Two Christian churches on Oahu and their pastors are seeking a court order to halt Hawaii’s civil union law, which goes into effect Jan. 1 — in less than three days.
The plaintiffs argue that the new law violates their civil rights because it fails to exempt clergy and churches from hosting civil union ceremonies.
The complaint, which was filed in U.S. District Court in Hawaii on Wednesday, names Gov. Neil Abercrombie and Health Director Loretta Fuddy.
The plaintiffs are Emmanuel Temple, the House of Praise and Pastor Carl E. Harris, and Lighthouse Outreach Center Assembly of God and Pastor Joel Hunkin.
Hunkin could not be reached for comment, while Harris directed inquiries to attorney Shawn Luiz.
Luiz told Civil Beat that he expects the court to rule on his request for a temporary restraining order on the new law as early as Friday.
Abercrombie spokesman Donalyn Dela Cruz said the complaint has been referred to the state Attorney General’s Office.
“They will fully review the complaint,” she said. “However, the governor’s position remains the same as when he signed Act 1 into law. The state will respond to this complaint in due course, but the implementation of Act 1 will proceed as scheduled.”
Hawaii is set to become the seventh state to give same-sex couples the same rights and benefits as married couples. Applications are available online and will be accepted by the DOH beginning immediately after midnight on Dec. 31.
The complaint seeks to halt that process.
It states that the Hawaii Civil Rights Commission has received complaints by “private individuals” against churches “for refusing to rent their facilities for same sex unions and/or marriage ceremonies.”
The commission’s “pending investigations” will have a “chilling effect” on the plaintiffs’ free exercise of religion, the complaint charges, and will require them to hire legal counsel.
A message was left with the Hawaii Civil Rights Commission and we’re waiting for a call back.
Abercrombie and Fuddy are accused of “willful misconduct” because they have acted “wrongfully, oppressively, or with malice, which evidences a spirit of discrimination or criminal indifference to civil obligations.”
As such, the defendants are violating plaintiffs rights as protected by the First, Fifth and 14th Amendments to the U.S. Constitution.
According to Act 1, any ordained or licensed member of the clergy “may solemnize” a civil union, but they are not required to do so and won’t be penalized for refusing.
Luiz said his complaint focuses on whether a church can refuse to hold a civil unions ceremony. He said pastors Harris and Hunkin were told by other pastors that requests had been made for ceremonies at their churches. So while an individual pastor might refuse, some are worried that other pastors could hold ceremonies at their churches.
The law as passed by the Legislature earlier this year does not clearly exempt a church from having to hold same-sex civil unions, although a second bill that didn’t pass but is still alive for the upcoming session would exempt religious instituions or organizations. Luiz links the two measures in his argument.
“The important thing for the public to know is that the Civil Rights Commission’s stance on this matter will subject churches to needless litigation for the commission and for rights that are already guaranteed by case law,” he said. “The state cannot enact an anti-discriminatory statute that tramples on the First Amendment.”
Asked how he knew the commission’s stance, Luiz pointed to testimony submitted by the commission during the 2011 Hawaii Legislature regarding House Bill 1244, which would permit a religious institution or organization to refuse to solemnize a same-sex relationship if it violates the church’s beliefs.
The commission opposed HB1244, calling it an overly broad exemption that conflicts with Hawaii Revised Statute 489 protections against discrimination in places of public accommodations on the basis of sexual orientation, “and diminishes the legitimacy and recognition of civil unions (if enacted).”
While churches are private organizations, some receive state funding through grants or purchase of service contracts, commission chair Coral Wong Pietsch wrote in her testimony.
“Religious exemptions to laws of general applicability, including civil rights laws that prohibit discrimination, should be narrowly drawn,” she wrote.
HB1244 passed the House but was held in Senate Judiciary. But it carries over to the 2012 session.
Supporters of civil unions are outraged by the complaint.
“What they claim is not true, they know it’s not true, and in fact what they are doing is bearing false witness,” said Alan Spector, co-founder of Equality Hawaii, a leading proponent for civil unions. “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.”
As to the complaint’s contention that civil unions could be solemnized on church grounds, Spector said, “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.”
However, Michael Golojuch, chair 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.”