74 Haw. 530, 852 P.2d 44 (1993)
On or about December 17, 1990, the three applicant couples—Ninia Baehr with Genora Dancel, Tammy Rodrigues with Antoinette Pregil, and Pat Lagon with Joseph Melilio—personally appeared before authorized agents of the Department of Health and filed applications for marriage licenses pursuant to HRS § 572-6.1
The Department denied each application solely on the ground that the applicants were of the same sex.2 The couples had complied with all other provisions of HRS chapter 572.3 On May 1, 1991, the six individuals filed a complaint in the Circuit Court of the First Circuit seeking declaratory and injunctive relief against John C. Lewin in his official capacity as Director of the Department of Health.4
The complaint alleged that the Department acted under color of state law when it denied the applications and that the denials violated the plaintiffs' rights to privacy under article I, section 6 and to equal protection and due process under article I, section 5 of the Hawaii Constitution.5 It further alleged that the plaintiffs had no plain, adequate, or complete remedy at law and would continue to suffer irreparable injury without relief.6 Lewin filed an amended answer on June 7, 1991, admitting his official status, the filing of the applications, and the denials on same-sex grounds while denying the remaining allegations and asserting defenses including failure to state a claim.7
On July 9, 1991, Lewin moved for judgment on the pleadings under Hawaii Rules of Civil Procedure 12(c) and to dismiss under Rule 12(b)(6), supported by a memorandum containing no references to affidavits, depositions, or other discovery materials.8 The plaintiffs opposed the motion on August 29, 1991, arguing that the court was required to accept the complaint allegations as true.9 The circuit court heard the motion on September 3, 1991.10
On October 1, 1991, the circuit court entered an order granting Lewin's motion, stating that he was entitled to judgment as a matter of law, and dismissing the complaint with prejudice.11 The order contained multiple findings of fact concerning the statute's effects, Hawaii's history of tolerance, the political power of homosexuals, and the purpose of the marriage law, despite the absence of any evidentiary record.12 The plaintiffs filed a timely appeal from the order and judgment to the Hawaii Supreme Court.13
Whether the circuit court erred in granting judgment on the pleadings by making findings of fact in the absence of an evidentiary record?14
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.15 An HRCP 12(c) motion for judgment on the pleadings has utility only when all material allegations of fact are admitted in the pleadings and only questions of law remain.16 Consideration of matters outside the pleadings transforms the motion into one for summary judgment.17 Unverified statements or findings without an evidentiary record are improper.18
Yes. The established facts show that on July 9, 1991, Lewin moved for judgment on the pleadings under HRCP 12(c) and to dismiss under 12(b)(6) with a memorandum containing no references to affidavits, depositions, answers to interrogatories, or admissions.19 The record shows the parties conducted no formal discovery.20 The circuit court nevertheless entered its October 1, 1991 order containing multiple findings of fact on Hawaii's history of tolerance, the political powerlessness of homosexuals, whether homosexuality is immutable, and the purpose of HRS § 572-1 to promote traditional family units, despite the absence of any evidentiary record.21
These findings went beyond the pleadings and the admitted facts that the applicant couples filed applications on December 17, 1990, and were denied solely because they were same-sex couples.22 The rule requires that all factual allegations in the complaint be deemed true and that no evidentiary findings be made on a bare record.23 The circuit court's order therefore improperly resolved factual questions on a motion that tests only the legal sufficiency of the complaint.24
The circuit court erred in granting judgment on the pleadings.25
Whether the right to privacy under article I, section 6 of the Hawaii Constitution includes a fundamental right to same-sex marriage?26
Article I, section 6 of the Hawaii Constitution recognizes a fundamental right to privacy.27 That right encompasses the federal construct of the fundamental right to marry as articulated in Skinner v. Oklahoma and Zablocki v. Redhail.28 Those cases link marriage to procreation and traditional family units between men and women.29 A claimed right is fundamental only if it is so rooted in the traditions and collective conscience of the people that failure to recognize it would violate fundamental principles of liberty and justice.30
