Legislative immunity blocks gay rights complaints, lawmakers say

Some state House and Senate Demo­crats have asserted legislative immunity against accusations they violated the Demo­cratic Party of Hawaii’s platform on equal rights by proposing a constitutional amendment on traditional marriage.

The lawmakers say they were acting within their official legislative duties when they introduced or co-sponsored bills last session that would let voters decide whether marriage should be reserved for heterosexual couples.

Complaints against 11 House and Senate Demo­crats were filed in February by Michael Golo­juch Jr., chairman of the party’s gay, lesbian, bisexual and transgender caucus. The complaints are scheduled to be heard by Oahu Demo­crats on Aug. 10 and, if upheld, could lead to censure, reprimand or the lawmakers’ expulsion from the party.

But the state Constitution — in Article III, Section 7 — holds that no member of the Legislature shall be held to answer before any other tribunal for any statement made or action taken as part of their legislative functions. The broad immunity is intended to give lawmakers the freedom to debate ideas.

"Bill introduction, regardless of the issue, is part of the demo­cratic process and within the scope of a legislator’s duties," state Rep. Sharon Har (D, Kapo­lei-Maka­kilo) said in a text message. "The complaint is simply a witch-hunt to bully and harass legislators who do not share the views of the complainant."

But Golojuch said he would continue to file complaints whenever he sees someone violating the party’s platform.

"There’s a new sheriff in town," he said of his role as chairman of the party’s GLBT caucus.

Gay rights supporters are increasingly unwilling to overlook Demo­crats who do not adhere to the party’s platform on equal rights. The U.S. Supreme Court ruling in June that legally married gay couples are entitled to federal benefits has emboldened many activists to demand that the Legislature go beyond civil unions and approve gay marriage.

The 11 lawmakers had sponsored or co-sponsored bills that would ask voters whether to amend the Constitution to say that a marriage "may exist only between one man and one woman." The Constitution now gives the Legislature the power to define marriage, which under state law is reserved for heterosexual couples.

The bills failed to get hearings but remain alive for next session.

An investigative committee is still reviewing one complaint against a legislator from Hawaii County, and there is no date set for a hearing before Hawaii County Demo­crats.

Casey Hines, director of the Senate’s Majority Research Office, who responded to the complaints in March on behalf of Senate President Donna Mercado Kim (D, Kalihi Valley-Moana­lua-Halawa) and Sen. Mike Gabbard (D, Kapo­lei-Maka­kilo), told the party that the complaints should be withdrawn or dismissed.

Hines argued that not only are the senators protected by legislative immunity in the Constitution, but that the Demo­cratic Party’s bylaws allow Demo­cratic candidates to disagree with the party’s platform.

Candidates are expected to file statements with the party outlining whether they agree, disagree or have reservations with the platform. That process, he contends, presumes some candidates might disagree with parts of it.

A response filed by several House lawmakers in April made similar arguments. Har, one of the House lawmakers targeted, described the complaints as an "affront to the demo­cratic process."

She added, "Given some of the far more egregious and blatant breaches of the Demo­cratic Party platform by other legislators who have not had complaints filed against them, one can only deduce that complainants are using the party as a sword against those who do not share their views, as opposed to a shield which is what the Demo­cratic Party has always stood for."

The House response cites as examples of potential breaches the House Demo­crats who joined with minority Republicans in a new leadership coalition last session and the racial and ethnic comments made by Rep. Faye Hano­hano (D, Hawaiian Acres-Pahoa-Kala­pana) over her disappointment with state artwork being displayed in her office.

The House response also claims that Golo­juch and his family have a history of filing complaints against lawmakers in different venues that are tantamount to harassment.

Golojuch said he and his family are committed to equal rights.

Democrats reprimanded Gabbard in 2009 for actively working against a civil unions bill after a complaint filed by Golo­juch’s mother, Caro­lyn. But the party’s sanction was based on email correspondence from Gabbard, not any official legislative action Gabbard took as a senator.

Oahu Democrats last year chose not to censure Sen. Dono­van Dela Cruz (D, Wheeler-Wahiawa-Schofield) over a transit-oriented development bill that some environmentalists believed undermined the party’s platform on environmental sustainability. Dela Cruz had countered that the bill would have helped protect agriculture and open space by directing growth into the urban core, advancing other aspects of the platform, and did not assert legislative immunity.

Gay rights advocates have said that marriage is a civil rights issue that should not be subject to the opinions of voters. Since the Supreme Court rulings last month, some lawmakers who had favored putting the issue on the ballot — including some targeted by the complaints — have changed or softened their positions.

House Vice Speaker John Mizuno (D, Kame­ha­meha Heights-Kalihi Valley), one of the lawmakers facing a complaint, said he now believes the Legislature should decide on gay marriage. He said the court rulings, and not the complaint, influenced his change of heart.

Mizuno, a Christian who has opposed gay marriage in the past, is now undecided.

"My position is evolving, and I know it sounds like a politician talking," he said. "But I can’t say I’ll vote ‘no’ on it. I can’t say I’ll vote ‘yes’ on it, either."