throughout since 1978 all the way to 1994 and have looked at single lesbian parents some single and couple lesbian parents some gay fathers and also kids born by donor insemination so there's all kinds of studies cross there one study looks at people from 10 states and all kinds of socio-economic levels so it really looks at this so the first thing people looked at was it was there any difference in actual gender identity and and they looked at for example how what gender a child draws when you're they're asked to draw themselves how children dress whether they dress in in gender appropriate types of clothing and not clothing and and how they self-identify and they found no differences really no differences in kids gender identity from what their biologic gender actually was more interesting i think is the gender role stuff people looked at both both grade school kids and adolescents and did a number of studies on gender role there's a study called the i think it's the bam gender role study where they looked at adolescents and found that with looking at masculinity and androgyny in children of lesbian parents there were versus children of heterosexual parents there was no difference but that daughters of lesbian parents had greater psychological femininity than daughters of heterosexual parents none of these studies you know you always have to rebel a little bit maybe we have a professor of adolescent medicine who's going to say and that may be exactly right also when they looked at other ways to measure gender roles is what kid how kids what kids play with who kids identify as their favorite tv character and those kinds of things there were real no no real differences in who what kids thought about their own gender role in society and who they played with and who they identified with but there was some interesting differences in again in children of lesbians versus children of heterosexual women and they found that children of lesbians were more likely to to play with trucks and and and children of heterosexual women were more likely to play with guns in one study which was i thought was very interesting there wasn't a whole lot of comment on that study but that was it was kind of interesting and that um as far as dress this is a study from the late 70s children of of lesbian parents daughters of lesbian parents were more likely to dress in in boys clothes or pants and at that time at least the authors said that that their parents that their mothers tended to dress in slacks and they thought that was really a function more of what their parents dressed as rather than that did not reflect gender role in let me get this right so children of heterosexual mothers their kids like to play with guns most in one study in one in this one study and the children of lesbian mothers they like most to play with trucks now what would you like your kids to play with trucks or guns now if that's the choice judging these studies i mean i mean the thing is and i and i'm i'm i'm really enjoying it too but in a way there's a there's an undertone of of tragedy in having to talk about these issues in court as a way of saying you know we're we're not bad for children because that's the mythology and of course it's a very powerful mythology not only the the notion which you haven't talked about yet about sexual abuse which is a you know a deep mythology that we easily refute by looking at how many people who are straight are actually accused of and convicted of child sexual abuse as opposed to anyone from our community who would be uh i think looked at pretty carefully but also just the notion that gender roles are such an important part of a child's development not gender identity which i think you appropriately distinguish but whether girls play with dolls is so important that we must talk about whether if they don't play with dolls this is a dangerous thing for society a bad thing for them i mean the power of happy to know that at least in these several studies that they did measure children playing with dolls and daughters playing with dolls and girls of heterosexual parents and of lesbian parents played with dolls equal percentage of time that wasn't the differentiating factor so i can see why the state had a really uphill battle on this you know i mean they could they probably must have thought of the reason that was going to be compelling before they explored whether anyone was going to testify not only was it not a compelling reason in and of itself had it been proven but then they could not even prove it which is another step not to mention the fact that we weren't talking about whether children should be raised by same-sex couples but whether those couples who are already raising children should be able to marry right which is completely makes the whole notion of it irrelevant because all that if all of the defense i mean i'm sorry all the states experts testify that of course same-sex people and couples should be allowed to adopt right yeah yes so yeah we should have kids but we shouldn't get married well studies is interesting the studies of the donor insemination studies that have been done by dr again by dr patterson in in the california sperm bank graduates i guess i don't know children both of heterosexual parents and of uh gay and lesbian parents born through through uh sperm donation found that it didn't make any difference whether as far as the children's psychological development and adjustment whether the parents were heterosexual or homosexual but it made a big difference in the support systems that the parents had for each other and the relationship of nurturing that the child had with the adult and it really had no nothing to do with with the gender of the parents so that's really an interesting and a really some really new data now what is your own experience