The state Senate’s draft of a gay marriage bill would carve out a narrow exemption to the public accommodations law for churches that do not make religious facilities or grounds available to the general public for weddings for a profit.
State lawmakers have been reluctant to interfere with the public accommodations law, which prohibits discrimination based on sexual orientation, but lawmakers are interested in finding a balance between marriage equality and religious freedom.
"We’re really trying to seek a reasonable balance," said Sen. Clayton Hee (D, Heeia-Laie-Waialua), chairman of the Senate Judiciary and Labor Committee, which will hold a public hearing on Senate Bill 1 on Monday morning, the first day of a special session.
Hee said senators are cognizant that several other states with gay marriage laws have broader religious exemptions that apply to public accommodations but that senators also have a strong belief that same-sex couples, like others, should be protected from discrimination.
The Senate’s draft, released Tuesday afternoon, brands the bill as an equal rights issue, rather than marriage. The legislation attempts to ensure that same-sex couples can take full advantage of their rights in the wake of a U.S. Supreme Court ruling in June that legally married gay couples are entitled to federal benefits. But it also seeks to protect religious freedom, an issue that has driven the debate since Gov. Neil Abercrombie called the special session last month.
The draft states that no clergy would be required to perform gay weddings, a right protected by the state and federal constitutions. It also states that churches and other religious organizations would not have to host gay weddings unless religious facilities or grounds are open to the general public for weddings for a profit.
The draft clarifies that churches and religious organizations that accept public donations, provide religious services to the public or otherwise allow the public on church property would not trigger the "for a profit" designation.
Several prominent churches in Hawaii let couples of all faiths and from around the world rent religious facilities or grounds as the backdrop for their weddings.
Lawmakers have tried to distinguish religious liberty from wedding businesses, arguing that churches that open their facilities to the public for marriage celebrations should not be able to exclude gay couples.
House and Senate leaders have agreed that the Senate will take the lead on the gay marriage bill during the special session. But there is no consensus on the language of the bill, which, if approved by the Senate, could cross over to the House by Oct. 31 for a joint public hearing before the House Judiciary Committee and the House Finance Committee.
Abercrombie submitted a revised draft of his bill Tuesday that reflects suggestions by religious leaders but does not exempt churches from the public accommodations law. The draft, sources say, would allow churches to refuse gay weddings at religious facilities that are regularly used for religious purposes, if churches restrict weddings to members and affiliated persons, and if the religious facilties are not used primarily as for-profit businesses.
Blake Oshiro, the governor’s deputy chief of staff, said the administration is reviewing the Senate’s version.
Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the House Judiciary Committee, said the Senate’s version, unlike previous drafts, carves into the public accommodations law.
"I want the bill to pass. And if this is what it takes to get it passed, I think it’s still a good bill," Rhoads said. "My personal preference would be not to go this route."
House Democrats met privately in caucus on Tuesday to discuss the special session. The House will take the lead on bills that would finance new contracts for bargaining units of the Hawaii Government Employees Association and the United Public Workers. The House will also take the first swing at a bill that would provide $2.5 million in emergency money for the Samuel Mahelona Memorial Hospital and the Kauai Veterans Memorial Hospital, public hospitals that serve Kauai.
Asked for the vote count in the House on gay marriage, House Speaker Joseph Souki (D, Waihee-Waiehu-Wailuku) said there are now 29 or 30 votes for the bill, which needs 26 votes to pass. A Star-Advertiser vote count earlier this month put the count at 28 lawmakers in support.
"I would say they’re solid," Souki told reporters.
House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully) also predicted that the bill would pass the House. The Senate overwhelmingly supports marriage equality.
"I’m pretty confident that the House will have the votes," he said.
Both Souki and Saiki rejected claims by opponents of gay marriage that the bill is being rushed through via the special session. An initial draft was released by Abercrombie in late August, providing two months for the public to respond. Lawmakers have received hundreds of emails and telephone calls on gay marriage, and many have met personally with advocates on both sides of the issue.
Suggested amendments to the bill could be debated at public hearings and floor sessions. Under the timetable released Tuesday, the House could cast a final vote on the bill by Nov. 4. If the Senate version of the bill is amended by the House, the Senate would have to vote on the amended bill, likely on Nov. 6.
"This is an issue that obviously stirs up emotions in the community. We have really tried to take the approach that we want everyone, beginning with the members of our caucus, to be respectful of differing opinions," Saiki said. "And we hope that the community will be respectful, as well."
Souki said the House would probably not hold hearings during the special session on proposals to put the issue of gay marriage before voters through a constitutional amendment. The speaker questioned the practicality of the House hearing a constitutional amendment given that the Senate would not support the idea.
An informational briefing will be held at 5:30 p.m. today at the state Capitol to examine the potential social and legal consequences of gay marriage. The briefing, which is being hosted by Reps. Bob McDermott and Gene Ward — two Republicans who oppose gay marriage — will include a panel of experts who have been critical of marriage equality.
