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Race on birth certificates in Hawaii in 2009! The State of Hawaii requires birth certificates to list the races of the mother and father (if he is known). The state government backed down, at least a little bit, only after a federal civil rights lawsuit was filed by parents demanding issuance of a race-free certificate.


(c) Copyright December 13, 2009, revised January 27, 2010, and further improved July 24, 2010 Kenneth R. Conklin, Ph.D. All rights reserved


INTRODUCTION

It's 2009, and the State of Hawaii still requires birth certificates to specify the race(s) of a baby's mother (and father, if his name is known and listed). The state government backed down from this policy, at least a little bit, only after a federal civil rights lawsuit was filed by parents demanding issuance of a race-free certificate for their newborn baby.

There are many questions to be asked about what Hawaii's government policy really is, why the policy is in place, and what will be the practical results of the lawsuit.

THE FACTS ABOUT WHAT HAPPENED

The following facts are documented by internet links later in this essay, along with full text of the official complaint filed in court (bottom item on this webpage).

Baby Stella was born Oct. 16 at Castle Medical Center. After several weeks in which the parents struggled with the government bureaucracy, their lawsuit was filed in the U.S. District Court in Honolulu on November 30 and was classified by the Court as a "civil rights" matter. The Hawaii Attorney General's office contacted the parents on the next day, December 1, and told them they will be issued the race-free birth certificate their lawsuit demanded, and the government will pay their attorney's fees.

The parents gave an on-camera interview to KHON TV on December 5 which was broadcast statewide on the evening news. The station's website makes that interview available in its archives. Presumably the following day (but perhaps even before the TV broadcast), the parents were contacted and interviewed by Honolulu Advertiser reporter Gordon Pang, who is very friendly to Hawaiian sovereignty groups and race-based institutions. Pang's article was published early on the morning of December 8, and included some of the parents' comments in a context which attempted to dispute some of them. Pang slanted the article toward a posture that the denial of a race-free birth certificate had been merely a minor misunderstanding that was now resolved to the satisfaction of the parents. No harm, no foul. Don't worry; be happy.

It turns out that the proposed settlement of the lawsuit in December 2009 was unsuccessful, and the lawsuit proceeded to trial in the U.S. District Court in Honolulu, Judge Susan Oki-Mollway presiding. A blog published by attorneys published a lengthy essay on July 22, 2010 describing the lawsuit, and quoting some sarcastic comments by Judge Mollway in her written opinion dismissing the lawsuit and in her followup opinion denying reconsideration. The blog essay includes considerable information about Adam Gustafson, including a description of his background in the Federalist Society and a statement that Mr. Gustafson is working in a [prestigious] position as clerk to a Judge in the 9th Circuit Court of Appeals.

QUESTIONS TO BE ANSWERED

This is not "a tempest in a teapot." Very important issues are at stake.

What's going on here? What is the policy of the State of Hawaii regarding printing the race of the parents on a baby's birth certificate? Why does Hawaii have such a requirement years after nearly all other states have stopped printing racial identity on birth certificates?

DOES THE STATE OF HAWAII REQUIRE THE RACE(S) OF PARENT(S) TO BE PRINTED ON A BABY'S BIRTH CERTIFICATE?

Birth certificates in the State of Hawaii have always identified the race of the baby by explicitly listing on the actual certificate the race of both the mother and the father (assuming the father is identified -- sometimes an unwed mother refuses to identify the father or does not actually know which boyfriend got her pregnant).

Parents who forgot to fill in the blank for race on the birth certificate application were reminded to do so by nurses or doctors. But then those who refused were sent a standard-form letter from the state government saying that the government would not issue an official birth certificate until the race questions were answered. Since nobody can survive in today's bureaucratic networks without an official birth certificate, the government's refusal to issue one is just as effective a threat as holding a gun to someone's head.

Photos of several Hawaii birth certificates can be seen by doing a Google search using the keywords {Hawaii state birth certificate} (only those four words, not the braces enclosing them) and clicking on "image".

It is permitted to list more than one race for a father or mother who is biracial or multiracial. However, race is self-identified, as in U.S. Census surveys. Thus someone who has many racial ancestries might choose to list only one or two of them; and it would be possible for someone to falsely claim a racial identity which he believes would be beneficial in the future to the baby and its descendants.

WHY DOES HAWAII DEMAND RACIAL IDENTITY ON ITS BIRTH CERTIFICATES?

Most other states in the U.S. long ago stopped listing race on birth certificates, but Hawaii still requires it.

The main reason why Hawaii demands racial identity on birth certificates is for the benefit of ethnic Hawaiians, who receive race-based benefits from more than 160 federally funded programs, numerous state-funded programs, and numerous private race-based institutions. All such programs are for ethnic Hawaiians exclusively, and require the beneficiaries to prove their racial identity. The best form of proof is a birth certificate of themselves or one of their biological parents or grandparents. For most handouts only one drop of Hawaiian native blood is required; but to get a 99-year lease for $1 per year on a Hawaiian homestead requires proof of 50% native blood quantum.

The requirement to prove racial identity to receive race-based benefits is such an important part of life for ethnic Hawaiians that over the years there have been repeated efforts to abolish the small fees required for issuance of certified copies of birth certificates. Some of those efforts to abolish fees were explicitly applicable only to ethnic Hawaiians; all others would continue to pay fees.

The state government's Office of Hawaiian Affairs several years ago established a program allowing ethnic Hawaiians to prove their native identity to an OHA bureaucrat and then receive a racial identity card which other institutions would accept as proof of eligibility for racial entitlements.

More recently the OHA-sponsored Kau Inoa program has once again asked ethnic Hawaiians to sign onto a racial registry and provide proof of native ancestry, for the purpose of participating in creating a Native Hawaiian Governing Entity as soon as the Akaka bill passes. During five years and untold millions of dollars for massive advertising and nationwide community outreach (and free T-shirts) to gather signatures, the Kau Inoa program has gathered the names of more than 100,000 ethnic Hawaiians (including children and babies whose parents signed up for them). Probably about 500,000 would be eligible -- in Census 2000 there were 401,000 U.S. residents who checked the box for "Native Hawaiian", plus many more who actually do have native blood but didn't bother to claim it; plus thousands living outside the U.S.; plus the birthrate for ethnic Hawaiians is the highest among all Hawaii's ethnic groups thus adding greatly to their numbers during the ten years since Census 2000.

Approximately 20% of Hawaii's people have at least one drop of Hawaiian native blood; i.e., at least one ancestor (probably of Tahitian heritage) who lived in Hawaii before Captain Cook's arrival in 1778. Nearly all ethnic Hawaiians are of mixed race; and perhaps 3/4 of them have less than 1/4 Hawaiian native blood. Nevertheless, many ethnic Hawaiians (including those with very low native blood quantum) choose to identify themselves solely as "Native Hawaiian" as a matter of racial pride.

