With overwhelming support for gay marriage in the state Senate, the outcome of a special session this month will depend on the state House, where a tenuous majority in favor of marriage equality will be tested under the glare of public opinion.
A Star-Advertiser vote count, based on information from lawmakers and sources who have conducted their own internal surveys, puts support for gay marriage at 21 to 4 in the Senate. The vote count in the House is 27 to 17, with seven lawmakers undecided. Over the past several weeks, the newspaper’s vote count in the House has fluctuated between 27 — just one more than the 26 votes needed for passage — to as high as 32 votes.
Gov. Neil Abercrombie took a political risk by calling the special session without an ironclad margin in the House. But several sources who have been privately counting votes believe the House will comfortably pass the bill if House leadership is able to answer concerns about the scope of a religious exemption for clergy and churches that do not want to host gay weddings.
Four of the seven House lawmakers who say they are undecided — Reps. Cindy Evans, Jo Jordan, Marcus Oshiro and Calvin Say — voted for civil unions in 2011. A fifth undecided lawmaker — Vice Speaker John Mizuno — voted against civil unions but says his opinion on gay marriage is evolving since the U.S. Supreme Court ruled in June that legally married gay couples are entitled to federal benefits.
The fluid vote count in the House is an example of the awkward politics around gay marriage.
The Democratic Party of Hawaii has pushed Abercrombie and the Democrats who control the Legislature toward gay marriage as a civil-rights issue, as polls in Hawaii and across the nation have shown a rapid shift toward public acceptance of marriage equality.
But some House lawmakers, who have to face voters every two years in districts where even small shifts in voting patterns can be meaningful, wonder whether enough of their constituents are ready for gay marriage.
The debate over a religious exemption in the bill has given some House Democrats political cover from talking about the underlying issue of whether gay couples should have the right to marry. That cover will likely be removed if gay-rights advocates in the party think House Democrats are using the religious exemption as a pretext to wriggle out of marriage equality.
Oshiro, the former House Finance Committee chairman, and Say, the former speaker, who were dethroned by a new House leadership coalition in January, have cited the religious exemption as the reason for their hesitation. Both say they are concerned about the constitutional tension between religious freedom and equal protection under the law, and not internal House politics, but their holding back has given others room for doubt.
"At the end of the day, I realize this is not an easy, simple answer or fix," said Oshiro (D, Wahiawa-Whitmore-Poamoho), an attorney. "And my greatest concern is that, in haste, we may hurt people on both sides — proponents and advocates — and given the state of law today, might not have the means in the future to address those injuries."
Oshiro said he would prefer to "slow this train down" so the House can have the kind of vigorous discussion and analysis he believes the issue deserves.
Other House lawmakers who say they are undecided are weighing the feedback from constituents.
Rep. K. Mark Takai (D, Halawa-Aiea-Newtown), who voted against civil unions in 2011, said last week that he had just started to read through emails from the public. Takai is running in the Democratic primary for Congress next year, so his decision will likely be watched closely by primary voters in urban Honolulu.
Rep. Justin Woodson (D, Kahului-Wailuku-Puunene), who was appointed by Abercrombie in January to fill a House vacancy, said he is undecided but would strongly prefer that voters resolve the issue through a constitutional amendment. Voters in 1998 gave the Legislature the power under the Constitution to define marriage as between a man and a woman, a response to a state Supreme Court ruling in 1993 that denying marriage licenses to gay couples was a violation of equal protection.
The state attorney general’s office and several constitutional scholars contend the Legislature has the legal authority to enact gay marriage, but opponents of gay marriage are demanding another vote by the public.
"Constitutionally, I don’t know if we have the power to make that change," said Woodson, who will be up for election for the first time next year. "Now I know people argue that we do. I don’t know if we do."
Woodson said that since so many people are engaged on the issue, it should go back before voters.
"My strong feeling is, let the people decide directly," he said.
With the vote count in their favor, gay-rights advocates will try to preserve the House majority in an atmosphere where they may be outmatched in intensity by opponents.
Religious conservatives dominated the public hearings on civil unions and brought thousands to rallies at the state Capitol, but lawmakers and Abercrombie still passed the civil-unions law in 2011, and there was no significant political fallout during last year’s elections.
Gay-rights advocates are helping volunteers influence lawmakers through telephone banks and canvassing in key districts. Organizers have also aligned with religious leaders who support marriage equality to connect with people of faith.
The American Civil Liberties Union of Hawai‘i is offering tips on how to prepare testimony for public hearings.
Hawaii United for Marriage is planning a lobby day at the Capitol on the first day of the special session, Oct. 28.
Part of the message for House Democrats is that their vote is not just about equal treatment under the law or fidelity to the party’s platform, it is also about being on the right side of history.
Many gay-rights advocates predict marriage equality will be accepted across the United States within the next few decades — 13 states and the District of Columbia already allow gay marriage — and that the Democrats who vote against it now could eventually be compared to the holdouts against civil rights in the 1960s.
"When push comes to shove, and our leaders and our community are faced with the tough decision of whether we treat people equally, people tend to rise to the occasion and say, ‘Yes. I want to be fair. I want to treat my neighbors and brothers and sisters the way I would want to be treated,’" said Jacce Mikulanec, the Hawaii United for Marriage representative for the Japanese American Citizens League.
Religious conservatives, organizing through churches, are flooding the Legislature with telephone calls and emails against gay marriage. Pastors have been encouraged to help the faithful "adopt" House lawmakers who are undecided or whose support might be wavering.
A prayer assembly is planned for this afternoon at the Capitol. Tito Montes, the president of the Hawaii Republican Assembly, the conservative wing of the Hawaii Republican Party, has radio advertisements against gay marriage that will start to air this week.
The Let the People Decide on Marriage coalition has scheduled a rally at the Capitol on the first day of the special session with a target of 10,000 people.
Six of the seven House Republicans oppose gay marriage, along with the only Republican in the Senate, so the only way to flip the vote count is to convert House Democrats.
Wavering House Democrats may tune out some of the more extreme warnings from opponents about the threats to society from gay marriage. But the lawmakers are listening to concerns about protecting religious freedom.
Undoing the House majority may rest on whether opponents can show House Democrats they are on the wrong side of their constituents, not 10 or 20 years from now, but today.
"Our goal is to let the representatives know that if they’re going to vote ‘yes,’ their vote is not going to match their district," Montes said. "And if their vote doesn’t match their district, guess what? And I’ll just leave it at that."
