Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 1715 entitled:

begs leave to report as follows:

The purpose of this bill is to amend fair housing laws to prohibit discrimination based on sexual orientation or gender identity or expression by:

Currently, the following are exempt from the prohibited discriminatory practices:

The Center, PFLAG-Oahu and numerous concerned individuals testified in support of this measure. Brigham Young University-Hawaii (BYU-Hawaii), the Gay and Lesbian Education and Advocacy Foundation (GLEA), the Gay, Lesbian, Bisexual, and Transgendered Caucus of the Democratic Party of Hawaii (GLBT Caucus), and Hawaii Reserves, Inc., testified in support of this measure proposing amendments. The Hawaii Civil Rights Commission (HCRC) submitted testimony in partial support of this measure and suggested revisions. A concerned individual commented on this bill.

The American Center for Law & Justice of Hawaii, Pro-Family Hawaii, and numerous concerned individuals submitted testimony in opposition to the measure. The Hawaii Family Forum and the Hawaii Catholic Conference opposed the measure as written and suggested an amendment.

HCRC submitted testimony in support of amending fair housing laws to prohibit discrimination on the basis of sexual orientation, but opposed a new "religious" exemption. In addition, HCRC opposed deletion of the March 13, 1991, first occupancy date in section 515-3(12), HRS, and sought inclusion of "gender identity or expression" under current prohibitions against discrimination on the basis of "sex."

BYU-Hawaii, GLEA, GLBT Caucus, and Hawaii Reserves, Inc., offered identical agreed-upon text to replace proposed new section 515-4(a)(3), HRS, on lines 4 through 10 on page 9 of this bill as introduced. The jointly-proposed language would provide that section 515-3, HRS, does not apply:

In written testimony, neither GLEA nor the GLBT Caucus provided a legal basis for the wording of the religious exception. BYU-Hawaii's written testimony warns of a "potential constitutional crisis over free exercise of religion" if this measure is enacted without the religious exception. Hawaii Reserves, Inc. refers in testimony to "the religious rights of churches and religiously affiliated institutions of higher education."

Your Committee received testimony proposing a religious exemption for individuals. One concerned citizen suggested the following alternative wording:

The American Center for Law & Justice of Hawaii testified the exemption for a religious institution operating housing may not go far enough because it would not protect an individual who, for religious reasons, may wish to avoid renting to prospective tenants because of their sexual orientation or because they are an unmarried heterosexual couple ("individual owners who by reason of their religious, moral and/or conscientious beliefs do not want to rent to prospective tenants because of their sexual orientation, gender identity or expression, or to unmarried heterosexual couples . . . may have a claim and right to [a religious, conscience and/or moral] exemption under the freedom of religion, free speech and/or freedom of association guarantees set forth in the First amendment of the U.S. constitution and section 4 of the Hawaii State Constitution.").

Pro-Family Hawaii argues that landlords "should not be required to rent to a person who works as a prostitute, or has plans to use the property to promote or engage in fornication, homosexual, group or bisexual activities" because even private activities may "offend [the landlord's] sense of religious righteousness."

The HCRC, on the other hand, recommended deletion of the religious exemption because, among other things, the exemption conflicts with existing law, and is overly broad. According to the HCRC,

Your Committee in no way intends to undermine our State's commitment to civil rights. The law presently permits landlords to follow their individual belief systems in selection of tenants to live in the landlords' own homes (or duplexes). But an individual who engages in the business of providing rental housing to the public cannot be allowed to ignore civil rights laws that apply to all, based on personal convictions.

The religious accommodation envisioned by your Committee extends to private homeowners who open their homes to university students a degree of certainty that the religious institution's student housing program criteria will withstand challenges.

Concerns were raised at the hearing about the breadth of the religious exception because it completely excludes applicability of section 368-3, HRS. Housing arrangements involving church property "used for church purposes" and off-campus church–sanctioned student housing programs could freely discriminate based on race, sex, color, religion, marital status, familial status, ancestry, disability, age, and HIV infection.

One proponent of the compromise language justified the broad exception as a reasonable expansion of the small lessor's ability to discriminate on the basis of race, sex, color, religion, marital status, familial status, ancestry, disability, age, and HIV infection in the lessor's own residence or in a duplex residence where the lessor resides. The lessor may not discriminate on those bases in the lessor's investment properties, but may do so in the lessor's own home. Another proponent explained that the religious exemption would protect from challenge student housing programs that require participant homeowners to take sexual orientation into account in making rental decisions.

Unfortunately, your Committee cannot be certain that the exception as worded could not and would not be used as a foot in the door to dismantle other civil rights statutes in the name of free exercise of religion and deeply held religious beliefs.

Accordingly, your Committee has reworded the "religious exception" as follows:

The HCRC also recommended amending the order in which protected bases are listed in sections 515-3, 515-5, 515-6, and 515-7, HRS. The HCRC proposed insertion of the phrase "gender identity or expression" after "sex," and deletion of the phrase "gender identity or expression" after the words "sexual orientation." With these changes, the list of protected bases will read, ". . . because of race, sex, including gender identity or expression, sexual orientation, color, religion, marital status, familial status, ancestry, disability, age or human immunodeficiency virus infection."

These changes are intended to clarify existing law with regard to sex discrimination by expressly stating that discrimination based upon gender identity or expression constitutes a form of sex discrimination. It has been recognized by the courts that discrimination based upon sex or gender stereotypes is a form of sex discrimination. Discrimination based upon sex or gender stereotypes encompasses discrimination based upon gender identity or expression. Because the Hawai`i Supreme Court has not ruled on this issue, the Legislature is acting now to avoid future litigation by clarifying the law and proclaiming that discrimination because of gender identity or expression is a violation of the fair housing law. It is also the intent of the Legislature not to adversely affect existing cases claiming sex discrimination based upon sex or gender stereotypes.

With regard to section 515-3(12), HRS, the HCRC recommended against deletion of the March 13, 1991, date. Under federal and state fair housing laws covering multifamily dwellings, buildings constructed and designed for first occupancy before that date need not comply with accessibility standards required for new design and construction. Deletion of the March 13, 1991, date of first occupancy will render older buildings subject to complaint and enforcement action.

As to inclusion of "familial status" in section 515-7, HRS, in Section 7 of this bill, a footnote in the HCRC testimony indicated this change is needed to correct an inadvertent omission from 1992, when the blockbusting statute was amended to conform to federal law.

In summary, your Committee has amended this measure by:

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1715, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1715, H.D. 1, and be placed on the calendar for Third Reading.