Legislature(1997 - 1998)
02/27/1998 01:06 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 5 - CONST AM: FREEDOM OF CONSCIENCE CHAIRMAN GREEN brought before the committee HJR 5, proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. The resolution had been heard previously. Number 0568 REPRESENTATIVE TERRY MARTIN, sponsor, indicated he agreed with the proposed committee substitute [not yet adopted]. He suggested it goes along with probably the most important recommendation of U.S. Supreme Court Justice O'Connor, and it follows the law of Washington State. He expressed hope that it would answer many questions for those who thought the original version was too broad. Number 0622 REPRESENTATIVE CON BUNDE made a motion to adopt Version E [0- LS0199\E, Cook, 2/25/98] as a work draft. REPRESENTATIVE ERIC CROFT objected in order to review it. REPRESENTATIVE NORMAN ROKEBERG asked whether the language had been provided by the sponsor or the committee. CHAIRMAN GREEN said it is committee language, beginning with "however" on line 8. [It read, "; however, the freedom of conscience provided under this section does not excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State."] REPRESENTATIVE ROKEBERG asked whether counsel had suggested addition of the words, "does not excuse acts of licentiousness". CHAIRMAN GREEN answered that this is wording used in several other states to avoid problems that might be associated with people who are hiding behind this, rather than exercising it because of a true belief. Number 0694 REPRESENTATIVE ROKEBERG suggested it is the "other states" argument, but it also clarifies for the public, because this is a constitutional amendment, that these particular acts will not be excused. Number 0746 REPRESENTATIVE CROFT said he was still concerned about the distinction discussed at the previous hearing: Does this authorize someone to violate a law if that person's conscience says to? Even with the amendment, he wasn't sure how it would play out practically or in statute. He asked the sponsor, "Does it allow someone to object to a law and therefore refuse to comply with a valid law? Or only in these areas?" Number 0813 CHAIRMAN GREEN asked whether Representative Croft was referring to the first part or to the amendment. REPRESENTATIVE CROFT suggested that if the first part allowed it, that would show the need for the amendment. If not, he was unsure of the purpose of the amendment. CHAIRMAN GREEN said the purpose is to eliminate any confusion. He explained, "You can't do it if it's inconsistent with laws or the peace and safety of the state." REPRESENTATIVE CROFT pointed out that it doesn't say "laws of general application." It says "licentiousness or peace and safety." He asked whether he could violate a law with impunity if it was outside of the scope of this amendment. Number 0854 CHAIRMAN GREEN said that is not the intent, and this language is intended to prevent that. He suggested that if it would make it more clear, they could put in, "inconsistent with existing laws or the peace and safety of the state." REPRESENTATIVE BUNDE pointed out that if they want this to go before the voters, it should be explicit. He stated a preference for the language, "doesn't violate existing law," saying he could imagine a huge court fight over what is inconsistent with peace and safety. REPRESENTATIVE CROFT added, "Or what licentiousness means." Number 0905 REPRESENTATIVE JEANNETTE JAMES commented that freedom of conscience has been around for so long. People do violate the law based on freedom of conscience and spend time in jail, even where there exists freedom of conscience. One argument she has heard against having this constitutional amendment is that we have it already; she agrees but thinks this just makes it perfectly clear that we do. However, historically, if people choose to disobey the law, they pay whatever the price is. CHAIRMAN GREEN suggested this doesn't change that. REPRESENTATIVE JAMES concurred. Number 0978 CHAIRMAN GREEN responded, "Well, what I'm saying is that what this says is that you are allowed a freedom of conscience. You can't do it because you're going to break the law. You can't do it if it interrupts the freedom and safety of the state. But under existing law, as has been shown, you may be held accountable for lawfully objecting." REPRESENTATIVE BUNDE noted that he'd heard on the radio that morning that a 70-year-old nun in Fort Campbell, Kentucky, is going to jail for six months. She'd been warned at a protest a year ago, relating to training of South American soldiers, not to do it again. When she did it anyway, she was sentenced to jail. Representative Bunde asked whether anything about this resolution would change that. CHAIRMAN GREEN answered, "Not if she broke the law." REPRESENTATIVE BUNDE said that is critical for his support. There must be consequences for people's actions, even