Same-sex marriage and gun control
Price of Paradise · Hawaii Public Radio · aired 1994-06-01
Guests: Rey Graulty (Chair, Senate Judiciary Committee); Dan Foley (civil rights attorney)
Duration: 1:08:02

[00:00:00] Randall Roth: the price of stair, I'll be talking to two interesting people about two interesting topics. Listeners can participate in our conversation by phone. My guests are Ray Gralti and Dan Foley. Ray is the chairman of the State Senate Judiciary Committee, and Dan is a civil rights attorney. The topics are gun control and same-sex marriage. As a bonus, we might even talk about T-shirt vendors. Now, one has to wonder just how these topics fit together, and they have something to do with the fact that that Ray is here and that he was the chairman of the Senate Judiciary Committee.

[00:00:34] Randall Roth: Ray, can you tell us why it is that these topics happen to be in in your lap during this session?

[00:00:40] Rey Graulty: I guess, um, some of them were at my doing as a gun control was and others were doings of, uh, either the Senate president or, uh, my counterpart in the house, Terry Tom. But, um, we did manage to have a few very controversial and challenging issues before the Judiciary Committee this year. Partly also because there was no, no money to go around. This was the year to take on a lot of judiciary type issues, I suppose, so it's a confluence of factors like many things.

[00:01:08] Randall Roth: It was my impression that you personally probably got more public attention than anyone legislator in the history of the legislature. How did that feel?

[00:01:17] Rey Graulty: Uh, it was embarrassing for a while because I felt that in a collegial body, the more, uh, publicity drawn to yourself, perhaps, the more difficult it becomes to work with others. Um, we like to share in the work, and we like to share in the, in the publicity because we are public officials, and we we get voted upon, and we we want people to know what we stand for, but when one person takes, um, the lion's share of the, uh, publicity, it makes it much more difficult.

[00:01:44] Randall Roth: Well, it also had to be difficult because each of these issues was highly charged and it brought out people on both ends of the spectrum on each issue.

[00:01:53] Rey Graulty: Absolutely, um, the number of hours that we spent for example, on same-sex marriage was tremendous. I believe the total was about 24 to 26 hours on two successive Saturdays. The amount of time that we spent on gun control was also tremendous, and there are a lot of other issues that we spent a tremendous amount of time on.

[00:02:10] Randall Roth: Dan, you're a well-known local civil rights attorney. Uh, what's your interest in these topics?

[00:02:15] Dan Foley: In same-sex marriage, I represent the three couples in the Bar V. Lewin case that was the subject of debate in the legislature. On gun control, I'm a private citizen who wrote a letter supporting Senator Gralti's initiatives. And on T-shirt vending in Waikiki, I'm an attorney who represents a number of religious nonprofit groups that sell T-shirts.

[00:02:39] Randall Roth: Well, what did you think about the legislature's actions this year so far as same-sex marriages are concerned?

[00:02:45] Dan Foley: Well, we would have preferred to have had the matter remain in court without legislature involvement, but once Senator Tom initiated public hearings in September, we had to respond. We opposed most bills. We did support, however, one bill, a draft bill that was floated by Senator Gralti that would have provided for a comprehensive domestic partnership. If all the bills that were introduced and considered, that was the one we supported.

[00:03:15] Randall Roth: But the one that that passed, tell us just a little bit about that.

[00:03:19] Dan Foley: Well, it's basically three parts. The first part, 12 or 14 pages basically is a statement by the legislature that they disagree with the court's ruling, that they don't believe that the state constitution provides for same-sex marriages, and the legislature stated they they feel the court was legislating, not adjudicating.

[00:03:37] Randall Roth: Can I can I stop you right there and I want to come back. But, Ray, if if the legislature is simply disagreeing with the Supreme Court of Hawaii, um, it seems to me the Supreme Court's job is to determine whether or not something is constitutional, not the legislature's job. What's your thinking on that?

[00:03:55] Rey Graulty: If um if that's all Bear vs Lewin was, there would probably be not the much disagreement between us. But in my view and in the view of the the Senate, um, the Supreme Court misapplied both statutory and constitutional law history on the words that apply in our constitution to the equal protection clause. And for that reason the legislature felt that we had to step in. Representative Tom had different reasons for wanting to step in then the Senate, but the final product I think represents the joint voice of the legislature in saying that this is a matter that is rightfully the legislature's to decide not the courts.

[00:04:36] Randall Roth: What do you think, Dan?

[00:04:38] Dan Foley: Well, that certainly was the legislature's position. I don't think that part of the bill will have much impact on the case. The second two parts putting procreation back into the marriage statute, I don't think will have much impact but the third part of the bill could be extremely significant. And that's a commission to basically study domestic partnership. If the legislature were in fact next session to adopt a comprehensive domestic partnership act giving most rights to same-sex couples that register as married couples have, but short of marriage, that legislation as a result of this act would have a significant impact on the court case, because the case is basically a discrimination case.

[00:05:18] Randall Roth: Now, as I understand it, domestic partnership basically says we're going to treat you as if you are married, but we're not going to say you're married.

[00:05:25] Dan Foley: Well, that and a little bit less. I think the closest thing we have, and Senator Gralti's very familiar with it is the first one in the in the world that was in 1989 in Denmark. where they said that, but they didn't confer all rights. They, uh, they withheld rights that dealt with the adoption and custody of children, and conferred most others. But in terms of what rights would be granted, it would be whatever rights the legislature decided would be appropriate and and and they would do the same in terms of whatever rights they feel would best be withheld.

[00:05:54] Randall Roth: Ray, if the legislature is is perhaps willing to give all the rights of marriage to same-sex couples, what's the hesitancy of saying, we'll say you're married?

[00:06:05] Rey Graulty: I guess there is a evolutionary process that society must must go through. And we found a great deal of opposition from the religious groups, um, with regard to being able to say they are one and the same. And the the the compromise if you will, was to say that traditional marriage is different than domestic partnerships. And I might go back to the 3141 that Dan referred to earlier, which was a bill that he supported, but many others did not support, which would have provided everything that marriage laws provide in the state of Hawaii currently. I was recently interviewed by USA Today and apparently they're doing a story on same-sex marriages and domestic partnerships.

