Several states with gay marriage laws have religious exemptions that apply to public accommodations, a step Hawaii lawmakers drafting a bill for special session are reluctant to take.
A comparison by an analyst for the National Conference of State Legislatures found that eight of the 10 states and the District of Columbia that have same-sex marriage through legislation make specific provisions that exempt religious organizations from having to provide services, accommodations or privileges that are contrary to religious beliefs. Three other states enacted gay marriage through court rulings.
State House and Senate lawmakers are still discussing potential revisions to a gay marriage bill, but the draft released by Gov. Neil Abercrombie last month does not exempt churches and other religious organizations from the state’s public accommodations law.
The Legislature in 2006 expanded the public accommodations law to cover sexual orientation, including discrimination based on gender identity or expression. Many lawmakers and gay rights advocates are not interested in interfering with such a hard-won right.
Abercrombie said Tuesday that the vote on the bill in special session could turn on the religious exemption. "If people believe there has been respect shown and legal measures taken to ensure people’s religious beliefs will not be abrogated, I believe there will be a very solid vote," the governor told reporters at the state Capitol.
The draft of the bill states that clergy and others would not be required to perform gay weddings, a right protected by the First Amendment. The draft also would allow churches to decline to host gay weddings at religious facilities that are regularly used for religious purposes, if churches restrict weddings to members and if churches do not operate the religious facilities as for-profit businesses.
The draft, however, does not exempt churches from the public accommodations law if religious facilities are deemed places of public accommodation. Experts believe that designation could apply to churches or religious-affiliated organizations that have wedding businesses.
The state attorney general’s office, a task force led by the dean of the University of Hawaii law school, the American Civil Liberties Union of Hawaii and other constitutional scholars believe the draft adequately protects religious freedom.
"All of the states that recognize marriage equality seek to balance religious freedom and equal treatment," Lois Perrin, legal director of the ACLU of Hawaii, said in an email statement. "The proposed bill in Hawaii does the same while reflecting our own state’s nondiscrimination laws. These laws were extended in 2006 to prohibit discrimination on the basis of sexual orientation, such that once a business or organization opens its doors to the general public, it must treat everyone on an equal basis.
"The proposed bill establishes marriage equality without changing these settled laws."
But religious leaders are worried about potentially costly legal challenges from gay rights activists who would likely test the boundaries of the law.
One potential amendment, suggested by Wayne Cordeiro, founding pastor of New Hope Christian Fellowship, would make it clearer that churches with religious facilities that are not primarily used as for-profit businesses would not have to host gay weddings. The amendment would expand the protection for churches that only hold weddings for members to also include approved guests.
The amendment would delete the section in the draft that refers to the public accommodations law.
That would make the gay marriage bill silent on how it intersects with the public accommodations law, a vagueness that would likely be settled — if resolved at all — by the courts in the event of a legal challenge. It would also put the bill in conflict with the civil unions law, which includes the section relating to public accommodations.
State Rep. Sharon Har (D, Kapolei-Makakilo), who opposes gay marriage, said that other states with gay marriage laws included more explicit religious protections. "Hawaii’s version of this bill, even with this proposed language, is still way out there in left field," she said. "It does not comport with what the other states have been doing."
Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the House Judiciary Committee, which has jurisdiction over the bill, disputed the idea that the Hawaii draft is "some sort of weird outlier."
"The opponents of the bill are underestimating the force and protections offered by the First Amendment and by the state Constitution," Rhoads said. "It won’t come up very often, and the people that it’s most likely to affect are people who are in the business of marriages, not churches that occasionally have a wedding because someone in their congregation wants to get married.
"It’s just not going to come up."
Jack Tweedie, who has taken the lead on same-sex marriage issues at the National Conference of State Legislatures, a bipartisan group based in Denver that serves as a resource for state lawmakers and staff, said there are some advantages for states to use similar language when drafting bills.
"You can use the experience in the other states as part of how you would respond to any legal challenges," Tweedie said by telephone.
The eight with gay marriage laws that have religious exemptions that apply to public accommodations are Connecticut, Maryland, Minnesota, New York, Rhode Island, Vermont, Washington and the District of Columbia. Tweedie notes that the language in the Connecticut statute is similar to several other states’.
Connecticut’s law states that religious organizations shall not be required to provide services, accommodations, advantages, facilities, goods or privileges related to marriages that are in violation of their religious beliefs and faith.
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Staff writer Dave Reardon contributed to this report.