if they believe they are doing it for a greater good. REPRESENTATIVE CROFT said if it was the intention to add that amendment, he was removing his objection to adoption of Version E. Number 1099 CHAIRMAN GREEN noted that there being no further objection, Version E was before the committee as a work draft. REPRESENTATIVE BUNDE specified that he had been speaking to the proposed language to amend Version E, to say that it "does not excuse acts that violate ...." CHAIRMAN GREEN said, "... licentiousness, [comma] existing laws or justify ...." REPRESENTATIVE BUNDE replied, "As long as 'existing law' is in there, I guess we can leave the others in there." Number 1131 REPRESENTATIVE JAMES said Representative Bunde's example sounds like apples and oranges. Demonstrating is entirely different from not doing something that is against one's conscience. CHAIRMAN GREEN suggested Representative Bunde wanted this in here so that people couldn't break the law. REPRESENTATIVE JAMES agreed that they shouldn't excuse people from breaking the law. CHAIRMAN GREEN concurred. Number 1186 REPRESENTATIVE MARTIN told members this came from Washington State, and "licentiousness" is a word James Madison had used. He agreed that people have always tested the freedom of conscience, and he cited examples relating to civil rights and the teaching of evolution. He pointed out that it is how laws have been changed. Number 1311 REPRESENTATIVE ETHAN BERKOWITZ said those examples are like Representative Bunde's, where someone got into trouble for doing something. They are sins of commission. REPRESENTATIVE MARTIN agreed. REPRESENTATIVE BERKOWITZ suggested Representative James' understanding is that the proposition solely covers sins of omission, a big difference. Number 1330 REPRESENTATIVE MARTIN replied, "I didn't say that, omission or commission. Both ways it works." REPRESENTATIVE BERKOWITZ asked, "So, omission and commission?" REPRESENTATIVE MARTIN answered, "Sure. It's called freedom." He reminded members that someone would pay the price for daring to challenge authority, however. Number 1344 REPRESENTATIVE JAMES referred to a memorandum from the sponsor, dated February 11, 1998, that quoted from Oregon's Bill of Rights, Article I, Section 3, as follows: "No law shall in any case whatever control the free exercise, and enjoyment of religious opinions or interfere with the rights of conscience ..." Representative James said that is the way she reads this whole issue. Generally, one can refuse to do things that are against one's conscience. REPRESENTATIVE JAMES cited the example of conscientious objectors in the military, where generally people whose objection was to war itself, or to killing, would be placed where they wouldn't be exposed to that; there was an understanding that a right of conscience is a basic right. Representative James said she didn't know that there is a big problem in Oregon, with this in the constitution. She concluded, "I think what it means to me is that you shall not make a law that requires somebody to do something against their conscience. That's what you shan't do." Number 1571 REPRESENTATIVE BERKOWITZ said he'd looked over the list provided by Representative Martin, and those propositions are so "well and good" that they are already included in Alaska's constitution. He read from Article I, Section 4, Freedom of Religion: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." He said that covers the concerns that were raised. REPRESENTATIVE MARTIN disagreed. CHAIRMAN GREEN suggested it almost does, saying it covers the right of religion but not the freedom of conscience. REPRESENTATIVE MARTIN said that is exactly the point. In calling around to hospitals, he'd found that Providence Hospital had thought it was safe because it is a religious institution. However, he had asked about the hospitals managed by Providence, such as in Sitka and Seward. Now, Providence Hospital doesn't know whether it is safe, because those were previously public institutions. REPRESENTATIVE MARTIN asked why a person of religion should have more freedoms than a person who is nonreligious but is a moral individual. He asked if only by having a religious conviction are we safe from what authorities tell us to do. He further asked if a moral person with freedom of conscience, who does not have a religious conviction, is a secondary citizen. Number 1488 REPRESENTATIVE BUNDE said he feels "licentiousness" is vague. He made a motion to remove "of licentiousness" on line 9 and replace it with, "contrary to existing law." REPRESENTATIVE BERKOWITZ objected, saying he believes that is also vague. CHAIRMAN GREEN stated his belief that he already had an amendment on the floor. He offered to withdraw it. REPRESENTATIVE BUNDE said he'd thought it was just discussion. He withdrew his own motion. Number 1564 CHAIRMAN GREEN said the motion that was made is that after the word "licentiousness", they insert, "violate existing laws, [comma]", which would be followed by "or justify practices ...." REPRESENTATIVE CROFT pointed out it would have to say, "that violate". Number 1571 REPRESENTATIVE BERKOWITZ said his objection has two parts. First, they don't know what "existing law" means. Is it existing at the time the constitutional amendment is enacted or at the time the interpretation is made? Second, it seems they are subordinating a constitutional provision to a statute, a strange anomaly. He explained, "We're basically saying, 'This constitutional amendment is all right except if there's a law.' In most cases, the constitution trumps law." REPRESENTATIVE JAMES agreed. CHAIRMAN GREEN responded that it doesn't say, "unless there's a law," but just says one can exercise freedom of conscience that does not violate a law, is not licentious, and so forth. He said if "licentiousness" is a problem, that can be eliminated. REPRESENTATIVE BERKOWITZ said he was talking about the law part. CHAIRMAN GREEN suggested they could fix it to include laws passed in the future, by just saying "laws." REPRESENTATIVE BERKOWITZ referred to use of the term "law" within a constitutional amendment. He restated, "The normal progression of events is that the constitution trumps statutes. And here, what we're saying is if there's a statutory provision, it's going to trump the constitution." Number 1647 REPRESENTATIVE BUNDE replied, "Existing law means, to me, law that exists at the time that this freedom of conscience issue would come before the courts. And while I understand 'rocks over scissors,' ... we have a constitutional amendment here that says existing law still applies." CHAIRMAN GREEN expressed willingness to drop "existing" from the amendment, so that it covers future laws. Number 1681 REPRESENTATIVE ROKEBERG said Representative Berkowitz is on point here, and they haven't even talked about retroactivity. For example, what would be the effect of an existing statute that may be inconsistent with this? He suggested this fails by that construct. CHAIRMAN GREEN said he would agree on that issue; if existing law would prevent this free exercise, this would prevail. He acknowledged the question about a law that passes next year. Number 1722 REPRESENTATIVE JAMES agreed with Representative Berkowitz that the constitution is a higher power than the statutory law. She suggested that by putting a basic right in our constitution for freedom of conscience, the state cannot make any law that would violate a person's freedom of conscience; that is the point. Neither can they make a law that requires people to violate their own religion, or the free exercise thereof, under a federal constitutional amendment. Conscience is just as important to people as their religion; it is the very inside of them. REPRESENTATIVE JAMES suggested this added language is to clarify that taxes are not necessarily a violation of the conscience, for example, but part of the peace and safety of the state. It sorts through what one can and cannot do. However, putting "laws" in there messes it up, because laws have to match the constitution, not the other way around. CHAIRMAN GREEN responded that the peace and safety of the state, in large part, are made up of laws. He said, "And so, if we are going to allow this regardless, or not allow any law to interfere with the freedom of conscience, and that freedom of conscience is that you join my religious organization that advocates something that's illegal, then the constitution should not give you a privy to hide behind that." REPRESENTATIVE MARTIN agreed. REPRESENTATIVE JAMES said, "I don't think it does, sir." CHAIRMAN GREEN replied, "It doesn't. And so, by putting in laws, we make sure that no young lawyer or someone else is going to misconstrue what we're really after here." Number 1842 REPRESENTATIVE JAMES emphasized that with "laws" in there, it says this constitutional amendment is subject to statutory law, which is the wrong way to go. "The constitution is a guide," she said. "You can't do any laws that violate the constitution." CHAIRMAN GREEN replied, "Well, if you don't do that, then we can't have this." REPRESENTATIVE JAMES said that might be true. CHAIRMAN GREEN disagreed with Representative James on that point. Number 1868 REPRESENTATIVE MARTIN first said he kind of agrees with Representative Berkowitz. He noted earlier discussion about having constitutional amendments that are general and broad, not tied up with too many details, as done by the constitutional drafters from the early days. He suggested the courts over the years have been balanced in deciding when someone uses or misuses the so-called freedom of conscience; they had been flexible regarding an individual, as long as it doesn't impact someone else. He cited a case where the person's religious beliefs would not allow him a blood transfusion; the