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.)

TAKING CARE: HIP PAIN COULD BE CAUSED BY PINCHED NERVE

^Dear Dr. Smith:@ I have a constant pain in my left hip for thepast few months. It is a radiating pain in the area of the hipbone. It is becoming worse. The pain is at its worst when gettingin or out of a chair. _ Srussell on the Internet.

^Dear Srussell:@ Hip pain can be caused by a problem in the hipitself or can be referred from a pinched nerve in the lumbarsection of the spine. When I see a patient complaining of suchpain, I will usually perform a physical examination to determinethe range of motion of the hip, whether there is heat or rednessover the hip, test the range of motion of the lower back and see ifthere is any pain on straight leg rising of the leg. An X-ray ofthe lower back and/or hip is sometimes helpful. I have on occasionhad to perform an MRI scan of the hip or back depending on thedetails of the history given to me by the patient, the physicalfindings and my suspicions. Probably a visit to your doctor wouldbe helpful here.

^Dear Dr. Smith:@ My 87-year-old mother died recently, and evenat her death, I carried resentment for her, a registered nurse, forallowing to have me circumcised at birth. We spared my son fromsuch mutilation, for which he is grateful.

People like the famed Dr. Ashley Montagu said, ``Circumcision isa very cruel, very painful practice with no benefit whosoever.''And Dr. Benjamin Spock said, ``If I had the good fortune to haveanother son, my own preference would be to leave his little penisalone.'' Dr. Dean Edell said, ''... it deprives men of a vital partof their sexual sensitivity.'' The academy of pediatricians inAmerica debunked circumcision 25 years ago, yet it still persists.

Please, Dr. Smith, use your considerable intelligence andinfluence to speed up the end to this violation of the human rightsand birthright of newborn boys. Two billion uncircumcised men onthis earth _ more than 85 percent of all males _ aren't sufferingbeing intact and as God made them.

Circumcision carries unnecessary risk, even death, and islargely done in America by misinformed/uninformed parents with thetacit OK of doctors who know better. I like what Dr. GeorgeDenniston said, ``To me, the idea of performing 100,000 mutilativeprocedures on newborns to possibly prevent cancer in one elderlyman is absurd.'' We find it repulsive that women in the Third Worldundergo female genital mutilation, but American doctors allow it tohappen every day to 2,000 to 3,000 baby boys who have no choice. Itis the only ``surgery'' dictated by parents and not by doctors whoknow better and ought to heed the first oath of medicine, ``First,do no harm.''

What will it take, Dr. Smith, for more parents like us to careenough about our children to not have an intimate part of theirbodies and the most obvious part of their sexuality to be viciouslyamputated, a part of them ripped loose just as they make contactwith the world around them. It leads to resentment, and who knowshow much subconscious trauma? Whose body is it anyway? _ L.G.,Tempe, Ariz.@

^Dear L.G.: @You caught me off guard on this one. Our familyhave been proponents of circumcision for years. Some people havethis procedure performed as a religious rite. As a physician, Ihave not personally seen any great complications of circumcision ornon-circumcision. You present a very lucid argument that has mereconsidering my prejudices. I'd like to ask around the medicalcommunity and also ask readers to write me about their feelings onthis topic.

_-

Address questions to: Edward A. Smith, M.D., 1106 N. GilbertRoad., 2144, Mesa, AZ, 85203. You can read previous columns by Dr.Smith or ask a question by visiting his Internet Web site atwww.net-doc.com. Answers to all questions are of a general nature.If you have a specific medical problem, Smith recommends that yousee your physician.

(Dr. Ed Smith writes for Thomson Newspapers.)

^For use by clients of the New York Times News Service@

NO PEACE FOR THE WAR BABIES

c.1997 The Independent, London

NO PEACE FOR THE WAR BABIES By EMMA DALY LONDON - EditaKeranovic was born in the wrong place at the wrong time. When shewas only nine weeks old, her father and grandfather sent her, withher mother, grandmother and other relatives, to hide out in agarage less than a mile from her home. Rebel Serb forces wereadvancing on the Bosnian Muslim village of Hrustovo, and theKeranovic men feared the worst.

Hrustovo lies amid the green, rolling hills of northern Bosnia,the pleasant, fertile swathe of land brutally and efficiently``cleansed'' of Muslims by a Serb regime determined to carve anethnically pure state from the patchwork villages that made uprural Bosnia-Herzegovina.

Edita was born within a few miles of the notorious prison camps- Manjaca, Omarska, Keraterm, Trnopolje - set up by the Serbs toprocess those who had survived into captivity and expel them acrossthe Sava river to Croatia.

On that fateful day, 30 May 1992, the garage was to providelittle shelter. The Serb soldiers threw in grenades andmachine-gunned the building. The Keranovic men survived the attackon their village. The women were killed in the garage.

Hasan Keranovic lost eight members of his immediate family,including his wife, youngest son, and daughters-in-law. Edita andher six-month-old cousin, Melvina, survived, shielded by theirmothers' bodies. The babies were picked up by a soldier who heardthem crying, so the story goes, and were eventually placed in anorphanage in the Serb-held city of Banja Luka.

Six months later Edita, who has shotgun pellets in her head, wassent to London, via Zagreb and Ljubljana, for medical treatment,with the help of Alan and Deborah Fowler, a British couple moved byher plight.

On Monday, a High Court judge said Edita should remain with theFowlers, despite the competing claims of Hasan Keranovic, hergrandfather, who lives in a flat in Switzerland.

