The draft of a gay marriage bill contains a more muscular religious exemption than the state’s civil unions law, recognizing that the clergy and others have a constitutional right to refuse to perform gay marriages.
A clear, unambiguous expression that the clergy and others have guaranteed rights, such as the First Amendment rights to free exercise of religion and association, is important to many of the state lawmakers who in the past have had reservations about gay marriage.
The draft, shared with the Star-Advertiser by sources who requested confidentiality because it is a working document, closely mirrors the religious exemption found in the civil unions law.
No clergy or others would be required to perform gay marriages or be subject to fines or civil liability for their refusal. But the draft adds the statement that clergy and others have "rights as guaranteed by the Constitution of this state and the United States Constitution."
"To some extent it’s explicitly saying what legally would happen anyway, because if somebody has a constitutional right to something, that will always trump a statutory right or statutory provision," said Blake Oshiro, Gov. Neil Abercrombie’s deputy chief of staff, who has worked on the draft.
"So now it’s making it expressed rather than implied."
Lois Perrin, legal director of the American Civil Liberties Union of Hawaii, said the draft strikes the right balance.
"The ACLU supports both marriage equality and the right for clergy to marry people in accordance with faith traditions," she said in an email. "No one can tell us what our faith stands for or how we should worship, and the proposed marriage equality bill strikes exactly the right balance between protecting freedom of religion and promoting equality among all Hawaii’s people. The state and federal constitutions respect the right of all people of faith to practice as they choose fit."
The draft also tracks the civil unions law by granting churches and other religious groups a limited right to decline to make religious facilities available for gay marriages. The original civil unions law passed in 2011 did not include the liability exemption, but it was added in 2012 after two Oahu churches unsuccessfully challenged the law in federal court.
Churches could decline to make religious facilities available for gay marriages if the facilities are regularly used for religious purposes or if marriages performed at the facilities are restricted to church members.
Churches would not be able to refuse gay marriages at religious facilities operated as for-profit businesses or that are covered by the state’s public-accommodations law, which prohibits discrimination on the basis of sexual orientation. "In short, when a business opens its doors to the public and solicits customers, the law rightly ensures that the public is entitled to service free from discrimination," Perrin said.
Attorneys for churches and faith-based interest groups have wanted an unconditional religious exemption. The fear, attorneys say, is that gay rights activists would use the Hawaii Civil Rights Commission or the courts to demand that churches make facilities available for gay marriages.
James Hochberg, an attorney who represents the Hawaii Family Forum, a religious conservative group, called the scope of the religious exemption being discussed in the draft "wholly unacceptable."
Hochberg also said people who use their creative expression while preparing for marriages, such as wedding cake bakers, dressmakers and florists, should be able to say, "I don’t want to participate in that because I don’t believe that’s marriage."
Hochberg warned of a legal challenge. "This bill, if passed, will be challenged in court," he said.
The draft of a gay marriage bill is being circulated at the state Capitol as the Abercrombie administration and lawmakers consider holding a special session on gay marriage. The U.S. Supreme Court rulings in June that legally married gay couples have the right to federal benefits have fueled the push for Hawaii to act quickly on marriage equality.
The draft acknowledges the court rulings and finds that because civil unions are not recognized by federal law, gay couples will not receive equal treatment unless they can marry. "Therefore," according to the draft, "it is the intent of the Legislature to ensure that same-sex couples are able to take full advantage of federal benefits and protections granted to married opposite-sex couples by allowing same-sex couples to marry under the laws of this state."
State Sen. Will Espero (D, Ewa Beach-Iroquois Point), who voted against the civil unions law, said he would support a gay marriage bill with a clear religious exemption.
Espero, who is Catholic, said gay marriages would be contracts between gay couples and the state and should not be forced on churches. But he also said the law would be about equality and fairness and would signify a shift in society’s attitudes. He noted that Pope Francis, speaking to reporters in July, said homosexuals should not be marginalized.
"When you talk to residents throughout the state, the religious aspect of the measure is what brings the divisiveness," Espero said. "And I believe that Christians and others that feel that they don’t want to perform these must have that right, a clear separation of church and state."
State House Vice Speaker John Mizuno (D, Kamehameha Heights-Kalihi Valley), who also voted against civil unions, said he is evolving and is leaning toward voting for gay marriage, in part because of the slightly stronger religious exemption.
"I think this is so important that the churches are allowed to get this exemption," said Mizuno, a Christian. "Many of the mainstream or right-wing churches may still not be happy, but the fact of the matter is we’re protecting them. They are now going to be allowed to perform — or not perform — a marriage that they don’t deem appropriate.
"This is a very important part of the bill, and for me it’s essential. So if that’s in, I feel it’s providing the proper coverage and protections to the churches," he said. "I’m evolving. With an exemption like that, I would definitely evolve more towards supporting a measure with that language."