[00:06:51] Rey Graulty: And the reporter indicated to me that of all the bills that they had seen, 3141 was the most far-reaching domestic partnership bill that they had ever come across. That in Los Angeles, they recently passed a domestic partnership bill, but it was so, um, it meant so little that it barely even made the front page of the paper. And I think what Hawaii was struggling with was something much more far-reaching than anything that had ever been passed by any city and certainly by any state in the country.

[00:07:21] Randall Roth: Dan, why why is this commission that's going to be studying that, why is that so important?

[00:07:25] Dan Foley: Well, it it really came out as a result of Senator Gralti's hearings. Uh, he floated a draft domestic partnership act and and retired Supreme Court Justice Frank Padget testifying on behalf of the Roman Catholic Church suggested such an idea really required further study and to see all the practical ramifications. I think the governor and the attorney general, Senator Gralti, I believe and his legislators have recognized that at least as far as equal rights, uh, same-sex couples are not entitled, uh, to equal treatment under the law, uh, and so some examination is required.

[00:08:02] Dan Foley: I think what resolution, uh, will result, I think we may disagree, but I think as a result of Bear V. Lewin, uh, I think a lot of attention has been focused on the issue and therefore the, the action of the legislature. I think despite the fact that we opposed the bill, that the commission is a good idea and that we'll all learn from it.

[00:08:21] Randall Roth: I'm told that the makeup of this commission is a little bit unusual in that slots have been carved out for members of certain religious organizations. Ray, um, why is that?

[00:08:33] Rey Graulty: It was an effort on my part and Senator Kobayashi's part who was the drafter of this particular provision after we had come to an agreement as to what would be in it, that we needed to bear bring in the ones most opposed to the very idea of same-sex marriages if we were to be able to move the society forward. And the two that were loudest and strongest in their voices against domestic partnerships were the Catholic Diocese of Honolulu and the Mormon Church of Hawaii.

[00:08:58] Rey Graulty: And because of their large membership, we felt we wanted them part of the process, and we wanted them to be part of the effort to develop the consensus that was needed in the community on domestic partnerships. And that's the reason why they were chosen. Now, um, uh, some people say that the the deck is stacked, that the the other six votes on the committee are are those that favor same-sex marriages, and, uh, I think to a certain extent that may be true. But I think these 11 people, the 11th person being the, uh, the chair of the family law section of the Hawaii Bar Association have quite a a job to do.

[00:09:32] Rey Graulty: And it's going to require a great deal of thought and a great deal of effort, um, in looking at Bear vs Lewin, Justice Levenson in one of the pages in his decision, went through a litany of about 12 things that he felt needed to be addressed in order to make, um, same-sex couples equal to opposite-sex couples when it came to marriage. And that was quite a laundry list, and in my view, that would have taken a great deal of time, effort, study, and work in order to be able to get it into a a a legislative form that we could adopt or at least begin to look at next session.

[00:10:04] Randall Roth: Dan, what do you think of the makeup of this committee?

[00:10:06] Dan Foley: Well, I certainly think there's a first Amendment issue, whether or not it violates the establishment clause of the first amendment to the United States Constitution. Uh, we however, will not challenge it and will participate.

[00:10:18] Randall Roth: Explain to me why might it violate that.

[00:10:20] Dan Foley: Well, it it specifically provides for membership on the commission from the Roman Catholic Church, the Mormon Church, and the Quakers. Uh, it excludes Protestants, Jews, Buddhists, Muslims, and and others. Uh, the last case out of this jurisdiction that dealt with that issue was the, uh, legal holiday of Good Friday. In fact, I brought that case. It went up to the US Supreme Court, and I thought that was a clear violation of the establishment clause. I lost, though, uh, and the, uh, ninth circuit affirmed by the US Supreme Court said it did not. So if there is no challenge, uh, the issue will be basically moved once the commission reports to the legislature.

[00:10:56] Dan Foley: Uh, one group that's concerned with the composition of the committee, or the commissioner, are evangelicals and fundamentalists. Uh, even though they're excluded in membership, uh, they don't believe in separation of church and state, so for them to challenge the composition of the commission, they would have to take a 180 degree turn in terms of what their legal position has been in other jurisdictions, where they're trying to get prayer in the schools, etc.

[00:11:20] Randall Roth: In case you joined us late, you're listening to the Price of Paradise Radio Show. I'm Randy Roth and my guests are Ray Gralti, Chairman of the Senate Judiciary Committee, and Dan Foley, civil rights attorney. The topics are gun control and same-sex marriage. Thus far we've been talking about same-sex marriage, but in a moment, I'm going to raise the topic of gun control. We're discussing these two topics together because both were center stage in Senator Gralti's uh committee's work this year. Your calls are welcome. The number is 9558821. Again, the number 955-8821. Neighbor Islanders are invited to call collect.

[00:11:58] Randall Roth: Well, I know we've got a number of other things that need to be said about the same-sex marriage issue, and I'm sure we'll be getting some calls about that. But just so we've got the other topic out on the table, Ray, could you tell us just briefly what it is that your committee ended up recommending and what it is that the legislature ended up doing with respect to gun control in Hawaii?

[00:12:18] Rey Graulty: We were not able to accomplish what the Senate had wanted to accomplish, which was a a ban, actually, it was not a total ban, it was a 99.9% ban on all handguns by requiring that before one could own a handgun, you had to show that your life or property were in danger. But what we did manage to accomplish was to make mandatory the registration of all firearms in the state of Hawaii, unfortunately, it's prospective, not retroactive. There are approximately 200,000 firearms in the state, we do not know how many of those are long guns compared to short guns. The short guns are all registered, the long guns are not.

[00:12:57] Rey Graulty: Under current law, or under previous law, rather, you could get a permit to own a long gun and buy as many as you wanted within a one-year period. That is the loophole that started the very process of addressing, uh, gun control in Hawaii, and the loophole, uh, remains for the time being, but effective July 1, 1994, if the governor should sign the the bill, every gun would have to be registered from here on in. We would still not be able to register those that are already in circulation, however, and that was a great disappointment to me.

[00:13:28] Randall Roth: Ray, Ray, which side is celebrating right now? Is it the folks who didn't want any kind of gun control over and above what we already had, or the folks who wanted an outright ban on all guns in Hawaii?

[00:13:41] Rey Graulty: I guess like, um, any compromise or any measure which is maybe 60% of what you wanted, uh, there's not a whole lot of cheering going on right now.