with uh with any of the children with whom you've worked or uh who have been your patients i've i'm a teenage medicine specialist so at the university there aren't too many of us so they i tend to see most of the particularly of the faculty's children and i've had a number of children brought to me adolescence brought to me who've been in the middle of a crisis about their parents uh sexual orientation and and my experience is what you would predict is early and middle adolescents who are very very very uh hooked into peers and being exactly like the norm like if everybody else's family drives a toyota camry you know it's death if you drive a datsun that kind of stuff milan laid out less middle and early adolescents really do have more symptoms of stress related to their parents sexual orientation and that's also was one of the witnesses for the plaintiffs dr bob bidwell who is an adolescent medicine specialist at university of hawaii also stated that and that's also been shown in the literature that early middle adolescence is probably not the greatest time to kind of say hey guess what this this roommate i have is but what dr bidwell found and what i've also found is that when these early middle adolescents grow up get into late adolescence which is the stage of individuation and maturation and understanding that you don't have to be exactly the cookie cutter of your best friend that you're still okay that the kids who experience um the stresses of being different in early in middle adolescence the stresses being due to their parents being gay lesbian actually have a more robust robust sense of self and a better comfort with diversity in their community and so it was it's my experience and also dr bidwell's experience at university of hawaii that these kids are really better off for having gone through the stress it's just it's kind of like in order to build muscles you know you gotta pump iron it's the same kind of thing you got us stressing these kids is a stress but it actually ends up in making more robust kids in that way so well it was interesting to me when my when my niece at the age of about 11 or 12 i just um finally understood that i was a lesbian i mean she'd known but it hadn't meant anything until she started to have to deal with her own sexuality she was very very upset and a couple of years later when i got to talk to her about it and to her mom the reason had less to do with being finding my sexual orientation distasteful as that she was just beginning to deal with the fact that all the boys she liked so much as friends were now somehow changing in their roles they were going to be threatening or friendship wouldn't be the same it was very stressful to her and now it looked like all her friends were going to be potential sexual partners and therefore there wouldn't be any real friends you know that you could just be friends with and it was very interesting to me because it hadn't even occurred to me that the whole thing was kind of about her own loss of um this non-sexual life that kids allegedly should be able to live for a while and that was sort of an additional stressful thing that really didn't have anything to do with what society thought right so much as it had to do with everyone was at risk now you know in your friendship base and isn't it interesting that i i mean you can see in in a pure fashion there what a lot of feminists have been saying for years which is it is a problem in our society that in fact sex isn't safe the dominant message of sex is that um that you will be unsafe psychologically at least and probably physically with someone who is attracted to you and in heterosexual marriages we know that you know as many as 50 percent of them are marred by violence um and by battering of course we have that in our community too i mean we've had a we just don't know about it because you know the closet about that has been an important part too i think so and and i think we'll find that it is you know it is about power in sexual relationships more than the gender of the parties and of the or the sexual orientation of the parties involved it's about a system of dominance and subordination that really creates the underlying problem here and not sexual orientation well charlie let me ask you we've talked a lot and everybody of course is talking about hawaii and now when they talk about hawaii they're not just talking about waikiki and you know and all of the lovely islands because they are but when now when people say hawaii it's generally in the context of the hawaii case and that means you know gay marriage not just in our community but everywhere and i know um you grew up in hawaii and there's this mythology of well of course it's happening in hawaii they're so tolerant so diverse what is hawaii really like well hawaii is tolerant and it is diverse and i think they take great pride in in the melting pot concept that and so many of the families there are the product of mixed marriages and it's hard to dislike a particular race when your daughter-in-law is of that race or your grandchildren of that race it just becomes a matter of practicality that you just can't be a racist in a way but you know i i don't think that really extends to the sexual orientation issue but but i need to preface that by saying um the the native hawaiian culture has always been very open and accepting of gay and lesbian people particularly in the family setting but it was something that that's just not discussed in polite company i mean you you knew that uh aunt marjorie over here was a lesbian and she had a partner that she had lived with for 25 years but you just never discussed what sort of a sexual relationship that they had you just accepted them and they came to all the family gatherings and that kind of thing um but i and i think the other aspect of it