Enormous social changes have come in the 23 years since three same-sex couples sued the state over their access to a marriage license.
The Hawaii Constitution was amended by a popular vote, giving the Legislature the power to reserve marriage for heterosexual couples, the amendment passing with nearly 70 percent to 30 percent of the vote. The lawsuit itself precipitated similar debates nationwide, culminating in Congress passing the Defense of Marriage Act.
But now, amid a wave of changing attitudes across the country, DOMA has been ruled unconstitutional and Hawaii is one of more than a dozen states that have been rethinking the whole proposition. This is a development that we applaud.
The state Legislature will convene this week in special session. There are urgent votes on public-worker contracts and the state’s public hospital on Kauai that have been added to the agenda, but everyone knows the main event is the vote on the proposal to legalize same-sex marriage in Hawaii.
Hawaii is unique among the states that have passed constitutional measures on the issue, because its amendment does not itself ban gay marriage but gives the Legislature the power to define marriage in law. Lawmakers are now poised to reverse its action that defined marriage as between one man and one woman.
They should do so. Committed same-sex couples are able to claim the state’s benefits and protections under Hawaii’s civil unions law. But now the U.S. Supreme Court has ruled that all couples legally married in their states should be treated the same under federal law.
And now it no longer seems equitable that Hawaii should have a two-tiered system of legal recognition, with couples in marriages having access to federal benefits and those in civil unions denied those rights.
The public reaction to this approaching vote has been passionate, on both sides, flooding phone voicemail and email accounts at the Capitol. Many of those who have protested most vigorously have said the issue should be put to a vote again, as it was in 1998.
The proponents, however, correctly argue that Hawaii residents already voted to empower the Legislature to define access to marriage. In any case, the rights accorded to all citizens should be a matter of policymaking — a legislative duty — rather than majority rule. If a half-century ago the Civil Rights Act had been left to the electorate, it’s doubtful that would have passed.
Of the bills under consideration by the Legislature, the one by the Abercrombie administration sets out the clearest path. Although it will benefit from a broad discussion, it essentially takes the right approach. The proposal strikes a balance between equitable access to federal protections for the couple and the religious liberty of those whose faith does not recognize the union.
It does this by allowing clergy to decline to officiate or to allow use of church facilities at same-sex unions.
The clerical exemption is absolute, but things get murkier when facilities are rented out because the bill also upholds the state’s public accommodations law. It is illegal to bar access to a public accommodation — a facility or service that is open to the general public — to one of the protected classes. In 2006, the state added sexual orientation to those characteristics (gender, religion, race) that are protected from discrimination in a public accommodation.
So under the proposed law, a church that enters commerce by renting out its facilities for weddings must do so to all. Churches still can exercise control over use of facilities, legal experts have said, by instituting policies to rent facilities only for ceremonies officiated by their own clergy, who always can refuse services that run contrary to their faith.
In other words, the religious exemption applies in circumstances where the religious practice is actually an issue. If a church is simply renting out facilities without any religious participation, then that is a business transaction, simply put. The same should go for any attendant wedding concession — the baker, the photographer, the florist — because these are not religious practices. They are commercial activities, and under state law, they should not be barred to any of the protected classes.
The balancing of these competing interest is a difficult one. Legalization of same-sex marriage strikes its opponents as a breach of centuries-old tradition. But consider: For centuries, traditions ruled that kept women in decidedly different roles in American society than they occupy now. Traditions can change, especially if the aim is to extend the rights and privileges of American life to more Americans.
Faith still can be respected, as it is in the proposed legislation. But it’s time to take down barriers precluding one class of people from claiming the "liberty and justice for all" that the nation’s founding documents promise them.
CORRECTION: In a previous story, it was stated that the 1998 constitutional amendment allowing Hawaii’s Legislature to reserve marriage for opposite-sex couples passed with 53 percent. This has been corrected online to nearly 70 percent to 30 percent. Also, the federal Defense of Marriage Act was not entirely “struck down,” as the editorial said. While the U.S. Supreme Court did rule unconstitutional the section of DOMA that barred federal marriage benefits for same-sex couples, it recognized the rights of states to define marriage.