[00:13:51] Randall Roth: So they're all mad at you.

[00:13:52] Rey Graulty: They're not really mad at me that the the rifle association folks are very unhappy about the strict liability provisions, having to register their firearms at all, which they consider very inconvenient. And the law enforcement coalition wish that, uh, they had been able, or we had been able to do something about the retroactive registration of all firearms. So they're disappointed, but they're not unhappy with me because I think they know that the Senate, particularly made a good effort at it.

[00:14:17] Randall Roth: Dan, what about this strict liability part? What does strict liability mean? That sounds like a legal term.

[00:14:23] Dan Foley: Well, strict liability is is basically understood in terms of comparing it to negligence. Usually to be liable, uh, for a particular breach of a duty, either you must show that you acted negligently, but if if you're strictly liable, if you have a particular product that gets in the hands of someone else, regardless of whether you were negligent or not, uh, you are liable for any injuries that occur.

[00:14:48] Randall Roth: So if a person's going to have a gun, you're going to say, you've got more responsibility than to simply not use it negligently.

[00:14:55] Dan Foley: You better not cause any personal injury or per or property damage because you're going to have to pay for it. And this is not something new. It already exists in the law for other products that are considered inherently dangerous as as firearms.

[00:15:07] Randall Roth: Ray, what do you say to the folks who who say the harder you make it for good law-abiding citizens to get guns, uh, the more likely it is that that they won't have them, but it doesn't affect, uh, those folks who have bad intentions. It doesn't affect them from getting guns?

[00:15:26] Rey Graulty: I guess that's an argument that was consistently made by the gun control or the HRA, Hawaii Rifle Association. And there's no way that any law can prevent any gun or any dangerous instrument from falling into the hands of the wrong people, uh, people with the wrong intentions. But I think what we have in Hawaii is a supply problem. We've got far too many guns for the number of people that we have in Hawaii. And although the deaths have not been as great as other places, I think we're beginning to see increases in the number of people killed or seriously injured from handgun violence in our state.

[00:16:01] Rey Graulty: And I think it's incumbent upon us to do something now, rather than wait until we get to be like Los Angeles or Denver.

[00:16:08] Randall Roth: I'm here with Ray Gralti, Chairman of the Senate Judiciary Committee and Dan Foley, a civil rights attorney. The topics are gun control and same-sex marriage. Your calls are welcome and the number is 955-8821. We have Shell from Mo Ili Ili on the phone. Shell, welcome.

[00:16:24] Caller: Hi, how are you today?

[00:16:25] Randall Roth: Just fine.

[00:16:26] Caller: I'd like to ask Senator Gralti, a little bit about, uh, uh, part of the gay marriage or the equal rights marriage project. Uh, what what does the Senator feel the role of the Democratic Party is in this issue, having been raised in the first place? And uh, uh, I speak particularly to the affirmative action clause of the laws of the Democratic Party.

[00:16:55] Rey Graulty: I um hesitate to to provide a partisan label to an issue that I think is of such great social significance as same-sex marriages. Um, I guess you're referring to a liberal point of view or a progressive point of view on civil rights, pardon me, versus a, um, a more conservative view, as may be reflected in the views of Senator Reed, for example. Um, I would say this that, uh, there is no, as far as I'm concerned, civil right, uh, to same-sex marriage at the present time. That what we have is a Supreme Court decision which violated legislative and constitutional history on the equal protection clause of the state of Hawaii.

[00:17:37] Rey Graulty: So I would venture to say that we are far from the situation that you describe or the way that you describe the current um situation is not how I would describe it. While we have instead is a problem involving the law with regard to, uh, what the statutes have said, uh, with regard to discrimination in the state of Hawaii and what the constitution of the state of Hawaii has said, and the applicable legislative and constitutional histories on those two points. But I would, I would say that we are not at the point of saying that it is a civil right to have same-sex marriage. We don't, I certainly don't see it that way.

[00:18:14] Randall Roth: What do you think, Shell?

[00:18:15] Caller: Uh well, I guess my my my uh uh point of view is that, uh, all of this was, uh, brought forward by Democrats and, uh, uh, I go back to the affirmative action clause with the Democratic Party platform.

[00:18:31] Rey Graulty: I think the, um, the issue was raised by a decision of the Supreme Court, which the legislature finds is, uh, misplaced or erroneously based. And the legislature is attempting to make the necessary correction. If the Supreme Court ignores the legislative correction, then I believe that the only alternative will be to refer it to the people, which is a which is supposed to be the basis on which our democracy is founded. Uh, and I think that's where we may, maybe where we ultimately

[00:19:00] Dan Foley: and uh on same-sex marriage.

[00:19:02] Rey Graulty: Nonetheless, uh this issue was brought forward by legislation, submitted and voted on by Democrats.

[00:19:09] Dan Foley: No, I believe that the um the issue was brought on by the Supreme Court in in a case that tried to apply the constitutional uh provisions relating to sex and misapplied those particular words. Uh the legislation that's brought is an attempt to correct uh the judicial uh interpretation uh in my view, improperly made or erroneously made on what the Constitution provides.

[00:19:37] Randall Roth: Let me uh ask Dan Foley, our our legal expert, um about that, you know, the Constitution, how it fits into this and why the Hawaii Constitution seems to be different than the US Constitution on this issue.

[00:19:50] Dan Foley: Needless to say, Senator Gralty and I see see the legislative history differently on this one. What was so interesting in in the legislative reference bureau report to the 1978 constitutional convention, it said it wasn't clear under our state constitution, under the Equal Rights amendment, no discrimination based on sex, where sex, uh whether or not sex did include sexual orientation and marital status. And that was the report to the 1978 Constitutional Convention. In part, when an express provision was considered uh by that convention to include sexual orientation expressly in the Constitution, uh the standing committee on civil liberties said there was no need to because it was already included under the Equal Rights provision.

[00:20:35] Dan Foley: So I don't think as as the construction of any constitutional provision is necessarily black and white, uh it's clear to all people. I think reasonable, well meaning people can disagree, and I think the court uh did its best. Uh we don't have uh same sex marriage as a civil right in this case, in this state, yet. The case is not over. Uh we still have to go through the lower court to see whether there's a compelling state interest, and back to the high court and this case will not be over until the earliest 1996 1997.

[00:21:06] Randall Roth: Shell, was was your question basically whether or not this whole thing is a a partisan issue?

