Guardians of the faith

The debate over legalizing same-sex marriage is a noisy one and involves many voices expressing a range of emotions. But the hard-nosed legal argument boils down to this: Where is the balance between the competing claims of religious freedom and equal treatment?

The answer to this question of balance is elusive, say the experts who track such things. Tension between competing rights is a running theme in most constitutional battles.

In the matter of gay marriage, which the state Legislature will take up in a little more than a week, battle lines have been drawn over whether the issue is fit to be decided by passing a law, any law. One legislator, state Rep. Marcus Oshiro, who supported civil unions, thinks the current proposal to legalize same-sex marriage, including a provision for religious exemptions, has not been given the broad discussion by legislators that it needs and may not achieve the necessary balance.

"I don’t think it passes constitutional muster," he said.

And many of the opponents who have rallied at the state Capitol want to see the question put on the ballot instead. James Hochberg is one of them.

Hochberg — an attorney, president of Hawaii Family Advocates and a leader in the charge against legalizing same-sex marriage — pointed to language in the 2011 bill that enabled civil unions. "The Legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman," the preamble to the bill reads.

"If the people chose to do that in 2011, the Legislature has to ask us if we’ve changed our minds," he said.

The "ask" Hochberg mentioned concerns the constitutional amendment that passed in 1998. In that election year, voters gave the Legislature the power to define marriage as being between one man and one woman. Hochberg maintained that this does not give the Legislature the right to define it otherwise.

When legislators convene in special session Oct. 28, discussion will focus not on a ballot question but on a bill to legalize same-sex marriage. The current draft of the measure includes exemptions for churches and other religious entities (see story, Page F5). For example, it also would enable clergy or other religious personnel who officiate at weddings to refuse to perform the service.

But, in keeping with the state’s public accommodations law, any church that rents out facilities for weddings to the general public would not be able to refuse a couple on the basis of sexual orientation.

The exemption, Hochberg said, "is not worth the paper it’s printed on." He has a host of complaints about the bill, including the lack of clarity about which facilities might be covered by the exemption. And he asks what is meant by church "members" (the exemption applies to churches that only host weddings for members).

The bill fails to extend any way out for an individual who is not in an official faith role to exercise their religious objection, Hochberg said — everyone from a justice of the peace solemnizing a marriage to the bakery, the florist and the wedding planner.

"Rights of conscience are held by individuals and organizations," he said. "This is not given to individuals (in the bill). They’re either going to be sued for standing on their faith, or they’re going to be forced to act against it. This bill is not about equality; it’s actually about inequality."

Proponents of the bill assert that the exemption language in the bill could provide enough protection for religious rights. Lois Perrin, an attorney for the American Civil Liberties Union, also countered Hochberg’s contention that the Legislature needs to have another ballot measure to gauge voter sentiment.

The constitutional amendment of 1998, Perrin said, accorded the Legislature the right to define marriage — or redefine it, as necessary.

"It’s very clear they were reserving the power to engage on the issue," she said. "There’s no surprise that now, 15 years later, they are engaging in debate on the issue."

She pointed to an opinion from state Attorney General David Louie as affirmation that the state Constitution doesn’t have to be changed.

"The plain language of article I, section 23, does not compel the Legislature to limit marriages to one man and one woman; it gives the Legislature the option to do so … The marriage amendment succinctly provides: ‘The Legislature shall have the power to reserve marriage to opposite-sex couples,’" Louie wrote in the Oct. 14 letter.

On the religious exemption in the bill itself, Perrin said the lack of specific definitions for terms such as "members," is by design, to avoid an unconstitutional intrusion by the state.

"The law is written in a really vague way to allow the church to define members as they see fit," she said. "It’s written in a way to give deference to the churches."

If disputes arise over the state’s public accommodations law, they can be filed in court, or they can be handled with an administrative complaint before the Hawaii Civil Rights Commission. Bill Hoshijo, executive director of the commission, drafted an analysis that examines various scenarios.

Here’s one question-answer example:

"A church has a facility that it rents out for weddings, with a policy restricting its use to weddings performed by its own minister. Can the minister refuse to perform same-sex wedding ceremonies?

"A church can restrict the use of a religious facility for weddings to be conducted by its own minister. Under the statutory protection provided by the proposed (same-sex marriage bill) consistent with constitutionally protected free exercise of religion, clergy are not required to solemnize any marriage, and there is no civil liability for refusal to solemnize a marriage."

The overarching conclusion is that the commission sees the need to uphold the state’s public accommodations law, with targeted exceptions as expressed in the bill.

"Opening the door to broad or numerous exemptions or exceptions to our state civil rights laws undermines the state’s compelling interest in prohibiting discrimination, weakens our discrimination laws, and invites constitutional challenges," Hoshijo wrote. "It is not necessary to create exemptions to our civil rights laws in order to enact marriage equality legislation, and to do so will weaken existing civil rights protections."

Perrin said policies would allow enough leeway for business to be conducted without discriminating on the basis of sexual orientation and thus violating the public accommodations law. In addition to the churches renting only to those in which clergy would officiate, other wedding businesses could decline business on any basis other than sexual orientation — a photographer only doing indoor weddings, for example. She acknowledged that such a policy would need to be in effect consistently to withstand any challenge.

But Perrin also said she doubts there will be many legal challenges on the religious exemption. She pointed to only one in New Jersey involving a same-sex couple seeking access to a public facility for a ceremony.

"Religious liberty and equal treatment can coexist," she said. "You’re not going to have people trying to fight to marry where they’re not welcome.

"People want this to be a happy day, and you don’t want to infect that with something negative."

Oshiro, by contrast, is not convinced that passage of the bill would end at all well. He looked at the upheaval that followed California’s initial legalization of same-sex marriage, with a voter initiative to strike it down and a long legal battle — and gay couples whose marital status seemed suddenly in doubt.

"We need to slow this train barreling down the track into unchartered territory, where there’s going to be a collision between two equally important rights: Individual rights, personal liberties, versus religious rights, rights of conscience," Oshiro said.

"I don’t believe the Legislature is up to speed on all the intricacies and effects of not only the issue of marriage but the larger social issues that can arise between the religious community and our civil society, the gay community."