is although people there are very accepting of one another's ethnic and cultural differences there's also um a feeling that uh or an unwritten rule that you don't um intrude on their particular beliefs in value sets and that kind of thing so if you have um a hawaiian friend who wants to give deference and respect to some of the old hawaiian religious practices or to the uh to the ali's the old royal family um you accept that and you let them do that you don't tell them that that's wrong or you know intrude on that kind of thing and i unfortunately i think that unwritten rule kind of extends or is is coming out in this sexual orientation thing that a lot of people unfortunately look at same gender marriages as kind of an intrusion on their personal values and customs and and they're having a lot of trouble dealing with that and i think that's why you see the polls over there where majority of the residents oppose same gender marriages you see traditionally very liberal socially progressive legislators vigorously opposing same gender marriage and it's very complex issue so it really isn't that different i mean this could have in your opinion this could have happened in massachusetts or another place that would be considered a liberal state i mean hawaii is not in any way an ultra-conservative militia hangout and i think the the this case is kind of a logical outcome to the um the kind of a populous progressive liberal political structure or political um orientation that came out maybe 40 50 years ago and has been emerging ever since that it is a very liberal state it is very socially progressive and then the other factor is that we talked about earlier before the show started was the fact that the judges there are appointed they're not elected so they don't have to stand for for election and i think they're they're a little bit braver to make constitutionally sound decisions that may be unpopular in the community and i think that has a lot to do with the success of the same gender case in hawaii because we've seen that the legislators or at least some of them have been trying to figure out what they can do to keep this from happening right now there may be some concern that uh that the state will will turn out suddenly because of this to be a grand gay mecca you know and that it will be like san francisco so that i can see although the tourism business would pick up enormously among our community that if it was seen as a place where lots and lots of gay people went that it could then be a problem for the tourism business for you know straight people that didn't want to be in a state where everywhere they went you know there were male or female couples holding hands and sort of doing what the straight couples do in hawaii it's an enormously romantic setting because a lot of our community do go to hawaii but we are not i think overt in public about even even about holding ants or being affectionate you know i was very interested by what you said about the the question about intrusion and whether sort of a public recognition of something is and is affects other people's values i mean we never think when a heterosexual person wears a wedding ring that they are flaunting their heterosexuality but in fact that's exactly what's happening and yet you know when when a same-sex couple simply hold hands we accuse them of flaunting it and it originally uh in the hawaii case what the state argued was that that granting marriage licenses to same-sex couples would undermine the family structure of and the importance of family structure of traditional heterosexual marriages they didn't push that at the trial level because while it may be affecting people's sort of prejudices and assumptions there is absolutely no evidence i have to i mean at the risk my background is english so i hope i'll be able to make a a joke again against my my back my my forbearers um which is the the joke that saying that um you know heterosexual marriage or homosexual gay marriage would undermine straight couples is sort of like blaming the the french for the way english food tastes right well but you hear that argument all the time as though and it makes a lot of sense to me because discrimination in and of itself really only makes sense in in terms of creating a hierarchy of better and worse where the better people get something that the worst people don't get it could be you know i mean there was a wonderful star trek episode that i remember with frank gorshan i'll never forget the show i don't think i've seen the rerun for years where he came from a race of people that were all white on one side and all black on the other side and he was chasing a fugitive who was also all white on one side and all black on the other side but they were reversed to bring him back to their world for justice and of course captain kirk in his own way said now could you explain to me i mean i see you're both you know black and white and frank orson's character was outraged that the captain could not comprehend instantly by seeing you know and said well don't you understand he's he's white on the right side as though with that goes all the mythology that they had created about how stupid they are and how they're criminals and they're lazy and how you can't trust them near children and of course this is what i loved about star trek is it always made these points very you know like let's hit you over the head with this point but when you think about that's what i love about science fiction too is when you think about it that's exactly what discrimination is for they are really having a tough time in hawaii and all the other states really saying anything that makes real sense unless you're just your prejudice i mean and the and the case that was just decided by the supreme court essentially took a big step and said prejudice