[00:21:13] Rey Graulty: No, it's uh simply that uh uh uh Terence Thomas is a Democrat, he ran as a Democrat, he ran uh uh signing off on upholding the platform of the Democratic Party and he introduced legislation that in my and many other people's opinion uh is uh uh against the rights of of uh gays and lesbians.

[00:21:36] Randall Roth: So you're saying that the Democratic Party platform is is supportive of those rights and the actions of specific Democrats aren't?

[00:21:44] Rey Graulty: Yes, that's exactly what I'm saying and and I I understand what the Senator Gralty is saying but he's not addressed my question.

[00:21:52] Randall Roth: Well, I think he's uh he's addressed it to the uh in to his satisfaction, and um so I think I think we're going to we're going to move on. Thanks a lot, Shell.

[00:22:01] Dan Foley: Thank you. If I can just throw this in as as the attorney for the couples, when you're representing couples, or or a population that is very small, some people say homosexuals are 4, 5 percent of the population and controversial, and representing them on an issue where clearly the public is opposed to it, almost two to one in this case, you don't go to the legislature. You don't go to a political party, you go to court and you argue the Bill of Rights. That's generally how it's done.

[00:22:28] Randall Roth: Right. Why are why do people feel so strongly about this? Um I I'm sure that's not the uh the first time that uh somebody didn't like your answer and uh and wanted you to to answer again a little bit better. Um why do people feel so strongly about this?

[00:22:46] Dan Foley: I guess it means different things to different people and the different things that means to different people are all very strongly held. Um, to many people who testified before the committee, it was plain and simple, a matter of civil rights. Even the Civil Rights Commission testified in that sense. Uh, to others at the very core of their being is this notion of traditional marriage being for man and woman. And uh with the church doctrine being so strong in that direction, uh they felt it's a church duty to speak out and and to to echo the the church line. And I think uh those are very strongly held beliefs. I uh those are very very difficult to respond in a very rational way. Um but I I I look and in my view again, in response to the last caller, um you look at what the court has done and you see as a as a body, as one of the three branches of government, whether you believe that what the court did was correct or not correct. And if it's not correct, then you have an obligation to speak up.

[00:23:21] Randall Roth: Dan, wouldn't it be difficult for a a Catholic or some other member of a church that's opposed to same-sex marriage, wouldn't it be difficult for them to support it?

[00:23:50] Dan Foley: Well, the Catholic Church, as you know, does not recognize second marriages. They don't consummate them, they don't recognize them. But they don't lobby for the government, uh not to issue that marriage license to a a a second marriage, uh between Catholics. It's our position that religious groups and religious individuals and clergy that oppose same-sex marriage, that's fine. That's fine under their right to the Constitution, freedom of religion, separation of church and state. Even if we were to have same-sex marriage in this state, no religious organization would have to recognize it, or consummate it. So we see this as a secular issue, not a religious issue. And that uh churches can do what what what they feel is appropriate to do. And I would never argue that any religious individual, clergy, or church uh should have a different view than the one they hold, even those that strongly oppose me.

[00:24:45] Randall Roth: Now, if it is a a secular issue, what about the practical concern that uh that Hawaii would lose tourists if it became the quote San Francisco of the Pacific?

[00:24:54] Dan Foley: Well, I just read a law review article written by a law professor from Emory to be published in the University of Southern California Law Review this year that says uh Hawaii would make two to three billion dollars a year uh if it were to uh to have same-sex marriages in the tourist industry. So I think uh people can debate that issue and I'm sure people can supply information on both sides of it, but it may be a tourist plus, not a negative.

[00:25:18] Randall Roth: Right. To what extent did that aspect, the economic aspect, the impact to the state economically play into what the legislature did or didn't do this session?

[00:25:29] Dan Foley: Uh, in my view, it was very minimal. Um, there was some testimony from the chamber of Commerce and out of approximately 800 people who testified, one testifying along those lines was hardly made a ripple among the committee members. It was just not something that we spent a lot of time on or even considered. It was never raised in any discussion that any of the committee members had in terms of what the right thing to do was. So I would say that for us and the Senate, I can't speak for the House, it was a non-issue.

[00:25:57] Randall Roth: In case you joined us late, you're listening to the Price of Paradise Radio Show. I'm Randy Roth, and my guests are Ray Gralty, chairman of the Senate Judiciary Committee, and Dan Foley, civil rights attorney. The topics are gun control and same-sex marriage, which are a couple of hot topics that were handled by uh Ray's committee in the Senate this year. Your calls are welcome. The number is 955-8821. Phone lines are open right now. We welcome your calls. Well, gentlemen, let's talk a little bit more about gun control. Um, how big of an impact, Ray, do you think it's going to have on on people in Hawaii?

[00:26:33] Rey Graulty: Um short of uh not being able to um to uh put forth ban, I think it will it will not have a large impact um to a great extent. I think in certain specific um areas, it will have a an impact. In the area, for example, of domestic violence because of the strong language on temporary restraining orders and what happens in a TRO, the fact that now the police can go and confiscate weapons in households where there's been a TRO issue. I think that will be very helpful. We've had some recent examples of drive by shootings, both in in Kalihi and Millilani. And I think now that the law provides that vehicles can be taken away, I think to uh to a small segment of the community, um uh it will mean uh a greater deterrent or will provide a deterrent effect against drive by shootings or driving around with weapons in vehicles. And I think that would lead to an improvement in public safety. But overall, in terms of being able to stem the flow of increasing number of deaths from from from handguns particularly, I don't believe that the uh the bill will be able to achieve much in that in that area. Mhm.

[00:27:42] Randall Roth: Dan, at one time, and and in fact, Ray supported uh a ban of 99.9 percent of of all handguns. Um you're a defender of the US Constitution and it's my understanding that it includes the right to bear arms. How do you reconcile those two? Or can you?

[00:29:27] Dan Foley: I haven't spent a lot of time with the Second Amendment, but I am familiar with the the precedent on it, and most courts have referred to that right to bear arms as an order to to have a standing militia. It's a collective right. And all the statutes and and uh ordinances I've seen uh regulating uh handguns and firearms have been found to be consistent with the Second Amendment. Uh I believe the proper position with Senator Gralty's and if people felt there was some constitutional issue, they have the right to challenge it in court just as I did uh on same-sex marriage and have the court ultimately decide the issue, but I think uh if people really are for public safety uh and feel that uh Senator Gralty's proposals would bring that about, uh let the court decide uh if there's any Second Amendment restriction.