Many of the institutions providing race-based benefits (especially Kamehameha Schools) ask their beneficiaries to answer only "Native Hawaiian" when responding to government or opinion surveys, on the theory that in the future the government might be more inclined to give benefits to a group with greater racial purity, or that benefits will be handed out in proportion to percentage of native blood quantum.

Let's look at one example, which is statistically bizarre but illustrates what passes for normal in Hawaii's racial spoils system. Suppose an unmarried mother has identified herself as 100% Filipino on a Census questionnaire. She has a son whose absent father is 5/8 Portuguese, 1/4 Japanese, and 1/8 Hawaiian. When she fills out the Census questionnaire for her son, she lists the boy's race as "Native Hawaiian." That's all -- only Native Hawaiian. Mom does that because she receives childcare money from Kamehameha Schools whose bureaucrat has explicitly told her to identify her son in that way. Mom is, in effect, stripping out her own 50% contribution to the baby's identity, and also stripping out 7/8 of the father's contribution, in order to make her son count statistically as "pure" native Hawaiian even though the boy has only 1/16 native blood. Even if a Census Bureau enumerator is personally interviewing Mom at her doorstep and filling out the form for her, the Census worker is forbidden from asking Mom to clarify her response, or asking whether the boy has any additional racial components. Census workers are trained to accept without question whatever racial identity is claimed, and not to probe more deeply.

That's why, even though estimates are that there are fewer than one thousand "pure" native Hawaiians, the official data for Census 2000 show that there are 80,137 "pure" native Hawaiians (because they checked only the box for "Native Hawaiian" when they could have checked as many races as they actually have).

But Census data are not the only things twisted out of shape by people who choose to suppress non-native components of their genealogies. If one parent has 1/8 native blood and the other has 1/16 native blood, and if they choose to list only "Native Hawaiian" as their race on their baby's birth certificate, then the baby with 3/32 native blood will appear to be a "pure" native Hawaiian, making himself and his children appear to be eligible for a Hawaiian homestead. When hundreds of thousands of people answer Census questionnaires this way, or fill out birth certificate applications this way, it provides a statistical bonanza for Hawaiian racial entitlements.

The Native Hawaiian Legal Corporation is a law firm funded by State of Hawaii government money for the purpose of providing legal representation to ethnic Hawaiians dealing with issues specific to Hawaii's plethora of race-based benefits. Some of its work includes helping ethnic Hawaiians "correct" (i.e., change) their own birth certificates, or the birth certificate of a parent or grandparent or great-great-grandparent, to show Hawaiian native ancestry; helping them prove their genealogy to establish the 50% native blood quantum required for a homestead lease; proving the chain of kuleana land title and inheritance all the way back to royal patent deeds from the 1848 Mahele, etc.

For a humorous example of race-mongering to receive government handouts, see the following webpage. The elderly former President Barack Obama is 1/2 Caucasian and would therefore be eligible for a lease on the Caucasian homelands established under the Caucasian Government Reorganization Act of 2040, while his wife Michelle Obama is eligible for all other benefits due to her 1/32 Caucasian blood inherited from a Caucasian great-great-great-grandfather who was a slave owner; and daughters Malia and Sasha would be eligible to inherit the Caucasian homelands lease from their father Barack because of the fact that they have (slightly more than) the required minimum 1/4 Caucasian blood quantum. See "How the Obama Family Will Benefit from the Caucasian Government Reorganization Act of 2040" at
http://www.angelfire.com/big09a/CaucasianGovReorgAct.html

HOW LIKELY IS IT THAT HAWAII'S POLICY OF REQUIRING RACE ON BIRTH CERTIFICATES WILL BE CHANGED AS A RESULT OF THE LAWSUIT, AND WHAT KIND OF CHANGES MIGHT BE MADE?

The victory achieved by this one pair of parents is not likely to affect the government's usual procedures in the future; or will affect those procedures only in a small way. The government avoided setting any precedent because it settled the lawsuit immediately, without any government answer brief in reply to the complaint brief, without any trial or court ruling; and the lawsuit was not a "class action." Perhaps the government settled this lawsuit cheaply and in a single day because it was mindful of the Kamehameha Schools' expenditure of seven million dollars to settle a desegregation lawsuit shortly before the U.S. Supreme Court would probably have agreed to hear the case and would then almost certainly have ruled against the schools' race-based admissions policy.

It's unclear what the Hawaii government's future policy will be for many thousands of babies born each year. Will race no longer be included on birth certificates? That's very unlikely. Will the government form to apply for a birth certificate no longer request racial information? That's very unlikely, as can be seen from the discussion above regarding the reasons for the policy.

Will the government application for a birth certificate request racial information but include an instruction that the item can be left blank? That's a possibility, but probably won't happen. The paternalistic Hawaii government still operates in the plantation mentality where leaders know what's best for "their" people. The government wants to include everyone's race on birth certificates so that decades later, when babies grow up, those who are "Hawaiian" can get race-based handouts and perhaps join a racially exclusionary "nation" favored by state government leaders. Government will do what it thinks is best for a baby even if the parents strongly disagree because of their political or moral beliefs. What if a parent is a civil rights activist or Libertarian who seeks colorblind laws? What if a parent is a Jew who remembers the Holocaust and doesn't want racial identity on a government document? Doesn't matter. Government knows best.

What will probably happen is that parents will continue to be confronted by the same application form previously used, and if they leave the race question blank they will continue to be reminded to fill it in. If the government decides to treat people with kindness, then when parents make it clear they are refusing to answer the race question, the government might simply go ahead and issue a race-free birth certificate without further harassment. But if the government chooses to be zealous about demanding an answer to the race question, it might require the parents to fight the bureaucracy by filing an administrative complaint (or even a lawsuit!) in each and every case where they demand a colorblind birth certificate.

That sort of stonewalling on racial issues by state government officials is what happened in 2000. The Rice v. Cayetano decision by the U.S. Supreme Court forced the State of Hawaii to stop racial segregation in voting and allow all voters regardless of race to vote for OHA trustees. But a few months later, state government officials refused to allow any voter regardless of race to run as a candidate for OHA trustee. A new federal lawsuit had to be filed and won to desegregate candidacy for statewide office; and that decision was appealed by the state, and had to be won again in the 9th Circuit Court of Appeals. For a compilation of legal briefs, editorials, and commentaries on the "right to run" lawsuit (also known as Arakaki#1), see
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki.html

WHAT IS THE OFFICIAL DESCRIPTION OF THE LAWSUIT FILED ON NOVEMBER 30?

