Religious Freedom in Hawaii

shutterstock_20044969Despite supposed steps taken to preserve religious liberty in Hawaii, the Aloha State’s decision to legalize same-sex “marriage” will force many churches to choose between being part of the greater society and its secular morality, deliberately withdrawing from both, or following their teachings and hoping they don’t get sued.

In keeping with the federal government’s new, and very narrow, definition of what it is to practice one’s faith, Hawaii’s new law does not require any minister to perform a same-sex ceremony. This the state calls “being respectful to religion.”

According to the Hawai’i Civil Rights Commission (HCRC), the new law “codifies constitutional protection of free exercise of religion, providing that no minister, priest, officer of a religious denomination or society, or religious society that doesn’t have clergy but provides solemnizations, that are authorized to perform solemnizations of marriages is required to solemnize any marriage, and will not be subject to any fine, penalty, or civil action for failure or refusal to solemnize any marriage.”

But what about anyone else involved in weddings, including — and this is vital in what is one of America’s biggest tourist states, where destination weddings are a booming business — churches that rent their buildings to the public?

A church that “is regularly used by the religious organization for its religious purposes” and “restricts use of the religious facility to its members” and [emphasis mine] “does not operate the religious facility as a for-profit business” is not required by law to lease its building for any particular wedding, according to the HCRC. If it refuses a same-sex couple (or any other couple) it can’t be fined or sued—unless its facility is defined as a “place of public accommodation.”

Public accommodation. It’s a term familiar to many religious liberty watchers from the case of the Oklahoma bakery and the New Mexico event photographers who declined to produce their products for same-sex “weddings.” Their businesses were ruled to be public accommodations, even though the term usually applies to stores, restaurants, hotels, and similar businesses that “accommodate” the “public”  (anyone who walks in the door needing to be served, fed, or put up for the night) — not to storefronts for artists and craftsmen who make custom goods to order.

A church might seem to be, in many ways, a better fit to be called a public accommodation. After all, if a church rents parts of its building or campus to non-members, isn’t it accommodating the public?

Yes and no. Churches rent, or allow free use of, all sorts of rooms for all sorts of purposes. Anything from an AA meeting to a ZUMBA class is likely to be held in church hall, basement, or meeting room. This use of rooms helps a church’s bottom line and allows it to fulfill the Christian mission of engaging the world. Does renting its gym to the local Mothers of Toddlers group once a week, or hosting a community-police relations meeting in a fellowship hall once a month, mean that a Hawaiian church would be giving up its right to restrict marriages to male-female couples?

Not at all, say supporters of the law. Inevitably, say opponents. It depends, says the state. “If a religious organization makes the choice to offer the rental or use of its facility for commercial or public use, it will be a place of public accommodation for that purpose,” an HCRC document explaining the law says, and in that case it cannot restrict weddings to male-female couples. However, not all uses of church property rise to the level of making the entire property a public accommodation.

Allowing the public to use a community room for birthday parties but not for weddings would not make the church a public accommodation, according to the HCRC, because the church was restricting the property to one type of use and offering it to all for that use. (The state itself, on a website devoted to the law, was far less reassuring: “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,” it says.)

The HCRC says that a church that allowed its church building to be rented for weddings “without regard to their religion” would be a public accommodation, and so restricting its use to male-female couples would be illegal; however, it says that a church that rented its church building out but required its own minister to perform all weddings would be exempt from the law, because ministers can refuse to perform any wedding for any reason.

Judgements for all situations in between these poles will be made on what the HCRC calls “a case by case threshold determination,” a determination that presumably won’t be made at all unless someone sues or brings a grievance to the Commission. At that point religious liberty is already lost, as the person with the grievance is assumed to be in the right and the church is forced to defend itself.

Many of Hawaii’s churches make a lot of money renting their facilities for weddings. Though the Hawaiian beach wedding may be iconic, a  quick Google search reveals any number of churches that offer one- or one-and-a-half hour wedding packages costing well above $1000 dollars. For instance Kawaiaha’o Church in Honolulu, “Hawaii’s Mother Church,” offers “Royal Wedding” packages in which brides and grooms walk down the same historic aisle that Hawaii’s kings and queens once trod for their weddings, at $1,295 for a one-hour rental and $1,850 for an hour and a half.

Weddings at Kawaiaha’o Church are performed by the congregation’s Senior Minister “or fellow Chrisitan Clergy,” who will conduct what the church’s web site simply calls a Protestant wedding ceremony. “The beliefs and traditions of Kawaiaha‘o Church shall be honored in all weddings,” the site says.

Does this stated rule mean that the church qualifies for an exemption to the new state law (assuming the congregation wants one), or not? Some “Christian Clergy” will conduct same-sex “weddings,” and some won’t. Kawaiaha’o Church has a Statement of Faith, which is taken from the United Church of Christ, but it is not listed by the UCC as a member church. The UCC is generally and strongly in favor of what it calls “marriage equity,” but UCC churches are not required to support or perform same-sex “weddings” or to adopt the UCC’s “Open and Affirming Covenant” declaring membership and leadership open to all without regard to sexual orientation.

In the messy world of denominationalism, this kind of loose affiliation is more the norm than the exception. So where does that leave churches? Kawaiaiha’o Church’s web site doesn’t say where it stands on the question of same-sex “weddings” — but it does say that all are welcome to ZUMBA with Rodney every Sunday.

This sort of headache is enough to make any congregation that believes in the consistent, 2000-year-old teachings of Christianity on marriage and family throw up their hands, go in the church sanctuary, and shut the door. Those at the forefront of the redefinition of marriage, whatever religion they profess, would like them to do just that. “After all,” they say, “you can’t serve both God and money! If they want money, then they have to obey the law.”

Never mind that most churches, even the wealthiest, use a good deal of their money to help the poor and the greater community. And never mind that churches (not to mention Christianity) have been around far longer than a brand-new law that mandates something that has never been considered possible in the history of mankind.

The state, not the churches, is making money an issue. The state, in defiance of our country’s founding principles, says that making money requires one to abandon religious teachings.

“The State of Hawaiʻi has a compelling state interest in eliminating discrimination in public accommodations,” says the HCRC document. “ Our public accommodations law is a law of general applicability that serves a compelling state interest and does not target any religion.”

This thinking — that as long as you target all religions equally, you’re not restricting religious freedom — is curiously prevalent among people who are actively engaged in restricting religious freedom. Eliminating religious practice is not the same thing as eliminating discrimination, and in declaring that religious faith has no place anywhere that commerce takes place, the state (not the churches) is the one making Mammon into a God.

Gail Finke

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Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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  • pnyikos

    As usual, you comments go to the heart of the matter, Gail. Keep up the good work.

  • SickOf BeingCoddled

    thank you for your clear thinking

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