Living up to a promise to hear everyone who wants to speak on same-sex marriage, the state House on Thursday embarked on a marathon hearing where thousands of people would be given a two-minute platform to offer their opinions.
The House Judiciary and Finance committees took testimony late into the evening, and House leaders made a commitment to extend the hearing into today and the weekend if necessary to hear all who had signed up by midnight to speak.
While House leaders made the promise to avoid claims that a gay-marriage bill is being rushed in special session, it also has the practical effect of playing into the strategy of opponents of same-sex marriage who have said they want to slow down the process.
Any delay provides more time for opponents to pressure House lawmakers to either kill the bill or expand a religious exemption so broadly that it undermines support in the state Senate.
"We recognize that this issue is one of the most significant issues that we’ve dealt with in a long time," said House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully). "And we know that the public has an opinion on this. It’s our responsibility to hear from the public."
Saiki and other House leaders have indicated that the religious exemption in the Senate version of the bill that passed Wednesday will likely be expanded.
Clergy and others have a recognized constitutional right to refuse to perform gay weddings, while churches and other religious organizations, under the Senate bill, would have a narrow exemption from the state’s public accommodations law provided that the churches do not make religious facilities available to the general public for weddings for a profit.
Several House lawmakers have cited a broader religious exemption in Connecticut’s marriage equality law as a potential model. The Connecticut exemption states that a religious organization, association or society, or nonprofit institution or organization controlled by a religious organization, is not required to provide goods or services related to weddings if it violates religious beliefs.
State Attorney General David Louie and William Hoshijo, executive director of the Hawaii Civil Rights Commission, urged lawmakers not to draft a religious exemption that is so expansive that it would gut the public accommodations law.
Rep. Marcus Oshiro (D, Wahiawa-Whitmore-Poamoho) and Rep. Jo Jordan (D, Waianae-Makaha-Makua) have recommended a broad religious exemption that would extend beyond churches and religious organizations to also cover individuals and small businesses.
No other states with marriage equality laws have taken the "conscience exemption" approach when it comes to wedding photographers, florists, bakers and wedding planners.
"You may be essentially gutting your public accommodations law," Louie warned.
Hoshijo described the Connecticut exemption as "overly broad." He recommended a religious exemption that does not include "for a profit" as the trigger. Instead, he said, the distinction should be whether there is religious activity involved or whether the primary purpose is producing income, the same criteria used in the tax code.
Hoshijo said a "conscience exemption" for bakers and florists, for example, would open the door to discrimination. "It’s important to remember that historically, segregation — Jim Crow — had a basis in religious belief," he said.
Rep. Della Au Belatti (D, Moiliili-Makiki-Tantalus) asked Lois Perrin, legal director of the American Civil Liberties Union of Hawaii, whether there is any negligible difference between a law that would say "no Japs allowed" and "no gays allowed."
"Discrimination is discrimination," Perrin said. "Treating people differently is discrimination."
Both Louie and Hoshijo acknowledged that it will likely be up to the courts and the commission to resolve anticipated challenges to the religion exemption and other aspects of the bill if it passes into law.
Cal Chinen, pastor of Moanalua Gardens Missionary Church, said there appears to be a recurring theme.
"There is so many questions, and the answer will be found in the simple sentence, Let the courts decide," he said, asking lawmakers to vote against the bill. "It seems to me — and I’m just a layperson when it comes to law — that when we say that, what we’re saying is that this is an invitation to litigation.
"That (the bill) has so many unanswered questions that at the end of the day, we’re going to say, ‘Let the courts decide.’"
Mike Lwin, pastor of New Hope Leeward, asked lawmakers to pay attention to the tension caused by the gay-marriage debate as a reason to slow down. He said pastors worry the religious exemption is not broad enough to cover the plethora of other services that churches perform in the community.
He said churches with schools may not qualify for the exemption depending on whether tuition is counted as a donation or a profit.
"When you listen to that tension, you’re going to hear the voice of the people of Hawaii say, ‘Let us make the decision,’" Lwin said. "Put it to a vote for the people of Hawaii."
Rep. Bob McDermott (R, Ewa Beach-Iroquois Point) pressed Louie and Blake Oshiro, Gov. Neil Abercrombie’s deputy chief of staff, about whether parents would be able to opt their children out of public school instruction about homosexuality. Existing state education policy allows parents to opt their children out when controversial topics are discussed at schools, but McDermott doubts parents will still have that ability if gay marriage becomes the "law of the land."
Oshiro said the state school board and state Department of Education would likely address such issues if they arise after the bill passes. He said amending the bill to add a parental opt-out provision for education, as McDermott has suggested, might not fit within the bill’s title, which relates to equal rights.
"I appreciate your answer, but it’s about as clear as mud," McDermott said.
House lawmakers — who, unlike their counterparts in the Senate, routinely wander deep into the weeds during policy debates — raised questions about polygamy, common-law marriages, domestic partnerships, divorce and whether children of gay parents who are the product of artificial insemination from Hawaiian donors can legally claim Hawaiian ancestry on their birth certificates.
But the real purpose of the hearing was to hear from the public, and, like the hearing Monday before the Senate Judiciary and Labor Committee, the result was a cacophony of voices, from the intelligent to the irrational and the passionate to the bizarre.
Donna Gedge, who has been with her partner, Monica Montgomery, for 35 years and entered into a civil union last year, said that during their relationship people in their family have died and will not be able to see them get married. Friends in the gay community, she said, have died and will never enjoy the privilege of getting married. The Hawaii Kai couple lost their youth while waiting.
"I want to be able to get married while I can still physically get up on my own. And when I say, ‘I do,’ I’ll know what the heck I’m saying ‘I do’ to," Gedge told lawmakers. "Seriously. So those of you who say, ‘What’s the rush?’
"We’ve been without our rights for a very long time."
David Bybee, a marine biologist who lives in Laie, said the issue is not about discrimination, no matter how well packaged by same-sex marriage advocates. "But if we peel off the dramatically colored wrapping, we can see that it is not about discrimination," he said. "It is about recognition: legal recognition of relationships.
"And as hard as it is for some to hear this, not all relationships are equal. I teach biology, but you don’t have to be a biologist to know this. Yes, there are many different types of human relationships, but only one can generate new life, and only one is the best at nurturing young life, and that is marriage between a man and a woman.
"That is why societies throughout history have protected it, because it protects society and perpetuates society."