[JUSTIA: Federal District Courts filings and dockets, November 30, 2009]

http://dockets.justia.com/docket/court-hidce/case_no-1:2009cv00565/case_id-88128/

Gustafson et al v. Fukino et al

Plaintiffs: Adam R. F. Gustafson, Katherine A. N. Gustafson and Stella Marisol Gustafson

Defendants: Chiyome Fukino, Susan Jackson, Alvin T. Onaka and K. Lavarias

Case Number: 1:2009cv00565
Filed: November 30, 2009
Court: Hawaii District Court
Office: Hawaii Office [ Court Info ]
County: Honolulu
Presiding Judge: JUDGE SUSAN OKI MOLLWAY
Referring Judge: JUDGE KEVIN S.C. CHANG

Nature of Suit: Civil Rights - Other Civil Rights
Cause: 42:1983 Civil Rights Act
Jurisdiction: Federal Question
Jury Demanded By: None

Access additional case information on PACER, the US Court's PACER system. A subscription to PACER is required.

Full text of the lawsuit complaint filed on November 30, 2009 is provided at the bottom of this webpage.

WHAT DID THE PARENTS SAY IN THEIR TV INTERVIEW, BROADCAST ON DECEMBER 5?

The transcript of the interview is posted on the KHON TV website at
http://www.khon2.com/news/local/story/Liliha-Parents-Spark-Change-in-State-Policy/P_lsa-qfu0-TPG2LqVDFrg.cspx
and is copied in full at the bottom of this webpage.

A photo of the parents with their baby accompanies the transcript, and has its own link:
http://www.khon2.com/media/lib/128/3/4/2/3423fc68-982c-4115-be0a-8908e2d88380/Story.jpg

Here are excerpts:

"Adam and Katherine Gustafson didn't see the point in filling out the birth certificate form asking their race. "Because frankly we just don't identify ourselves according to race. We're not really sure what race even means these days," said Adam Gustafson."

"We thought this is kind of left over from some other era when race was really something that segregated people," said Katherine Gustafson.

"It's perfectly fine for people to self identify by their cultural background and we think that's wonderful. We just don't think it's appropriate for the state to require people to identify themselves that way," said Adam.

The day after the lawsuit was filed, the Gustafsons said they were contacted by the state attorney general. And they were told that they can get the birth certificate, with no mention of ethnicity.

"It was a huge victory and it was very exciting. I thought that it really meant that there was change coming," said Katherine.

GORDON PANG'S NEWS REPORT IN THE HONOLULU ADVERTISER ON DECEMBER 8

The complete news report is at
http://www.honoluluadvertiser.com/article/20091208/NEWS04/912080334/Birth+information+request+clarified
and is copied in full at the bottom of this webpage.

Here are all the quotes of what the parents said, as reported by Gordon Pang, in the order he provided them: "Adam Gustafson said the letter he received from the Health Department was clear that "if you don't give it, you don't get the certificate." ... Gustafson said he's grateful the letter is being changed. By virtue of changing the letter, the state is acknowledging there was a policy that required race and ethnicity be given, he said. "The main thing is we want Stella to be able to define her own identify rather than be defined by the state on racial grounds which we don't believe have any scientific basis and which we think have historically been used to divide people rather than unite them," he said."

Here are the quotes of what state government officials said, as reported by Gordon Pang, in the order he provided them: "Health Director Dr. Chiyome Fukino insisted that parents have never been required to fill out race or ethnicity, and that the release of the certificate was held up only in case the parents mistakenly forgot to fill out the information. ... Health Department spokeswoman Janice Okubo said the Gustafsons were initially sent a form letter sent to all parents who don't fill out all the boxes on a birth certificate form. "The language (in the form letter) is being changed because of this misunderstanding," she said. DOH workers also erred in not getting back to the couple sooner, she said. ... Okubo said the same letter has been issued by the department for 10 years without anyone else interpreting it to mean they would be denied a certificate, Okubo said. Fukino said other couples have asked to have race and ethnicity blank and been allowed to do so. Those certificates are simply issued with "Information not given," Okubo said. Hawai'i is one of the few states that does list race information on birth certificates, and does so largely because Native Hawaiians need to be identified as such to qualify for certain Hawaiians-only programs, she said. Affirmative action programs also ask for proof of ethnicity. "We don't force anyone to put down any information," Okubo said."

It's clear that Gordon Pang gave about twice as much space to telling the government bureaucrats' side of the story as he gave to the parents. The way he reported the story, most readers would probably conclude that the parents were making a mountain out of a mole hill, and that the requirement to put race on the birth certificate was never really a requirement, and that it's important to include race on birth certificates for the benevolent purpose of helping ethnic Hawaiians qualify for racially exclusionary handouts or affirmative action. Pang slanted the article toward a posture that the denial of a race-free birth certificate had been merely a minor misunderstanding that was now resolved to the satisfaction of the parents. No harm, no foul. Don't worry; be happy.

GORDON PANG OFTEN REPORTS ON TOPICS THAT ARE FAVORABLE TO THE HAWAIIAN SOVEREIGNTY MOVEMENT, AND SLANTS HIS "NEWS REPORTS" TO FAVOR RACE-BASED INSTITUTIONS.

Honolulu Advertiser reporter Gordon Pang has frequently published barely-concealed editorials masquerading as "news reports" portraying ethnic Hawaiians as poor downtrodden victims of history, and defending Hawaii's plethora of racially exclusionary programs for ethnic Hawaiians. A lengthy critique was written ripping apart one such article. Pang's headline for the article was "Forced assimilation may hurt Hawaiians" and the critique describes it as "A typical combination of junk history and junk science fueling the Hawaiian grievance industry." See
http://www.angelfire.com/hi5/bigfiles3/ForcedAssimHurtsHawnHealth.html

Gordon Pang either grabbed this birth certificate lawsuit as a topic for an article or was chosen by an editor to write about it. But Pang is not the usual reporter on court cases. His selection to report this story would seem to indicate that Pang and the newspaper editors view this story as related to Hawaiian sovereignty issues. It took nine days from the time the lawsuit was filed, and three business days from the time the story was reported on television, until Mr. Pang's article appeared in the newspaper. That delay would seem to indicate that there was concern in the ethnic Hawaiian community about how to spin this story, and that perhaps Mr. Pang took direction from ethnic Hawaiian activists or race-based institutions to shape the manner in which he wrote the article.


================

FULL TEXT OF DOCUMENTS, NEWS REPORTS, AND INTERNET ESSAYS. (This compilation is intended to preserve the original items for scholarly research under the fair-use doctrine, even if these items are eventually discarded by news media archives or cached Google search results)

http://dockets.justia.com/docket/court-hidce/case_no-1:2009cv00565/case_id-88128/

[JUSTIA: Federal District Courts filings and dockets, November 30, 2009]

Gustafson et al v. Fukino et al

Plaintiffs: Adam R. F. Gustafson, Katherine A. N. Gustafson and Stella Marisol Gustafson

Defendants: Chiyome Fukino, Susan Jackson, Alvin T. Onaka and K. Lavarias

Case Number: 1:2009cv00565
Filed: November 30, 2009
Court: Hawaii District Court
Office: Hawaii Office [ Court Info ]
County: Honolulu
Presiding Judge: JUDGE SUSAN OKI MOLLWAY
Referring Judge: JUDGE KEVIN S.C. CHANG

Nature of Suit: Civil Rights - Other Civil Rights
Cause: 42:1983 Civil Rights Act
Jurisdiction: Federal Question
Jury Demanded By: None

Access additional case information on PACER, the US Court's PACER system. A subscription to PACER is required.

