Opposition Fails

The state House voted late Wednesday to move forward with a marriage equality bill after a day of drama and emotion where lawmakers plowed through numerous procedural motions and amendments that would have postponed action or significantly amended the bill to expand a religious exemption.

The 30-18 decision sets up a final House vote on Friday to fulfill a 48-hour notice requirement. If the House approves the bill, it would return to the Senate for another review next week.

"Based on tonight’s vote, it appears that we have sufficient support for the bill," said House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully).

Rep. Della Au Belatti (D, Moiliili-Makiki-Tantalus) appealed to lawmakers during a daylong floor session that the time for delay on equal rights for gay and lesbian couples had come and gone. The bill would allow same-sex couples to marry as soon as Dec. 2.

"Justice delayed is justice denied," Belatti said.

The closer the House came to taking the key vote, the more urgent and desperate the arguments became from the House members who have repeatedly tried to derail or delay action during the special session.

A last-minute attempt to indefinitely postpone action on the bill failed on a 30-19 vote.

"We are failing the public," an angry Rep. Sharon Har (D, Kapolei-Makakilo) said, describing gay marriage as the single most contentious issue lawmakers had faced. "This is why people don’t trust government."

Rep. Marcus Oshiro (D, Wahiawa-Whitmore-Poamoho) said there is "a clear and present danger" that the House may be taking an action that could not be undone. He said that once a gay marriage law is passed and marriage licenses are issued, there is no going back because same-sex couples would have vested rights.

The most emotional words came from Rep. Jo Jordan (D, Waianae-Makaha-Makua), a lesbian, who said that many people wrongly presumed how she would vote on marriage equality because of her own sexuality. She said she put aside her own views and decided to oppose the bill because she did not believe the issue should have been taken up in special session and did not think lawmakers had taken enough time to examine the consequences.

"I personally believe I should have the right," Jordan said of marriage equality. "You know how hard it is for me to say ‘no?’

"I have to say ‘no.’"

Outside the state Capitol, hundreds of protesters who oppose gay marriage chanted, "Let the people vote!" as the session unfolded. The shouting could be heard inside the House chamber, so the refrain became like an unofficial soundtrack to the debate.

"I hear those people out there and they’re still telling us, they’re begging us, to let them have a vote," said Rep. Bob McDermott (R, Ewa Beach-Iroquois Point).

In two dramatic — if symbolic — floor votes, the House defeated proposals to replace the bill with a constitutional amendment that would have let voters decide whether to preserve traditional marriage.

Most lawmakers understood that the proposals were likely unconstitutional and defective because a constitutional amendment would not match the title of the bill. But opponents of gay marriage pushed for roll call votes anyway so lawmakers would be on record.

Rep. Karen Awana (D, Kalaeloa-Ko Olina-Maili) pleaded with lawmakers to let the public vote on the issue. "A vote is a great equalizer," she said. "A vote does not discriminate."

Other lawmakers were uncomfortable about putting a question of equal rights before voters, given the nation’s checkered history of the majority denying rights to a minority based on differences such as gender and race.

Rep. Cindy Evans (D, Kaupulehu-Waimea-Halaula) said she was offended by suggestions that lawmakers were not listening to the people. But she said that she would not make her decision based only on how many people show up to testify or protest.

"I do believe we’re listening to the people and hearing from the people," Evans said.

After the first proposal for a constitutional amendment on traditional marriage was voted down 28-19, the audience in the House gallery erupted with shouts of "Let the people vote!" The second proposal failed in a 28-18 vote.

The House also rejected several amendments that would have extended the religious exemption in the bill to individuals and small businesses, added a state version of the federal Religious Freedom Restoration Act, and included an inseverability clause that would have ensured that if any one provision of the law were struck down by the courts — such as the religious exemption — the entire law would fall.

No state with a gay marriage law contains a "conscience exemption" for individuals and small businesses, and such a provision would have been certain to cause consternation in the Senate.

Oshiro and Jordan, who were behind the amendments, insisted that they were trying to harmonize the right to equal protection for same-sex couples with the equally important right to the free exercise of religion. But the amendments, if approved, would have had the effect of jeopardizing the bill’s passage by inserting "poison pills" that would have likely been rejected by the Senate.

Oshiro and Jordan also unsuccessfully sought to delay action on the bill and blamed Gov. Neil Abercrombie for unilaterally calling the House and Senate into special session. Oshiro told lawmakers that they could take up to 30 days in special session and did not need to rush.

Oshiro defended the expanded religious exemption for individuals and small businesses, arguing that same-sex couples would not want to go to a wedding photographer, florist or baker who might be hostile because of deeply held religious beliefs.

Giving individuals and small businesses a "conscience exemption" would not only have enabled discrimination against same-sex couples, but could have created the potential for discrimination on the basis of race, ethnicity and gender.

Belatti said it would essentially "enshrine discrimination."

Saiki described it as punitive and claimed it would have allowed anyone to discriminate for any reason by citing a religious belief, basically giving everyone their own public accommodations law.

The House also turned back amendments from Republicans that would have provided parents and teachers an ability to opt out of school instruction on homosexuality. The state Department of Education already has an opt-out policy for controversial topics, but some lawmakers contended that the policy might change and that homosexuality will be taught as normal if gay marriage becomes law.

Rep. Gene Ward (R, Kalama Valley-Queen’s Gate-Hawaii Kai) said he wanted to "inoculate" children at public schools from graphic depictions of homosexuality.

But Rep. Roy Takumi (D, Pearl City-Waipio-Pearl Harbor), the chairman of the House Education Committee, pointed out that public schools do not teach about marriage in school curriculum. He described Ward’s opt-out amendment as "a solution looking for a problem."