[00:31:12] Randall Roth: Garrett, you're on change the subject just a bit. I'm more interested in the uh people selling t-shirts on Waikiki Beach. Okay. Garrett, let me let me preface your question by explaining to everybody that uh Ray's committee also considered that and Dan is involved uh in that case as well. And so you're changing the topic to something that does fit in with what we have been talking about. So, go ahead.

[00:32:24] Rey Graulty: Okay, well um I'm a artist. I'm born and raised here in Oahu, and I got went and got a peddler's license from the city and county. Well, the peddler's license only says where you can't sell, which is everywhere. And then I went down and also since the very beginning of these people selling t-shirts, I've been going down and seeing who's doing the selling. What I noticed was that there are an awful lot of aliens doing the selling. And secondly, I noticed at this point it's become so blatant that people can use the rubber stamp and sell the joan t-shirts. And uh I was curious, if in fact uh these people are going to be allowed to sell t-shirts, does that mean that any non-profit organization, whether it be Kalahui or any church organization can we can we just go down and set up and forget about paying taxes and forget about uh all the rest of it?

[00:33:10] Randall Roth: Let's see what Ray, cuz I'm I'm ready to do that. Let's see let's see what Ray has to say about it.

[00:33:15] Dan Foley: I guess um this bill was a um a Johnny-come-lately. It it uh it applied to different parts of what the counties needed for various different things and it was suggested to us that the First Amendment was a never-never land and Dan is the better person to talk about the First Amendment and how it might apply to the sale of t-shirts in Waikiki and Well, the peddler's license is really a never-never land. Yes, I know what you mean. Right, I mean, I paid the $24 to find out I couldn't sell anywhere. Anywhere. And uh trying to be legit and pay taxes and then I realized, hey, all I need is a rubber stamp and to become an associate with a non-profit group. All these people, you know, it's the non-profit groups are save the trees or uh uh water's nice, or God knows what it is, but they aren't Hari Krishnas and they aren't religious groups. There are other kinds of groups. And so, I'm that's what I'm saying, can Kalahui walk down there and hand out tourist information and start selling our handmade goods?

[00:34:10] Dan Foley: I'll just say Garrett that I recognize the inheritance and fairness of it all, and I'll defer it to Dan Foley to talk about Kalahui, whether they can or cannot.

[00:34:16] Randall Roth: Dan Dan's the legal expert, what do you think, Dan?

[00:34:19] Dan Foley: Well, first of all, I'd suggest before you were Kalahui do it, you do consult with a lawyer because it is a complex issue. Not not myself. I do represent some groups already. But the the law on the issue is out of the Ninth Circuit Court of Appeals, which came out of San Francisco. And that controls the situation now. That court has basically said that you can actually sell t-shirts with political, ideological, and religious messages on them, uh putting forth your your particular message, be it nonprofit or otherwise and come within the First Amendment come within the protection of the First Amendment. The uh Honolulu police department and prosecutor's office have not been enforcing the Peddler's ordinance against situations like that, because they What do you mean Peddler's Uh, because they uh they have concluded that it is protected First Amendment activity. But I do uh want to point out that just this Wednesday, the policy committee of the city Council will be considering an ordinance to to change the situation, and I believe there will be much more restrictive uh uh ordinances on the books and litigation. So if you're going to be doing it, uh you may need a lawyer.

[00:35:26] Rey Graulty: Garrett, Garrett, I appreciate your interest. I've got some other folks on the line. Okay. Thanks a lot.

[00:35:30] Dan Foley: Thank you.

[00:35:31] Randall Roth: Tom from Honolulu, you're on the air.

[00:35:34] Caller: Hello, I I just uh had a couple of questions and then I'll take my answers off the air. Um, first of all, regarding the same-sex marriage issue, it seems to me, especially with all the religious groups being involved, that it's a uh uh essentially legislating morals. And I thought with the separation of church and state, you couldn't give uh such religious groups such power

[00:38:00] Caller: and uh legislation. Uh, second of all, on the um gun control issue, I think I'm very happy with what happened, what came out and that people will actually have to take a course and safety, which is the main thing. However, in a total band situation, you've got to totally trust the police department, and not to offend anybody, but with the things that have been happening in the past few years and with the a lot of things with the police department, I really don't wonder if um the citizens are prepared to 100% trust the Honolulu police department, um as far as protecting us and stuff like that. Uh, and I just like to know what you think about both of those situations. Talk

[00:38:47] Randall Roth: I'm going to ask Ray to take your questions in reverse order. Ray, can you first respond to the gun control issue?

[00:38:53] Rey Graulty: Sure. Um, I think that if we were to take Tom's argument, then the argument which is very prevalent that we don't trust the police, then the alternative is to arm everyone in order that everyone could be protected against the police, and we're back to the wild wild West and I don't think anyone would want to see that because I think that would mean much more violence and many more deaths. Secondly, with regard to the safety course, I think that was an important component of the bill. Uh, you are now required to show that you can fire a weapon safely or operate it safely and fire it proficiently before you can get a handgun. So that was a a step in the right direction. It wasn't as much training as I thought was needed, but it's enough to get started. With regard to the secular secular issue, I agree with what Dan said earlier, it is a secular issue, not a religious issue. I agree completely with what he said. As far as separation of church and state, I disagree with Dan. This is not a statute similar to Good Friday. This is a advisory commission that is supposed to report to the legislature and the purpose of putting the religious groups in there is not to impose the religious values, but rather to bring their memberships more in tune with the rest of society, and hopefully uh be able to understand better why there is a need to recognize alternative lifestyles in the community and what needs to be done in order to uh remove any disabilities that these groups may have.

[00:40:08] Randall Roth: You know, listening to that, if if I were a member of one of those church groups and and planning to sit on that commission, I'd be saying, hey, you're not planning to listen to me at all. You're planning to talk to me. I think that lecture me.

[00:40:19] Rey Graulty: No, I think that they're going to contribute. I think that the church, the Catholic church of which I'm a member, uh in the beginning, testified against 3141, uh very vociferously on domestic partnerships. By the end of the session, they were saying something different to me. They were saying they wanted to participate. And I think that's a healthy sign and I think we need to move that process along. Whichever way it ends up, we need the participation of these groups if we are to be able to move the society forward. Trying to bring folks together, talk, reach consensus? Exactly. That's what's needed.