--------------

** FULL TEXT OF THE COMPLAINT FILED IN THE U.S. DISTRICT COURT IN HONOLULU ON NOVEMBER 30, 2009 CAN BE FOUND AT THE BOTTOM OF THIS WEBPAGE.

---------------

http://www.khon2.com/news/local/story/Liliha-Parents-Spark-Change-in-State-Policy/P_lsa-qfu0-TPG2LqVDFrg.cspx

KHON TV, Honolulu, December 5, 2009

Liliha Parents Spark Change in State Policy

Reported by: Manolo Morales

Adam and Katherine Gustafson are overjoyed about becoming first time parents. But when their daughter Stella was born weeks ago, they didn't see the point in filling out the birth certificate form asking their race. "Because frankly we just don't identify ourselves according to race. We're not really sure what race even means these days," said Adam Gustafson.

"We thought this is kind of left over from some other era when race was really something that segregated people," said Katherine Gustafson.

The Gustafsons say the state health department denied them copies of Stella's birth certificate because they didn't complete the form. They then filed a lawsuit in federal court challenging the policy.

"It's perfectly fine for people to self identify by their cultural background and we think that's wonderful. We just don't think it's appropriate for the state to require people to identify themselves that way," said Adam.

The day after the lawsuit was filed, the Gustafsons said they were contacted by the state attorney general. And they were told that they can get the birth certificate, with no mention of ethnicity.

"It was a huge victory and it was very exciting. I thought that it really meant that there was change coming," said Katherine.

A spokeswoman says the state is following national policy in asking for the parents ethnic origin, but will allow the omission if requested by the parents.

** Photo of parents with baby
http://www.khon2.com/media/lib/128/3/4/2/3423fc68-982c-4115-be0a-8908e2d88380/Story.jpg

---------------

** Note by webpage editor Ken Conklin: The following newspaper report is written by Gordon Pang, who tries hard in this article to downplay the arrogance and racism of government policy. Pang has frequently published barely-concealed editorials masquerading as "news reports" portraying ethnic Hawaiians as poor downtrodden victims of history, and defending Hawaii's plethora of racially exclusionary programs for ethnic Hawaiians. See a lengthy critique of one such article: "Forced assimilation may hurt Hawaiians" -- A typical combination of junk history and junk science fueling the Hawaiian grievance industry.
http://www.angelfire.com/hi5/bigfiles3/ForcedAssimHurtsHawnHealth.html

The fact that Gordon Pang was chosen to write about this court case when he is not the usual reporter on court cases, would seem to indicate that the newspaper views this story as related to Hawaiian sovereignty issues. And the fact that it took three business days from the time the story was reported on television until it was reported in the newspaper, could indicate that Mr. Pang probably asked people in the ethnic Hawaiian race-based institutions to shape the manner in which he wrote the article.

Strong evidence that Gordon Pang slanted his reporting about this particular topic, and an antidote to the impression he tried to create, is found in portions of a press release (appearing immediately below Pang's article). The fact that Pang used some of the same language contained in the press release shows he already had access to it when he wrote his article. Pang's omission of some strong language opposing "the division and suffering in this country" caused by "State-imposed race-labeling" shows that Pang considered that language so powerful that publishing it might damage public acquiescence to the race mongering so commonplace in Hawaii's racial entitlement programs which Pang supports.

--------------

http://www.honoluluadvertiser.com/article/20091208/NEWS04/912080334/Birth+information+request+clarified
Honolulu Advertiser, Tuesday, December 8, 2009

Birth information request clarified

By Gordon Y.K. Pang

A Honolulu couple said it took a lawsuit to force the state Department of Health to issue them a certified copy of their child's birth certificate after they left blank the lines asking for the baby's race and ethnicity.

But Health Director Dr. Chiyome Fukino insisted that parents have never been required to fill out race or ethnicity, and that the release of the certificate was held up only in case the parents mistakenly forgot to fill out the information.

O'ahu residents Adam and Katherine Gustafson received certified copies of their daughter Stella's birth certificate on Thursday.

The Gustafsons received a letter from the department dated Nov. 10 explaining they had not received their certificate because they had left blank the lines in the application asking for races of each parent, and whether either was of Spanish origin.

Stella was born Oct. 16 at Castle Medical Center. The Gustafsons said that after the department ignored their queries, they filed a lawsuit in U.S. District Court on Nov. 30 asking that the state be forced to issue a birth certificate.

The state the next day sent the couple a letter stating they would be issued a birth certificate without any reference to her race or ethnicity.

Health Department spokeswoman Janice Okubo said the Gustafsons were initially sent a form letter sent to all parents who don't fill out all the boxes on a birth certificate form. "The language (in the form letter) is being changed because of this misunderstanding," she said. DOH workers also erred in not getting back to the couple sooner, she said.

The letter said if the couple did not respond to the request for information, "we will enter 'Information not given' on the birth certificate." It does not make clear that the couple would actually be issued a copy of the certificate.

Adam Gustafson said the letter he received from the Health Department was clear that "if you don't give it, you don't get the certificate."

But Okubo said the same letter has been issued by the department for 10 years without anyone else interpreting it to mean they would be denied a certificate, Okubo said.

Fukino said other couples have asked to have race and ethnicity blank and been allowed to do so.

Those certificates are simply issued with "Information not given," Okubo said.

Hawai'i is one of the few states that does list race information on birth certificates, and does so largely because Native Hawaiians need to be identified as such to qualify for certain Hawaiians-only programs, she said. Affirmative action programs also ask for proof of ethnicity.

"We don't force anyone to put down any information," Okubo said.

Gustafson said he's grateful the letter is being changed. By virtue of changing the letter, the state is acknowledging there was a policy that required race and ethnicity be given, he said.

"The main thing is we want Stella to be able to define her own identify rather than be defined by the state on racial grounds which we don't believe have any scientific basis and which we think have historically been used to divide people rather than unite them," he said.

----------------------

** Press release

Hawaii Department of Health Lifts Race-Requirement for Birth Certificates to Avoid Defending the Out-Dated Policy in Federal Court

Hawaii is one of the last states in the union to print the race of a child's parents on his or her birth certificate. Until last week, the state's policy had been to deny certified copies of birth certificates to parents who choose not to declare a race.

That policy collapsed last week in the face of a federal lawsuit.

