Gov. Neil Abercrombie on Wednesday released the latest draft of a gay marriage bill and invited state lawmakers to offer feedback over the next week before he decides on a special session.

The latest draft, prepared by the state Attorney General’s Office in collaboration with the governor’s staff and lawmakers, expands the religious exemption for clergy and churches. Several lawmakers have said that the scope of the religious exemption is the most critical issue being raised about the bill.

Clergy and others have a constitutional right to refuse to perform gay marriages, the draft states, and churches that reserve religious facilities for weddings by members only and do not operate the
religious facilities as for-profit businesses would be able to decline gay weddings.

Clergy and churches that refuse gay marriages would not be subject to any fine, penalty, injunction, administrative proceeding or civil liability. The latest draft adds protections against injunctions and administrative proceedings in response to concerns of lawmakers.

Gay rights advocates had hoped Abercrombie would use a “Move On to Equality” rally at the state Capitol celebrating the 50th anniversary of the Rev. Martin Luther King Jr.’s “I Have a Dream” speech to announce a special session on gay marriage. After the governor concluded his remarks by explaining that more review of the draft was necessary, several gay rights activists shouted at him demanding a special session.

“Better to have this done thoroughly, have it done correctly, have it done where everybody feels they’ve been respected, than to rush something along because that suits somebody’s emotion of the moment,” Abercrombie told reporters.

In a memo, Abercrombie invited lawmakers to meet with him and the attorney general over the next week to discuss the draft legislation. He also said he hopes to discuss the possibility of a special session.

Earlier Wednesday, House Democrats met in private on the issue. House leaders have been counting votes so they could inform Abercrombie of whether there is enough support for a bill to call a special session. The state Senate has the votes.

House Speaker Joseph Souki (D, Waihee-Waiehu-Wailuku) declined to share a new House vote count and instead shifted the focus back to the governor. “I just forgot the count,” the speaker told reporters mischievously.

House sources say privately that Abercrombie might have to make his decision without the security of a concrete House vote count. The governor appeared to suggest the same: “There have been different numbers, at different times, on different days,” he said. “And I’m primarily concerned that Speaker Souki and (Senate) President (Donna Mercado) Kim and the Judiciary chairs be given the opportunity to go over the bill with their members to see what views are in the caucuses. And then we’ll talk about if and when there’ll be a session.”

Some Democrats have complained privately about a lack of leadership from Abercrombie and legislative leaders in the two months since the U.S. Supreme Court ruled in June that legally married gay couples have the right to federal benefits. Same-sex couples in Hawaii can enter into civil unions and receive the same rights and benefits as marriage under state law, but are not entitled to federal benefits unless they can marry.

The draft would allow the state to issue marriage licenses in early October, with gay weddings possible in November.

Over the past few weeks, Abercrombie has publicly nudged lawmakers toward a special session. He told the Star-Advertiser that a special session was “very likely.” A deputy attorney general informed the 9th U.S. Circuit Court of Appeals that the governor thought a special session would be called in early September. The governor sought more time to file an opening brief with the court in an appeal of a legal challenge by gay couples to the state’s marriage law.

House and Senate lawmakers who favor marriage equality have tried to satisfy colleagues who want a broader religious exemption, while acknowledging that some Democratic lawmakers, most
Republican lawmakers, and many churches will oppose gay marriage no matter how broad the exemption.

Lawmakers are sharing a preliminary draft of a task force report on gay marriage that concludes that the religious exemption in the bill is at least as strong as, if not stronger than, the one in the state’s civil unions law.

Avi Soifer, dean of the University of Hawaii-Manoa law school, who prepared the draft for the task force, wrote that the bill “deals with the not uncommon situation in which two constitutional rights pull in (opposite) directions: While the constitution’s protection of religious freedom supports a strong religious exemption clause, the constitution’s requirement of equal protection necessitates a framework in which all people are entitled to equal treatment under the law.

“Balancing these competing interests is not easy, but the proposed legislation successfully accommodates both of these vibrant constitutional principles.”