[00:40:50] Randall Roth: Lines are open. The number is 955-8821. Neighbor Islanders are invited to call collect. Again, the number, 955-8821. Well, the topic that we just had started talking about when a couple calls came in, uh have has to do with t-shirt vendors. And I guess Ray, the big question I have is why in the world would the state get involved in that in the first place when the county already clearly has the power to do something and seems to be working hard to figure out just what it should do.

[00:41:19] Rey Graulty: I guess the answer to that, Randy, is that we're not sure. Um, we wanted to know why public nuisance statutes were not being employed and no one could give us a straight answer, not the prosecutor, not the corp counsel, nobody. And we felt, gee, maybe this is something that people are missing. Maybe we're wrong. But we thought we'd we'd add this weapon to the arsenal and see what might might come of it. Um, what it does, basically is to say it's not a First Amendment question. It's a public nuisance problem. No one has the right, regardless of what they're doing to block the sidewalk and sell anything. Uh, and and perhaps that that's an avenue that has not yet been explored.

[00:41:55] Randall Roth: Dan, it seems to me that that I I wanted to say everyone, but I guess it's almost everyone feels that there's something very wrong with what's going on down there right now, and yet I have the feeling that that you defended at least in a way.

[00:42:08] Rey Graulty: Well, I I defend the First Amendment here. I'm not going to be able to sell my clients and their their cause to the general public. I understand that and I rely upon the law of the land within the circuit.

[00:42:19] Randall Roth: But does the First Amendment allow them to to clutter up the sidewalks like that and and to sell their goods in front of windows where people are paying high rent?

[00:42:28] Rey Graulty: The First Amendment does not allow obstruction of pedestrian traffic in blocking sidewalks and of the two uh bills currently before the city Council, uh one addresses that, even though my clients oppose it, uh that's Andy Merkatani's, and it's essentially trying to address the problem as defined by Senator Geralti, structures and and tables and things being set, uh not the actual First Amendment activity itself, the communication. The other bill on the table uh which is an administration bill pushed by Jeremy Harris, drafted by a colleague of yours would prohibit any First Amendment activity within the special district except for a parking lot. That we feel on its face, uh clearly violates the First Amendment. The other one that deals with obstruction and and structures and setting up shop itself, we feel uh uh that is an interesting question. It certainly would be economically and and otherwise detrimental to my clients, but it's it's not an open and shut question.

[00:43:27] Randall Roth: I see. We have a caller from Kaneohe, Catherine, you're on the air. Hi. How are you doing?

[00:43:33] Caller: Fine. Um, I just want to tell you about something that happened once. Um, my son and I were at Hanalma Bay, and we uh saw the t-shirt vendors there, and at the time that this happened they were also selling cookies. And um I had heard that these um vendors were asking for a donation. And uh what I think of a donation is that if you don't have the money, you still get the product, if you ask for it. So, I thought I'd test this and see if this is really something that they were doing, since they're supposed to be a nonprofit organization. And I um I sent my son up there, who was about 12 at the time and he went up to one of the um uh people there and asked if he could have a bag of cookies. And the person said, it's going to cost you such and such amount. And my son said, oh, I don't have that, but I'm really hungry. And the person said, get lost, kid. And I think that's very possible that others if they try this will find that they will not get free t-shirts or free cookies, which makes me wonder if this is really um a donation type of situation.

[00:44:47] Randall Roth: Catherine, stay on the line. I want to ask Dan Foley to respond to that.

[00:44:51] Rey Graulty: As far as the law, it doesn't uh require that it be a donation to be protected by the First Amendment. So if uh they're advertising or selling t-shirts, that's the protected activity. If there is an organization uh that's committing fraud uh representing one thing and and doing another, you may want to file a complaint against them with the office of consumer protection because I don't think fraud is protected by the First Amendment.

[00:45:15] Caller: Well, are these groups um backed by a religious organization?

[00:45:20] Rey Graulty: Um, I'm sure some are, some aren't. My two nonprofits are religious nonprofits. I understand others are not. So one of the things you should understand that not all groups and and all of their t-shirts are the same. There's quite a range and some may be protected, some may not under the First Amendment. But I think you raise an excellent point because I've even heard the the mayors say that the only thing protected is soliciting a donation. That's not correct under the law. There can be a sell and still be protected First Amendment activity.

[00:45:49] Caller: Okay, thank you very much.

[00:45:50] Randall Roth: Thank you, Catherine. Uh, we're here with Ray Geralti, chairman of the Senate Judiciary committee, and Dan Foley, civil rights attorney. The topics are gun control, same-sex marriage and t-shirt vendors. Uh, some interesting topics that are our guests have had a lot to to do with in recent times. Your calls are welcome. The number is 955-8821. Neighbor Islanders are invited to call collect. Well, Dan, something I'm real curious about if if we become the same-sex uh marriage capital of the world if you will, can same-sex couples from Nebraska come here, get married, go back to Nebraska, and be married? Will Nebraska recognize that as a matter of course?

[00:46:34] Rey Graulty: Well, should we prevail here, that's going to be the next um area of litigation. Under the Section 1, Article 4 of the United States Constitution, a state has to recognize the act, judgment, decree of another state as marriage, unless that state can show a strong public policy reason uh not to recognize that marriage. So the burden would be upon the state of Nebraska, not the couples to show they have that strong public policy reason why that same-sex marriage consummated in Hawaii should not be recognized in Nebraska.

[00:47:07] Randall Roth: I see. Ray, do you have any any more thoughts on same-sex marriages before we move to a different topic? I guess the um the corollary to that is what we did in 2312, when we put a provision in which said that if another state enacts a domestic partnership law, for example, there was some talk about California doing a statewide domestic partnership law. It would not necessarily be given effective validity or legal validity in the state of Hawaii. And we did that because we wanted to make sure that the commission would be able to proceed uninterruptedly without Mr. Foley or anybody else raising another side constitutional issue deterring us from being able to move forward. So that was the I guess the other side, the flip side of what Dan had just been referring to.