is insufficient as a reason to distinguish you know on the basis of sexual orientation it's not even reasonable right which you said was the lowest standard right and the uh in the colorado initiative case where the u.s supreme court said you know you cannot separate out a group of people and say you folks are second-class citizens on the basis of prejudice you have to have some reason for separating out people and for treating them worse any reason will do when it comes to sexual orientation but you have to have a reason and prejudice is not a reason and you know it's interesting because throughout our constitutional history we've had these moments where a court somewhere has recognized that prejudice no matter how common is not sufficient to uphold discrimination i mean you know loving versus virginia in which the virginia had a statute that barred interracial marriage and they said that's not race discrimination because you know a black person can't marry a white person and a white person can't marry a black person so we're treating white and black people the same and a court and the supreme court finally said and i think it was in the 1960s you know no even though it looks like you're not discriminating you are upholding white supremacy because why else are you worried about this rich and poor alike may sleep beneath the bridges of paris i mean that was the same notion but we let them eat cake right it was exactly the same that to recognize and you know the other thing that's wonderful for me is that people are it's almost like they're holding their breath to have a court say something that is true about it oh yeah like the emperor has no clothes don't you know that there were a thousand people thinking the emperor has no clothes why doesn't somebody say so before that little girl i always thought it was a little girl [Laughter] deborah let me ask you though in your own experience and from the literature or whatever wherever you would form your opinion on this do you think it would be beneficial to the children of gay and lesbian couples if those couples could marry oh absolutely why because kids kids always do better i mean it's my experience it's people who marries experience people don't emerge when there is stability what are what why do people marry for children they for economic stability um so that they can demonstrate intimacy and and caring so they're more than one person to take care of a child which makes a big difference and all the reasons people marry for children um heterosexually would would really be exactly the same for same-sex couples there would certainly be a lot more economic um stability certainly children um and and really all the economic protections that that the states do give the the children would be much better that way but i think more importantly the sense of that that they have a full set of parents even though they may be slightly different really would make a child feel more comfortable and and really clearly have a better self-esteem than um what goes along with really single parenting well you know it go ahead chris do you know what i worry about though is that i mean it's clear i've done i've done some work in in the custody area on sex discrimination and it's really clear that stability is good for kids and yet if the only way that you can achieve stability is through a state-sponsored marriage what you know what does that say now if we finally finally come to the period where the state doesn't discriminate between same sex and other sex marriages now is it going to move to discriminating between those who marry and those who don't have another hierarchy but it already discriminates in a sense let's say distinguished enormously between those who marry and those who don't and let me suggest you and i both taught contracts isn't that really what it's about i mean you make a promise and you could keep it or not i mean there's no enforceability of any promises that we make to each other we know that in our community and straight people know it in their community i mean we say i'll stay with you forever and it's not enforceable and there's no real punishment out there in the world however if you say i will enter into a legal contract with you and we will sign it and the state will enforce it because it's the kind of contract not only in marriage does the state enforce the contract they create the terms of the contract community property a step parent adoption instead of um you know the stranger adoption or whatever we would be allowing children to have two legal mothers which we really don't allow or two legal fathers which we don't allow now there would be terms of the contract that's really it's not i don't think that the state is only sanctioning it it's also enforcing it because then when you divorce there are lots of things that come into play because you've been married where if you didn't marry and you just break up straight or gay you don't get that i think the legitimization of the contract by the state would be really important message especially for the kids we talked about the real vulnerable kids the early and middle adolescents who are who are always kind of looking for external legitimization i think that's a real strength of that of that as opposed to when the relationship legally is is not legitimate and that really stresses kids as we've already talked about so i think that and that would be another reason that the actual the active the legitimization of marriage by the state would really make things better for kids whose parents are in a same-sex relationship already but let me go one step further because if the state really cared about children it would rather than trying to keep some people from marrying what it would be doing is providing the resources necessary to people who already are taking care of