Lawmakers will gather at the State Capitol Monday morning for a special session on several bills, but the most highly anticipated is a controversial proposal to legalize same-sex marriage.
Senate leadership says the bill is expected to pass 21-4, but the real question has always been if the same-sex marriage bill will have the 26 votes it needs to pass in the House.
"I'm a yes," Representative Mark Takai said with a smile.
Takai voted no on civil unions, but says his position has evolved — especially in the last few months.
"Just like a lot of other people throughout this nation and also throughout this state, I think for me personally I've gone through a process and evolution. I'm grateful for this opportunity this next week to vote yes, because it's the right thing to do," Takai said.
"I think a lot has changed. I think when you take a look at the decisions made by the Joint Chiefs of Staff, the overturning of the Defense of Marriage Act by the U.S. Supreme Court this past summer — those are pretty significant steps towards equality. I think it's only fair to provide the same benefits and the opportunities that other states have provided and that the federal government is providing currently. My transformation is based on that, as well as just — I think it's time for the laws of the state of Hawai'i to reflect the aloha spirit," said Takai.
Takai, who was elected in 1994 to represent the 33rd House District, believes the current bill acknowledges there are some exemptions that must be made. Under the bill — clergy, ministers and priests will not be required to provide marriage ceremonies to same-sex couples. This same protection applies to the officers of any religious denomination or society that does not have clergy, but provide marriage ceremonies.
"I do believe that it's important to provide exemptions for religions to practice their faith in churches, synagogues, mosques or temples. I also believe that it's important for businesses not to discriminate," Takai explained.
Hawai'i's public accommodations law bars discrimination in places of public accommodation, which means places that are open to general public as customers, clients, or visitors. In 2006, the public accommodations code was amended to specifically ban discrimination on the basis of sexual orientation.
Takai says he thinks it's appropriate for the legislature to make this decision, rather than letting the courts decide as other states have. In 1998, voters overwhelmingly approved a constitutional amendment to give the Legislature the power to define marriage as between a man and a woman.
"I believe based on the constitutional amendment — the language of the amendment — and also based on my being here the last 20 years, it is time for the legislature to act. We can't wait any longer, there's so much that has happened especially in the past year with the federal government moving forward and many other states moving forward. It's time for the Legislature and the state to act," Takai said.
Takai, who is running for Congress in Hawai'i's First Congressional District, says as a Christian he has wrestled with his decision, but now believes it's the right choice.
"My faith held me to a different vote, but even in the situation with civil unions — in my heart, it wasn't a vote that I 100% felt comfortable with. I do believe that there are people out there that may be disappointed or will be disappointed with my vote, but I can tell you at the end of the day, it is the right vote that I'm taking and it is based on what I believe to be in the deepest fibers of my heart. It is about fairness and love and equality, and how can you not support it if it's based on that?" Takai said.
Hawaii News Now surveyed lawmakers last week. 27 Representatives tell us they plan to vote yes, including:
Representative Marcus Oshiro believes the special session is ill-conceived, and thinks the issue of same-sex marriage deserves the full measure of a regular session.
"My vote right now is no," Oshiro said. "What is the rush for a special session? Why would you want to expedite this one measure over all other rights? All other issues of the day? Why? There's no exigent circumstance calling for this. There's no emergency. There's no constitutional or legal crisis saying Hawai'i's law is illegal or Hawai'i's constitution is illegal, that is not the case," explained Oshiro, who has been in the legislature representing House District 46 for 19 years.
"This is the first time in nearly 20 years that the Governor unilaterally has evoked his Constitutional authority to call us in without having an agreement with all the members in the all the parties — a strong consensus on moving this direction, on the bill itself. This is quite extraordinary," described Oshiro.
Oshiro says lawmakers need more time to meet with stakeholders and carefully review the bill.
"The special session is an abbreviated session that may be as little as 5 days versus a normal session which is 60 days and that's a substantial difference between the time that a bill can be considered or debated and discussed. The longer that you have for a bill to be debated discussed and reviewed — the more public involvement, participation can be laid on that bill and the greater transparency of the process, greater ability of the members themselves to study the bill carefully. Especially when you're dealing with two competing and important values — equal protection and due process, personal liberties, freedom from religion, freedom of religion, freedom of conscience, freedom of assembly, freedom of rights of association — these are all different values that you need to reconcile. Those important values in our Constitution have to be reconciled and at this point in time I don't see that reconciliation taking place in these bills, so I must oppose them," said Oshiro.