[00:47:51] Randall Roth: Mhm. Ray, earlier you were talking about the need to get people to to listen to one another, to to seek consensus. Um, how do you feel after having gone through what had to be a tumultuous four-month period where a lot of people were were yelling and a lot of people were insisting that uh that their vision for for all of this be be adopted by others. Do you feel like uh are you optimistic about our ability to reach consensus on controversial issues like this?

[00:48:21] Rey Graulty: I guess we've had a good experience in the last session with trying to deal with issues in the way that uh could be uh described as consensus building. Certainly, um when the when the same-sex marriage bill came from the house, uh in its procreation um rationale, it was extremely contentious and extremely um passionate, I guess and very vocal uh people on both sides. Can you explain briefly what what you mean by the procreation rationale?

[00:48:49] Rey Graulty: Uh, the House response was to say that uh what justified discriminating against same-sex couples with regard to marriage was the fact that they could not procreate. Mhm. Um, and um the argument did not go very far. Um, but what we were able to do was to be able to to build on on that particular argument and to fashion a a statement that we thought most people could agree with, at least most people in the Senate could agree with. And I think the process that we undertook to bring everyone together and the result of of the efforts that we initiated, I think um lead me uh to feel very positively about uh the process of consensus building with regard to future legislation. The purpose of the legislature is to listen and to hear. That's why we have hearings, and many legislatures in the past have not been as open minded as this one has been. And I think if there is one thing that we can be proud of this past session as legislators and speaking for myself and the judiciary committee, I think we we listened well and we tried our best to take into account everyone's point of view and to fashion something that reasonable people could at least understand, although they may not agree. It's difficult in other areas, in same-sex, it was easier, certainly in gun control it was much more difficult. The minority was much more vocal, and the the the the ability to listen and and to reason was was not as was not as present there. Uh, perhaps uh the uh t-shirt vendors is another example, perhaps of passionate issues, but uh the passion I think is [unintelligible — audio glitch] courts and in the arguments with regard to the First Amendment, rather than and the passion on the other side is the unfairness of it all. Um, but it really wasn't anything that the legislature could step into except to provide the tools with which further discussion could take place in the courts.

[00:50:40] Randall Roth: Dan, what do you think about all that? Well, my experience in the last three years with this case, it was filed in May of 1991, has been very positive. And you're referring now to the same-sex marriage. Same-sex marriage. Uh I think the polls are a bit misleading. They're about 60 40% against same-sex marriage. I think when most straight people get a phone call and say, do you think the government should support same-sex marriage, the reaction is, what? Or no. But my experience has been going into the community which I've done, speaking with churches, which I've done, Hawaii Council of Churches, as well. When they understand that it's primarily a secular issue, civil rights issue, uh even though they may not be comfortable with homosexuality or same-sex relations and not understand it or or or want to be around it, um when they understand the separation of church and and freedom of religion issues, I find in our tolerance state, uh most people say they could live with it. So I think uh it will take time. I think it's also though an issue unfortunately like abortion, there will never be consensus and I would think that the only way that we could arrive at that consensus is to have it, to experience it, and to find it would be a positive thing for the community, not a negative. And that would be, of course through the courts, not not through the legislature, if that were to happen. Mhm. Phone lines are open. The number is 955-8821. Neighbor Islanders are invited to call collect. Again, the number is 955-8821. Well, we've been talking about gun control, same-sex marriage, and t-shirt vendors, all of which were considered by the Senate Judiciary Committee. Ray, was there anything else that you folks had time to talk about this session that you think is is worthy of mention? Well, we did some major things in the selection of judges for the first time in in in many many years. I believe the Senate has been wanting for 10 years to give the public the opportunity to provide input on in this selection of district court judges, and we finally succeeded. We have also provided for changes in the way judges are selected in the circuit and Supreme courts and and intermediate court of appeals. And I think I think the what we have done in those areas, I think are are important uh in order that we might have a properly functioning functioning judiciary and one in which the public feels they have input in the selection for. Mhm. We have a caller from Kailua. Tim, you're on the air.

[00:53:03] Caller: Uh, yes, I'll ask a question and then I hang up. I'm on a cellular phone. With the limited amount of time in the legislative uh session, why was so much time devoted to to a bill that seemed to only affect the certain amount of people and not greater emphasis placed on other issues like education and worker's comp? Thank you very much.

[00:53:21] Rey Graulty: I guess um there were 48 measures passed by the Senate Judiciary Committee, although it might seem that there were two or three issues that we dealt with, we really dealt with a whole range of issues. Uh, the committees were working concurrently with the judiciary committee, the the education committee was also very busy. Uh all the committees were very busy. And as um alluded to by Randy in the beginning, it just seemed that the judiciary committee was was the one that was grabbing all the headlines because the issues were so controversial and so strongly held, uh the beliefs were so strongly held and the newspapers will cover where they think the public has an interest and I believe and the early part of the session at least, uh those were the issues that the public were most concerned about at least that's the newspaper's uh newspaper reporters uh view. And towards the end, I think we we were a little more balanced. There was a lot more concern about the size of government, uh education reform, and unfortunately, uh worker's comp did not uh come up with anything that was really uh laudable, but I think the effort was there.

[00:54:20] Randall Roth: Dan. Although um, I have no idea what Senator Gralti Gralti's motives were. The the same-sex marriage bill was initiated by the house, not the Senate. And it was after the chair of the Republican Party uh called for action against same-sex marriage and uh an independent candidate for Governor Frank Fossy uh called for uh action on same-sex marriage. So I think some members of the Democratic Party, particularly in the House felt a need to address the issue with a forthcoming November election. So uh the other party and the other candidates couldn't say uh the legislature is ignoring this issue while we're trying to have it addressed. Mm. Ray?

[00:54:57] Rey Graulty: I guess the uh the the the legislators and the politicians are a reflection of what's in the public mind. We're always one step behind the public. And when we know that the public is very concerned about something, that's when you find all the politicians jumping on board. And I think uh what Dan just mentioned, I think is a reflection of that. and uh uh politicians are politicians I guess and we have to give them a certain leeway to be able to espouse the right things at the right time. And certainly uh Mayor Fossy's um radio ads um built up even more the public interest that was that was already there in same-sex marriages.

