Saturday, November 02, 2013


Has that 1-year old testifier really read SB1, the marriage equality bill? Have you?

by Larry Geller

While waiting for my pickup after a meeting outside the Hawaii State Art Museum yesterday, I noticed that there were a few groups of people walking past from the direction of the State Capitol, across the street. Some had matching t-shirts, so I assumed they had been demonstrating for or against the marriage equality bill.

Why not do a quick “sidewalk survey,” methought. Without asking which side they were on, I just asked “Have you read the bill (SB1)?” For the four groups of three or four people I got to interview before my wife arrived, none had read the bill.

I asked because the question just entered my mind, how many of those thousands who signed up for testimony, or who submitted written testimony, actually read the bill?

The basic issue is clear, without the need to read the bill. Either Hawaii will be the next state to legalize same-sex marriage or it won’t. That is fundamentally so strong that one may take a stand (well, thousands of people have taken a stand) without knowing, or perhaps caring, about the details.

And yes, I know that many people have read the bill and are either happy or unsatisfied with (for example) details of the religious exemption it provides.

For sure, the 1-year old infant who submitted written testimony has not read the bill. While capable of writing lucid prose, we know that this kid probably can’t read yet.

But I can. And I have to admit that I haven’t read the bill either.


I've read the bill the Senate passed and I find the so-called "exemption" from the public accommodations law to be very disturbing. But all of the pro-same sex marriage lawyers, justices and constitutional scholars that testified yesterday seem to think its okay regarding not violating the state constitutional right to protect against discrimination or the right against government supporting religions. Everyone seems to be focused on religious liberty and the churches' assertions that they have a constitutional right to be laws onto themselves aided by their vociferous and passionate flock.

Ok, I'm at a disadvantage, but just say I ran a grocery store and decided I would not sell cigarettes. I think smoking is a bad thing and don't want to be responsible for someone else's lung cancer. Sure, they can buy cigarettes elsewhere, so I'm not achieving much, but nevertheless, I don't have to sell cigarettes even if it's legal to do so.

So if a church leader (say) does not want to perform a same-sex marriage ceremony, the couple can, of course, go elsewhere. They will be married someplace, if not there.

What's wrong with that? Do I need to read the bill to understand that part?


The problem is that so much legislation is written so only lawyers can figure it out. Like the provision in the last constitutional convention. Like the rail vote which was about wheels and rail material not whether the system was wanted.

The whole thing boils down to whether same sex marriages should be permitted in Hawaii. A simple yes or no should suffice.

If you were an Italian grocer who refused to sell cigarettes to Puerto Ricans, it is true that Puerto Ricans could go somewhere else and buy their cigarettes. But it is irrelevant to the requirement of the law that those public accommodations businesses may not discriminate on the basis of a number characteristics: like race or national origin.

From what was said yesterday by the legal scholars and lawyers, clergy have a constitutional right not to perform same-sex marriages so why an exemption that is broader than that that erodes the public accommodations laws? The fight against interracial marriage was cast as a religious one. The trial court which found the Lovings guilty of the crime of interracial marriage stated it like this:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."

It seems self evident that if a florist or baker told a couple they would not bake a cake or do a floral arrangement because the couple were "race mixers" that such conduct would constitute prohibited discrimination in public accommodations. Or if a church that has a social hall that they rent out for income to the general public refused to allow "race mixers" to meet there, that would be prohibited discrimination in public accommodations. Hawai'i law also prohibits such discrimination if it is on the basis of sexual orientation.

These laws may incidentally burden someone's exercise of their religion as it prohibits a church from becoming a real estate mogul in social hall renting if they cannot abide by the generally applicable laws. Just as a church could not set up a restaurant and claim that they are exempt from the regulations of the Department of Health because of their church doctrines. Churches, which are tax exempt by law, pay taxes on their unrelated business income so its not a novel legal issue in any respect. Render onto Caesar that which is Caesar's and render onto God that which is God's. There is not constitutional right to make side income off a social hall or a constitutional right to run a restaurant while being exempt from the generally applicable laws regulating those businesses.

Many of these people are too young to remember a time when there were white only neighborhoods in Hawaii or when employment ads were limited to specific races (or excluded specific races) or to particular genders (men only, women only). Many churchgoers today don't know the history that anti-miscegenation public policy was founded on religious beliefs about the evil of race mixing or violating God's plan. I'm no expert on this but I think it was called the curse of Ham.

There are many ways that the current draft could be amended to avoid a collision course between these churches and the public accommodations laws by simply eliminating the solemnization part of the civil marriage procedure. Then there would be no confusion regarding what is Caesar's and what is God's. But like Bart Dame said about his Puritan ancestors, the real issue here by the vocal religious leaders is not about having the space to freely exercise their religion. Rather, the real issue is these churches trying to use this issue to impose their religious doctrine as the law of the land and if that's not possible, to become laws onto themselves.

