Gay Marriage Bill Violates First Amendment
by Andrew Walden
Gay marriage on the line in the October 28 special legislative session, but apparently Governor Neil Abercrombie is willing to risk losing the vote for something which to him must be more important--a crack at imposing government dogma on Hawaii's religious believers.
Abercrombie argues that protection for the right of churches and temples to refuse to accept government imposition of gay marriage are sufficient because the proposed bill mirrors Act 1 of 2011--the Civil Unions bill-- and: "...there's not been a single lawsuit. There's not been a single instance of complaint."
Wrong.
There has been a lawsuit. It was filed December 28, 2011. Two Oahu churches--Emmanuel Temple and Lighthouse Outreach Center Assembly of God--asked for a Temporary Restraining Order against the civil unions law, complaining they were not protected by the weak religious exemption language.
Their request for a TRO was denied by Federal Judge J. Michael Seabright--not as an affirmation of the civil unions law, but due to the plaintiffs' hypothetical cause of action. Seabright explained: "A couple would have to ask, they would have to be denied, and they would then have to file suit."
Lambda Legal and Hawaii's anti-religion groupies have been biding their time on civil-unions-related litigation so Abercrombie could write the same language in the gay marriage law.
According to House Speaker Joe Souki, no amendments can be offered under the rules for a special session. Each house will hold three readings, hear public testimony, and cast a final up or down vote on the bill proposed by the governor.
'No-amendments-allowed' creates a 'Special' opportunity to force unconstitutional language down the Legislature's throat.
In his decision, Judge Seabright wrote: "Act 1 (the civil unions law) does not...contain 'immunity' if a church or other religious organization refuses - on the basis that it is opposed to civil unions - to rent or otherwise allow use of its facilities for performing civil unions or hosting receptions celebrating a civil union."
The First Amendment to the US Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press....” It doesn't say, "except to impose the gay agenda."
Vermont--perhaps the most liberal state in the USA--legalized gay marriage in 2009. Their religious exemption protects churches, church property and church-run organizations such as schools and hospitals--without making slimy little distinctions about “public accommodations” and alleged "for profit" activities or the admission of "non-members." Similar to that of most other gay marriage states, Vermont's law is the opposite of Abercrombie's proposal.
In a January 11, 2011 column, David Shapiro pointed to “…efforts of some Democrats to obliterate religion from public life...” The Hawaii bill reads as if Abercrombie's advisors examined the Vermont law and specifically reversed every protection of religious freedom it offers.
The Dalai Lama teaches, “…for a Buddhist, a relationship between two men is wrong….” In China there is a life-or-death penalty to be paid for following the Dalai Lama. For some Tibetans, the psychology of resistance is stiffened in the face of police-state brutality. Unlike China's dictators, Abercrombie's bill would impose penalties designed to slowly wear believers down.
In a September 10 Star-Advertiser commentary, Rep Marcus Oshiro warns Abercrombie's same-sex marriage bill is "another Superferry" and points out that religious exemptions in other states "include religious exemptions: (a) for fraternal benefit societies (i.e. Shriners Hospital); (b) for church-controlled organizations (such as St. Francis Healthcare System); and (c) for organizations in education, employment and housing (such as Catholic Charities, Inc.)."
To impose government-controlled religion, Abercrombie is willing to risk losing the vote on gay marriage. Apparently his priority is to control religion. Gay marriage is just a means to this end.
Supporters of the First Amendment--even those who favor gay marriage—should vote 'No' on Abercrombie's gay marriage bill.
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Abercrombie's proposed religious exemption analyzed and compared to Vermont’s:
Abercrombie’s bill Section 572-G (pg 7) reads:
Religious organizations and facilities; liability exemption under certain circumstances.
(a) A religious organization shall not be required to make a religious facility owned or leased by the religious organization available for solemnization of a particular marriage; provided that:
(1) The religious facility is regularly used by the religious organization for its religious purposes;
(2) For solemnization of marriages pursuant to this chapter, the religious organization restricts use of the religious facility to its members; and
(3) The religious organization does not operate the religious facility as a for-profit business.
The so-called “expanded exemption” reads:
A religious organization that refuses to make a religious facility available for solemnization of a marriage under subsection (a) shall not be subject to any fine, penalty, injunction, administrative proceeding, or civil liability for the refusal.
If there is to be no penalty, why then leave the ‘crime’ of practicing government-free religion on the books? At some point in the future, gay-atheist activists will create an incident and sue. Either the Court or the Legislature will wipe the “exemption” off the books just as the Court wiped the ‘four-room-or-less’ exemption from public accommodations law off the books in the Hawaii Kai B&B case.
Next comes “public accommodations”. The final paragraph of the section obliterates any “protections” offered in the preceding clauses:
(c) Nothing in this section shall be interpreted to exempt the owner or operator of any religious facility from the requirements of chapter 489 if the religious facility is a place of public accommodation as defined in section 489-2."
Chapter 489 is Hawaii Public Accommodations Law which requires prohibition against refusal of services based on:
"’Gender identity or expression’ include(ing) a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.”
Unlike earlier drafts, Abercrombie’s bill no longer acknowledges that clergy have a constitutional right to uphold millennia of religious teachings by refusing to participate in gay marriage ceremonies:
Here is the new language:
Refusal to solemnize a marriage. Nothing in this chapter shall be construed to require any minister, priest, officer of any religious denomination or society, or religious society not having clergy but providing solemnizations that is authorized to perform solemnizations pursuant to this chapter to solemnize any marriage, and no such minister, priest, officer of any religious denomination or society, or religious society not having clergy that fails or refuses for any reason to solemnize any marriage under this section shall be subject to any fine, penalty, or other civil action for the failure or refusal.
Here is the old language:
Refusal to solemnize a marriage. Nothing in this chapter shall be construed to require any person authorized to perform solemnizations pursuant to this chapter to solemnize any marriage in violation of the person's rights as guaranteed by the Constitution of this State and the United States Constitution. No authorized person who fails or refuses to solemnize any marriage under this section shall be subject to any fine, penalty, injunction, administrative proceeding, or civil liability for the failure or refusal.
Compare Abercrombie’s contortions to the clean Vermont text:
This section does not require a member of the clergy authorized to solemnize a marriage as set forth in subsection (a) of this section…and any refusal to do so shall not create any civil claim or cause of action….
(b) The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members as provided in section 4464 of this title, or to determine the scope of beneficiaries in accordance with section 4477 of this title, and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States or by Chapter I, Article 3 of the Constitution of the State of Vermont
Sec. 11. 9 V.S.A. § 4502 is amended to read:
§ 4502. PUBLIC ACCOMMODATIONS
(l) Notwithstanding any other provision of law, a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action. This subsection shall not be construed to limit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to the solemnization or celebration of a marriage but not to others
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