Posted on: Wednesday, May 16, 2001

Island Voices
Challenges to First Amendment

By David Kraul
An adviser to state Sen. J. Kalani English

At the just-ended legislative session, several bills were introduced that raised serious First Amendment issues of separation of church and state.

One in particular also underscored the need for clear, concise language in drafting laws. Although these bills did not make it to the governor for approval, they are in retrospect still viable issues.

The U.S. Supreme Court has stated that the term religion refers to "one's relation to his or her Creator." A philosophical or personal belief or personal preference "not of deep religious conviction, shared by an organized group" is not entitled to First Amendment protection. Hawai'i exempts schoolchildren from immunization, for example, for medical or religious reasons, but "philosophical exemptions are not allowed by the state," according to the Department of Health.

Regardless of the Supreme Court's somewhat medieval distinction, Senate Bills 1529, 1138 and 598 illustrate the need for constitutional safeguards.

SB1529 would have required family and household members to inform authorities if a dependent adult in the home is in need of medical care. It was designed to protect dependent adults from abuse, but it could easily be construed to include someone suffering from an illness. It gives a subjective interpretation to the need for treatment or care. Worse, it might have put in jeopardy those who reject Western, conventional medicine and stand on their right to alternative, non-medical healing.

A practitioner or patient of la'au lapa'au, the traditional Hawaiian healing art, for example, could be guilty of a crime for not reporting a "need for medical care." A grandmother who has relied upon acupuncture for years could suddenly become the center of a household dispute.

Seaward Grant, manager of Christian Science Committee on Publication for Hawai'i, testifies regularly at committee hearings and proposed definitive language changes to SB1529 that would accommodate those who exercise their right to choose alternative healing.

Says Grant: "Hawai'i has already recognized in its laws an adult's right to rely on his or her own choice of health care. A bill such as SB1529 would close options for people to choose the method of health care they find most effective for themselves. A major shift is taking place toward acknowledging and explaining the role of spirituality in health care. This progress should not be stultified by any law."

Public defender John Tonaki agrees with Grant that a person's right to choose the method of health care could have been compromised by this bill, because it could conflict with the First Amendment right to freedom of religion. Tonaki also points out that the language creates some confusion, since dependent adult does not equate to legal incompetence.

"The dependent adult scheme should apply to healthcare professionals," says Tonaki. "SB1529 would extend this to family members who do not have the medical expertise to determine imminent death or bodily injury. Family members who feel obligated to report such a condition might be interfering in areas which they are not qualified to judge."

He adds that SB1529 only came to his attention because the Office of the Public Defender was previously unaware that this bill contained some penal provisions. In this case, failure to report could become a petty misdemeanor. "Now that it has been called to our attention, we want to provide feedback and we will be submitting testimony."

Senate Bill 1138 would have required parents to subject their newborn children to a hearing-impairment test. SB598 would have authorized the Department of Health to establish a statewide "birth-defects program."

Christian Scientist Grant asked that both of these include an exemption for religious beliefs, as well.

Senate Health and Human Services Committee Chairman David Matsuura and committee member J. Kalani English worked consistently to ensure that these and similar bills reflect constitutional guarantees. They promise to continue these efforts in the future.