On Thursday, as part of a settlement, Hawaii residents Adam and Katherine Gustafson received certified copies of their daughter Stella's birth certificate without any reference to race. As far as they know, Stella may be the first child in the state to receive an official birth certificate containing no mention of either parent's race. They hope she will be the first of many as other parents realize the State cannot require them to declare a race.

The Hawaii Department of Health refused the Gustafsons' first request for a birth certificate for Stella, born on October 16, in Kailua, because both parents chose not to declare a race or Spanish origin on the "Certificate of Live Birth" that they completed at Castle Medical Center where Stella was born. The Department's Office of Health Status Monitoring told them by letter that race and Spanish origin for each parent are "required . . . in accordance with Hawaii State law," and that "until such time as they are entered on the certificate, certified copies of the certificate will not be issued."

When the Department of Health ignored their letters, the parents filed a complaint in federal district court on Monday, November 30, asking the court to order the Department to issue their daughter's birth certificate.

The Department reversed its ultimatum in the face of the lawsuit. The next day, a Deputy Attorney General notified the Gustafsons that their certified copies of Stella's birth certificate were in the mail. The certificate the Gustafsons obtained not only omits each parents' race, but it omits even the fields "MOTHER'S RACE" and "FATHER'S RACE" found on all other certified copies of Hawaii birth certificates, or the phrase "Information not provided." (Compare Stella's certificate to any other Hawaii birth certificate, such as President Obama's birth certificate.)

The Deputy Attorney General confirmed that it was necessary to have the race and Spanish origin data fields "removed from your daughter's printable record" in order to produce a birth certificate that does not include those terms on it. She reiterated to the parents that "the Department of Health has already altered its system so that your daughter's will never indicate a blank or an omission." (emphasis in original)

The Department also agreed to refund the Gustafsons' court costs to avoid defending the state's out-dated policy in federal court.

"We know the public servants in the Department of Health mean well, but we think it's wrong for the State to force its residents to categorize themselves according to race," said Stella's father. "State-imposed race-labeling has caused enough division and suffering in this country. If Stella decides to identify herself by race when she's older, that should be her choice rather than the Health Department's."

-------------------

** HERE IS THE COMPLETE TEXT OF THE CIVIL RIGHTS COMPLAINT FILED IN THE U.S. DISTRICT COURT IN HONOLULU BY ADAM GUSTAFSON ON NOVEMBER 30, 2009. The "caption" and formatting have been simplified for easy readability and to allow the contents to be copy/pasted by anyone wishing to do so.

United States District Court
District of Hawaii

Adam R.F. Gustafson, and Katherine A.N. Gustafson, individually and on behalf of their minor daughter Stella Marisol Gustafson, Plaintiffs

v.

Chiyome Fukino, M.D., Director of the Hawaii Department of Health, Susan Jackson, Deputy Director of the Hawaii Department of Health, Alvin T. Onaka, Ph.D., Registrar of Vital Statistics and Acting Chief, Office of Health Status Monitoring, Hawaii Department of Health, K. Lavarias, an Employee in the Current Registration Section, Vital Records Program, Office of Health Status Monitoring, Hawaii Department of Health, in their official capacities, Defendants

Plaintiffs allege:

INTRODUCTION

1. Plaintiffs Adam Gustafson and Katherine Gustafson, individually and on behalf of their minor daughter Stella Gustafson, bring this action for declaratory and injunctive relief pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking redress for the deprivation of their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, arising from the defendants’ continuing refusal, under color of state law, to issue a certified copy of the birth certificate of Stella Marisol Gustafson, born October 16, 2009, in Kailua, Hawaii, and the defendants’ related demand, under color of state law, that Adam and Katherine Gustafson each declare their race and Spanish origin.

2. Under the supplemental jurisdiction of this Court, plaintiffs bring state law claims under Haw. Rev. Stat. §§ 92F-15(a), 92F-27, and 661-1 against defendants for their failure to fulfill their obligations under Haw. Rev. Stat. §§ 92F-12(b)(1)-(2), 92F-21, 92F-23, and 338-13 by issuing certified copies of the birth certificate as requested.

JURISDICTION AND VENUE

3. This court has jurisdiction over this action under 28 U.S.C §§ 1331 and 1343(a)(3) for a violation of constitutional rights as provided in 42 U.S.C. § 1983.

4. This court has jurisdiction to grant declaratory relief under 28 U.S.C §§ 2201 and 2202.

5. Plaintiffs also invoke the supplemental jurisdiction of this Court, pursuant to 28 U.S.C. § 1367, over Plaintiffs’ state claims against defendants for violations of Haw. Const. art. I §§ 5-8 & 22.

6. Venue is proper in this District under 28 U.S.C § 1391, as all of the acts complained of occurred in the State of Hawaii.

PARTIES

7. Plaintiff Adam R.F. Gustafson is an adult individual and the father of Stella Marisol Gustafson.

8. Plaintiff Katherine A.N. Gustafson is an adult individual and the mother of Stella Marisol Gustafson.

9. Plaintiff Stella Marisol Gustafson is the minor daughter of the above named plaintiffs.

10. All plaintiffs are citizens of the United States and reside at [address omitted] Honolulu, HI.

11. Defendant Chiyome Fukino, M.D., is and was at all times relevant to the allegations contained in this complaint the Director of the Hawaii Department of Health (DOH).

12. Defendant Susan Jackson is and was at all times relevant to the allegations contained in this complaint the Deputy Director of the DOH.

13. Defendant Alvin T. Onaka, Ph.D., on information and belief, is and was at all times relevant to the allegations contained in this complaint the State Registrar and Acting Chief of the Office of Health Status Monitoring (OHSM). The OHSM is responsible for issuing birth certificates See Office of the Deputy Director of Health, http://hawaii.gov/health/about/admin/deputy.html#OHSM.

14. Defendant K. Lavarias, on information and belief, is and was at all times relevant to the allegations contained in this complaint an employee in the Current Registration Section of the DOH’s OHSM.

FACTS

15. Stella Marisol Gustafson was born to Katherine and Adam Gustafson on October 16, 2009, in Kailua, Hawaii.

16. On or about October 29, 2009, the Gustafsons submitted a birth registration form to the Vera Zilber Birth Center at Castle Medical Center in Kailua, Hawaii. On information and belief, the form was entitled “Certificate of Live Birth.”

17. The Gustafsons completed the entire birth registration form except that they left blank spaces for the race and Spanish origin of each parent. The Gustafsons left these spaces blank because they do not identify themselves by race or ethnicity, and they do not wish their daughter to be identified by race or ethnicity without her consent.

18. On or about October 29, 2009, the Gustafsons mailed a “Request for Certified Copy of Birth Record” with payment of $14 by cashier’s check for two (2) certified copies of Stella’s birth certificate to State Department of Health, Office of Health Status Monitoring, Vital Records Section, P.O. Box 3378, Honolulu, Hawaii 96801 (the OHSM address).

