Shocking is the best way of describing the pronouncement that the governor’s same-sex marriage bill "clearly protects the rights of Hawaii’s clergy," as Vanessa Chong of the American Civil Liberties Union made.
As an organization that claims to ensure that the government does not violate fundamental constitutional rights, the ACLU has taken the hypocritical stance of picking and choosing which rights to defend.
It is true that the governor’s bill has a provision in it that states that any "minister, priest, officer of any denomination or society, or religious society not having clergy who refuses for any reason to solemnize any marriage shall be subject to any fine, penalty, or other civil action for the failure or refusal."
But this provision clearly violates the constitutional rights to equal protection and due process.
Like the statute the U.S. Supreme Court struck down in Romer v. Evans, this exemption effectively "withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination."
Ms. Chong must know this, since the ACLU was significantly involved with the appeal of this case.
As soon as a priest refuses to solemnize a marriage, a same-sex couple will file a claim of discrimination on the basis of sexual orientation with the Hawaii Civil Rights Commission. They will look at the governor’s bill, which by then will have become law, and see another provision that states "nothing in this section shall be interpreted to exempt the owner or operator of any religious facility from the requirements of [the public accommodations law] if the religious facility is a place of public accommodation … "
The commission has very broad authority in determining the services that are "public accommodations." Arguably, the commission would view this provision as the Legislature’s intention that marriage be construed as a public accommodation, since it clearly states that the public accommodations law supersedes any conflict that arises from the immunity protections found in the marriage law.
As such, the commission would have no choice but to allow the suit to proceed.
The only way to protect the freedom of religion and likewise ensure equal protection under the law would be to remove all changes to the marriage law — including the constitutional amendment, and civil union and reciprocal beneficiary laws — enacted after the Baehr decision (a lawsuit in which three same-sex couples argued that Hawaii’s ban on same-sex marriage violated the state Constitution).
This would make Baehr the law of Hawaii and prohibit the state from discriminating against same- sex marriage license applicants.
The freedom of religion would be preserved because the Legislature would not be writing into law a regulation of a religious practice.
Such a change in public policy would be dictated by the ruling of the Hawaii Supreme Court and not by legislative decree.
I’m sure the ACLU knows this, but is deathly afraid of leaving it up to voters once again who might let their personal prejudices against homosexuals influence their vote.
So, it is all right to diminish the First Amendment of liberty of religious freedom to protect the Fifth and 14th Amendment rights to equal protection and due process.
But two wrongs don’t make a right and shame on the ACLU for saying so.