Oshiro believes the bill's exemptions need to be strengthened, but he doesn't support a constitutional amendment to let the voters decide.
"If the people in their wisdom choose to amend the Constitution for whatever reason, that's certainly their right and their prerogative, but the concern I have is that given where we are today in this discussion you might play to the worst fears of people, the worst prejudices of people — when you need not do that. I've been always from the very beginning — what's the rush on this special session? Isn't there other options we have for the people? You can ram this thing through and win the victory at some point in time, but that's going to be a short-lived shallow victory because you're going to leave a lot of people out there ill-effected, ill-treated, and it's not going to serve anyone's interest," Oshiro explained.
Oshiro voted for civil unions, but is stepping away from his Democratic party's platform and House leadership on the issue of same-sex marriage.
"I think there are deeply held beliefs and therefore deeply held votes on both sides, but I also believe there are deeply held people today, colleagues, who are wrestling with this issue sincerely and have not made a final decision," Oshiro said.
17 Representatives plan to vote no, including:
"How can I say I'm a supporter or not a supporter when I can't tell you what that final bill is going to read? If I say I support something right now and I'm not palatable with that thing— how am I going to take back those words? If I say right now I'm not supportive of it and I am supportive of it in the end, how am I going to do that? As legislators we should be able to argue our stance — if my constituency supports it or not supports it, I should be able to argue that," described Jordan.
Jordan estimates about 75% of the constituents she's heard from have indicated they support same-sex marriage, but she's concerned not everyone feels like they have been given a chance to participate in the process.
"Down on that floor we're not only representing our constituency that elect us, we're representing the 1.4 million people and that's where I feel — that's where my duty begins. I set aside any of my personal feelings, thoughts or beliefs and I open myself up to the pros and cons and the dialogue to vet measures, and I will make my decision once I see the final measure," Jordan explained.
Jordan says she's worried about the misinformation she's heard circulating about the bill — specifically that there won't be opportunity for public input or for lawmakers to introduce amendments, both of which she clarifies as inaccurate.
The first public hearing is scheduled before the Senate's Judiciary and Labor committee on Monday, October 28 at 10:30 a.m. in the State Capitol auditorium. Testimony will be limited to 2 minutes a person, in an effort to accommodate everyone who wishes to address legislators. A second public hearing is scheduled before the House committees on Judiciary and Finance on Thursday, October 31 — a move House leadership says is unprecedented.
Another uncommon step they say they've taken is to extend the special session length past the 5 day minimum, but Jordan thinks there should have been more discussion between the House, Senate and Governor's office before they were called into a special session.
"We had two measures in this body earlier this year during session — neither one of them was heard. They were given referrals for committees and they were never heard. We had a great opportunity earlier this session to at least have some open dialogue, not necessarily pass any measures, but to have public dialogue on a marriage equality measure and that didn't happen," Jordan said.
Jordan was appointed to her seat in the 44th District by Governor Neil Abercrombie in January 2011 and says one of her first votes was for civil unions.
"We haven't even absorbed that here in the state. You know for somebody to say, well we've been waiting for this all this time and now we're ready to go because the discussion has been had out there for 20 years and you guys need to move forward — that's inaccurate. 80% of this elected body in the House of Representatives haven't had that discussion in this walls. There's been no bill previously vetted. Civil unions was vetted, what 10 years? Vetoed once came back in 2011 first out the gate and there were errors in it, we had to correct it in 2012. I would say with a measure of this magnitude, we should be making every conscious effort to make it as clean and viable as possible and that's done with discussion," said Jordan.
Jordan says she followed the Windsor case for years and watched the U.S. Supreme Court ruling closely, but isn't sure a special session should have been called.
"Has anybody been denied before DOMA or after DOMA — what has changed in our state? These are questions that I still have to settle in myself and that's why I'm undecided," Jordan explained.
"It's tough for me. It really is. I might not know until that third reading. I really don't know and it's going to be a tough decision," Jordan said.
7 Representatives are undecided, including:
If lawmakers make any amendments to the bill, the earliest final vote on it is expected Wednesday, November 6. If the bill passes, same-sex marriage licenses and ceremonies will be effective November 18, 2013.
For more information on SB 1, the "Hawai'i Marriage Equality Act of 2013" and updated public hearing dates/times: http://www.capitol.hawaii.gov/splsession.aspx?year=2013b
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