ON SENATE BILL 1 - "NOT READY FOR PRIME TIME"
by Rick Lazor
As House hearings progressed on Thursday on the "Marriage Equality" bill one fact became abundantly clear: this legislation is beginning to look a great deal like a "bill we have to pass so we can find out what's in it."
Thank goodness for the cogent and thoughtful questions being asked, both pro and con, by members of the House Judiciary and Finance Committees. One can only wonder how on Earth the Senate could have possibly passed this bill so quickly and so carelessly earlier this week.
Consider only a few of its troubling aspects:
• Language on parenting and children in the bill leaves the Hawaiian community with huge questions regarding native rights. Issues such as blood quantum, homestead eligibility and lines of ancestry become formidable.
• The divorce provision in the bill could be a potentially expensive quagmire, not to mention its unequal treatment of homosexual vs. heterosexual couples.
• For processing marriage licenses from other jurisdictions, the Department of Health shares that their policy for determining current legal relationship status will be to take applicant couples at their word - on faith!
• The Committees were told by the Governor's Office and the Attorney General that this bill is about marriage only and there is no need at this time to consider ramifications or outcomes in our schools or other public entities; those can be handled somewhere else down the line.
• In relation to churches, no one could definitively determine what is meant by "for profit" nor could anyone nail down who should decide. And yet "profit" is a primary factor in determining exemption status! The potential even exists at this point that some government entity would need to require a church to open its books for investigation.
• In considering exemptions for churches, there is no clear determination of what "religious education" is? Could it be a weekday K-12 school? Sunday school classes? Church preschool? And is tuition a donation or does it constitute "profit?"
• The Attorney General stated that no decision has yet been made on what the necessary indicia might be to determine what a "religious organization" is? Even the IRS already has such standards in place!
Throughout the morning, it became clear that according to the Attorney General and some other experts, the solution to all of this ambiguity and confusion was to just rely upon the "courts" later! Is not the point of well-crafted legislation to give the courts less to do?
Then there is the whole issue of "religious exemptions" in the bill that have troubled both sides from the beginning.
Those flawed and inadequate religious "protections" will stay that way as long as lawmakers continue to find First Amendment protections for religious practice by a GROUP of believers (a church or temple?) but seem unable to see identical protections for conscience in the religious practice of INDIVIDUAL believers. The U.S. Constitution guarantees both but some of our lawmakers join with many legal analysts in the U.S. today who assume that religious liberties of individuals can be trumped by other statutes.
There is a big difference between wrongful discrimination against a person due to sexual orientation and one's legitimate choice not to support behaviors that violate one's own conscience. It should not be assumed, for example, that a baker is discriminating against a homosexual based on their sexual preference as a person simply because that baker cannot in good conscience prepare a cake for an occasion (a homosexual "marriage") that offends his or her sensibilities.
Would the Hawai'i Civil Rights Commission demand that a Christian who owns a bakery be required by law to fill an order for two people who request a special cake to celebrate the second anniversary of their adulterous affair? or that a florist arrange bouquets for a neo-Nazi rally celebrating the 70th anniversary of exclusion orders against Japanese citizens?
So if a baker is troubled by the prospect of using expressive gifts to fill an order for a cake for a homosexual "marriage" ceremony, how is that a violation of equal protection? On the U.S. Mainland, such conclusions have already resulted in lawsuits and harassment, even in situations where a business has otherwise always welcomed homosexual and heterosexual customers alike and even employs homosexuals.
In addition to the troubling aspects of the content of the bill, the process undertaken has hardly been an exercise in good statesmanship.
• There was Governor Abercrombie's good-faith promise to the Senate President and House Speaker that this matter could wait until the 2014 session, only to have him later reverse course and call this Special Session.
• On his very website, in a "Frequently Asked Questions" page related to this bill, the Governor clearly deceives the public about the intent of voters 15 years ago in answering a question on allowing the public to vote.
• In crafting his shaky 14 October opinion that the Legislature may even consider this bill, our Attorney General conveniently strikes eleven lines of legitimate findings from previous law - also omitted from Section 8 of this Senate bill - pretending that the voters' clear opinion in 1998 never existed.
• Then in the Legislature, there has been the arm-twisting and cajoling by a Speaker who had previously promised his House members that they were free to vote their conscience on this sensitive matter.
Whether a legislator stands for "marriage equality" or for traditional marriage, it is difficult at this time to imagine how a lawmaker could possibly see his or her way clear to pass Senate Bill 1 with all of its incumbent ambiguities and troubling omissions. It is not even good law. Amendments galore would be required to make it palatable.
This bill is not about collective bargaining or new school air conditioners or what color to paint Capitol bathrooms. It fundamentally changes our mores in these Islands.
Senate Bill 1 is not ready for prime time. It is essential that our lawmakers vote "no" during this ill-conceived special session. Then slow down this whole process, add a good measure of integrity to the mix and then do the hard work of analyzing this entire issue more thoroughly and honestly.
Better yet, respect the intent of the voters in 1998.
Even better still, give Hawai'i voters a succinct new amendment to consider next year that clearly states what the large majority of caring, fair-minded citizens have wanted all along.