Legislature(2015 - 2016)GRUENBERG 120
04/01/2016 01:00 PM JUDICIARY
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HB 236-RIGHT TO REFUSE TO SOLEMNIZE MARRIAGE 2:08:46 PM CHAIR LEDOUX announced that the first order of business would be HOUSE BILL NO. 236, "An Act relating to marriage solemnization." CHAIR LEDOUX opened public testimony. 2:09:11 PM JOSHUA DECKER, Executive Director, American Civil Liberties Union of Alaska (ACLU), said that the bill offers something good as well as inadvertently dramatically changes the balance between religious freedom and sex non-discrimination laws that have existed in the country for 62 years. On the frontend, he advised, the ACLU strongly supports the First Amendment right of clergy to choose to solemnize or not solemnize marriages comporting with their faith, and that the ACLU's letter (directed to the committee) cited examples of the ACLU going to court to vindicate one's practice of religion which it averages approximately one lawsuit per month. He related that concerns of the ACLU are that the bill disturbs a long-standing balance point between the right of individuals to pray and practice their faith with the right of the public to be treated fairly and free from discrimination in public spaces. He explained that since the original Civil Rights Act, society struck a balance between private spaces and public spaces and when organizations open themselves up to the public, it has to treat all comers fairly, and HB 236 undoes this carefully constructed balance. He commented that there is no less of a defender of freedom of religion than United States Supreme Court Justice Antonin Scalia, who 26 years ago wrote about this balance. Mr. Decker paraphrased the following, "we want to ensure that laws of general applicability that apply to everyone equally should in fact apply to everyone equally -- and that we should not lose this equilibrium point away from religious organizations." Mr. Decker then referred to his letter pages 4-5, that its suggestions would allow the bill to "pass muster," in clarifying the right of clergy and religious organizations to practice their faith when it is not open to the public, and when they are open to the public they should treat all comers equally. 2:13:00 PM REPRESENTATIVE LYNN requested his definition of a church being "open to the public." Obviously, he offered people are members of a church and it is open to membership, and he could not think of any churches that wouldn't welcome a visitor. 2:13:45 PM MR. DECKER, in response to Representative Lynn, said that by open to the public, the American Civil Liberties Union of Alaska (ACLU) means open to the public in the secular space. Churches open to anyone who would like to participate in the religious service are exempt from non-discrimination laws in that capacity. He referred to yesterday's testimony regarding the Shrine of St. Therese in Juneau wherein it rents out event space open to the public for secular purposes. For example, a Lutheran couple renting out part of the banquet hall space for a secular wedding reception. He explained that that is the ACLU's definition of "open to the public," such that being open to all comers in the secular non-religious sphere. 2:14:53 PM CHAIR LEDOUX referred to open to the public and offered a scenario of a synagogue with an area it rents out to the public for various functions, and the Klu Klux Klan or the American Nazi Party want to have a celebration of Nazi-ism in that event space of the Jewish community. She asked whether current law forces the Jewish community to rent to the Klu Klux Klan or the Nazi party. 2:16:19 PM MR. DECKER answered no. In the event a synagogue or any institution is opening up space to the public they are allowed to turn away members of the Klu Klux Klan or members of the American Nazi Party because the nation, as a society, has not said that membership in the Klu Klux Klan or American Nazi Party falls under what the law calls a "protected class." He explained, there are certain categories the law has carved out because society said "when one is open to the public, one should not treat people on the basis of race, sex, national origin, or physical disability, differently." Therefore, he said, it would be within their rights to refuse to rent that space to a member of the American Nazi Party or the Klu Klux Klan. CHAIR LEDOUX asked whether religion is a protected category. MR. DECKER answered that religion is a protected category and one is not allowed ... 2:18:04 PM CHAIR LEDOUX surmised that in other words, the Catholic Church would have to rent out space under current law to a group that identified themselves as witches. 