Last week, Hawaii state Rep. Jo Jordan voted “no” on SB1, the Hawaii Senate bill that will initiate marriage equality in the state. Jordan is an openly gay Democrat, and supports marriage equality. And I applaud her vote. Let me back up and explain.
As part of a special session called by Gov. Neil Abercrombie for the sole purpose of deciding the marriage issue, the Hawaii House of Representatives heard over 55 hours of testimony from citizens last week before voting 30 to 19 to pass SB1. The House made several amendments to the bill, mostly in regards to expanding the Senate’s exemptions for religious organizations and ministers. But to Jordan, even the House’s amended version of SB1 was not sufficient to address concerns she developed after listening to hours of testimony from Hawaiians.
Jordan gave two answers to explain her vote. First, she was worried that a few provisions of the House version threatened the soundness of the law should it be challenged in court. First, Jordan noted that the bill contained an ambiguous parental rights section that would grant undue Native Hawaiian status to children of same-sex couples married in the state. (Note: the House omitted this section in its final version of the bill). Jordan also pointed to the lax domicile requirements, which – unlike opposite-sex marriages – might not require same-sex couples to be domiciled in the state to obtain a marriage license. Second, Jordan expressed her belief that the House version’s religious exemptions are not expansive enough to ensure that ministers and religious organizations opposed to same-sex marriage on theological grounds are not required to perform these marriages. Jordan, a proud member of her area’s LGBT community, said that she received extremely negative reactions to her decision to vote no from members of this very community.
I support Jordan’s vote primarily for the first reason she addressed. As someone who will personally benefit when my own state of Pennsylvania eventually ensures marriage equality, I do not want any marriage bill that is less than perfect to be passed by the legislature and signed into law. A sloppily-drawn law can be easily over-turned by a court when marriage opponents inevitably file lawsuits. I appreciate that legislators who advocate marriage equality bills must take their opportunities where they can find them, but pushing a bill with vague provisions and inadequate First Amendment exemptions will turn out to be a zero-sum game when it comes before a court. Moreover, protests votes like Jordan’s could hopefully prompt another round of amendments in the other house of the legislature before the bill is sent to the governor for his signature.
To the extent that marriage equality legislation in general should contain religious exemptions, I also agree with Jordan. I support a broad reading of the First Amendment’s Free Exercise Clause and all other First Amendment guarantees; a cramped reading of these provisions in marriage equality legislation would be needlessly corrosive to religious liberty. Strategically, broad religious exemptions are also necessary considering that the perennially “blue” states – save Oregon – have already established marriage equality. The state-to-state progress of marriage equality is not an inevitable or forgone conclusion. Marriage advocates must respond to the moderately conservative or centrist politics of states that like Pennsylvania and Ohio if they hope to win the “big picture.” That said, Jordan’s fears for the Hawaii exceptions specifically seem unfounded as they were modeled on the rather expansive Connecticut religious exemptions, which even exempt for-profit religious institutions.
People like Jordan serve a very important purpose: they must chasten their fellow advocates who walk heedlessly ahead without regard to future dangers. I sincerely hope that Hawaii’s LGBT community will re-embrace Jordan as a fair public servant who is unwilling to sign onto flawed legislation if it means endangering the larger picture of sustainable marriage laws.
(For sources, please see underlined hyperlinks within this article).