Religious leaders have met privately with state lawmakers to strengthen a religious exemption in a gay marriage bill, but they do not want to publicly undermine their main objective, which is to somehow persuade the Legislature to reject the bill in special session later this month and put the issue before voters.
The amendments suggested by religious leaders would make it clearer that churches with religious facilities that are not primarily used as for-profit businesses would not have to host gay marriages. The amendments would also expand the protection for churches that only host weddings for members to also include approved guests.
The scope of the religious exemption — and how it intersects with the state’s public accommodations law — has been the dominant policy question tied to the gay marriage bill.
But some religious leaders say they do not want to undercut their overriding message against gay marriage by publicly discussing proposed changes to the religious exemption, which could give some undecided lawmakers a reason to vote for the bill.
"Our position is that we want the bill voted down," said the Rev. Gary Secor, vicar general of the Catholic Diocese of Honolulu, who is familiar with the private discussions with lawmakers on the religious exemption. "We’re not supporting this language modification, especially if it would give any legislator an excuse to vote for the bill."
Several churches are part of a new coalition called Let the People Decide on Marriage, which is urging lawmakers to reject the bill and put the question of gay marriage before voters through a constitutional amendment.
"Our position is there is no religious exemption that can be crafted that wouldn’t fail anyway," said James Hochberg, an attorney who represents religious conservatives and is a leader of the new coalition. "And so our position is that the Legislature should put this to the vote."
The American Civil Liberties Union of Hawaii and other supporters of gay marriage believe strong religious protections can coexist with marriage equality.
The ACLU of Hawaii has shared with lawmakers possible revisions of the bill that would explicitly say that the intent of the Legislature is to protect religious freedom and liberty. Under the ACLU’s draft, the bill would be amended to state that, in accordance with the state and U.S. Constitutions, no clergy would be required to perform gay weddings. The bill would also state that no churches would have to make facilities available for gay weddings unless the churches have made facilities available to the public for weddings for profit and are therefore subject to the public accommodations law.
The fact that churches may open religious services to the public or otherwise allow the public to enter church grounds, according to the ACLU, does not make the churches public accommodations under state law.
A symposium on the religious exemption, moderated by Avi Soifer, dean of the University of Hawaii-Manoa law school, is planned for 5:30 p.m. Wednesday at the state Capitol auditorium. Hochberg; Lois Perrin, the ACLU of Hawaii’s legal director; and Andrea Freeman, a UH assistant law professor, are scheduled to appear.
Sources closely involved in drafting the gay marriage bill say privately that the scope of the religious exemption might now be more of a political question, not a policy question. House and Senate leaders may agree to expand the religious exemption if it appears that it would lock down a few additional votes for the bill in the House, where the vote count has fluctuated. Religious leaders would likely have a role in shaping a stronger exemption, but as a fallback if it becomes certain the bill will pass.
Gov. Neil Abercrombie would not have called the special session unless there was reason to believe the gay marriage bill will be approved. The governor has stressed that he wants to give all sides an opportunity to be heard, and has met privately with prominent religious leaders, including Wayne Cordeiro, founding pastor of New Hope Christian Fellowship.
The special session was called in response to U.S. Supreme Court rulings in June that legally married gay couples are entitled to federal benefits. Hawaii allows same-sex and heterosexual couples to enter into civil unions and receive the same benefits of marriage under state law, but federal benefits are not available unless gay couples are able to marry.
"We’ll listen to the ideas that people put forward with respect to religious exemptions. However, our purpose is to put forth a proposal that meets the Constitution," said state Sen. Clayton Hee (D, Heeia-Laie-Waialua), chairman of the Senate Judiciary and Labor Committee, which has jurisdiction over the bill.
Hee said lawmakers are seeking to balance the First Amendment right to religious freedom with the Fifth and Fourteenth Amendments’ rights to due process and equal protection. He and others have made it plain that churches that operate for-profit wedding businesses do not get to "pick and choose who you make a profit off of."
"And so any tweaking to that part of the bill, which is the religious exemption part, would have to be in alignment with the Constitution and not injure the Constitution."
State Rep. Bob McDermott (R, Ewa Beach-Iroquois Point), who opposes gay marriage and is a leader in the Let the People Decide coalition, still believes there is a chance the Legislature might change course. He sees a stronger religious exemption purely as a fallback.
"I certainly believe, in all my heart, that if it was put to a vote of the people, they would not vote for it. But that’s not where we’re at," he said. "So we need to create the environment where that will happen."
