Same-sex marriage religious exemptions
Published: Oct. 18, 2013 at 1:12 AM HST|Updated: Oct. 18, 2013 at 2:41 PM HST
In less than two weeks lawmakers are scheduled to vote on whether to legalize same-sex marriage. Advocates say it's an issue of equality, but opponents say it threatens their religious freedom.
One thing everyone seems to agree on is the First Amendment affords all Americans the right to practice religion as they see fit, without any interferon from the government. What people disagree on on is whether the "Hawai'i Marriage Equality Act of 2013" protects that right.
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 does provide marriage ceremonies.
"It says there shall be no fine, penalty or any other civil action if the preacher or the clergy person doesn't want to officiate at a wedding," explained First Amendment attorney, Jim Bickerton, who reviewed the current draft of the bill at Hawai'i News Now's request.
But New Hope Christian Fellowship of Honolulu Pastor Wayne Cordeiro wants the exemption extended to anyone who would object based on their religious beliefs.
"We want a bill that protects anyone of the Christian faith to say, 'We understand that those of this lifestyle are part of our society. We embrace them. They're valuable, they're wonderful people. However, we have a faith that disallows us to endorse and advocate them,'" explained Pastor Cordeiro.
"It doesn't protect anybody of faith, for example, if you're a photographer and you're a Christian and you feel that you cannot photograph a wedding -- you're in violation, that's a discriminatory act and you are now in violation. It doesn't allow you as a person of faith that is Christian to say, 'I can't do that.' You're not able to, so it takes away your will and it takes away your discretion. Sometimes people say that's discriminatory, but we're all discriminatory to one degree or another. Colleges are discriminatory. You can't get in to any college. They will discriminate, but it's called rational discrimination. Irrational discrimination we don't accept, but rational discrimination should never be taken away from the people of the United States of America because that's what gives us the freedom to choose. Once that choice is taken away and it's legislated upon us that you are mandated to go against and violate your own conscience, because of a civil law now you have violated their First Amendment rights," Cordeiro explained.
Bickerton disagrees with his concern the proposal violates religious freedoms.
"I think reading this as a First Amendment lawyer, this gives broad freedom and completely protects the freedom. What you have to understand is when people enter into public commerce they cross a line where then rights have to be balanced," Bickerton said.
That's where Hawai'i's public accommodations law comes in. It 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. Organizations cannot discriminate on the basis of race, religion, disability, ethnicity, sexual orientation, or gender identity.
But Bickerton says, as the same-sex marriage proposal is written, the public accommodations law has a very specific application.
"For this law you have to be open for public weddings. This is very important. As I read this bill. if you keep your church open to the public for a preschool or open to the public for a worship service, but you don't keep it open to the public for weddings then you're exempt from -- you don't have to comply with the public accommodation law on weddings. It's only if you keep it open to the public for weddings," Bickerton said.
"If you're in the business of giving weddings and you're in the business of giving weddings to all comers, then you can't discriminate," explained Bickerton.
The same-sex marriage proposal also allows an exemption to the public accommodations law for religious organizations under three conditions, including if the facility is regularly used for religious purposes, like worship.
"We give weddings just to people who are part of our church. We give weddings only to people if they're being married by our clergy. If you have those kinds of rules, then I think you are not subject to any kind of problem with public accommodations," Bickerton said.
But Cordeiro says it's not just institutions that need protection, but individuals. He proposes dropping the public accommodations reference all together.
"You can't say it protects New Hope because it doesn't, because our membership or the people is not a building. The building addresses part of that if we can pull it out of the public accommodations part, but what about the building of the people? This is our main building," Cordeiro said gesturing with his arms to indicate the members of his congregation. "There's no protection for them. It's an inadequate, underdeveloped, incomplete bill that needs much more time to deliberate and rectify those things that are of greatest concern," Cordeiro said.
ACLU legal director Lois Perrin says eliminating the public accommodations provision of the bill would be a mistake.
"For years our public accommodations law has prevented anyone trying to make a profit in Hawai'i from discriminating based on race, sex, religion, or sexual orientation. The upcoming special session is about establishing marriage equality and protecting religious freedom. The session is not about contesting settled nondiscrimination laws," said Perrin, in an email statement to Hawai'i News Now.
The Attorney General's office released the following statement: "We think it is useful for people to understand that the religious facilities exemption contained in the marriage equity bill is already the law in the civil unions statute. As far as we are aware, to date there have been no lawsuits filed against any religious organization for refusing to perform a civil union. The proposed bill does not change that law. It merely applies the same law to marriages."
"We respect those of the LGBT culture and grouping and we understand that they're human beings just like anybody else-- Jesus died for them just like he died for me, but we live by a different law and our Constitution gives us the protection to do exactly that," Cordeiro said.
The same-sex marriage special session is scheduled to begin October 28. If it passes, same-sex marriage licenses and ceremonies will be effective November 18, 2013.
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