Saturday, November 02, 2013


Presenting a “disappeared” dialogue on the marriage equality bill and the public accommodation law

by Larry Geller

It’s refreshing to receive comments that are not only thoughtful and meaningful, but as you’ll see below, have that ring of authority. A commenter visited Disappeared News, and left behind a dialogue that examines issues in the marriage equality bill that go beyond mere religious belief—the proposed law may have within it a built-in time bomb.

I’ve had my fun poking at the 1-year old kid’s testimony. Perhaps the value in it is that it demonstrates that one may hold an opinion based on belief, emotion, or even sound reasoning. But when we get into matters of the law, what I believe is my own sound reasoning has failed me often enough that I’ve learned to listen when the law is properly explained to me.

Read the comments below—from Anonymous, with prodding questions from me, hoping each time that Anonymous would come back and explain a bit more.

Comments on the marriage equality law and its exemption from the public accommodation law

These were the comments attached to the earlier article:

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.

# posted by Anonymous Anonymous : November 2, 2013 at 7:33:00 AM HST

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?

# posted by Blogger Larry : November 2, 2013 at 8:11:00 AM HST

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.

# posted by Anonymous Anonymous : November 2, 2013 at 8:44:00 AM HST

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.

# posted by Anonymous Anonymous : November 2, 2013 at 9:05:00 AM HST

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?

# posted by Blogger Larry : November 2, 2013 at 9:20:00 AM HST

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.

# posted by Anonymous Anonymous : November 2, 2013 at 11:13:00 AM HST



TO the Christianistas who thinks marriage by same-sex couples will harm your narrow-minded religion. I say bull**t. You can continue to believe whatever you want about marriage, and selling a cake, or renting a party room, or taking photos does not infringe your freedom to believe that. Do you also claim a right to not serve pagans or divorce / remarried couples? I spell hypocrisy all around.

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