court had upheld that person right, and his family's right, to not force him to have the transfusion. On the other hand, when there was a law pertaining to children, the government was allowed by the courts to overtake the protection of a sick child against his parent's wishes, in order to save the child's life. CHAIRMAN GREEN asked whether that was because of some statute. REPRESENTATIVE MARTIN said yes, even though the objections were for religious rights, such as not wanting a vaccination, they had ruled in favor of the child, that "the government has the right to protect the life of that child against their conscience." He said it will always be give and take. Representative Martin then stated, "But as Representative James said, if you've already put the law in there, your conscience cannot be objected to the law. That's the whole idea. That's why every time it comes to (indisc.), whether it be in Athens, whether it be in Rome, whether it be in Europe or even in America, these laws people objected to, as a freer people. And our Founding Fathers made it very clear: Freedom of conscience is extremely important." REPRESENTATIVE MARTIN asked that the committee not alter it much more, because this wording has been tested in at least two states. He said, "And if we put, say, 'as the law is,' then there's no conscience, because anyone can make a law. Any judge can interpret, as the supreme court here did - they interpreted a law of right to privacy. It was a constitutional right ...." Representative Martin recounted how a California pharmacist had lost his license and was sued because he wouldn't dispense some drugs meant to kill. He stated, "If a doctor believes in assisted suicide, let him administrate the pill; don't send it to the pharmacist to give these pills to someone he knows that it's going to be their deaths. And so, they're up in arms because the pharmacist feels just because he has a license it doesn't mean to give pills to someone for death. And he upheld the Hippocratic oath, 'I'm here to help people to live better. To help them, not to terminate their life.' And so, that's his defense in the California court." Number 2013 CHAIRMAN GREEN asked: If they didn't have that, but just peace and safety, would it be Representative Martin's opinion that these other states have not had the problem raised by Representative Croft? REPRESENTATIVE MARTIN said no, then cited Jamestown in 1620 and the Mayflower Compact as having included freedom of conscience. Number 2014 REPRESENTATIVE BUNDE commented that those people weren't perfect, mentioning the holding of slaves and the burning of people. He agreed that peace and safety of the state relate to laws. From his point of view, he said, existing law is already covered; if not, he certainly can't support this. He noted that Representative James had said that if this passes, they couldn't pass a law that would impact somebody's freedom of conscience. Representative Bunde suggested if that is the case, they couldn't pass another law. He said he could search the state of Alaska and find someone, on almost any law, who thinks it limits his or her rights too much. CHAIRMAN GREEN agreed, saying the way it was before, with just "peace and safety," that is how he interpreted it also, which would be proactive into the future. Additional laws passed would still fall under peace and safety of the state, to answer Representative Rokeberg's question. Chairman Green said he had been trying to ease a concern brought up by a member, but it seems to be stirring up more problems than it is answering. Number 2108 REPRESENTATIVE CROFT stated his belief that the problems are inherent in HJR 5. He suggested they are putting a weight on freedom of conscience that it can't hold. He referred to materials provided by the sponsor quoting Sandra Day O'Connor and talking about Rhode Island's charter of 1663. In discussing "liberty of conscience," that document protected residents "from any ways being molested, punished, disquieted or called into question for any differences in opinion in matters of religion." Representative Croft suggested that conscience was used nearly identically with religion then. CHAIRMAN GREEN said, "Nearly." REPRESENTATIVE CROFT suggested they used it synonymously. He said the reason that is appropriate and can work is that it is easy to identify. He explained, "It said the state has no right to interfere in your religious beliefs, and that's still true today. It said when your beliefs turn into action - 'I must do anything, I must drink Communion wine on Sunday and it's Prohibition, ... or I cannot go to war' - that's where your religious beliefs turn into actions." REPRESENTATIVE CROFT said that is where the court has had the most trouble, in identifying real religions and not shams. He stated, "There are the Holy Church of Not-Paying-Taxes right now, so that's been tough, because who is the state to question what is a real religion and not? The courts have been very sensitive about ... getting them down to bona fide beliefs, and not saying, 'Has this church existed for a hundred or a thousand years?' That's really none of the state's business. 