Experts say Hawaii’s gay marriage bill worst at protecting religious freedom

Thousands of people turned out to rally against Senate Bill 1, which would legalize gay marriage. The rally was held October 28, 2013, on the opening day of the special session (photo by Mike Palcic)


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A number of people on both sides of the gay marriage debate say the current draft of Senate Bill 1, which would legalize same-sex ceremonies, infringes on religious liberty.

Civil rights attorney Jim Hochberg, who as president of Hawaii Family Advocates is leading the coalition effort to let people vote on the issue, said if Hawaii passes this bill as written, the state will be “among the worst for protecting religious freedom.”

While SB1 protects religious clergy from liability for refusing to solemnize a same sex marriage, the legislation offers no exemption to non-clergy members, such as judges, Hochberg said.

SB1 also fails to protect religious organizations from liability if they decline requests to use their properties for same sex celebrations, Hochberg said, because to qualify for the protection, a church must “not make its facilities or grounds available to the general public for solemnization of any marriage celebration for a profit.”

“How will the Hawaii Civil Rights Commission determine whether the church qualifies? Will a financial audit of the church be necessary?” Hochberg asked. “The language is simply not clear. We do not know. It will ultimately be sorted out by the courts. And that leaves churches vulnerable and at risk.”

Wayne Cordeiro, head of New Hope Oahu, the largest church in the state with 42 branches in Hawaii and 138 around the world, said the lack of this protection in this bill is “unconstitutional” and “forces religious people to violate their own faith.”

People stood on line for hours to testify before the Senate Judiciary and Labor Committee on the gay marriage bill. More than 400 people testified in person after 3,459 people sent testimony in advance and hundreds more submitted testimony after the deadline or in person (photo by Mel Ah Ching)

“We do not judge them (gay couples) for their lifestyles for that is their chosen decisions, but we do not agree with a law which mandates that we set aside our conscience in order advocate an immoral lifestyle and be forced, under penalty, to service their ceremonies,” Cordeiro said. “This is an easy and understandable compromise our governmental leaders should allow.”

Five noted law professors told Hawaii lawmakers this week they agree SB 1 will infringe on religious liberties, and the bill should be amended.

While the professors expressed support for same-sex marriage, they warned careless or overly aggressive drafting could create a whole new set of problems for the religious liberty of those believers who cannot conscientiously participate in implementing the new regime.

“The gain for human liberty will be severely compromised if same-sex couples now force religious dissenters to violate their conscience in the same way that those dissenters, when they had the power to do so, used to force same-sex couples to hide their sexuality,” the law professors wrote.

The professors said the challenge for any bill is to “equalize civil marriage while preserving religious control over religious marriage”, and they said SB 1 “has not yet accomplished the task.”

“A bill that addresses only solemnization would do less to protect religious liberty than any other state that has enacted same-sex marriage by legislation,” the professors wrote.

One of them, Douglas Laycock of theUniversity of Virginia, told Hawaii Reporter he doesn’t know that any one of the 14 states that have legalized gay marriages has ideal legislation, and there have been last-minute compromises, and last-minute drafting, sometimes with glitches, nearly everywhere.

Senate Judiciary and Labor Committee listens to testimony from supporters and opponents of gay marriage on October 28, 2013 before passing the bill out of committee to the full senate by a vote of 5-2 (photo by Mel Ah Ching)

However, he believes the best provision is in New Hampshire, because it protects religious organizations with respect to solemnizing, celebrating or promoting marriages when doing so would violate their religious tenets.

“This reaches services to the marriage after the wedding, such as marriage counseling and married student housing. Too many states have focused only on the wedding, which misses much of the problem,” said Laycock, who also teaches religious studies at UVA.

Hawaii already has a civil union law, passed in 2010.

As many as 12,000 people on three islands turned out Monday at a five-hour rally to protest the bill. The massive crowd that gathered at the Capitol in Honolulu  chanted and waved signs that said “Let the people decide,” and religious and political leaders spoke at the event.

The Senate Judiciary and Labor Committee listened to testimony from supporters and opponents of gay marriage for 12 hours Monday before passing the bill out of committee to the full Senate by a vote of 5-2.  The early testimony count was running about 40 percent in support of legalization, and 60 percent in opposition, according to committee chairman Clayton Hee.

The bill is expected to easily pass the Senate on Wednesday, and go to the House on Thursday, where the judiciary and finance committees will hold a hearing.

Should the bill pass the House without changes, Gov. Neil Abercrombie, who called lawmakers into special session specifically for this purpose, will sign it into law.

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