A happy ending to the story? Not for her family, nor for hercountry.

Hasan Keranovic and his son Rufad were separated from Edita'sfather by the Serbs; they never saw him again - but then no one hasfound his body either. Hasan was released from Manjaca in November1992, his son Rufad a month later, and the men began to search forthe two little girls. Rufad and Melvina were re-united in Zagreb inearly 1993, and the Keranovics tracked Edita down to the Fowlers inBritain.

The judge, in Monday's ruling, accused the Fowlers of``appalling irresponsibility''. In response to the Keranovics'requests, he added, ``there was a consistent course ofnon-disclosure by Mr and Mrs Fowler to throw inquiries off thescent''.

The Keranovics, who met Edita in January for the first timesince that grim day in 1992, are considering whether to appeal thejudgment. They are also hoping to arrange a visit from Edita assoon as possible - the judge said she must see her natural familyat least four times a year, and that she must keep her surname andbe brought up a Muslim.

For the Bosnian government, Edita's case is of great concern. Itdoes not take a huge leap to see that a people who were attackedspecifically because they were Muslim and whose Christian enemiessought to kill them or expel them from Bosnian territory might beupset by Edita's story.

``Giving people refuge is laudable, but does the process ofadoption, especially where families are present, serve the purposesand objectives of those waging war?'' asked one Bosnian lawyer.``Is the adoption process going to solidify the ethnic cleansingprocess?'' Mugdim Pasic, the Bosnian charge d'affaires in London,is also angered by the judgment. ``Serbia's aim was to kill as manyBosnians as possible and to expel them,'' he said. ``That's why wewant our refugees to come back to Bosnia, to negate the results ofthe genocide, of the Bosnian tragedy.'' Tens of thousands ofchildren left Bosnia during its four years of war: pushed on totrains and buses, sent with friends or relatives or alone byparents desperately seeking safety, and, more important, convincedthe fighting would be over in a few weeks. Children who had beenwounded, like Edita, were flown out in medical evacuations, sent toa third country for treatment. But in the vast majority of cases,those handled by UN agencies, it was standard practice to send aresponsible adult with the sick child to avoid exactly this kind ofsituation.

The international convention of 1960 governing inter-countryadoptions states that in times of war, ``special care must be takento prevent hasty placement of children outside their own country''.Both the Bosnian and Croatian governments banned adoption of theirchildren during the war because, for example, they too had coupleswanting to adopt.

The UN recommends that in the case of a foreign adoption, thestate authorities (in Edita's case, Britain), should ensure ``allreasonable measures have been taken in order to trace and re-unitethe child with his or her parents''.

``What's interesting is the very clear statement the judge madewith regard to retaining her name and her religion,'' said LouiseWilliamson of the Refugee Council. ``This is a crucial element:that if tracing [of family] proved unsuccessful, you would expect achild to be placed for adoption with a family of similar language,culture, ethnicity and religion, and that's a firm principle of theUN Convention on the Rights of the Child, and of the ChildrenAct.'' In the former Yugoslav republics, Save the Children knows ofaround 9,000 children separated from their families during the war.There are no accurate figures for the number of unaccompaniedchildren sent abroad; British officials, for example, did not countchildren travelling alone as a separate category.

``The figure I have for children known to be in the UK is 154,but we are pretty damn sure there are significantly more thanthat,'' said David Wright of Save the Children, the agency chargedwith leading the struggle to re-unite children and families fromthe former Yugoslavia. ``From Save the Children's point of view,our position is very clear, that the child's right place is withits own family and in its natural country of domicile.'' Thegovernments of Serbia and Croatia, remembering a lesson of theSecond World War lost on some in this country, made adoptions ofchildren displaced by war illegal. They knew that it was quitepossible for relatives to appear years after the event. I have aSarajevan friend whose father lost his family in the Second WorldWar, aged eight. His father was away fighting with the partisans,and the rest of the family was executed en masse by the fascists.It was not until he was a student at Sarajevo University, in the1950s, that his father tracked him down.

My friend sent her one-year-old son to Germany to escape thislast war, but she was lucky, she sent him out with his grandmother,who looked after him in Frankfurt for four years. Her son returnedto Sarajevo, his birthplace, for the first time last year.

This is very Bosnian; Yugoslav, actually - society is stillbased around the extended family and there is still a strong senseof community (among those on the same side). In some ways Bosniansociety is more child-friendly than British society. In wartimeSarajevo, for instance, you saw people keeping an eye on, orticking off, their neighbours' children; you saw children playingtogether in the streets, in basements; you saw the environmentwhose passing we so often mourn. In Belgrade, too, neighbours inhigh-rise blocks are more likely to know one another, to chat, tobaby-sit.

The aid agencies working in Bosnia during the war tried hard toavoid creating further trauma in the people they were supposed tohelp. That is why they adhered to strict guidelines when dealingwith children, and why they enshrined a bureaucracy that sometimesstifled attempts to help. Many individuals got involved too, movedby the horrifying scenes on their television, motivated only by aneed to change things for the better, unaware of the pitfallsahead.

Ms Williamson, who heads the Refugee Council's Children'sDivision, is keen to avoid similar cases in the future. ``There hasbeen so much experience gained with unaccompanied children, but sofew lessons have been learnt,'' she said. ``It is better to keepchildren with their families, even under shellfire, but if they areseparated, they must go with proper documentation with details oftheir names, ages and where their family is so that tracing will beeasier later on.''

^(Distributed by New York Times Special Features)@=