After 14 hours of testimony Thursday and more than 13 hours of testimony Friday, the state House will hear from the public again today on a bill that would legalize gay marriage.
The flood of testimony, dominated by people who oppose the bill for religious reasons, is the result of a coordinated drive by opponents to get as many people as possible to sign up to speak and force an extended hearing. House leaders agreed to hear from anyone who had signed up on time, and 5,181 people registered.
State Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the House Judiciary Committee, which is conducting the joint hearing with the House Finance Committee, said the committees will not vote on the bill any sooner than Monday.
Several House sources said privately that the religious exemption in the Senate’s version of the bill will likely be expanded and could mirror a broad exemption found in Connecticut’s marriage equality law.
If the two committees advance the bill, the full House would consider the measure on second reading, which will reveal the degree of support in the chamber. House lawmakers who oppose or are undecided on the bill, aided by pastors and other religious leaders who have mobilized their congregations, have interrupted the House’s initial schedule and will likely attempt additional procedural delays.
"It’s an opportunity for people to make their opinions known. And I don’t regret — I think it’s a positive thing that we are willing to spend the time necessary to hear what everybody has to say," Rhoads told reporters.
The highlight of the hearing Friday was a colorful exchange between House lawmakers and Steven Levinson, a retired associate justice of the state Supreme Court, that careened from legal doctrine to theology.
Levinson wrote the Supreme Court’s landmark ruling in Baehr v. Lewin in 1993, which held that denying gay couples marriage licenses was a violation of equal protection under the state Constitution. The ruling was superceded by the 1998 constitutional amendment approved by voters that gave the Legislature the power to define marriage as between a man and a woman.
Levinson said the Legislature has the clear and unambiguous authority to define marriage.
State Rep. Sharon Har (D, Kapolei-Makakilo), who opposes gay marriage, used the opportunity to apologize and backpedal from her previous claims that another constitutional amendment would be necessary to redefine marriage — not a bill — because of the 1998 vote.
But Har pivoted and asked Levinson whether the Legislature could propose a constitutional amendment that would give the people the power to define marriage.
"Yes," the retired judge replied, quickly adding, "I think it would be ill-advised."
State Rep. Gene Ward (R, Kalama Valley-Queen’s Gate-Hawaii Kai), who opposes gay marriage, said Hawaii voters are not stupid, yet many believe that the 1998 vote had decided the question in favor of traditional marriage. Ward asked Levinson to explain why.
"I have a sort of folksy response to that, because I think that’s the best a person can do," the retired judge said. "People believe what they want to believe."
Har and state Rep. Jo Jordan (D, Waianae-Makaha-Makua) suggested that Hawaii may need a version of the federal Religious Freedom Restoration Act, which restored a legal standard that government must show a compelling interest to substantially burden religious freedom. The U.S. Supreme Court ruled in 1997 that the federal law was unconstitutional for use in the states — upholding it for the federal government — but several states have responded by adopting state versions of the law to better protect religious liberty.
Levinson — like state Attorney General David Louie and William Hoshijo, executive director of the Hawaii Civil Rights Commission, did Thursday — appealed to lawmakers not to weaken the state’s public accommodations law with an overly broad religious exemption.
"I think the public accommodations law is a real model for the country at large, and it would be a shame to dilute it," he said. "But that’s ultimately a policy determination for the Legislature to make."
In some of the strangest moments, a few lawmakers tried to engage a bewildered Levinson in a discussion on the divine law of the Bible. The retired judge struggled to answer but did offer an anecdote that the Book of Genesis urges people to "be fruitful and multiply" but does not mention marriage. He also said that Jesus "had nothing to say about homosexuality," drawing groans from the audience.
State Rep. Nicole Lowen (D, Holualoa-Kailua-Kona-Honokohau) pulled the thread back on track by asking Levinson whether he thought such issues were relevant to the debate over the bill.
"Religious doctrine — God’s law, if you will — is very, very important," Levinson said. "But it is an apple and state law is an orange. And each may reflect some common values, but it would be dangerous for governmental policy to be a function of religious doctrine."
But religion has been the undercurrent of the debate all week, the fuel that has brought thousands of people to the state Capitol and is driving lawmakers to consider a broader religious exemption in the bill.
Bishop Carl Harris of Emmanuel Temple in Wahiawa told lawmakers that they were elected as ambassadors, not to represent personal agendas or seek to promote their careers. "But you have broken that covenant with the people of God and the people of Hawaii," he said. "It’s awful to see. It’s awful. You can’t stand there before God’s people and do such a thing."
The Rev. Kyle Lovett of Church of the Crossroads said she hopes lawmakers have heard that there is no unanimity among people of faith about same-sex marriage. She said she looks forward to exercising her right as a member of the clergy and agent of the state, if the bill becomes law, to perform same-sex marriages.
"I understand, and I’m satisfied with the existing religious exemptions and the caveat that those churches that charge fees to hold wedding ceremonies for people not from their congregation — the general public — are held to the same public accommodations rules as any other business making profit off of weddings in this great state," she said.
For many who waited hours and even days to testify, the experience has provided a civics lesson, an education into how the legislative process actually works, not how they might think it works. The side with the loudest voices and the most testimony does not always prevail.
It was a startling realization to many of the people who took off work to testify, the parents who camped out with their children in Capitol corridors so they would not miss their place in line, the faithful who prayed over lawmakers, that the majority — or the majority who show up — does not always rule.
"I’ve been doing the best I can to sit here and see how the democratic process has just totally been obliterated right before our very eyes," Harris said.
Gov. Neil Abercrombie, who called the special session, said Friday that the long hearings are a measure of democracy. He said he was not concerned that a majority of the testimony has been against marriage equality.
"You don’t measure, you never measure, the quality or the content of testimony by numbers," Abercrombie told reporters. "If a Tom Paine or a Thomas Jefferson or a Martin Luther King Jr. or an Abraham Lincoln, a Fannie Lou Hamer at the Democratic convention in the 1960s, stands up and is able to give you an insight that you did not previously comprehend, it doesn’t matter whether there’s 10,000 views in another direction if that one strikes home as giving an insight or a perspective that didn’t exist before."