No. The established facts show that the three applicant couples filed marriage license applications on December 17, 1990.31 They were denied solely because each couple was of the same sex.32 They otherwise complied with all requirements of HRS chapter 572.33 The privacy claim asserts that these denials violated article I, section 6.34
Federal precedent establishes that the right to marry is fundamental because it is the foundation for procreation and child-rearing within traditional man-woman unions.35 No Hawaii precedent or tradition recognizes same-sex marriage as part of that fundamental right.36 The claim would require judicial creation of a new fundamental right not implicit in ordered liberty or rooted in collective conscience.37
The right to privacy under article I, section 6 does not include a fundamental right to same-sex marriage.38
Whether HRS § 572-1, on its face and as applied, discriminates on the basis of sex in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution?39
Article I, section 5 of the Hawaii Constitution prohibits denial of the equal protection of the laws.40 It also prohibits discrimination in the exercise of civil rights on the basis of sex.41 Marriage is a state-conferred legal status.42 That status gives rise to numerous statutory rights and benefits.43 HRS § 572-1 on its face uses sex-specific language requiring a man and a woman.44 It thereby denies same-sex couples access to that status and its benefits.45
Yes. The established facts establish that the Department of Health denied the applicant couples' December 17, 1990 applications solely because each couple was of the same sex.46 The couples had complied with all other provisions of HRS chapter 572. HRS § 572-1 expressly requires that the man not have a wife and the woman not have a husband.47
It also requires that the marriage ceremony involve the man and woman to be married.48 This statutory language creates a sex-based classification.49 The classification withholds the civil right of marriage and its attendant benefits from same-sex couples while granting them to opposite-sex couples.50 Because the classification is drawn on the basis of sex, it implicates the equal protection guarantee of article I, section 5.51
HRS § 572-1 discriminates on the basis of sex in violation of article I, section 5.52
Related opinions on this issue
Justice Heen dissents from the conclusion that HRS § 572-1 discriminates on the basis of sex.53 He maintains that the statute treats everyone alike by prohibiting same-sex marriages for all persons regardless of sexual orientation.54 He states that neither sex is granted a right the other lacks.55
In his view the denial rests on the definition of marriage itself rather than on sex.56 He believes any extension of benefits to same-sex couples is a matter for legislative rather than judicial resolution.57 He would affirm the circuit court's dismissal without requiring an evidentiary hearing under strict scrutiny.58
Whether sex-based classifications are subject to strict scrutiny under article I, section 5 of the Hawaii Constitution?59
Under article I, section 5 of the Hawaii Constitution, sex-based classifications are subject to strict scrutiny.60 Sex is a suspect category.61 Once a suspect classification is shown, the statute is presumed unconstitutional.62 The state must demonstrate that the classification is justified by compelling state interests.63 The statute must be narrowly drawn to avoid unnecessary abridgments of constitutional rights.64
Yes. The established facts show that HRS § 572-1 was applied to deny marriage licenses to the applicant couples solely because they were same-sex.65 This created an express sex-based classification.66 Prior Hawaii precedent in Holdman v. Olim established that sex-based classifications under the Hawaii Constitution warrant heightened scrutiny beyond mere rational basis review.67
Because the classification in HRS § 572-1 is defined by the sex of the applicants, it triggers the strict scrutiny standard.68 Under that standard the state must prove compelling interests and narrow tailoring.69
Sex-based classifications are subject to strict scrutiny under article I, section 5 of the Hawaii Constitution.70
Related opinions on this issue
Justice Burns concurs in the result that the circuit court erred but emphasizes that genuine issues of material fact exist concerning whether sexual orientation is biologically fated.71 He notes that if heterosexuality, homosexuality, bisexuality, or asexuality are biologically fated aspects of sex, then the Hawaii Constitution's prohibition on sex discrimination would likely bar the state from extending marriage only to opposite-sex couples.72 He would require factual development on this biological question before resolving the constitutional claim.73