'Do we like the terms of its religion?' None of our business. But just, 'Is it something that you truly believe,' is finally what they settled on, which is pretty close to the definition of 'conscience' that we have today." REPRESENTATIVE CROFT said when it comes to actions is where it has been toughest. Until recently, there would be exceptions of a very limited nature, the biggest being sacramental wine during Prohibition; that was in statute, but a lot of people agree that if it had not been, they would have created one, because it would have been prohibiting the free exercise of the Catholic religion by this general prohibition. REPRESENTATIVE CROFT said the federal free exercise clause was recently re-interpreted by Justice Scalia to stop that; they took a church of Indians who used peyote for hundreds of years and said they couldn't do that. A lot of people thought that was a poor decision that hurt people's free exercise. Representative Croft stated, "We have kept the very limited, 'You can have an exception not immunizing yourself, not taking your kids to school.' So, we have that protection." He said if we open it to "any belief gives you this exception," he worries that goes too far. It has been troublesome from the day it came before this committee. He concluded, "What do we mean by it? If we open it up beyond sincerely held beliefs about the universe and its Maker, if that's what we mean by it, we have it. If we mean something else by it, I don't know what we mean, and I'm very worried about it." Number 2263 REPRESENTATIVE MARTIN cited examples from committee packets, including Pennsylvania's Article I, Section 3, as well as the dual freedom of religion and conscience in Indiana. Other states have split, and in some there are two different things. Representative Martin said, "And so, in this case here, I'm saying that in this state, are we going to say that only those people of religion have the superiority of freedom when they feel that something is morally wrong? And those that do not declare a religion, you cannot use your conscience? That is what's made clear in the Valley Hospital case, then they'd say the nurses and others cannot use freedom of conscience. That's why the Providence Hospital at first thought they were safe, because they're a religious hospital; now, they're not so sure they're safe, because freedom of conscience needs to be brought in. People need both of them." Representative Martin indicated that 45 states make clear three important things: freedom of religion, freedom of conscience, and free exercise thereof. Number 2321 REPRESENTATIVE BUNDE indicated Representative Martin first wins him over, but then the dialogue goes further. He requested help in understanding the practical application of this, without any amendment. He stated his understanding that abortion clinic bombers would still be subject to law, although their conscience tells them that they are saving more lives by killing people. REPRESENTATIVE MARTIN said that's why they have the public safety clause. Number 2360 REPRESENTATIVE BUNDE referred to Valley Hospital. He suggested part of the genesis of this was some people being told to either be involved or get fired. He asked if those people would be allowed to keep their jobs under freedom of conscience, or if they would have to suffer the consequences of not complying with the directive of whoever is in charge. REPRESENTATIVE MARTIN indicated Valley Hospital has been told, because it is quasi-public, that it must provide abortion services. He asked, "From that point on, who is to do it? The board of directors that is elected by the citizens in that community chose, after a number of elections, not to provide abortion services. Sitka went through that, Kenai went through that - I don't know what other hospitals, but I know those three did - where the people who elected a board of directors in that community chose, and this is one of the reasons why they chose it." REPRESENTATIVE MARTIN suggested the courts said a right to privacy equals the right to abortion. He asked, "But do they have a right to force someone else to perform that operation? No, not on their freedom of conscience, I say, but under freedom of religion, they say no. But we don't have a freedom of conscience right in this state." Number 2422 REPRESENTATIVE BUNDE said he understands all that but is not getting the answer to his question. As he understands it, the courts have said that if a hospital takes federal money, it must provide this service. The consequence for following their conscience, then, is not to take federal money. He suggested the hospital