From: julie@hood.nrl.navy.mil (Julie Hood)
Newsgroups: soc.motss
Subject: Hawaii anti-discrimination challenge
Date: 24 Jul 92 14:05:32 GMT

(typos are mine)
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Rutherford institute Challenges Fledgling Law--And Loses
  State Attorney General Gives Away Hard-Fought Gains

            by Mary A. Wilkowski, Esq.


      On March 21, 1992, Governor John Waihee signed into law
a bill amending Hawaii state law to include sexual orientation
among those classes protected from discrimination. His stroke of
the pen made Hawaii the third state to enact a gay rights law,
joining Massachusetts and Wisconsin.

      According to Hawaii statute, "sexual orientation" means
"having a preference for heterosexuality, homosexuality or
bisexuality, having a history of any one or more of these
preferences, or being identified with any one or more of these
preferences." Chapter 386 of the _Hawaii Revised Statutes_ governs
the enforcement of the State's anti-discrimination laws.

      Unlawful discriminatory practices include an employer's
refusal to hire lesbians and gays, as well as wrongful discharge
based on sexual orientation. Under the law, employment agencies
can't classify people as gay. Labor organizations are prohibited
from excluding or expelling gays and lesbians from membership or
refusing to include them in apprentice programs. Employers, labor
organizations and employment agencies may not discharge, expel or
otherwise discriminate against "whistleblowers" who expose and
oppose discriminatory practices.

     It didn't take long after passage of the civil rights
bill for the conservative Rutherford Institute to lash out. The
Rutherford Institute (RI) is a "nonprofit legal and educational
organization specializing in the defense of religious freedom, the
sanctity of human life and family autonomy." The RI's first line
of offense is a determined cadre of lawyers. Its Charlottesville,
VA headquarters publish a slick monthly newsletter that highlights
legal battles all over the country in which RI attorneys are
involved.

     In April, local RI attorneys filed a lawsuit in Federal
District COurt on behalf of four separate Plaintiffs: Voluntary
Association of Religious Leaders, Churches and Organizations, an
association of various churches and religious leaders; Shepherds
Hill, a Christian pre-school; Niking Corporation, a for-profit
Hawaii corporation headed by a Christian businessman; and Kevin
Kim, a Christian individual. Governor Waihee, the State Attorney
General, and the entire membership of the Hawaii Civil Rights
Commission were named as defendants.

     The RI complaint alleged that "defendants are violating
plaintiffs' right to hold and practice their religious beliefs that
homosexuality is sinful, immoral, learned behavior which is not
an immutable trait." RI paperwork complained that "the zeal to
establish amoral standards in American society" has resulted in
state sanctioning of immoral conduct.

      The Defendants denied the allegations. By motion filed
May 27, the State Attorney General (AG) urged the Court to enter a
summary judgement dismissing the case, conceding that the statute is
not enforceable against Plaintiffs based on a broad reading of the
"religious exemption clause" in the law. The clause permits any
religious organization, or any organization operated by a religious
organization to select employees "calculated ... to promote the
religious principles for which it is established or maintained."

      The American Civil Liberties Union (ACLU) filed an _amicus_
(friend-of-the-court) brief on behalf of the Defendants, arguing
that Plaintiffs' claims were unsupportable based upon the statute
and a considerably narrower reading of the religious exemption
clause.

      RI attorneys vigorously opposed the motion for summary
judgement, filing a 109-page brief accompanied by five inched of
inflammatory exhibits. They claimed that "political correctness"
had motivated the animus or indifference to Plaintiffs'
constitutional right to freely exercise their religion. They
argued that the exemption that allows religious organizations to
choose not to hire a homosexual was nullified because that statute
prohibits any employer even from inquiring into that area.

      RI attorneys concluded that the state has a compelling
interest in discouraging homosexuality because "studies" show that
homosexuals are disease-ridden, obsessed with "boy lovers", solicit
or encourage sado-masochistic violence, promote white superiority
and participate in socially disruptive activities.

      In an 23-page opinion issued July 10, Judge Alan C. Kay
dismissed the case. He decided that the lawsuit was abstract and
premature because any injury to Plaintiffs was speculative and may
never occur. In fact, none of the Plaintiffs had been charged
under any of the challenged provisions of the new law.

      The judge wrote that the AG's concessions regarding the
religious exemption clause had complicated the ripeness issue.
Although he granted the Defendants' motion, the judge expressly
reserved ruling on the merits of Plaintiffs' constitutional claims.

      Alarming to civil rights proponents are the scope and 
breadth of the 11 concessions propounded by the Attorney General
that relate to the enforcement of the statute. The AG's expansive
reading of the religious exemption clause permits religious
organizations to discriminate in the hiring of non-clergy employees
if the discrimination relates to promoting the religious principles
of the religious organization. "The exceptions proposed by the
Attorney General threaten to swallow the rule," says Carl Varady,
legal director of the ACLU.

     For example,the State gratuitously stated that secular,
for-profit corporations, such as Niking, may discriminate against
employees on the basis of their sexual orientation "where such
qualification are reasonably necessary to the normal operation of
the business and which have a substantial relationship to the
functions and responsibilities of the prospective or continued
employment." Similarly, the State acknowledged that the statute
does not ban anti-homosexual speech in the workplace, including
under its protective umbrella statements like "homosexuals are evil
and society would be better off without them."

      According to the AG's broad interpretation of the
exemption, the right of the religious organization to "select"
compatible (straight) employees and discharge incompatible (gay)
employees included _any_ employment action, including hiring, firing,
promotion, compensation, working conditions and benefits. This
interpretation means that a religious organization may query job
applicants about their sexual orientation even if they are applying
for positions as janitors, groundskeepers, secretaries, file
clerks, messengers, etc. Such employment is clearly unrelated to
the mission of a religious organization.

      The Federal judge indicated that evaluation of the
constitutional issues requires a complete and well-developed
factual record. However, his characterization of the State's
concessions means that Plaintiffs can lawfully engage in
discriminatory courses of action virtually unchecked if such
conduct purports to be based on "religion."

      Holding the State to its broad concessions, the judge
said, "The Court is confident that the Defendants will abide by
their representations to this Court and apply the hawaii law in
accordance with those representations[.]"

      The Court sent a warning that, even if the Rutherford
Institute next presents a live controversy to the Federal District
Court, it will abstain from addressing the constitutional issues
until the highest Hawaii court interprets them.

      This glimpse indicates that the next battlefield will be
State court, and ultimately the Hawaii Supreme COurt. Our highest
court will interpret this statute in a manner consistent with the
Hawaii Constitution, generally considered to be more supportive of
individual and privacy rights than its Federal counterpart.
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I keep in regular contact with Mary and figured some of you might be 
interested in this issue (duh!). Mary welcomes comments on this and any 
similar cases. Send them my way and I will periodically check soc.motss 
for follow-up dicussion. This was also sent to qn@queernet.org.
In the meantime, have a queer and lovely weekend!
---Julie, A Hood 
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