Senate Bill to Legalize Gay Marriage – Not Ready for Prime Time

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Thousands of people turned out to rally against Senate Bill 1, which would legalize gay marriage. The rally was held October 28, 2013, on the opening day of the special session. The Senate passed the bill Wednesday and today, the House continues to hear testimony on the measure (photo by Mike Palcic)
Thousands of people turned out to rally against Senate Bill 1, which would legalize gay marriage. The rally was held October 28, 2013, on the opening day of the special session. The Senate passed the bill Wednesday and today, the House continues to hear testimony on the measure (photo by Mike Palcic)

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.

Rick Lazor is a resident of Honolulu

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33 COMMENTS

  1. The Legislature considers a law; "No person shall drive a motor vehicle at a speed in excess of the posted limit". Everyone can understand that law. The author, however, would engraft "what-ifs" onto the law, for ambulances, fire trucks, pregnant women rushing to a hospital to give birth,etc.,etc.,etc., whereas those "exceptions" will be supplied in due course as the law is applied over time. Relax!

  2. Maybe I am confused, but why would there be any question about the meaning of "for-profit" or "religious institution?" Why would this legislation not simply use the existing legal definition of a non-profit / for-profit institution, and legally recognized religious institution according to Hawaii or federal laws?

  3. It isn't the Bill that's not ready for prime time. It's the anti-equality squad who clearly need better 'arguments' against SOME citizens receiving the Equal Protections of the Law that the Constitution promises.

    For example, "individual believers" are not a religious organization. Business owners must abide by the (secular) civil laws in a state, and if a state has public accommodations laws, individual believers must still abide by them. As they should.

    Sorry, Rick, but selling cakes and flowers are NOT religious exercises. Funny that you chose that particular analogy, considering that the baker who refuse a cake for a gay couple (in another state) was all too happy to bake cakes to celebrate unwed pregnant mothers, divorces, and human stem cell research, among other things.

    RE: "Then slow down this whole process."

    NO WAY. Justice delayed is justice denied. And you've come up with NO sound, logical, rational, reasoned legal argument not to treat ALL citizens equally before the law.

    • KHON2 reports on 11/2, a LGBT organization had Brian Schatz's wife speaking on behalf of him, gave notice well ahead of time. "
      SO HOW MUCH TAX DOLLARS went for her security & transportation?
      To ensure the right person is testifying, they are now checking IDs twice outside the auditorium and then again inside — especially after last week's incident.

      So is this "SOME citizens receiving the Equal Protections of the Law " you like?

    • Aloha Faafetai!

      There certainly is. The bill is posted on the Legislature's website at &lt ;http://www.capitol.hawaii.gov/splsession2013b/SB1_.pdf>.
      You should be able to see it there.
      Lately, we have noticed that often, nothing is available beyond the first page. If that happens to you, just email <realmarriagehawaii@gmail.com> and they will be able to send you a full copy of the Senate Bill AND the Governor's original bill.

      Thanks for your interest.

  4. Each "troubling aspects" was answered in the sessions:

    • Language on parenting and children – will be handled the same way it is currently handled for different-sex couples and parents, whether biological, adoptive, surrogate.

    • The divorce provision allow couples who marry in Hawaii and reside in another state that does not recognize their marriage to return and divorce in Hawaii – no 6 month residency required. Different-sex couples can divorce in any state where their Hawaii marriage is recognized. If one or both want to reside in Hawaii for 6 months – that's their choice.

    • "For processing marriage licenses from other jurisdictions" Guess what? They currently accept on faith different-sex couples declaring they have a "common-law" marriage or other relationships like a civil union.

    • "This bill is about marriage only" Guess what? It IS a marriage bill – not a panacea for anyone's anxieties – real or imaginary. The statutes related to marriage benefits and obligations are interpreted for different-sex couples all the time.

    • Churches, "for profit" activities go on all the time and they maintain a "tax-exempt" status for what they call "non-profit" activities. Hasn't cause any major problems for the tax board or IRS.

    "The potential even exists at this point that some government entity would need to require a church to open its books for investigation." They do that now, all the time.

    • In considering exemptions for churches, there is no clear determination of what "religious education" is?
    When a church schools admit pupils whose parent declare they are exclusive believers, then there's no problem. When children from other denominations enroll in a "church school" the parents either sign an acknowledgement, or the children are "segregated." That's up to the church.

    "Then there is the whole issue of "religious exemptions" in the bill…" "The U.S. Constitution guarantees both (practice by a group and practice by an individual)" – IN A CHURCH, NOT IN A LICENSED BUSINESS – florist, bakery, photography studio, limousine service. Those businesses and individuals are not "practicing a religion" or pretending to be a church.

  5. "slow down this whole process…Better yet, respect the intent of the voters in 1998."

    Make that your opening line rather than bury it at the end. That's your opinion and intent. The rest, the preceding is from your imagination.

  6. If the opponents do not think the bill provides enough "protection", just wait for the court to bring equal marriage to Hawaii with NO special protections within the next year or so. Trying to gut public accommodation laws for a few opponents will result in additional legal costs and the "protections" will be thrown out in court anyway.
    Personally, I can see both sides about the "residency" issue. Removing it will mean fewer marriages will take place in Hawaii; but, the state will save some money on legal costs.

  7. Why do you write "marriage" in quotes when referring to same-sex marriage? Interesting ethos. And by "interesting" I mean clearly biased.

  8. I would like to thank so many of you for doing so much to educate people regarding God’s Law. I know you have led the fight to protect traditional marriage. Leviticus 18:22 clearly states that homosexuality is an abomination.

    I do need some advice, however, regarding some other elements of God’s Law and how to follow them.

    1. I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her?

    2. Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can’t I own Canadians?

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