Drawing the curtain on a historic special session, the state Senate on Tuesday gave final approval to a marriage equality bill.
The 19-4 vote came after senators agreed to accept the House’s version of the bill, which expanded a religious exemption so churches and other religious organizations would have broader discretion to refuse to host gay weddings and receptions.
Gov. Neil Abercrombie, who had called the special session, will sign the bill into law this morning at a ceremony at the Hawai‘i Convention Center.
"In Hawaii, we believe in fairness, justice and human equality. We embrace the aloha spirit and respect one another. Today, we celebrate our diversity defining us rather than dividing us," the governor said in a statement. "I believe this bill provides equal rights for all people, is legally sound, and is in accord with the Hawaii State Constitution."
Hawaii-born President Barack Obama congratulated the state Legislature for recognizing that gay and lesbian couples should be treated equally under the law.
"Whenever freedom and equality are affirmed, our country becomes stronger. By giving loving gay and lesbian couples the right to marry if they choose, Hawaii exemplifies the values we hold dear as a nation," the president said in a statement. "I’ve always been proud to have been born in Hawaii, and today’s vote makes me even prouder. And Michelle and I extend our best wishes to all those in Hawaii whose families will now be given the security and respect they deserve."
After Abercrombie signs the law making Hawaii the 15th state plus the District of Columbia to allow gay marriage, the struggle over marriage equality will shift to the courts, where Rep. Bob McDermott (R, Ewa Beach-Iroquois Point) and a group of Christians will seek to block the state from issuing marriage licenses to gay couples on Dec. 2, as the measure allows. The lawsuit contends that a 1998 constitutional amendment that gave the Legislature the power to reserve marriage to heterosexual couples outweighs a statutory change. Another public vote, the lawsuit argues, would be necessary to redefine marriage.
Judge Karl Sakamoto has scheduled a hearing for Thursday in Circuit Court.
At the state Capitol, hundreds of people from both sides of the marriage equality debate gathered to mark the final vote. But for the first time in the 11-day session, the thundering chants from gay-marriage opponents to "Let the people vote!" and "Kill the bill!" had gone silent, a recognition that the Senate vote was a formality after the House passed the bill 30-19 Friday night.
Gay rights advocates — many wearing multicolored lei and waving rainbow flags that represent pride — outnumbered opponents in the Capitol courtyard. They blared Aretha Franklin’s "Respect" and Lady Gaga’s "Born This Way" in a celebration that also included an impromptu performance of the Electric Slide dance.
"God bless you, Hawaii!" one supporter cried out.
Dozens of gay-marriage opponents formed a large circle, held hands and recited a prayer. Many felt as if their protests and overwhelming public testimony against the bill had not been heard. "It’s all a setup. It’s been a setup from the get-go," said Nathan Paikai, a pastor with his own Christian ministry.
In the Senate many senators relished the opportunity to have the last word in a debate that has riven the islands during the past few months. Some sought to heal the wounds caused by extremists on both ends of the spectrum, while others used the divisions as potential grist for political change in the 2014 elections.
Sen. Clayton Hee (D, Heeia-Laie-Waialua), chairman of the Senate Judiciary and Labor Committee, responding to claims that it was the wrong time for the Legislature to take up marriage equality, turned to a quote from the Rev. Martin Luther King Jr.: "There is no wrong time to seek justice."
Sen. Gilbert Kahele (D, Hilo) said homosexuality was an accepted part of early Hawaiian culture and that attitudes changed in the islands after Western contact with Christian missionaries. He said that if the Hawaiian renaissance of language, music and hula through the past three decades is to be fully honest about the past, "it’s important to recognize all the aspects of the native indigenous people."
Sen. Mike Gabbard (D, Kapolei-Makakilo), who led the drive against gay marriage in the 1990s, said it was unfortunate that the Legislature ignored majority opinion and chose to rush an incredibly divisive issue through a special session. He questioned whether lawmakers had heard from the ‘B’ — bisexuals — in the LGBT community about whether they want to marry multiple partners.
"If Jack, Frank and Mary are in a loving relationship — and we’re all for marriage equality — then why aren’t the three of them covered in SB 1?" Gabbard asked. "Why can’t they get married? If this is all about fairness, equity and love, shouldn’t there be a friendly amendment introduced today to include them?"
