Twisted in knots about how to balance same-sex marriage with religious freedom, state House lawmakers are looking to Connecticut as a potential model.
The Connecticut Supreme Court ruled in 2008 that the state’s marriage and civil unions laws violated equal protection because gay couples were denied the ability to marry, becoming the third state, after Massachusetts and California, to legalize gay marriage. Connecticut approved a law in 2009 implementing the court’s ruling while adding a broad exemption to deal with religious liberty.
The state House Judiciary Committee and the House Finance Committee on Saturday continued a marathon hearing on a gay marriage bill that will reconvene — and likely end — Monday. Behind the scenes, lawmakers are weighing amendments to the Senate version of the bill that passed on Wednesday, specifically to the religious exemption.
Turning to Connecticut law for possible guidance on gay marriage has a symmetry for Hawaii. The state’s civil unions law was drafted to include both same-sex and heterosexual couples because lawmakers feared the courts, like in Connecticut, might find the law unconstitutional if it applied only to gay couples.
Several legal and religious scholars, including some who favor marriage equality, have urged the House to adopt more robust protections for religious concerns. Analysts from both sides of the issue have concluded that the draft being considered in Hawaii offers less protection than other states that approved gay marriage through legislation.
Douglas Laycock, a professor of law and religious studies at the University of Virginia, and other scholars who support same-sex marriage have told lawmakers that "careless or overly aggressive drafting" could create a new set of problems for the state.
"The gain for human liberty will be severely compromised if same-sex couples now force religious dissenters to violate their conscience in the same way that those dissenters, when they had the power to do so, used to force same-sex couples to hide their sexuality," Laycock and the other scholars wrote. "Conservative religious believers should not be allowed to veto same-sex marriage for those who want it, but neither should they be forced to directly facilitate it in violation of their understanding of God’s will."
The Senate’s bill, many analysts and lawmakers agree, adequately protects clergy, churches and other religious organizations from being forced to perform or host gay weddings unless they open religious facilities to the general public for weddings for a profit. But many legal scholars contend that only addressing weddings — or solemnizations — is too narrow. Lawsuits, they argue, are far more likely on whether religious organizations have to recognize same-sex marriages while carrying out religious missions.
Many House lawmakers would like a clear, concise religious exemption that covers the full umbrella of religious groups and moves beyond weddings to also include facilities, goods, services and programs that religious organizations might provide.
One option — which refines the principle behind the Connecticut law — would be an exemption that states that no clergy, religious denomination, religious society or religiously affiliated nonprofit shall be required to solemnize or recognize any marriage.
Some legal scholars, such as Thomas Berg, a law professor at the University of St. Thomas in Minnesota who supports same-sex marriage, have also recommended widening the exemption to include individuals and small businesses, such as wedding planners and photographers.
Connecticut rejected such an expansion, and no state with gay marriage has such a "conscience exemption" for individuals and small businesses.
House leaders are not enthusiastic about a "conscience exemption," but lawmakers, such as Rep. Marcus Oshiro (D, Wahiawa-Whitmore-Poamoho) and Rep. Jo Jordan (D, Waianae-Makaha-Makua), may force the issue through a proposed amendment of the bill.
While House leaders are entertaining a broader religious exemption, and will likely be tempted to go as far as possible to pass a bill, they have also been warned against shredding the state’s public accommodations law to appease religious conservatives.
Lois Perrin, the legal director of the American Civil Liberties Union of Hawaii, said a "conscience exemption" for individuals and small businesses "would be a significant erosion of civil rights," since the public accommodations law prohibits discrimination based on sexual orientation.
But Laycock, Berg and other scholars told lawmakers that it would be better to implement same-sex marriage with a minimum of confrontation rather than create the potential for "a series of martyrs" who claim their religious freedom has been trampled. Over time, they predict, attitudes will change in the "live-and-let-live traditions of the American people."
Hour after hour of public testimony in the House and Senate has shown that many attitudes in Hawaii have not changed. The testimony has exposed lawmakers to the range of emotions and unearthed uncomfortable divisions in the islands.
Lawmakers might dismiss those who told them that the sin of homosexuality prompted God’s wrath in the form of Hurricane Katrina and AIDS, or who mused about the search for a "gay gene," or who seemed fixated on detailed descriptions of sodomy.
Few lawmakers would likely dismiss Karla Keliihoomalu Akiona, a hula teacher who lives in Mililani.
"We Hawaiians have had so much taken from us, and just when you think there’s nothing more that can be taken, this happens," Akiona told lawmakers on Saturday. "We don’t appreciate people coming into our hale, robbing us of our religious freedoms, trying to destroy our families, restricting our voting rights, and polluting these spiritual lands by dismantling what God has instituted: marriage between one man, one woman."
Rep. Sharon Har (D, Kapolei-Makakilo), who opposes gay marriage, asked Akiona about gay rights advocates who claim that not passing the bill would show a lack of aloha to the gay and lesbian community.
"OK, you need to understand what aloha is," Akiona said, as many in the audience cheered. "You have to understand what it is, and most people do not know what aloha is. Aloha is everything that is pono, everything that is righteous, correct, and everything that is in the light. Anything else is other, is dark.
"So if you want to talk about love, kindness and compassion, and all of those things, that’s what it is. Aloha is the most sacred word in the Hawaiian culture, and it is being used very frivolously by people utilizing my culture, my aloha — my culture — to pass what we all know is wrong."
Rep. Kaniela Ing (D, South Maui), who supports marriage equality, asked Akiona about Kamuela Werner, a University of Hawaii at Manoa student, who had told lawmakers that the bill is not only for himself and his partner of 41⁄2 years, but so that gays and lesbians have an "inherent place in the society at an equal height and footing as heterosexuals."
Ing asked whether the young Native Hawaiian deserves the same rights that he and Akiona do.
"I think he deserves rights. I do," Akiona said. "But I don’t believe that he should take what God has instituted and switch it around."