children and those people are overwhelmingly women straight and lesbian who are taking care of children without the adequate resources to do so they are denied all sorts of benefits that they would have if they were married and they're divorced or they or they're abandoned or they never got married and if it really cared about the kids you know it would say we don't care whether you are married or not we're going to make sure you have the resources to take care of your child and we could provide all of that very easily if we provided it to children so you're not a big fan of welfare reform i take it i am a very big fan of welfare reform but not the way they're doing it now let's go in the other direction well but i want to ask i'm sorry i wanted to ask you charlie because i and i don't really know exactly where this might be going but my impression just having been in hawaii a bunch of times and actually getting to visit people who who live there um i actually met every judge in hawaii about four years ago because i went there to train the judges who were mandated to be trained on domestic violence and sarah buell from massachusetts and i fuel and cure got to got to do this training and i was struck by the diversity of the bench in hawaii do you think that makes a difference in not just the fact that they're not elected but in the way the the judges themselves might perhaps have experienced or have some familiarity with discrimination and and feel differently about i'm sure that has a lot to do with it you know they're much more sensitive to the issue of discrimination and and i think what the point came up earlier um i think if if this is going to work hawaii is a place where it'll work the best or because you i think you have um a sense a general acceptance of gay and lesbian people to begin with well there's discrimination and there's intolerance you know in the state is everywhere but generally they're accepted what i have found in talking to people is people don't understand why gay lesbian people need this you know they can be they can the reaction to me is they can go ahead and live with whoever they want but why do they need this why are they causing such a big problem over this thing it's it's you know it's nothing that we should be concerned with and i think if more people understand what we were talking about of the benefits that gay and lesbian people are deprived of by not having the benefit of a marriage in terms of inheritance and probate and taxes and you know all that kind of stuff uh i think people will understand and the acceptance will grow for this kind of thing and this impact on the children that you were talking about too deborah i mean your are your parents married or not with straight parents um it's it's an issue they don't even know why it's an issue but they know that there's a hierarchy of goodness in there and that's right and really the other thing is putting aside the the benefits of it if um for perhaps if people remember that uh asian people were not allowed to marry white people here in california all the way up into the 50s and that you would say well who needs it you can always live together the notion that you're denied something that someone else has on the basis of some trait or some life issue it should be intrinsically unfair the other thing i want to ask you is about this extended family because i also like in many places where ethnicity a lot of different ethnicities live together there we see a lot of extended families the nuclear family was not the basis necessarily a family at least as i saw it in hawaii and i wonder if that might also make a difference absolutely absolutely a lot of people talk about family values but it's generally when they speak of family values they speak of families as they define it there that their extended family is very important and and it's both a polynesian cultural thing and it's an asian thing where all the aunts and uncles take responsibility for the nurturing and the raising of the kids in the family and it's very important another interesting thing about extended families in a completely different context but i think it supports this is that when when you look at outcomes of teen pregnancies looking both at you know whether or not the teen goes back to school it goes on welfare and all the usual things that we measure but also how well the child does how the child does in school in in cultures where there is an extended family support kids teens and their babies do much much better than in cultures where there's not and so what where that's been studied in california is looking at children have hispanic parents young hispanic parents 13 and 14 and 15 year olds young hispanic parents versus children of black and um and caucasian parents where the kids the kids and the and the adolescents of hispanic there's hispanic origin just do a whole lot better i mean they they they adjust better they have they go back to school there they have less truancy less drug abuse and their children do better and that's you know again that's a i think an argument in a completely different sphere but really adds credence to the argument about the importance of extended families charlie you were telling us before the broadcast too about um about a form of informal adoption that was also um seemed to have some recognition of of non-biological parent status absolutely um the hawaiian word for it is called hanai and um it's an informal adoption if um and would happen in a number of ways say a woman wouldn't could not bear children maybe a sister or a friend of this woman who had a lot of kids would give one of the children to this woman to be raised um but there was always a recognition that who the biological mother was but then there was all this always this hanai mother that gave the nurturing and the