Same-sex marriages & civil unions in Hawaii
2011-NOV & DEC: Two fundamentalist
Christian churches sue to ban civil unions
2011-DEC-28: Two churches file lawsuit to stop civil union law from being implemented:
A lawsuit was filed in the U.S. District court on the above date. This was slightly over ten months after the civil unions bill became law, and only four days before Hawaii is scheduled to become the seventh state to legalize civil unions. The state Health Department already had application forms available on their web site for same-sex couples to use. The plaintiffs are two fundamentalist Protestant churches and their pastors:
- Emmanuel Temple, the House of Praise in Wahiawa, in central Hawaii north of Wheeler Airforce Base, and its pastor, Carl E. Harris, and
- Lighthouse Outreach Center Assembly of God in Waipahu, near Pearl Harbor and Pearl City Hawaii, and its pastor, Joel Hunkin.
Their lawsuit sought to have the civil union law declared unconstitutional and that a permanent injunction be issued by the court to prevent any civil unions from being registered with the government. Defendants are Gov. Abercrombie (D) and health director Loretta Fuddy.
Their claim is that the law violates their religious freedom to discriminate against lesbians, gays, and bisexuals who plan to enter into a civil union.
The civil union law provides that ministers, pastors, and priests, etc. have the freedom to discriminate against loving, committed same-sex couples by refusing to solemnize their civil unions. H.R.S. 489 states:
"Nothing in this section shall be construed to require any person authorized to perform solemnization pursuant to chapter 572 or civil unions pursuant to this chapter to perform a solemnization of a civil union, and no such authorized person who fails or refuses for any reason to join persons in a civil union shall be subject to any fine or other penalty for the failure or refusal."
This seems to say that a clergyperson can refuse to perform a civil union ceremony with impunity. However, it does not seem to cover a situation if a same-sex couple asked a church to allow an outsider to solemnize a civil union in their church building. It also does not seem to cover the more likely case of a couple asking to rent a church hall in which to hold the ceremony and/or a reception after the ceremony.
The two churches and their pastors feel that the law did not go far enough. It should also protect churches and their personnel who want to refuse permission to same-sex couples who want to rent their church halls or other facilities. Their lawsuit states:
"Neither Act 1 not [sic] it's [sic] implementing regulations exempts religious institutions, churches and houses of worship, clergy, officers and members from being subject to the injunctive relief and fine provisions of H. R. S. 489. Within the last 12 months, private individuals have already initiated complaints with the Hawaii Civil Rights Commission against churches and houses of worship for refusing to rent their facilities for same-sex unions and/or marriage ceremonies." 1,2
The reference to "marriage ceremonies" is puzzling, because state law prohibits same-sex couples from marrying.
The churches conclude that to not protect the right of churches to discriminate against LGBT persons in this way will have a "chilling effect" on their free exercise of religion.
Two gay-positive groups took a dim view of the churches' lawsuit. However, they had conflicting views about the churches' brief:
- Alan Spector, co-founder of Equality Hawaii said: "What they claim is not true, they know it's not true, and in fact what they are doing is bearing false witness. Act 1 is explicitly clear that no clergy member is required to perform civil unions and no clergy member can be penalized for refusing to perform a civil union. ... I'm not an attorney, but it is my understanding that a church is a private entity, so of course a church can refuse to rent out a social hall for a ceremony."
- Michael Golojuch, chairperson of Honolulu Pride, said: "The minute a church or any religion organization opens up their facility for rental outside their denomination or parish, they open themselves up to the public accommodations law. Therefore, they cannot discriminate against protected classes that include sexual orientation and gender identity."3
2011-DEC-29: Attorney General's response to the Church lawsuit:
Joshua Wisch, a spokesperson for the Attorney General's office said that they would oppose the churches' request. 4 Late on DEC-29, the state filed a 24 page response to the lawsuit. It stated that no actual problem existed. The law already allows religious organization to discriminate against same-sex couples. Further, the government claimed that to block civil unions would harm the local economy -- in particular the tourist industry.
