Marriage Equity

Posted on Sep 11, 2013 in Main

UPDATE: On Nov. 13, Gov. Neil Abercrombie signed into law a bill that will legalize marriage for same-sex couples in the State of Hawaii. Read the news release here.

(The following was originally posed in September 2013, prior to the start of the 2013 Second Special Session.)

Below are Frequently Asked Questions (FAQ) regarding the special session on marriage equity.

Q:    Why can’t the Legislature address this issue during a regular session?

A:    A remedy delayed is a remedy denied.  Holding a special session will allow the Legislature to truly focus on this important issue of equality and equity, without having to divert attention to the hundreds of other bills introduced during a regular session.

Q:    Will public input be stifled during a special session?

A:    The issue has been discussed at length within and without the Legislature.  The same constitutional and legal requirements still must be met during a special session, as well as the House and Senate internal rules, both of which require at least one public hearing before a bill is passed.  Holding a special session does not allow a bill to sidestep the requirements of the legislative process.

Q:    I’ve heard that the Legislature does not have enough votes to call themselves into a special session, but they might have enough votes to pass a bill.  Why did the Governor wait until now to call for a special session?

A:    Although the Governor has the authority to call a special session, for the special session to be meaningful, the Legislature needs to be engaged and have the votes to pass a bill.  The best approach is a collaborative one.  The community’s input was taken into consideration, and the Administration has been working together with members of the Legislature and legislative staff to craft a measure that covers all aspects of the issue at hand.  This will allow the Legislature to focus on the vote rather than on the process.

Q:    Are things being rushed?  Shouldn’t a bill like this be vetted more thoroughly?

A:    This is an issue that has faced our state since 1993.  Over the years, various proposals have been considered.  In the wake of two recent United States (U.S.) Supreme Court decisions, now is an appropriate time to conclude this issue.  The measure that we are asking the Legislature to consider now is based on a bill that was introduced in the Legislature this past session (S.B. No. 1369), which has been updated.  Additionally, the State Attorney General has been working closely with members of the Legislature, as well as a number of staff for several weeks to craft this bill.  The next step in the vetting process is for the measure to go through the legislative process, including public hearings.  The bill includes several provisions that are currently in the civil unions bill that were already vetted by the Legislature when the civil unions bill was passed.

Q:    If a bill was introduced this past session but did not receive a public hearing, what makes things different now?

A:    One of the most significant developments was a U.S. Supreme Court decision issued on June 26, 2013, after the legislative session ended, that found a portion of the federal Defense of Marriage Act (DOMA) unlawfully discriminated against married same-sex couples by prohibiting the federal government from recognizing those marriages and by denying federal benefits and protections to those couples.

Q:    If a special session is called on October 28, why can’t it wait until the regular session begins in January?

A:    Besides the U.S. Supreme Court Decision on DOMA, other rulings and decisions have since been issued.  On August 29, 2013, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) ruled that same-sex couples legally married in jurisdictions that recognize their marriages will be treated as married for federal tax purposes.  This ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage.

Additionally, the Department of Veteran’s Affairs and the Pentagon have both recently announced that they would treat same-sex marriages equal to opposite-sex marriages for purposes of federal benefits, including health care, housing, family separation allowance, and veteran’s benefits.  Some of these benefits are expected to be applicable by October 1, 2013.

Passage of a marriage equity bill this year will allow same-sex couples who enter into a marriage in the 2013 tax year to take advantage of certain tax benefits and file jointly, both federally and for Hawaii state tax purposes, as well as take advantage of a host of other federal benefits.

Q:    What if a lawsuit is filed after the bill is enacted?

A:    Any piece of legislation is subject to legal scrutiny after a bill becomes law.  The best we can do is to do our due diligence and engage in a thorough discussion to build strong legislation that will likely withstand a legal challenge.  Over the last month, attorneys for the Legislature and the Attorney General’s office have been engaged in a collaborative process of subjecting the draft marriage equity bill to rigorous legal analysis and revision to ensure that the bill is constitutionally sound.

Q:    Under the 9/9/13 version of the bill proposed by the Administration, can a member of the clergy be required to solemnize a marriage between two individuals of the same sex, if the clergy member objects to such marriages on religious grounds?

A:    No.  The Constitution requires us to be respectful of religious beliefs, and this bill has been drafted with that intent.  Under the bill, members of the clergy are not required to solemnize any marriages and may refuse to do so for “any reason,” including any objection on religious grounds.  The bill expressly provides that a clergy member who refuses to perform a marriage cannot be sued, fined, or subject to any civil action because they refuse to perform a marriage.

Q:    Under the bill, can a church be required to open its place of worship for a wedding ceremony between two individuals of the same sex, if the church usually restricts wedding ceremonies to its own members?

A:    No.  A religious organization that allows only its own members to use its place of worship for wedding ceremonies will not be required to allow a same-sex couple to celebrate a marriage there.  In addition, the bill protects religious organizations from any suit, fine, or civil action for refusing to allow a same-sex couple to use their place of worship for a wedding ceremony if:

  • The religious facility is regularly used for religious purposes;
  • For the solemnization of marriages, the religious organization limits the use of the facility to its members; and
  • The religious facility is not operated as a for-profit business.

A religious organization remains subject to the public accommodations code if the organization allows the public to use a facility run by a religious organization, such as a meeting room.  Whether public access to a facility will subject the religious organization to the public accommodations code is determined on a case-by-case basis, based on each specific situation.  If, for example, a religious organization allowed the public to use a meeting room for community meetings, allowing these community meetings does not mean that the space must be open to the public for all other potential uses (like weddings).  It is also possible that some buildings or spaces may be open to the public while others are not.

Q:    Why is this issue subject to legislation instead of a direct vote by the people?

A:    There are two reasons why marriage equity is properly addressed by the Hawaii State Legislature instead of by a direct vote by the people.

First, Hawaii does not have an initiative process, which is typically a process that allows the people to place a new law or constitutional amendment on the ballot by petition, which requires collecting a certain number of signatures of citizens of the state.  Under the Hawaii State Constitution, changes to our State’s laws can be made only by the elected representatives in the Hawaii State Legislature.  It is therefore not possible to make major changes to Hawaii law without involving the Legislature, on this or any other topic.

Second, the Hawaii State Constitution was already amended in 1998 by a majority of votes of the Hawaii electorate to give the Legislature the discretion to limit marriage to one man and one woman.  This provision specifically confirms that any change to the marriage laws after 1998 would be made by the Legislature.  The electorate’s purpose in amending the constitution in this manner was to give the Legislature the power and discretion to amend the law to provide for marriage equity.

Q:    Who determines if a person or organization is potentially in violation of the law?

A:    The Hawaii Civil Rights Commission is the agency that oversees and investigates any complaints of discrimination related to these laws. On Oct. 18, 2013, the commission published a memo detailing some of the issues and examples that may assist anyone with some questions.

Q:    Where can I find more information on the public accommodations law?

Link to the Hawaii Civil Rights Commission’s (HCRC) informational flyer on Discrimination in Public Accommodations, which is also available at the HCRC website.

Q:    Where can I find the latest versions of bills introduced for the special session?

A:    For the latest versions of bills, visit the state Legislature’s 2013 Second Special Session webpage.