wouldn't do that, because they need the money. So, someone is working at the hospital, and the hospital must perform the abortion. If a person with a strongly held belief chooses not to be involved in the procedure, does that person then suffer the consequences of disobeying his or her superior and being subject to dismissal? Or could such people say that the organization cannot make them perform abortions or fire them if they choose not to? [Representative Martin's reply was cut off by the tape change. Log notes indicate he said the person would have the right to go to court over it.] TAPE 98-26, SIDE B Number 0006 REPRESENTATIVE BERKOWITZ clarified that the Valley Hospital case does not compel people to perform abortions. It quite clearly states that people who have a conscientious objection to abortions need have no role in the performance of those services. REPRESENTATIVE JAMES pointed that a hospital cannot have a conscience. She then referred to the phrase, "does not excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State." She suggested a vegetarian working at a meat market could have to sell meat but wouldn't have to eat it; otherwise, that person could find another job. She agreed that in the Valley Hospital case, there was no demand that anybody violate his or her conscience in performing those duties. She restated that the hospital itself can't have a conscience. Number 0080 CHAIRMAN GREEN said that is a point well-made. REPRESENTATIVE CROFT said he had been going to make the same point about the Valley Hospital case. Number 0094 REPRESENTATIVE ROKEBERG said a person may not be compelled to do something contrary to his or her conscience, but a hospital is a certified state organization. If they are compelled by the court to act, then what duties do they have under the rule? REPRESENTATIVE CROFT replied that on that point, Representative James had phrased it exactly right: A hospital can't have a conscience. He mentioned the previous example of immunizing children. Although some people don't believe they should for religious reasons, a person can also make that decision for himself or herself without having the government force it upon anyone, although it may result in a quarantine, for example. If a group of Christian Scientists took over a hospital board and said they didn't want to provide immunizations anymore to a community, however, they couldn't do that. No particular Christian Scientist serving in that hospital has to give immunizations, but they can't shut it down for the whole community. REPRESENTATIVE CROFT stated, "If we're trying to fix Valley Hospital, I don't think that's appropriate; but if you want to do it, let's do that, and we can fight about that, instead of something that I think is going to open up a huge, uncontrollable, really, can of worms." Number 0159 REPRESENTATIVE MARTIN responded, "My part in beginning this - and this legislation's been around for at least ten years - was not the Valley Hospital decision. It was the individual's rights of freedom of conscience, that to me is far more -- and we keep up bringing up religion. The Valley Hospital case made it very clear: There is a different between ... freedom of religion and freedom of conscience. In this state, the only way it's even suggested that you have any freedom of conscience is in the right to privacy. But it does not give a right -- pertaining to abortions, I should say. No one, against their conscience, has to participate in abortions. Well, now we're seeing that that may be not so, because the court says that 'directly in abortions.' So, the doctor performs the act, the nurse has to clean up, the janitor has to clean up and everything else." REPRESENTATIVE MARTIN continued, "And we got gobs of letters from the Valley Hospital people; you heard the testimony last week from nurses who were forced into doing something that they ... felt very, very strict about. That's where conscience come in. So, the Valley Hospital kind of brought up the subject again, inflamed the idea: Do we need to protect people - freedom of conscience? Yes, because they said, very clear, there's a difference between conscience and religion. And I believe in that, too." Number 0215 CHAIRMAN GREEN noted that the states cited as examples by Representative Martin don't have Valley Hospital as an issue. Number 0222 REPRESENTATIVE BUNDE said he keeps wrestling with this; he thinks he has a grasp, but then more questions come up. He stated, "Representative James said, if you don't want an abortion, don't have one, that's freedom of conscience, but you can't prevent other people. Now, Representative Martin says freedom of conscience says ... the janitor, who is only tertiarily involved, he has to mop up the halls where abortion patients walk or he has to clean up the operating room. He is not actively participating in providing the abortion, but he's an employee of