WRITINGS ON HOMOSEXUALITY, GAY RIGHTS,
& SAME-SEX MARRIAGE
by
ROBERT J. MORRIS / 司徒毅 / KAPĀ‘IHIAHILINA (JD, PhD)
Background
I began practicing law in Hawai‘i in 1981. That was just about the
time that HIV/AIDS was coming into the consciousness of the public, and
because I had some experience of medical law, I was asked to advise thenstate senator (now governor) Neil Abercrombie’s ad hoc committee on
HIV/AIDS. We wrote much legislation to amend the health code, the court
rules of civil procedure, and the rules of evidence to deal with the new
situation and provide protection for persons living with HIV/AIDS. That
work continued for a decade during which I also worked with the Legal Aid
Society of Hawai‘i (LASH) on similar issues.
Then on May 5, 1993, everything changed. The Hawai‘i Supreme
Court handed down its landmark decision of Baehr v. Lewin, 74 Haw. 645,
852 P.2d 44, holding that the state could not prohibit same-sex marriages
under both the “equal protection” and the “equal rights” clauses of the
Hawai‘i State Constitution. That result took everyone by surprise. In 1996,
after much public debate, the state Legislature took up the political question
of whether it should amend the law, including the state Constitution, to reprohibit same-sex marriages and thus overrule the court’s decision. I was
then legal counsel to the Hawai‘i State House of Representatives, and
because of my background in Hawaiian language and culture,1 I was
assigned to research the subject in order to advise the House leadership (the
Speaker and his staff). That assignment continued for the next four years
and led to much of the post-1993 published research listed below.
During that assignment, I came to read Susan Estrich and Virginia Kerr,
“Sexual Justice,” in Norman Dorsen (ed), Our Endangered Rights (Pantheon
1
See the links on this Web page to my Publications on Hawai‘i.
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Press, 1984), pp. 98-133. It taught me something I had never before
understood: Homophobia, racism, sexism, misogyny, misanthropy, elitism,
xenophobia, and all other “phobias” are part of the same thing; they are not
separate, compartmentalized phenomena. Often they move in cycles of
political and social correctness; when one wanes, others explode. I decided
that the guarantees of equality in the Constitution obligated me as a lawyer
to oppose them all. By opposing one, I could oppose the others. I had
grown up in the days of the American civil rights movement, so this was a
natural extension of that work. I also became deeply involved in the First
Amendment issues of the separation of church and state.2 As with all areas
of civil and human rights, these battles are far from over. As the Chinese
proverb states, we must carry forward the cause and open up the future 繼往
開來.
Following that assignment, I worked at the Office of Hawaiian Affairs
(OHA), specializing in Native Hawaiian rights. Many of the following
publications focus specifically on Hawai‘i culture, language, law, and
politics. There are many other Hawai‘i-related publications listed at the
other links on this Web page (see, e.g., the links My Bibliography on
Hawai‘i, The Flexible Definition of “Families,” and My Short Story of
Hawai‘i).
I encourage research in original Hawaiian-language materials. My debt
to the language is apparent. Both life and death reside in the language: i ka
‘ōlelo ke ola, i ka ‘ōlelo ka make. “Long live the grand old, sonorous,
poetical Hawaiian language.” —The Rev. Lorenzo Lyons (Makua Laiana),
1878 (author of the anthem, “Hawai‘i Aloha”). I especially love the great
Hawaiian story of the ruling chief, Lonoikamakahiki, and his aikāne, the
commoner Kapā‘ihiahilina. I urge everyone to read that story. My
Hawaiian name is Kapā‘ihiahilina in honor of the story and of them. The
version that I rely on is found in both English and Hawaiian in volume 4,
part 2, of The Fornander Collection of Hawaiian Antiquities and Folklore.
Most big libraries have these or can get them via interlibrary loan.
2
See the link on this Web page to my monograph on constitutional checks-and-balances and the doctrine of
the separation-of-powers.
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Publications
1990 “Aikāne: Accounts Hawaiian Same-Sex Relationships in the Journals
of Captain Cook’s Third Voyage (1776-80),” Journal of Homosexuality
19(4): 21-54.
1991 “Trade,” Tribe: An American Gay Journal 1(4): 51-63 (short story).
1992 “Same-Sex Friendships in Hawaiian Lore: Constructing the Canon” in
Stephen O. Murray, ed., Oceanic Homosexualities. New York & London:
Garland Publishing Co., 71-102.
1994 “Court Bashing in the Legislature: A Modern Lesson in Civics From
the ‘Federalist,’” Law Reporter: The Journal of Hawai‘i Trial Lawyers
Association 6(6): 5-6.
1995 Book Review of Lilikalā Kame‘eleihiwa, Native Land and Foreign
Desires: Pehea Lā e Pono Ai?, Journal of Homosexuality 29(1): 124-35.
1996 “Configuring the Bo(u)nds of Marriage: The Implications of Hawaiian
Culture & Values for the Debate About Homogamy,” Yale Journal of Law &
the Humanities 8(1): 105-60.
1997 “‘What Though Our Rights Have Been Assailed?’ Mormons, Politics,
Same-Sex Marriage, and Cultural Abuse in the Sandwich Islands (Hawai‘i),”
Women's Rights Law Reporter 18(2): 129-204.
1998 Special Report: “Framers of Hawai‘i Constitution Did envision
Marriage as a Civil Right Unfettered by Sex,” Honolulu Star-Bulletin,
Saturday, October 24; online
<http://archives.starbulletin.com/98/10/24/editorial/special2.html>.
2000 “Re-Identifying American State Democracy: Implications for SameSex Marriage and the Nonfungibility of Hawai‘i in the ‘Exotic’ 1950
Hawai‘i Statehood Constitution,” University of Hawai‘i Law Review 22(1):
1-17.
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2005 “Both ‘New’ and ‘Everlasting’: Law and Religion in the Creation of
Neo-Mormon Doctrine on (Homo)sexuality” 6 Rutgers Journal of Law &
Religion (PDF online):
<http://lawandreligion.com/sites/lawandreligion.com/files/Morris.pdf>.
2006 “Translators, Traitors, and Traducers: Perjuring Hawaiian Same-Sex
Texts Through Deliberate Mistranslation,” Journal of Homosexuality 51(3):
225-47.
January 15, 2012
www.robertjmorris.net
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