[00:55:31] Randall Roth: Ray, when you say the politicians are are behind the people, Yes they're not leading the people? No, never seen a politician venture too far out in front. Is that the way it is or the way it should be? No, it's the way it is, not the way it should be. Uh it takes a very rare politician to be able to guess what people are going to be concerned about in the future and to stake a position ahead of time. Uh we do so at our peril and uh uh it is the nature of the beast, I suppose to look at the polls and and what people say at cocktail parties and social functions and to be able to fashion a position after all that said and done. So you're saying in some cases we we have elected followers rather than elected leaders. We have uh elected leaders only after the followers have indicated what they care most about. Okay, Dan? And I think that's the nature of the institution be it at state or national level. And that's why you see the civil rights initiatives and victories in the courts and not in the legislature, whether it was uh doing away with all white primaries in 1944 or desegregation in 1954, interracial marriage, 1960, the use of contraception, the right to abortion in 1972. These are not the sort of issues that legislators want to lead with. They're divisive, they're controversial, uh you make people angry regardless of which way you go, and I think that's the great thing about our system of government in the United States and and the doctrine of judicial review. Uh when courts make decisions uh like desegregation, you recall that people wanted to impeach.

[00:57:00] Dan Foley: war. Uh, of course, the courts may sometimes be ahead of the public. The public may be calling for the heads of the justices and the decisions may take decades uh, before they become accepted. But I think, uh, given the nature of political institutions, if there are to be advances, uh, the the 1964 Civil Rights Act, the first one passed by the United States Congress since 1871, was after 20 years of civil rights victories in the court.

[00:57:28] Randall Roth: I I think what I'm hearing is that uh eventually the political process and the judiciary reflects what's going on in the community. Right? Right. Or I feel that way. I think that if even looking at the same-sex marriage case, uh one of the cases that was cited by Justice Levenson in the plurality opinion was Loving. Well, Loving is a 14th amendment case, a 14th amendment dealing with the equal protection clause, which was passed by Congress and ratified by two-thirds of the legislatures. So, I think there is an interplay uh between the judicial and the legislative branches, and I don't subscribe to dance view that it's, you know, one that it's the vanguard of rights and the other one kind of lagging behind. I think it's it's what's on the people's minds that affect the legislature clearly, but there is a very great interplay between the judiciary and the uh legislative branches of government when fashioning civil rights. Hmm.

[00:58:17] Dan Foley: We have a caller from Hawaii Kai. Shelley, you're on the air.

[00:58:21] Caller: Oh, Shelley. Oh, hello. Yeah. Um, I just tuned in rather late, so I hope this question is not uh a a repeat question. Um, I was just wondering um about uh an article that I read in this morning's paper on tourism here being asleep. And uh, was wondering how you felt about developing an ecotourism uh state park similar to the ones they have in California that they claim are really safe, and would that be something that would be possible to have here in Hawaii?

[00:58:52] Dan Foley: Let's see what Ray has to say about that. I'm happy to report that the budget for the first time uh that I know of uh provided some funds to develop ecotourism in our state, and I think it's a it's like something that's new and and and interesting and and exciting. And every legislature wants to do something about ecotourism and Hawaii is not behind on that particular score, I suppose. Uh, we are now venturing in. Now, I don't know exactly and not being on the tourism committee, uh where all the money is going to go and what it's going to do, but I remember reading in the budget recently that there is there are funds now for for the development of ecotourism in our state, and I take it that that is something that many people like yourself would support. Thank you, Shelly.

[00:59:30] Caller: All right. Thank you very much.

[00:59:32] Dan Foley: Phone lines are open. The number is 955-8821 and neighbor Islands are neighbor Islanders are invited to call. Collect. Um, Ray, a little bit ago, Tom called in and mentioned public education. Uh I think his suggestion was that that maybe the legislature's priorities weren't uh in order. As a member of the legislature, uh do you feel that there there is a set of priorities there or or is it a little bit chaotic right now in terms of what should be center stage?

[01:00:02] Rey Graulty: Well, I think education has always been the number one priority for the legislature and has been for many years. Our problem has been how do we move such immovable mountains as the bureaucracy of the department of education uh to to face the new reality of what uh educating kids in the in the 20th century or 21st century might be like. And I think the omnibus bill that was passed by the legislature this session is an attempt really at a massive and significant educational reform in our state. And I think the amount of work that went into it, although not as high profile as some of the bills that we were dealing with in judiciary, was really significant. It calls for constitutional amendments, it calls for massive restructuring of the system. It provides for student-centered schools, which is a concept that not everyone uh today supports uh, meaning uh the board of education has some apprehension about it. Department of Education was against it, but the legislature pushed forward wanting to to make our schools more student-centered and learning more student-centered. And I think what it's going to mean will not be known for a while, but certainly the effort this session was significant and and hopefully it's going to be very productive in the future.

[01:01:09] Dan Foley: Dan, as a civil rights attorney, uh what do you think of of what's going on in the legislature, what went on in this last session, over and above the specific issues that we've talked about?

[01:01:20] Dan Foley: Well, I don't see the session that much different in the area of civil rights than previous sessions, despite uh my disagreements with Senator in the legislature on the same-sex marriage issue, I found Senator the the legislature to generally be sensitive to civil rights, uh more so than state legislatures in the mainland. I've been going to the legislature for 10 years on behalf of various civil rights groups and public interest groups. I've always felt I I got a fair hearing, although I didn't always get the uh the result I wanted. So I have a lot of respect uh for our legislature uh when it comes to civil rights.

[01:02:05] Dan Foley: Well, we just have uh a few seconds left, and Ray, I have a question I want to ask you. Somebody that I know real well who usually has pretty good judgment, told me that that someday Ray would be governor of this state. And I'm just curious uh what your reaction to that might be.

[01:02:25] Rey Graulty: Um, Randy, I'll be so glad and happy to get reelected after taking on all these difficult issues, that would be I think the this the the the supreme validation of my efforts. That's as far as I'm going to look and uh it's going to be a real challenge. I've got the uh the gun control people after me, the the gun lobby after me, uh maybe some unhappy people on the same-sex marriage bill may be after me. Uh but we'll take it in stride and do the best we can. Um, but I I certainly have no sights beyond uh getting reelected.

[01:03:22] Dan Foley: When when you took over the state uh Senate Judiciary Committee this year, did you have any idea just how much the spotlight would be on you individually?

[01:04:11] Rey Graulty: Uh, I did not and uh I did not realize how difficult it was going to be. Uh certainly, uh every bit of energy and every bit of ability I had had to be called forward. And I'm just happy I made it out in one piece.