the hospital, and ... we can go as far as want: the cook who makes the meal that the doctor eats who provides the abortion. I still don't have an answer to my question: ...If that janitor, or that cook, refuses to do their assigned duties, are they subject to dismissal? Or can they say, 'My freedom of conscience does not allow me to clean that floor, but I can clean this floor, or cook for this guy, but I can cook for that guy'?" REPRESENTATIVE MARTIN responded that throughout 300 years of American history, that has been the challenge in state courts and the U.S. Supreme Court. At least the people in most other states have the guaranteed right in their constitutions; but in this state, people don't have anything to hat their hats on. Representative Martin proposed examples: "I'm not a religious person, but I have my own morals, and therefore, I'm not going to do what that doctor tells me to do; and then I get fired. And then I can say, 'Hey, the state fired me, too, from my job. I did not want to ... put someone to death, because I didn't believe in it; that person does, let them do it. They insisted I give the lethal injection. I didn't want to do that. So, you're fired." CHAIRMAN GREEN announced that following the testimony of Sarah Felix, there would be a wrap-up and vote. Number 0315 SARAH FELIX, Assistant Attorney General, Civil Division (Juneau), Department of Law, informed members that her office had testified on HJR 5 the previous year. She stated, "We believe that there are serious problems with the joint resolution, such as the ones you have articulated. We're not quite sure how it would be enforced. We're not quite sure what we would do in the situation that Representative Bunde has raised, where someone is going to raise that ... in their wrongful employment termination lawsuit against the state. We're not sure how this would work with people who are morally opposed to paying child support. ... Alaska is a big state, full of a lot of people with a lot of ... fervently held beliefs, and we're not quite sure how this would work. And we're very concerned that it wouldn't work." Number 0376 CHAIRMAN GREEN noted that this is not addressing the Valley Hospital case, but it is an example. Although one person making beds might not adversely impact the operation, if the place is not cleaned up, a janitor might adversely affect the operation. He asked, "Would you see, from the AG's [attorney general's] viewpoint, that peace and safety of the state not being held in jeopardy because of your belief would protect and distinguish between various occupations?" MS. FELIX replied that they aren't sure what "the peace and safety of the state" would mean, as it is a broad expression. She stated, "I'm not certain that it would cover your example. I mean, I think that person would have some 'wiggle room' to say that their action is not inconsistent with the peace and safety of the state, so that therefore their belief should be protected." She noted that the Valley Hospital case specifically said that nothing in the permanent injunction required anyone affiliated with the hospital, to participate directly in the performance of any abortion procedure, if that person, for reasons of conscience or belief, objects to doing so. CHAIRMAN GREEN said, "Directly." He mentioned the janitor. MS. FELIX replied, "Indirectly. I know. ... I think that's open to question, open to litigation, and one of the problems that we'd have to address, were this to become law." Number 0467 REPRESENTATIVE JAMES read from Oregon's Bill of Rights, as attached to the sponsor's memorandum of February 11, 1998: "No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience." She said she grew up in Oregon and had never known it to be a problem. She asked whether Ms. Felix would see any problem in that language. MS. FELIX replied that she would see a lot of the same problems that she sees in this language. "Oregon's lucky, I guess," she said. "Maybe ... that hasn't been discovered as a possible defense to prosecution for various offenses. I could see, in this state, someone using this, HJR 5, as a defense to prosecution for not paying child support, not paying taxes, any of those things. ... I can't tell you why it hasn't happened in Oregon. I can only say that our projection is that it would happen here." Number 0536 REPRESENTATIVE JAMES suggested the reason for this struggle is that Alaska didn't have this first, before all these examples where people refuse to do things. However, she doesn't think it means that, at all. The other reason for confusion is that when the United States was first founded, it was based on Christianity, although the country has come to understand that there are lots of other religions, as well as people who are religious but not attached to any particular religion. Representative James said that religion means what a person believes; religion and