19. On November 12, 2009, the Gustafsons received a letter dated November 10, 2009, from defendant K. Lavarias of the Current Registration Section at the OHSM address, notifying them that Stella’s birth certificate had been referred because the race and Spanish origin items were left blank.

20. K. Lavarias’s letter requested that Adam and Katherine Gustafson each declare their race and Spanish origin and alleged that “the items of information requested are in accordance with Hawaii state law.”

21. K. Lavarias’s letter advised that unless the requested race and Spanish origin information is received by the “deadline date” of December 10, 2009, DOH will enter “Information not given” in its place on the birth certificate, and DOH will require “documentation and an amendment fee” for any corrections thereafter.

22. K. Lavarias’s letter warned that “until such time as [the race and Spanish origin of each parent] are entered on the certificate, certified copies of the certificate will not be issued.”

23. The next day, November 13, 2009, Adam Gustafson sent a letter by certified mail to the OHSM address, and by email to VR-ISS@doh.hawaii.gov, requesting answers to thirteen questions in response to K. Lavarias’s letter, including a request for clarification of the race-reporting requirement and a request for an extension of the December 10, 2009, deadline.

24. As of the date of this complaint, the Gustafsons have not received a response to their letter of November 13, 2009.

25. On November 24, 2009, Adam Gustafson sent a follow-up letter by certified mail and email advising that he had received no response from OHSM and asking what public services require a certified copy of a birth certificate.

26. As of the date of this complaint, the Gustafsons have not received a response to their letter of November 24, 2009.

27. On information and belief, Hawaii is one of five or fewer states in the United States that prints the race of a registrant’s parents on her birth certificate.

28. The DOH is responsible for collecting health statistics and maintaining a birth registry. Haw. Rev. Stat. §§ 338-2, 338-5.

29. The DOH is responsible for the form and contents of birth certificates. Haw. Rev. Stat. §§ 338-11, 338-41.

30. The DOH is obligated to furnish certified copies of birth certificates upon request to the registrant and her parents. Haw. Rev. Stat. § 338-13.

31. Conditioning the issuance of a certified copy of a child’s birth certificate on her parent’s declaration of their race and Spanish origin constitutes forced speech in violation of the First Amendment.

32. Race and ethnicity have been, and even now are, the basis for discrimination in this country and state, and registrants and their parents have a compelling interest in refusing to identify themselves by race.

33. Race is a social construct without fixed meaning or biologically discernible categories.

34. Therefore the state has no rational interest in requiring the parents of a registrant to declare their race.

35. A registrant who wishes to identify herself by race has a compelling interest in defining her own race rather than being labeled by her parents or the state.

36. As the DOH recognizes, parents have a “direct and tangible interest” in possessing certified copies of their child’s birth certificate, as does the registrant herself. Haw. Rev. Stat. § 338-18(b)(1), (3); Who is Eligible to Apply for Certified Copies of Vital Records?, http://hawaii.gov/health/vital-records/vital-records/elig_vrcc.html; see also Op. Haw. Att’y Gen. No. 84-14 (1984).

37. As the DOH recognizes, a certified copy of one’s birth certificate may be needed “for such diverse purposes as school entry, passports, Social Security participation, driver’s licenses, employment, sports participation, survivor’s benefits, proof of property rights, and other needs.” About Vital Records, http://hawaii.gov/health/vital-records/vital-records/index.html.

38. The unlawful conduct of the Defendants, their agents, servants and employees and each of them, continues to deprive Plaintiffs of rights, privileges, and immunities secured to them by the Constitution of the United States and by the Constitution and laws of the State of Hawaii, including but not limited to
a. The right of Plaintiffs not to declare, or identify themselves by, race under the freedom of speech secured to them under the First and Fourteenth Amendments to the Constitution of the United States;
b. The right of Plaintiffs to be secure in their persons against unreasonable search and seizure secured to them under the Fourth and Fourteenth Amendments to the Constitution of the United States;
c. The right of Plaintiffs not to be deprived of life, liberty, or property without due process of law secured to them under the Fourteenth Amendment to the Constitution of the United States;
d. The right of Plaintiffs to the equal protection of the laws secured to them under the Fourteenth Amendment to the Constitution of the United States;
e. The right of Plaintiffs to travel, among other privileges or immunities secured to them under the Fourteenth Amendment to the Constitution of the United States;
f. The right of Plaintiffs to due process, equal protection, the enjoyment of civil rights, and freedom from discrimination against the exercise thereof because of race under article I, section 5 of the Constitution of the State of Hawaii;
g. The right of Plaintiffs to privacy under article I, section 6 of the Constitution of the State of Hawaii;
h. The right of Plaintiffs to be secure in their persons against unreasonable search and seizure under article I, section 7 of the Constitution of the State of Hawaii;
i. The right of Plaintiffs not to be disfranchised, or deprived of any of the rights or privileges secured to other citizens under article I, sections 8 and 22 of the Constitution of the State of Hawaii;
j. The right of Plaintiffs to a certified copy of a birth certificate under Haw. Rev. Stat. §§ 338-13(a); 338-18(b)(1), (3);
k. The right of Plaintiffs to disclosure of a government document under Haw. Rev. Stat. § 92F-12(b)(2), (3); and
l. The right of Plaintiffs to access to a personal record under Haw. Rev. Stat. §§ 92F-21, 92F-23.

PRAYER FOR RELIEF

The DOH’s policy and practice of withholding certified copies of birth certificates from parents who refuse to state a race or Spanish origin constitutes a violation of the First, Fourth, and Fourteenth Amendment rights of the parents and of the child whose birth is registered.

WHEREFORE Plaintiffs Adam and Katherine Gustafson respectfully pray on behalf of themselves and their minor daughter, Stella Marisol Gustafson, that this court:

1. Adjudge, decree, and declare the rights and other legal relations of the parties to the subject matter here in controversy, in order that such declaration shall have the force and effect of a final judgment.

2. Enter a temporary restraining order and a preliminary injunction under Fed. R. Civ. P. 65 ordering the defendants and each of them, their agents, employees and successors and all persons in active concert and participation with them to refrain from
a. withholding the certified copies of the birth certificate of Stella Marisol Gustafson that her parents ordered on or about October 29, 2009;
b. marking the birth certificate of Stella Marisol Gustafson “late” or “altered,” or enforcing the December 10, 2009, deadline of after which time the DOH threatens to require “documentation and an amendment fee” with the information demanded before issuing a certified copy of the birth certificate; or
c. printing or encoding on the birth certificate of Stella Marisol Gustafson any alleged race or Spanish origin of her parents or herself, or the phrase “Information not given” or any other text or data implying that Stella Marisol Gustafson or her parents are or should be identified by race or Spanish origin.