The brief states:
"Clearly, such a move would be devastating to Hawaii’s tourism industry, and to the State of Hawaii as a whole. This factor is not even close. Notably, Plaintiffs have not addressed this issue in their moving papers, and appear to not have considered how the issuance of the injunction they seek would wreak havoc on our islands’ economies, the State’s goodwill, and the State’s future as a whole."
Early on DEC-30, the churches filed a ten page response to the state's brief which called the state's position:
"... absurd. ... The Church cannot be forced to allow its property to be used for a same-sex ceremony (an act of sacrilege, according to Church Teachings and the Gospel of Jesus Christ) anymore than Plaintiffs could be ordered to allow a civil union between a man and woman on church property.
The church's response also asked the court to respond to the lawsuit quickly because the civil union law otherwise becomes effective on JAN-01. At that time, same-sex couples could obtain civil union licenses and ask to rent church buildings. This could expose the churches to prosecution by the attorney general or the Civil Rights Commission if they refused to rent church halls or other church properties to hold same-sex ceremonies or receptions. The churches believe that this would inevitably result in a large number of lawsuits in which churches would assert their first amendment rights to discriminate against same-sex couples. 5
It is a mystery why the two churches waited so long after the bill became law to initiate the lawsuit, just days before same-sex couples planned to take their application forms down to the state health department, obtain licenses, and have their civil union solemnized.
- One person who emailed our web site suggested that it might have been timed to cause the greatest pain, inconvenience, and disruption to the couples.
- Cythia Fritts of Honolulu posted a comment on the Civil Beat web site saying: "Why did these churches wait until the last minute to file this lawsuit? They has ten months to do this. This is an obviously ploy to try to stop Civil Unions from being implemented at the last minute. There are couples who have waited decades to be united in love and viewed as equal under Hawaii state law. This is shameful and very un-Christian." 5
We have Emailed the two churches to determine why they waited so long. We didn't expect a response. After six day, we assume that none is coming.
2011-DEC-30: District Court refuses churches' request for injunction:
US District Court Judge Michael Seabright denied the requests by the two churches for an injunction.
He issued a 17-page ruling stating that:
"It is clear that the present dispute is not ripe for the granting of a TRO."
A "TRO" is a temporary restraining order. 6,7
The defendants, and court acted with impressive speed to resolve this issue. Hopefully, none of the loving committed same-sex couples had their plans and celebrations disrupted. That level of caring is why they call Hawai'i "The Aloha State."
Loving, committed same-sex couples were able to enter into civil unions at the beginning of 2012. However, there has been a widespread realization that the separate but equal rights promised by civil unions turn out to be very separate but very unequal. Civil unions are a great step forward for same-sex couples, but the eventual goal continues to be marriage.
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- "Christian Churches Challenge Hawaii Civil Unions Law; Claim It's Unconstitutional," On Top Magazine, 2011-DEC-30, at: http://www.ontopmag.com/
- "Hawaii's Civil Union Law Greeted With Lawsuit," Courthouse News Service, 2011-DEC-29, at: http://www.courthousenews.com/
- Chad Blair, "Two Hawaii Churches Seek To Block Civil Unions," Honolulu Civil Beat, 2011-DEC-29, at: http://www.civilbeat.com/
- Ken Kobayashi, "Oahu churches file suit to block civil unions law," Star Advertiser newspaper, 2011-DEC-29, at: http://www.staradvertiser.com/
- Katherine Poythress, "State Says Halting Civil Unions Would Be 'Devastating' for Hawaii," Honolulu Civil Beat, 2011-DEC-30, at: http://www.civilbeat.com/
- Bridgette P. LaVictoire, "Judge Refuses To Block Hawaii’s Civil Union Law," LezGetReal, 2011-DEC-31, at: http://lezgetreal.com/
- "Judge Won't Block Start Of Hawaii Civil Unions Law," On Top magazine, 2011-DEC-31, at: http://www.ontopmag.com/
Copyright © 2011 & 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2011-FEB-24
Latest update and review: 2012-FEB-16
Author: B.A. Robinson