conscience are actually the same thing, but there is a misunderstanding tying religion to churches. Representative James said she feels comfortable putting conscience in with religion, because then it includes people whether they are members of a regular church or not. One can have a religion without any church affiliation, she concluded. Number 0594 REPRESENTATIVE BERKOWITZ said he thinks it is important to respect the diversity of belief systems and ways of worshiping. A law like this, on its face, seems to promote some kind of freedom. However, it really leads to an anarchy that erodes everybody's freedom, because one can take individual freedom of conscience in such a way as to impinge upon the freedom of one's neighbor. "And that's the root of my objection to this bill," he concluded. CHAIRMAN GREEN said the amendment would preclude that. He suggested that other states have articles far more permissive, without anarchy or a plethora of lawsuits. He cited Arkansas and Delaware as examples. He submitted that perhaps the legal minds are seeing problems, which is what they should do, that may or may not exist and that don't seem to exist in other states. Number 0678 MS. FELIX said she not familiar with the materials provided to the committee regarding other states. Perhaps the distinguishing factor in HJR 5 is the language that says, "may not be compelled in a manner that violates the individual's conscientious objections to the act," which is more specific than broader language of other states; that may be something that a litigant could latch onto and use to advantage when the state tries to get that person to pay taxes or child support, or to do whatever the state has enacted laws about. "And then they would say they had a firmly held conscientious objection to that act," she concluded. Number 0740 REPRESENTATIVE CROFT pointed out that the provisions for the bills of rights for Arkansas and Delaware are both titled, "Freedom of Religion." Both start similarly, addressing the right to worship Almighty God according to the dictates of one's own conscience. He suggested that in using "conscience" in this way, it means an aspect of freedom of religion. He offered Ms. Felix a copy of those attachments to the sponsor's memorandum of February 11, 1998. He asked if that is the way Ms. Felix would read those. MS. FELIX said it does seem as if these clauses are more similar to the clause Representative Berkowitz had read earlier from the Alaska constitution on freedom of religion; perhaps that would be the distinction. She explained that her office is not saying that individuals don't have the right to exercise freedom of conscience. People do it all the time in individual cases, in litigation on individual acts. She suggested that right already exists, and people can still exercise those rights. Number 0809 CHAIRMAN GREEN withdrew his amendment. Number 0824 REPRESENTATIVE BUNDE made a motion that on line 9, they delete "of licentiousness" and insert "contrary to existing law". He requested Ms. Felix' input. CHAIRMAN GREEN noted concerns about a law passed the next week, for example. MS. FELIX responded, "I think that that is a problem: What does existing law mean? And I think that all the interpretations that were mentioned are equally valid, and they could be upheld. I think that the broader concern is the concern raised by Representative James ... and Representative Berkowitz, in that if we're going to put this 'existing law' language in a constitutional amendment, we get even more confused because of the hierarchy of the laws, and the constitution then being subordinate to other laws. And then what does it mean?" Number 0890 REPRESENTATIVE BUNDE withdrew his amendment. Number 0899 CHAIRMAN GREEN asked whether Ms. Felix sees something that could be inserted there to circumvent the concern of not wanting people to run amok. MS. FELIX replied that she understands the concern, and the department shares that concern. However, she cannot think of a way to do this. CHAIRMAN GREEN commented that maybe that's why the other states don't have it in, either, and they seem to be all right. He asked the wish of the committee. Number 0929 REPRESENTATIVE JAMES made a motion to move HJR 5, Version E [0- LS0199\E, Cook, 2/25/98], from committee with individual recommendations and attached fiscal note(s). REPRESENTATIVE BERKOWITZ objected and requested an at-ease. CHAIRMAN GREEN called an at-ease at 2:15 p.m. He called the meeting back to order at 2:16 p.m. Number 0961 CHAIRMAN GREEN requested a roll call vote. Voting to move the resolution from committee were Representatives Rokeberg, James and Green. Voting against it were Representatives Croft, Bunde and Berkowitz. Representative Porter was excused. Therefore, HJR 5, Version E, failed to move out of the House Judiciary Standing Committee by a vote of 3-3.
| Document Name | Date/Time | Subjects |
|---|