3. Enter a permanent injunction ordering the defendants and each of them, their agents, employees and successors and all persons in active concert and participation with them to refrain from
a. refusing to grant any pending or future request for certified copies of Stella Marisol Gustafson’s birth certificate on the grounds that her parents refuse to declare their race or Spanish origin;
b. printing or encoding on the birth certificate of Stella Marisol Gustafson any alleged race or Spanish origin of her parents or herself, or the phrase “Information not given” or any other text or data implying that Stella Marisol Gustafson or her parents are or should be identified by race or Spanish origin; or
c. marking the birth certificate of Stella Marisol Gustafson “late” or “altered” on the grounds that her parents refuse to declare their race or Spanish origin;

4. Enter a declaratory judgment pursuant to Title 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57 declaring that
a. defendants’ policy and practice of withholding certified birth certificates from a registrant’s parents who refuse to declare a race or Spanish origin violates the First, Fourth, and Fourteenth Amendments to the United States Constitution on its face and as applied;
b. plaintiffs are immediately entitled to the certified copies of the birth certificate of Stella Marisol Gustafson that they ordered on or about October 29, 2009;
c. defendants’ policy and practice of purporting to require the race and Spanish origin of parents who register the birth of their children or request certified copies of their children’s birth certificates violates the First, Fourth, and Fourteenth Amendments to the United States Constitution on its face and as applied; and
d. printing or encoding the alleged race or Spanish origin of a registrant or her parents on her birth certificate violates the First, Fourth, and Fourteenth Amendments to the United States Constitution on its face and as applied.

5. Grant plaintiffs nominal damages of $1.00.

6. Grant plaintiffs their costs herein.

7. Grant plaintiffs such other and further relief as the Court may deem appropriate.

Respectfully submitted,

Adam R.F. Gustafson

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ESSAY PUBLISHED IN A LAWYER BLOG DESCRIBING THIS LAWSUIT, BUT EXPLAINING ONLY BRIEFLY THE REASON WHY THE STATE OF HAWAII WANTS RACE TO BE INCLUDED ON BIRTH CERTIFICATES

http://abovethelaw.com/2010/07/lawsuit-of-the-day-fun-with-hawaii-birth-certificates

Above the Law (lawyer blog), July 22, 2010

[Ken Conklin's note: The essay as it appears on the blog includes a photo of Barack Obama's birth certificate and also a color photograph of the very youthful-looking Mr. Gustafson, his wife, and their baby.]

Lawsuit of the Day: Fun With Hawaii Birth Certificates

By DAVID LAT

Orly Taitz and the Birthers aren’t the only people obsessed with Hawaiian birth certificates. A young lawyer by the name of Adam Gustafson — a 2009 graduate of the Yale Law School and former vice president of the Yale Federalist Society, who’s currently clerking in Hawaii for Judge Richard Clifton (9th Cir.) — is making a federal case over them.

And Chief Judge Susan Oki Mollway, the district court judge who wound up with the case, is not impressed. She recently dismissed Gustafson’s complaint — in forceful fashion:

This case is an example of why people who overreact to situations are accused of “making a federal case out of nothing.”

Plaintiff Adam Gustafson and his wife… proceed pro se against various state officials. The Gustafsons complain about having been asked to state their race and any Spanish origin on a birth certificate registration form submitted in October 2009 for their Hawaii-born daughter. The Gustafsons articulated to the State their objection to a birth certificate identifying their races.

The court has no quarrel with the Gustafsons’ wish for a birth certificate devoid of such information. What follows, though, shows questionable judgment.

Ouch — quite the benchslap. Gustafson’s boss, Judge Clifton, should keep Gustafson far away from any appeals of decisions by Judge Mollway.

Filing a federal lawsuit in Hawaii, while clerking in Hawaii for a federal judge? It’s gutsy of Gustafson. At least he won’t have to travel far for any appearances.

So what about Gustafson’s case reflects “questionable judgment”?

It appears that the Gustafsons are like the Birthers: despite having received the requested birth documentation from Hawaii, they just won’t quit. From Judge Mollway’s order dismissing the complaint:

Within a few weeks of having articulated their objection [to providing their races on their daughter's birth certificate], and without having received a response from the State, the Gustafsons filed the present lawsuit. The State responded by issuing a birth certificate without any designation as to race or Spanish origin. Not satisfied, the Gustafsons filed a First Amended Complaint and now continue to seek damages.

That’s the big picture; let’s get into the nitty-gritty. The Gustafsons’ daughter was born in October 2009. After her birth, the Gustafsons submitted a birth registration for her, in which they left blank the spaces left for stating their races as her parents. The Gustafsons then requested two certified copies of her daughter’s birth certificate (just in case, you know, she might want to run for president someday).

Instead of getting the birth certificates, the Gustafsons received a letter from one “K. Lavarias,” an official in Hawaii’s “Office of Health Status Monitoring” (which sounds a trifle Orwellian). From Judge Mollway’s order (citations omitted):

The letter notified the Gustafsons that the birth registration form was incomplete because it omitted the race and Spanish origin of the parents. The letter stated, “The information on race is very useful and important on health and other factors associated with childbirth and infancy.” The letter said that the Gustafsons’ provision of information on their race and Spanish origin would be appreciated. Lavarias told the Gustafsons that, until such time as the requested information could be entered on the birth certificate, “certified copies of the certificate will not be issued.”

Somewhat confusingly, Lavarias concluded, “If we do not receive the requested information by the deadline date, [December 10, 2009,] we will enter ‘Information not given.’ on the birth certificate.”

The statement by Lavarias is key, insofar as it suggests that all the Gustafsons had to do was leave the race information blank and wait for the birth certificates to show up (which is, in fact, what eventually happened).

But the Gustafsons may have been more interested in filing a constitutional challenge to Hawaii’s policy of requesting race information than in actually getting birth certificates for their daughter. Check out how Adam Gustafson responded to the letter from Lavarias, as summarized in the court’s order:

On or about November 13, 2009, Adam Gustafson responded to Lavarias’s letter with two single-spaced pages of questions, including: 1. How should I decide what race to report for purposes of my daughter’s birth certificate? Is there a scientific test I can perform or a document I can look to for an authoritative determination of my race? Or is it simply what I say it is?

(Well, there’s an IQ test, you see. And if your score is low enough, then… oh, never mind.)

2. If my race is what I say it is, must I choose from a pre-established list of races, or may I invent a new word to describe my race? If the former, what races are on the list? If the latter, are there any limitations on the length or content of my self-reported race?

The Gustafsons: You can't handle the truth... about our races! The idea of inventing a new word to describe your race sounds kind of… fun!

Let’s say that you, like Hawaii-born Barack Obama, have a white mother and a black father. Could you call yourself… Mocha? Or maybe limit yourself to Crayola’s 50 Favorite Colors. How would you like to be… Burnt Sienna?

In all seriousness, this is an interesting question. As interracial marriages and the number of biracial or multiracial people increase, “race” becomes increasingly complicated and difficult to define.

