Last week, in an attempt to override a Hawaii court decision infavor of same-sex marriages, the Hawaii Legislature passed aproposed constitutional amendment that would restrict marriage tomembers of the opposite sex.

The state House version of the amendment differs from theSenate's, so it goes to a conference committee. If the differencesare hashed out, the amendment will appear on the ballot in the nextgeneral election, November 1998.

By that time, the Hawaii Supreme Court should have ruled on thelower court's decision. If the state Supreme Court upholds thelower court and affirms the right of those of the same gender tomarry, it will create an interesting situation. At least three gaycouples will be married by Hawaii law. And Hawaiians may then voteto ban same-sex marriages.

On Dec. 3, Judge Kevin Chang of the First Circuit Court ofHawaii ruled that the state could not stop people of the samegender from marrying. Chang did what was legally necessary, hefollowed the Constitution of the State of Hawaii _ which he hadsworn to uphold.

The judge did grant the state a stay of his ruling until theHawaii Supreme Court has reviewed it.

But his decision is not only appropriate legally, it isethically just.

Back in 1990, three gay couples who were residents of Honoluluapplied for marriage licenses but were turned down. The staterefused their request based upon a 1985 revised statutes (HRSsection 572-1) that only allows a marriage between a male and afemale.

The gay and lesbian couples sued in state court but lost, thenappealed to the highest state court.

In May 1993, the Supreme Court of Hawaii ruled that 572-1 deniessame sex-couples access to the marital status and its concomitantrights and benefits. In doing so, the court said, the lawdiscriminates based upon sex and thereby violates Article I,Section 5 of the Hawaii Constitution.

Article I, Section 5 reads: ``No person shall be deprived oflife, liberty or property without due process of law, nor be deniedequal protection of the laws, nor be denied the enjoyment of theperson's civil rights or be discriminated against in the exercisethereof because of race, religion, sex or ancestry.''

Furthermore, Hawaii's high court said, the fundamental right tomarry is protected by the state constitution's guarantee of theright of privacy.

And this privacy right, according to Article I, Section 6 of theHawaii Constitution, ``shall not be infringed without the showingof a compelling state interest.''

Therefore two basic constitutional rights were abridged when thestate's health department enforced Hawaii Revised Statutes section572-1.

The state Supreme Court sent the case back down to the circuitcourt level to determine whether the state had a provablecompelling interest that was achieved in the least restrictivemeans.

It was up to the state to prove that same-sex marriages wouldharm the citizens of Hawaii.

Certainly the health and welfare of children is a compellinginterest for any state government. And in that regard the stateasserted that ``it is best for a child that it be raised in asingle home by its parents, or at least by a married male andfemale.''

Trouble is, the state couldn't prove it.

The state called four expert witnesses. Three of thosewitnesses, under close cross-examination, testified that all therecognized studies indicate that children raised in families withgay or lesbian parents are not harmed emotionally orpsychologically. These witnesses also testified that the sexualorientation of a parent is not an indication of parental fitness.

The fourth witness for the state, acknowledged by the court asan expert in the field of psychology and research, discredited hisown testimony. According to the court, he claimed that most socialscience studies are flawed and that value of psychology is dubious,at best.

The couples who sued the state brought their own expertwitnesses.

A segment of the testimony from sociologist Pepper Schwartz,Ph.D., who wrote ``American Couples,'' was particularly forceful tothe court. In testifying as to why heterosexual and homosexualpeople want to marry, she stated: ``They want companionship; theywant love; they want trust; they want someone who will be with themthrough thick and thin. They're looking for a life and a lovepartner ... for intimacy and security. And that is the definitionof marriage as people first and primarily think of it.''

That's the heart of it. That's the ethical core. Who has theright to deny anyone that search for a love bond?

Schwartz further testified that recognizing gay and lesbianmarriages wouldn't undermine the institution, rather it wouldstrengthen it. It would have a tendency to stabilize more loverelationships _ and thereby have a positive impact upon society.

Experts for both the state and the aggrieved couples affirmedthat there is no data to support the thesis that gay fathers andlesbian mothers are less capable of being good parents than non-gaypeople.

Studies show that what is most important to a child's emotionalhealth is the nurturing relationship from the parent or parents _not whether the family structure involves a single parent or gayparents or a traditional marriage.

Gay couples can and do adopt children all over this nation.Marriage would only support and strengthen that parent-childrelationship. Marriage can provide greater security for thesechildren because of the institution's legal and social benefits.That, too, is the at the ethical center.

Sociological and psychological studies disprove what prejudicepretends is true _ that homosexual parents harm the children theyraise. Nor is there any statistical evidence that homosexualparents turn the children they raise into homosexuals.

The state of Hawaii had enormous resources at its disposal, butcould not prove harm in a court of law. The state had even createda commission to investigate sexual orientation and whether therewas a compelling reason to limit marriage to heterosexual couplesonly. It failed to find any compelling reason.

Judge Chang summed up his findings: ``Simply put, (the state)has failed to establish or prove that the public interest in thewell-being of children and families, or the optimal development ofchildren will be adversely affected by same-sex marriage.''

Therefore, according to Chang, the state has not demonstrated abasis for the claim of a compelling interest in denying same-sexmarriages.

And thus, he wrote, HRS section 572-1 must fall asunconstitutional and in violation of the equal protection clause ofthe Hawaii Constitution.

That's the legal necessity. It rests upon fairness and equality_ both ethical concerns. A constitutional amendment to denysame-sex marriages won't change the ethics of what is fair andright.

(Distributed by The N.Y. Times News Service.)