by Andrew Walden
With debate over the language of the SB1 gay marriage bill focusing on religious freedom, the denial of rights to biological parents mandated in SB1 has not received as much attention—until now.
In a gay marriage, at least one partner is guaranteed to not be the biological parent of any child. In spite of this fact, SB1 (p5 line 4-9) states:
§572-C Right of parents. Parentage rights, benefits, protections, and responsibilities based on marriage shall be the same for all married spouses regardless of the gender of the spouses. These rights, benefits, protections, and responsibilities shall include paternity, maternity, and parentage presumptions based on marriage.
This means that a biological parent not party to a gay ‘marriage’ would have no right to his or her own child because the children are legally presumed to be of marital parentage. For instance, under SB1 a child born to a woman will be legally taken from her if the biological father is married to another male. Likewise, a male who impregnates one or both partners in a lesbian marriage would be legally presumed to have no rights over his biological children simply because the mother is married to another female.
The seizure of children from their biological parents is dangerous territory. After gay marriage language similar to SB1 created a parentage crisis in California, Gov Jerry Brown ‘solved’ the problem October 4, 2013 by signing a bill which allows legal recognition of group parentage by more than two adults—essentially opening the back door to new family structures based on polyamory or polygamy.
In contrast to SB1, HB7, introduced October 28 with the co-sponsorship of Reps McKelvey, Evans, Carroll, and Kawakami, would protect natural parental rights. HB7, page 15-17 preserves Hawaii’s existing legal presumption of marital parentage to opposite sex-couples only. This language would protect the rights of natural parents over their own children:
d) Presumption of paternity. A man is presumed to be the natural father of a child if: (1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court….
While establishing marriage as the union of two persons without regard for gender, HB7 attempts to take the State out of the business of licensing marriage and licensing ‘solemnizers’ of marriage and of civil unions. For instance a typical example of the proposed HB7 language (pg 3) makes the following changes by which the State legally recognizes marriage based on submission of an application and any ‘solemnization’ would be a purely private matter not regulated by the State:
(6) The [man and woman] two persons to be married in the State shall have duly [obtained a license] submitted a completed application for that purpose [from the] to an agent appointed to [grant marriage licenses; and person or society with -a valid license to solemnize marriages and the man and the woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony.] receive and certify completion of marriage certificate applications."
Regarding religious freedom, HB7 includes the following text (pgs 1&2):
"5572- Private solemnization not unlawful. Nothing in this chapter shall be construed to render unlawful, or otherwise affirmatively punishable at law, the solemnization or refusal to solemnize any marriage by any entity for any reason; provided that nothing in this section shall be construed to confer any of the benefits, burdens, or obligations of marriage under the laws of Hawaii." …
"§572B- Private solemnization not unlawful. Nothing in this chapter shall be construed to render unlawful, or otherwise affirmatively punishable at law, the solemnization or refusal to solemnize any civil union by any entity for any reason; provided that nothing in this section shall be construed to confer any of the benefits, burdens, or obligations of a civil union under the laws of Hawaii."
Maui News October 27, 2013 reported:
McKelvey said that he would introduce his own bill Monday to seek a way to allow people to have marriage benefits under federal law "while not burdening other people's First Amendment rights."
"The bill would basically separate church and state into their two separate universes," he said. "There should be two separate universes so one doesn't collide with the other."
Because HB7 continues to register marriages with the State, it does not fall into the libertarian trap of “getting government out of the marriage business” which would end all legal recognition of parental authority over children. On the contrary, HB7 is the only legislative effort being made to protect the rights of biological parents to their own biological children.
According to the Legislative website, HB7 is referred to JUD/FIN on referral sheet 2.