Hawaii legalizes gay marriage, but opponents promise challenge to law

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“I do.”

These words will be proclaimed by same-sex couples tying the knot in Hawaii as of Dec. 2, when the state’s same-sex marriage law goes into effect.

But as Gov. Neil Abercrombie signed Senate Bill 1  Wednesday, less than 24 hours after the bill passed its final reading in the state Senate, opponents were promising a legal challenge to the new statute.

Senators debated the bill for two hours Tuesday before voting 19-4 to pass the measure, as supporters and opponents packed the gallery and the Capitol rotunda.

Senators noted that never before in Hawaii’s history had so many residents weighed in on an issue. Some 26,000 pieces of testimony were submitted, thousands of people rallied at the Capitol over the three-week special session and lawmakers heard testimony from more than 1,500 people in person.

Senate Majority Leader Brickwood Galuteria, who introduced the bill, called its passage “a moment enshrined in equality and justice.”

Sen. Mike Gabbard disagreed with the majority of his Democratic colleagues and maintained that even with 12 hours of public testimony in the Senate and 56 hours in the House, there wasn’t enough time to address the issues.

A task force established earlier this year to review the impact of gay marriages never met, because the governor called legislators into special session, Gabbard said.

The House passed the bill Monday by a vote of 30-19.

Proponents and opponents disagree on whether the law protects religious liberties, a major criticism of the first draft.

“Working together with our colleagues in the state House we have come to a compromise which provides a balance between religious freedom and equal rights,” Galuteria said.

Gov. Neil Abercrombie called legislators into a special session on October 28, which lasted three weeks, to legalize gay marriage. He signed the bill into law Wednesday.

Religious organizations and affiliated nonprofits would be exempt from providing goods, services or its facilities or grounds for the solemnization or celebration if it is in violation of religious beliefs. Clergy and religious officers are not required to marry gay couples if it’s against their religious beliefs, Galuteria said.

The measure grants immunity from administrative, civil and legal liability.

Religious leaders and legal experts don’t believe the law goes nearly far enough and they maintain legal action will result.

Jim Hochberg, president of Hawaii Family Advocates, who brought together 12,000 on three islands at an Oct. 28 rally against the same-sex marriage, said the legislation “barely grants any First Amendment protections at all.”

“This religious exemption is paltry and pathetic,” Hochberg said.

The Hawaii Civil Rights Commission can force religious organizations to participate in same-sex marriages if the commission determines the organization to be a place of public accommodation.

“Religious organizations that offer marriage counseling and ministries are not protected at all,” Hochberg said. “More than that, the religious right of conscience flows first from natural law and the constitution to the individual religious believer who is completely unprotected in this bill.”

Hochberg argues that people who don’t accept gay marriage on religious grounds could be sued for refusing to provide services like wedding planning, flower arranging, photography, hair styling, cake baking and dress making.

Douglas Laycock, a law professor at the University of Virginia Law School, who worked with four peers from across the country to get religious exemptions expanded in the Hawaii bill, said the final draft is “disappointing.”

Laylock told lawmakers three weeks ago the original draft that passed the Senate would be the “worst” law in the country in protecting religious liberties.

While Laylock and his peers support gay marriage, he maintains the bill, even though it is “better than it was,” is still “very disappointing” because the bill still protects nothing beyond the wedding or reception.

“Churches remain at risk of being required to recognize these marriages and treat them as valid, even for internal church purposes. Those cases will now have to be litigated under the state and federal constitutions instead of being clearly answered in the bill,” Laylock said.

Opponents of same-sex marriage may be the first to challenge the new law in court.

McDermott maintained the Hawaii Constitution conflicts with — and has priority over — the current actions of the governor and Legislature.

McDermott filed a lawsuit Oct. 30 seeking a declaratory judgment on a 1998 ballot issue addressing same-sex marriage that was supported by 70 percent of the voters.

The 1998 amendment said “the Legislature shall have the power to reserve marriage to opposite-sex couples.”

McDermott pointed out the Office of Elections told voters a “yes” vote “would add a new provision to the constitution that would give the Legislature the power to reserve marriage to opposite-sex couples only. The Legislature could then pass a law that would limit marriage to a man and a woman, overturning the recent Supreme Court decision regarding same-sex marriage.”

“The point here is that the people thought they were voting on reserving marriage to opposite-sex couples only,” McDermott said.

First Circuit Court Judge Karl Sakamoto refused to intervene, but notified the parties they could return to court once the law passed.

McDermott and other opponents of the same-sex marriage bill endorse a second public vote in the 2014 election to “let the people decide” on whether to legalize gay marriage.

Democratic Rep. Marcus Oshiro introduced a proposal for such a constitutional amendment during the special session, but the measure failed to get support from two thirds of the House.

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