Monday, November 04, 2013
It’s important to carefully consider how a religious exemption is crafted
by Larry Geller
A comment was posted to an earlier article that suggests more careful examination of the religious exemption part of the marriage equality bill.
My preface: It seems important to do the marriage equality law right. At base, the objective is to eliminate the discrimination in Hawaii law that prohibits same-sex marriages, as many other states have already done. That’s a simple concept.
The simplicity ends, though, with the so-called religious exemption. It sounds like common-sense that clergy who hold a strong religious belief against same-sex marriages should not be made to perform a ceremony that contradicts their fundamental beliefs. The bill, however, is not written in such simple language.
Lawmakers in particular need to understand what they are passing. I doubt the subset of the public who were instructed to go down to the State Capitol and told what to say will care about details. But anyone who does cares about sound public policy might push for legislators to be sure they do this right. Right? And no one says it’s easy. The Superferry ran aground due to flawed legislation, even though the base concept (that is, Hawaii should have an inter-island ferry system) was also simple and commendable. We could take a lesson from that experience.
Here is a comment attached to an earlier article which I would like to promote so it is more widely read. For me, it underlines that legislators ought to satisfy themselves that the final product of their work is the best they can offer to do the job.
That’s my reaction. Now over to the comment.
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.,).
# posted by Anonymous : November 4, 2013 at 10:56:00 AM HST