Sen. Jill Tokuda (D, Kailua-Kaneohe) said that at so many points in the nation’s history, it was not the majority — but courageous leaders — who corrected injustice. She said she was inspired during the marriage equality debate by a photograph of a young African-American girl holding a homemade sign that said, "Remember — the majority voted to keep me a slave." Public opinion during World War II supported the federal government’s decision to send Japanese-Americans to internment camps, she said.
"Perhaps it will be our children, our grandchildren, maybe even our great-grandchildren, that will sit down by our side to listen to us tell them stories of this day," Tokuda said. "And I know I will smile and sit back as they say, ‘What took you so long?’"
Senate Minority Leader Sam Slom (R, Diamond Head-Kahala-Hawaii Kai) compared the marriage equality debate to divisions in the Middle East through thousands of years. "You can try to force people to do something that they don’t believe in, but it doesn’t make it so," he said.
Slom decried what he called the "in-your-face politics" by Abercrombie and some in the Legislature to force a special session. He encouraged people disillusioned by the process to make sure to register to vote, get behind a candidate or run for political office. "If you don’t like our positions, then work to replace us — whatever that position is," he said. "That is your right. That’s what democracy is all about."
In a 13-page memo to Senate leadership Tuesday morning, Rep. Marcus Oshiro (D, Wahiawa-Whitmore-Poamoho) and Rep. Isaac Choy (D, Manoa-Punahou-Moiliili) warned of irreparable harm if the Senate accepted the House’s draft of the bill.
Oshiro and Choy cautioned that the state’s divorce law could be undermined because of a provision in the bill that would allow out-of-state couples married in Hawaii to return to the islands for divorce without having to comply with a three-month domicile requirement if their home states do not recognize same-sex marriage. They questioned whether the bill’s language would prevent Hawaii from recognizing couples who were married in states and foreign countries that do not allow same-sex marriage. They also asked whether the bill, which could require businesses to provide spousal benefits to married gay employees, might jeopardize the state’s unique Prepaid Health Care Act. The federal government granted Hawaii an exemption from federal law to allow the Prepaid Health Care Act, which requires businesses to provide health insurance to employees who work at least 20 hours a week.
But Oshiro and Choy’s primary objection is that the bill could fundamentally diminish religious freedom because it does not give broader rights to churches and religious organizations to deny services to gay couples or include a "conscience exemption" for individuals and small businesses. Oshiro had unsuccessfully sought amendments that would have guided the courts to use a stricter legal standard in cases where there is a clash between equality and religious freedom. He also sought to give individuals and small businesses the right to refuse service to gay couples by citing sincerely held religious beliefs.
Hee said the Senate and House would have the opportunity to consider potential changes to the law in the regular session that opens in January. The Legislature, for example, made several technical corrections to a civil unions law that was approved in 2011.
Many lawmakers, however, believe the religious exemption in the bill already carves out too large a shield from the state’s public accommodations law.
Last week Hee received a note from Edith Windsor, the New York widow who brought the legal challenge to the federal Defense of Marriage Act after being forced to pay estate taxes because she was not considered the surviving spouse after her longtime partner died. The U.S. Supreme Court ruled in June that the Defense of Marriage Act was an unconstitutional violation of due process and equal protection, giving legally married gay couples like Windsor and her late partner the right to federal benefits.
Hee, who had preferred a narrower religious exemption in the bill, was moved by Windsor’s guidance that he should do whatever it took to pass a marriage equality law — even an imperfect one — so gay couples would have the ability to marry in the state where they live.
"I’ve heard that there’s a debate about the scope of religious exemptions in the law and that you believe that religious institutions should have to play by the same rules as everyone else," Windsor wrote to Hee. "While I agree with your position, I’m writing to ask you to do whatever it takes to get a bill passed no matter what, even a law with religious exemptions.
"If no equal marriage law passes in Hawaii, it will surely be a loss for Hawaii. But it will also be a loss for the rest of the country since we need to keep building momentum toward full equality — state by state by state."
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Staff writers Ken Kobayashi and Sarah Zoellick contributed to this report.
