Hawaii's Churches Get Some Protection From the 2012 Legislature
by Jim Hochberg, Esq. via Hawaii Family Forum
In 2011, the legislature passed the Civil Unions bill which Governor Abercrombie quickly signed as Act 1. The legislature also created a task force to assist the State implement the new law. The task force consisted of certain state employees and private individuals who are proponents of same sex marriage in Hawaii. No proponents of traditional marriage were included. The task force discovered many deficiencies in Act 1.
Also in 2011, Shawn Luiz, a Christian attorney in Hawaii, sued the State of Hawaii seeking to protect religious institutions from liability for refusing to permit their facilities to be used for civil unions. The federal judge stayed the litigation to give the legislature an opportunity to address the issue in 2012. In January, the Governor submitted in his package of administration bills, a fix to these deficiencies in Act 1 but did not address the issues in the litigation.
The legislature introduced HB 2569 and SB 2571 to correct these deficiencies. Shawn Luiz and other supporters of traditional marriage asked the legislature to add into these bills a needed religious protection. Representative Gil Keith-Agaran, the chairman of the House Judiciary Committee added to HB 2569 such a protection. Senator Clayton Hee, the chairman of the Senate Judiciary and Labor committee refused to do so. Both bills crossed over to the other house. The House added the protective language to the Senate bill and the Senate stripped the language from the House bill. The stripped House bill was assigned to conference committee made up of the following House members: Keith-Agaran, Oshiro Co-Chairs; Har, Ito, Thielen. The Senate members are: Clayton Hee, Josh Green and Les Ihara.
At the conference committee meeting on April 24, 2012, the House Conferees presented the Senate Conferees with a draft of an amendment entitled CD1, and rescheduled a follow up conference committee meeting for 2:30 p.m. on Friday, April 27th. That CD1 provided for an exemption from liability for religious organizations. The exemption was to be placed in the Civil Unions statute (rather than in the Public Accommodations statute as HB 2569 used) and required a qualifying organization to:
- regularly use the facility for its religious purposes;
- restrict use of the facility for marriages to its members; and
- not operate the facility as a for-profit business.
In addition, the CD1 stated that if a facility is a public accommodation as defined in the public accommodation law, then the exemption would not apply. This language would likely lead to complaints against churches which refused use of their facility for civil unions in order to have the Hawaii Civil Rights Commission (which enforces the public accommodations statute) determine whether or not each church was a public accommodation and therefore not entitled to refuse based on the exemption.
At the conference committee meeting on April 27th, the Senate Conferees announced they would be giving the House Conferees a different CD1 for consideration, and the meeting was adjourned until 5:30 that afternoon. At the 5:30 reconvened meeting, the Senate Conferees handed the House Conferees the CD1 from the Tuesday meeting, and it was approved just six minutes before the end of the part of the legislative session where these kinds of bills could be adopted by the conference committees.
As is the case with most legislation, this one is a victory on several levels, but also raises constitutional concerns. The church was given an exemption and the exemption was placed in the correct statute. What this really means is that the House Conferees battled down to the last six minutes to protect churches who did not want to be involved with civil unions. The House did not have to take up that battle. The House Conferees were the champions for the church on this issue. Please thank them, even though there are problematic aspects to the exemption. The exemption is limited in ways that create problems with the constitutionality of the law. First, what exactly is meant by restricting marriages to the members? That is not defined and is so ambiguous that it is difficult to know what is intended. For instance, if a church will only permit marriages if one of the spouses is a member of the denomination, does that meet the test? Or does the legislation require that both spouses belong as members to the church that meets at the location that doesn't want to participate in civil unions? One thing is certain, a church that has no formal members cannot take advantage of the exemption.
However, those problems can be solved through a lawsuit which could be filed on behalf of a couple of churches that have no formal members and therefore are not permitted to turn down civil union partners without liability. If any leaders of such churches would like more information on participating in such a law suit as the plaintiffs, they should contact me right away. I am planning, along with the assistance of the Alliance Defense Fund, to put such a law suit together to be filed in the next couple of months. If your church is interested, please contact Jim Hochberg directly.
Hawaii Family Forum is sending this update written by Jim Hochberg as a private lawyer and does not make any legal claim or opinion as to the merit of the court case represented in this article.