For example, check out the 2010 Census form, and mouse over questions #8 and #9. While I’m glad to see “Filipino” as an enumerated option — I checked it off myself — question #9 is starting to look ridiculous.

Back to the questions that Adam Gustafson — who’s super-cute, as you can see in the photo above — had for the State of Hawaii:

7. Is it possible to report race and Spanish-origin for statistical purposes yet require that they not be encoded or reported on the birth certificate? Strange question — what would be the point of leaving that out? So your daughter can claim she’s an underrepresented minority and avail herself of affirmative action, without fear of documentary contradiction?

Instead of waiting for the State to respond to the two single-spaced pages of questions — given the speed at which state government bureaucracy operates, that would have taken a while — the Gustafsons made a dash for the federal courthouse:

The Gustafsons did not wait for the State to respond to either the letter of November 13, 2009, or [an additional] letter of November 24, 2009. On November 30, 2009, less than a week after sending the second letter, the Gustafsons filed the original Complaint in this matter, seeking the issuance of a birth certificate for their daughter with no designation of race. A lawyer for the State of Hawaii tried to resolve the matter by sending the Gustafsons two certified copies of their daughter’s birth certificate, which did not mention the Gustafsons’ race. But the Gustafsons pushed forward with their lawsuit, which is how they wound up on the business end of Judge Mollway’s dismissal order.

The Gustafsons asserted a whole host of claims under 42 U.S.C. § 1983 (“Section 1983″), which allows plaintiffs to sue when a person acting under color of state law has violated their federal constitutional rights. The Gustafsons claimed that Hawaii’s policy of getting parents to declare their races for inclusion on birth certificates constitutes “an unreasonable search and seizure, infringement of their freedom to travel and freedom of speech, due process deprivation[], and equal protection violation[].”

(Bar exam studiers: GO!)

Some of these claims sound — well, a bit impressionistic, in a “penumbras and emanations,” Yale Law School kind of way. They might fly on appeal — certain judges on the Ninth Circuit have a weakness for using Section 1983 to advance creative constitutional lawyering — but Judge Mollway gave them short shrift. She dismissed all of them, citing multiple grounds (e.g., waiver, lack of cognizable injury, and lack of ripeness).

This was one of the more interesting parts of Judge Mollway’s analysis (citations omitted):

The Gustafsons depend on their right of informational privacy, which they say protects them from having to disclose certain personal matters, such as sexual activity, medical information and treatment, and financial matters. The Gustafsons analogize their racial background to medical and financial information. It is not clear to the court that the analogy is apt. Although not always discernible on sight, race is at least sometimes obvious without the utterance of a single word.

That last sentence is definitely fodder for a law school classroom discussion. Is it still true today? And is it true with respect to Hawaii’s notion of “race”? In his motion for reconsideration, Gustafson argued:

Whether or not [the obviousness of race] is true of some conceptions of race, it is not true of the subjective racial declaration the Department requires. Defendants admit that the race printed on a Hawaiian birth certificate is self-reported by the child’s parents and that the Department of Health performs no verification of its accuracy…. “Race” for the Department’s purposes is therefore an intimately personal expression of a person’s own racial self-identity.

Disagreeing with Judge Mollway on whether race is obvious doesn’t necessarily change the outcome of the case — the court goes on to note that “the Gustafsons were not actually forced to disclose their race to obtain their child’s birth certificate,” and “were not even clearly asked to do so on pain of being denied the birth certificate” — but it’s still interesting to think about.

So Judge Mollway dismissed the Gustafsons’ federal claims (and declined to exercise supplemental jurisdiction over remaining state-law claims). The Gustafsons filed a motion for reconsideration — and received some sass from Her Honor, in her denial of the motion:

On July 16, 2010, Plaintiffs filed a motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. On July 19, 2010, without citing any authority allowing them to do so, Plaintiffs filed a Revised Memorandum. This filing appears to have been necessary because Plaintiffs were unable to finish the memorandum in time to comply the deadline set forth in Rule 4(a)(4)(A)(vi) of the Federal Rules of Appellate Procedure.

Adam Gustafson has graduated from law school and is currently clerking for a judge on the Ninth Circuit Court of Appeals. This court assumes that Adam Gustafson expects a document filed as an opening brief in any appeal to be a complete document rather than something preliminary filed by a deadline only to be followed by the real brief after the deadline. This court nevertheless considers

Plaintiffs to be proceeding pro se and considers the revised memorandum. Wow — we heard that benchslap all the way here on the mainland! I had the pleasure of meeting Judge Mollway this spring, when I spoke at the District of Hawaii Judicial Conference, and she was exceedingly friendly and welcoming; I had no idea she had such snark in her.

(Judge Mollway: If you get tired of this whole “judging” thing, Your Honor, there’s a spot for you here at Above the Law.)

Setting snark aside, there is a real issue here: Is it appropriate for a state to require parents to declare their races so they can be stamped on to their children’s birth certificates, where they will remain in perpetuity? As of 1993, only five states had such policies in place. Now, over 15 years later, we have a multiracial president in the White House. Is it still necessary to insist upon racial identification on birth certificates — or is it time to discard such policies as outdated and counterproductive?

What valid purposes are served by such policies? Don’t they just exacerbate the problem of excessive race-consciousness in this country? To quote the wise words of Chief Justice John Roberts, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And the way to stop discriminating on the basis of race is to stop knowing or caring what race a person is. [FN1]

In hindsight, trying to reform social policy by bringing a lawsuit in federal court might have been ill-advised (a view that conservatives have been pushing for years, and one that Adam Gustafson, a former officer of the Yale Federalist Society, should have also understood). But even if Gustafson’s lawsuit wasn’t ripe in a technical, legal sense, Hawaii’s policy of asking for race on birth certificates may be ripe for review — by the elected branches and the people of the state.

[FN1] Note how I’ve framed the question, in terms of “valid purposes.” Hawaii may be curious about parental race because Native Hawaiians — not simply “people born in Hawaii,” but descendants of indigenous Polynesians — are eligible for special programs and benefits from the state. Whether facilitating the distribution of state benefits according to race is a “valid purpose” is very open to question.

To learn more about the lawsuit, Gustafson v. Fukino, browse through the docket (PACER registration required), or check out selected documents via the links below. We reached out to Adam Gustafson for comment, but he declined to provide a statement.

U.S. District Court for the District of Hawaii:
Gustafson v. Fukino: Order Dismissing First Amended Complaint
http://cache.abovethelaw.com/uploads/2010/07/Gustafson-v-Fukino.pdf
Gustafson v. Fukino: Revised Memorandum in Support of Motion for Reconsideration
https://ecf.hid.uscourts.gov/doc1/06111114901
Gustafson v. Fukino: Order Denying Motion for Reconsideration
http://cache.abovethelaw.com/uploads/2010/07/Gustafson-v-Fukino-denial-of-motion.pdf


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