COMMENTARY
Gays in Hawai'i still denied equal housing
By Eric K. Yamamoto, Shirley N.K. Garcia, Carrie Ann Shirota and Kim Coco Iwamoto
"If we wish to inspire the people of the world whose freedom is in jeopardy, if we wish to restore hope to those who have already lost their civil liberties, if we wish to fulfill the promise that is ours, we must correct the remaining imperfections in our practice of democracy. We know the way. We need only the will."
— President Harry S Truman | brief for the United States as Amicus Curiae at 332, Brown v. Board of Education. of Topeka, 347 U.S. (1954).
This year, our nation celebrates the 50th anniversary of Brown v. Board of Education, which ended the legal practice of racial segregation in U.S. public schools.
The Supreme Court decision heralded tremendous progress in the country's commitment to equality for all.
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Yet celebration alone would dishonor that landmark civil-rights case. We also must examine forthrightly how far we've come as a nation and as a state in equally protecting all among us — and how much farther we need to go.
Carolyn Golojuch marches in the Gay Parade at Ala Moana Park. Many gays say they have been turned away while trying to buy or rent a home.
Many wish to believe that Brown and subsequent civil-rights legislation ended racial and other forms of discrimination. But a just society cannot be built on wishful thinking. Study after study demonstrates that equality for all under the law has not been achieved in education and housing.
In these realms of daily life, discrimination persists — not only because of race, but also because of sexual orientation. While Hawai'i law prohibits the former, it still allows the latter (at least in housing).
We understand that some people hold negative views about gays in our community. That is their right. However, when those views are manifested in discriminatory acts, the law should step in and just say "no."
Thirty-four percent of gay people have been turned away from renting or buying a home because of their sexual orientation, or know someone who has, according to a 2001 nationwide survey commissioned by the Kaiser Family Foundation. Twelve states, the District of Columbia and more than 150 cities and counties have laws protecting people from housing discrimination based on sexual orientation. But the Hawai'i Legislature has failed, for the past 10 years, to pass such legislation.
In 2004, the House and Senate Judiciary committees both agreed that discrimination based on sexual orientation should be prohibited in real estate transactions. According to the House committee report, "no legitimate reason exists to permit landlords to deny renters housing or to evict them because they are gay or lesbian."
Further, the report highlighted that the Legislature already has declared that housing discrimination on the basis of sexual orientation is against this state's public policy.
Similarly, the Senate Judiciary and Hawaiian Affairs Committee report acknowledged that such discrimination already is prohibited in employment, and "just as a person should not be denied a job because of the person's sexual orientation, a person should not be denied a home because of the person's sexual orientation."
Yet, even given such rare agreement between the Senate and House, House Bill 537 failed after a small number of religious organizations lobbied for a broad exemption to the law that expressly allowed religious organizations to discriminate against students, faculty and staff based on sexual orientation on properties the institutions owned and operated for religious purposes. The exemption was extended to private landlords, allowing discrimination in the rental of commercial property under contract with religious institutions to provide student, faculty and staff housing.
In effect, this broad exemption would swallow the rule. Religious organizations would be allowed to discriminate on land outside their tax-exempt holdings, and permit private land investors to discriminate against gays and lesbians if they contracted with a religious organization.
This exemption is similar to the policy found abhorrent by the U.S. Supreme Court in the Brown decision in that it expressly excludes an "unpopular" minority group for lesser protection under our fair-housing law.
The failure to include sexual orientation as a protected basis under our state fair-housing law contradicts Hawai'i's long-standing tradition of protecting civil rights and eliminating discrimination. The state Constitution, which does not have a federal counterpart, mandates that an individual will not "be denied the enjoyment of the person's civil rights or be discriminated against." Notably, the state Legislature enacted laws prohibiting discrimination in employment and housing before the federal Civil Rights Act of 1964 and Fair Housing Act of 1968.
This tradition makes it all the more puzzling why the Legislature has failed to enact laws that would have ensured equality for more of Hawai'i's people. What factors have forced our lawmakers to turn their backs on our earlier commitment to civil rights?
While Brown should be celebrated as a watershed monument for progressive change in American history, we must always remember that the struggle for equality is a continuous journey, and that we cannot rest on its laurels.
When we allowed black and white children to be segregated, we, as a nation, were wrong and we corrected it. When we allowed Japanese Americans to be incarcerated, we, as a nation, were wrong and we corrected it. When interracial marriages were illegal, we, as a nation, were wrong and we corrected it. When we allowed employers in Hawai'i to discriminate against gays and lesbians in employment, we, as a state, were wrong and we corrected it.
Today, we allow landlords in Hawai'i to deny housing to people simply because they are gay or lesbian. We, as a community, must correct this inequality, too.
This year, the Legislature acknowledged a wrong in our state fair-housing law but failed to follow through on correcting it. The time has arrived for the Legislature to remedy this inequity and enact legislation that would prohibit discrimination in housing based on sexual orientation.
In so doing, we, as a community, would extend the promise of the Brown decision to all Hawai'i residents.
Eric K. Yamamoto is a professor of law at the University of Hawai'i's William S. Richardson School of Law and board member of the Equal Justice Society. Shirley N. K. Garcia and Carrie Ann Shirota are staff attorneys with the state Civil Rights Commission. Kim Coco Iwamoto is an attorney and civil-rights activist. All submit this article as individuals, not in any official capacity.