raising and um you know and there's uh there's also the idea that if a woman um has children and for some reason can't take care of those kids there's always somebody out there that will hanai her kids it sounds almost like it takes a village well and of course the wisdom that most communities have had about this has always gone in that direction it's always been interesting to me at how the law would uh would ratify the nuclear family in this country against really the instincts of just about everybody and the gay community since we haven't been able to marry and we've really chosen our families and you know selected our extended families and often been kicked out of our biological families and you know even chosen new uh parent surrogates and uh sibling surrogates and uh we've really done that all along anyway we have pretty interesting extended families and the way in which we raise each other's children is is that way as well i mean i know a number of lesbian couples raising children who've invited many of the men in their lives to be um tell me the word again hanai hanai fathers or honorary uncles but something they have to have many different kinds of relationships and many different kinds of support for the children that brings up an interesting point and one of some of the studies in the 1980s looking again at lesbian parents versus heterosexual moms that it was really clear that that lesbian parents and multiple studies made a much greater effort to have a male role model a male figure in their children's lives versus the heterosexual parents that wasn't just in one study but was multiple studies and going along with what you're saying is is it recognizing the importance of of the variety and diversity of exposures that kids had well and not only that but there's there's so much less hostility i mean this is another blown up mythology to me now you lesbians you really hate men don't you know the truth is i never met anybody who hated men more than straight women absolutely because they've had so much more to do with them and maybe had a bad experience whereas we're just all you know friends and we're fine to go along with that and in children of families where there was a divorce both again lesbian and heterosexual moms the the heterosexual moms had much greater anger and negative feelings about visitation with the of the children with the ex-husband than the lesbian moms did it was really clear i've seen some lesbian breakups i'm talking about with with the biologic father yes presentation of the biological father well that's the other interesting issue though about this marriage thing because in most heterosexual marriages where children are are produced you have two biological parents and they are the people who entered into the marriage we would be radically changing that though we wouldn't be the first because there are lots of different ways that people participate in in child bearing and child raising uh to to you know depending on their own circumstance but we would typically not be the two biological parents of this child and so we would always be in a place where we would have to be a step parent who adopted the the biological child of of our partner which is not the case with most heterosexual couples because the law essentially opines that the biological parents are the legal parents although with fathers you it's don't always know so the law says it's the person who's married to this woman who has the child so the interesting thing would be to see if the law over the course of the next century will change so that even the same gender person married to this biological mother would be considered the parent or and what gay men will do to be a su to be an assumed parent you know the the iterations are kind of uh endless and fun well you know it's it's fascinating that we really don't have one test of who the parent is i mean biology trumps so trump's sociology in some way doesn't matter who cares for the child the biological tie may prevail in a custody dispute but um sometimes the legal status prevails over biology i mean the statute that you're referring to in california the husband of a woman who gives birth is assumed to be the father and even if the actual biological father comes along and says no no it's me right nobody has to listen to him and he does not get to oust the legal father now notice that i mean there are two things going on there there's a huge preference for the nuclear family traditional nuclear family and um in some way there's a desire that and there's a real need that there only be one father or there only be one mother and one father you know i think about the one of the larvae articles written in this area was yes this child does have two mothers you know i it's not it's no surprise to us well but it seems to be very surprising to the law we're coming down to actually the last 30 seconds of the show and i i think that it's it's intriguing in i feel like we're sort of on the edge of a new way of thinking of family and the creation of family and even parenting i mean the truth is if the state really cared about children it would allow as many people as possible to sign a contract to be this child's parent and take responsibility and nurture and you know and really enter into it well i thank you all very very much for sort of opening up this discussion we've talked a lot about the law in hawaii uh in other shows and lots of other spaces but i think um bringing these other perspectives in have been very helpful i hope it's also been interesting to you as we hope all the shows are thank you very much for participating thank you very much for being here and it looks like if the hawaii supreme court says yes to it the world just might have to get used to [Laughter] it [Applause] [Music] [Applause] [Music] [Applause] [Music] you