Thanks for your careful explanation. Not meaning to strain your patience, but could I ask for clarification of one thing that is not yet clear to me.

What is a "public accommodation law", and how does it apply to religious organizations?


Let me quote from Bill Hoshijo, who is the expert:

The Hawai 'i Civil Rights Commission has enforcement jurisdiction over state laws
prohibiting discrimination in employment, housing, public accommodations, and access to state
and state-funded services. The HCRC carries out the Hawai'i constitutional mandate that "no
person shall be discriminated against in the exercise of their civil rights because of race, religion,
sex or ancestry". Art. I, Sec. 5.


The State has a compelling interest in the elimination of discrimination in public
accommodations. HRS § 368-1 states:
The legislature finds and declares that the practice of discrimination
because of race, color, religion, age, sex, including gender identity or expression,
sexual orientation, marital status, nations! origin, ancestry, or disability in
employment, housing, public accommodations, or access to services receiving
state financial assistance is against public policy.


"Place of public accommodation" is defined in HRS§ 489-2, as: "[A] business,
accommodation, refreshment, entertainment, recreation, or transportation facility of any kind
whose goods, services, facilities, privileges, advantages, and accommodations are extended,
offered, sold or otherwise made available to the general public as customers, clients, or visitors."

Religious facilities are not subject to the public accommodations law unless goods,
services, facilities, privileges, advantages, and accommodations are offered to the general public.
Churches are free to discriminate as long as they do not operate a place of public
accommodation. If offered for public use, the public accommodations law applies and unlawful
discrimination is prohibited.

The public accommodations law is clear. It is a law of general applicability that serves a
compelling state interest and does not target religion. Opening the door to broad or numerous
exemptions to our state civil rights laws undermines the compelling state interest and invites
constitutional challenges. It is not necessary to create exemptions to our civil rights laws to
enact marriage equality legislation, and to do so will weaken existing civil rights protections,
creating a slippery slope that leads to demands for additional exemptions.

The HCRC opposes proposals to create exemptions that weaken protections against
discrimination under our public accommodations law. For this reason, the HCRC does not
support the propsed HRS § 572-F exemption for religious facilities, which will allow
discrimination on the basis of sexual orientation (and all other protected bases) in places of
public accommodations for solemnizations of marriage.

That is, the exemption would not just allow discrimination based on sexual orientation, but also would permit discrimination against "race mixers" and "all other protected bases." And on that basis, the exemption would invite court challenges since such an exemption violates several other constitutional rights. These constitutional rights can all exist without being put into conflict. It's a false conflict.

Thanks for your detailed explanation. So few people read comments that I'll re-post these as an article. Many thaks.

Do you realize that out of the entire place of accommodation statement, only 3 words don't apply to the vast majority of religious facilities? Business, sold, and customers. Every other word in "public accommodation" applies to MOST religious facilities. Most religious facilities would not be exempt from public accommodations. Of course, every religious entity offers what they do to the public... that's how they share the "good word." For the church I go to, the facility costs nothing to use. However, every party, including wedding solemnizations and receptions, were free. Public accommodations don't require payment. If the general public is allowed to go, public accommodations exemptions do NOT apply.
"Place of public accommodation" is defined in HRS§ 489-2, as: "[A] business,
accommodation, refreshment, entertainment, recreation, or transportation facility of any kind
whose goods, services, facilities, privileges, advantages, and accommodations are extended,
offered, sold or otherwise made available to the general public as customers, clients, or visitors."

The Public Accommodations Law has been unchanged in its applicability in Hawai'i for almost thirty years (although breastfeed was added a few years back). If a church is offering its services or space to the general public for money, it is not acting within its constitutionally protected right of free exercise but rather it is operating as a business. It is well established that the government can burden religious activities if it has a compelling interest (prohibiting unlawful forms of discrimination) and it does not target religion. There is no constitutional right to operate a business exempt from general laws if the business owner/owners can cloak it in religious terminology or if its owner happens to be a church. The result of that is every person can become a law onto themselves as everything can have a religious basis. We already did that during the Middle Ages when priests were free to murder and rape and have special courts that were limited to sending them off to work in a monastery or more recently where priests across the US were allowed to molest children unchecked because local government officials (police, prosecutors, etc.,) did not enforce criminal laws against such criminals because they were priests (and aided no less than the church's own hierarchy). Or the Hassidic orthodox rabbis who have been only once prosecuted for the numerous molestation charges made over the years. Those are examples of our country's historical religious exemptions both formally and informally.

The exemption in this bill is simply bad public policy. The exemption doesn't just exempt churches running businesses from sexual orientation based discrimination. It exempts them from the prohibition on all forms of illegal discrimination (race, sex, etc.,).

Post a Comment

Requiring those Captcha codes at least temporarily, in the hopes that it quells the flood of comment spam I've been receiving.

<< Home


page is powered by Blogger. Isn't yours?

Newer›  ‹Older