Marriage bill needs more protection for religious freedoms

My father came to the Islands from northeastern Kansas with the Air Force and married a local girl just after World War II. He grew up on a farm during the Great Depression and gleaned some degree of native wisdom. When I would come to him in youthful exuberance with a new idea that would cast away tried and true methods that had already proven successful, he used to sometimes say to me that "we shouldn’t throw the baby out with the bath water."

Hawaii will be doing precisely that by fast-tracking  passage of the Governor’s proposed Marriage Equity Act in a Special Session proclaimed by him at a press conference on Monday, because the bill’s so-called religious exemption has the net effect of significantly curtailing religious liberties presently enjoyed by many members of our community.

Devout Island church goers of every religious persuasion (not only Christian)were deeply offended by your recent commentary on the bill (Our View-“Don’t Overreach on Church Exemptions,” August 27, 2013) that “churches should be prepared to make changes in accordance with the times.”  I cannot imagine your making the same statement with respect to the curtailment of other constitutionally protected rights.  For example, would you say the same with respect to freedom of speech or assembly, freedom from unreasonable searches and seizures or court imposed limitations on a woman’s reproductive rights?

As a part of my practice in providing legal representation to religious organizations, I was directed to consult with the nonprofit American Religious Freedom Program, a nonpartisan Ethics and Public Policy Center in Washington D.C. I asked ARFP’s State Legislative Policy Director to review the proposed religious liberty protection provisions in the Attorney General’s bill in order to contrast it with other States which recently adopted same-sex marriage legislation such as Minnesota.  His assessment was sobering.  He said that if Hawaii’s religious freedoms protection language is not augmented it would be by far the most extreme infringement of institutional and personal religious liberties by any state in the nation passing similar legislation.  How could this happen in this land of Aloha?

The proposed bill infringes upon the free exercise of religion in four (4) important ways:  (1) core church-affiliated institutions such as nonprofit charitable agencies such as Catholic Charities and religious schools such as BYU-Hawaii, Damien or St. Louis would be required to provide services, accommodations or benefits for same-sex marriage celebrations, or to recognize same-sex marriages;  (2) agents of religious affiliated institutions would not be protected even while acting in their religious capacities;  (3) public sector employees who object on religious grounds to perform a same sex marriage(including state judges and magistrates) would be required to perform such ceremonies; and (4) very small businesses and religiously oriented business would be unable to exercise religious beliefs because the bill deems them public accommodations.

If we do not thoughtfully protect such baseline religious freedoms, we will not continue to enjoy the kind of multi-faceted community that Hawaii deserves.  Worse, we could witness the supreme irony of driving out from our community many wonderful and charitable religiously-affiliated organizations based on an otherwise well-intended desire to be inclusive towards same-sex marriage partners.  This in turn will leave a greater burden on an already financially stressed government to meet Hawaii’s social and educational needs— in other words, throwing the baby out with the bath water.