2:18:23 PM MR. DECKER answered that it would depend upon how that church treated the space, and it would be perfectly fine if the Catholic Church made the decision on the frontend that it will only rent that space out to Catholics. The Catholic Church is allowed to treat its spaces as private; however, if the church says on certain days it will rent the to the Girl Scouts of America and the Senior Citizens group, then the church made the decision to treat that particular space as part of the public. Therefore, he said, the church would have to be open to the public. He added that churches have the ability to decide whether it wants to be open to the public because the law gives a church complete freedom to restrict the uses of that space in accordance with its faith. Although, he reiterated, for the past 62 years when religious entities have decided to open space to the public on the frontend and be open to all comers, they must in fact be open to all comers. 2:19:36 PM CHAIR LEDOUX asked "including witches?" MR. DECKER responded that if, in the hypothetical, a church has decided to open the space to the public then it would have to be open to the public and it could not discriminate on the basis of religions in the same it way it cannot discriminate on the basis of race, national origin. He explained that it is in the same way employers cannot tell an employee they are fired based upon their religion, and those same protected classes apply to spaces of public accommodation. Although, in the event the church desires to control who is able to use their spaces, "they should make the eminently reasonable choice to keep those spaces public and not, in fact, open to all comers," he said. 2:20:26 PM CHAIR LEDOUX asked whether he was saying that the bill in its current form is unconstitutional, or rather that he disagrees with the policy. 2:20:52 PM MR. DECKER extended there are no constitutional cases on point, but if this bill is passed in its current form it would dramatically rewrite the balance the country and the state struck for 62 years ... CHAIR LEDOUX interjected "in your opinion." 2:21:15 PM MR. DECKER explained that it is in the opinions of the United States Supreme Court and the Alaska Supreme Court. He offered that their letter cites both the U.S. Supreme Court Justice Scalia's case of Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990); and the Alaska Supreme Court under Swanner v. Anchorage Equal Rights Cornmn., 874 P.2d 274 (Alaska 1994). He offered that both clearly enunciate the principle of the equilibrium point between the public's freedom to be free from discrimination in public spaces, and religion's freedom to exercise its religion and define it in private spaces. 2:22:00 PM REPRESENTATIVE KELLER noted that under AS 18.80, [State Commission For Human Rights], if a church makes a property available for leasing for whatever purpose, potentially there is a problem because someone could allege that the church is discriminating simply for denying access to the facility, and this bill moves toward clarifying that issue. MR. DECKER related that he did not understand his question. REPRESENTATIVE KELLER surmised that what Mr. Decker is saying, under the recently enacted Alaska law, if a piece of property is not leased, the owner becomes vulnerable due to denial for access under the new "Human Rights Act." He asked whether he was correct, that is what the law tries to clarify. MR. DECKER advised that as the ACLU reads the bill in its current form, it is trying to carve out, from existing non- discrimination law, places of public accommodation that religious organizations own and are renting out to the public for wedding receptions and celebrations of marriages. He apologized if he was not entirely following Representative Keller's question. MR. DECKER offered that the concern animating this bill in many ways is a solution in search of a problem. Non-discrimination protections are not new in Alaska or the United States. In Anchorage, for example, in terms of protections of individuals who are gay and transgender, Anchorage has had these protections for the past six months, and neither for the past 62 years, or in the past six months, the sky has not fallen, he said. The ACLU is unaware of any churches that have been unable to practice their religion as their faith teaches it on the basis of civil rights, non-discrimination laws. He pointed out that because this is a solution in search of a problem in a bill that dramatically rewrites a balance the nation has had for over one- half century. It is for these reasons the ACLU made suggestions in its letter to reiterate the constitutional right of churches to practice their faith as they see fit, as well as to clarify that this bill should not undertake such a dramatic change. 2:25:17 PM REPRESENTATIVE KELLER asked Mr. Decker to abandon that question for now and referred to the balance Mr. Decker said has existed for 50 years, and asked whether he is using case law to form his opinion, and asked for a list. MR. DECKER reiterated that the ACLU's letter cites two cases, one was authored by U.S. Supreme Court Justice Scalia in an eight to one decision, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), and Swanner v. Anchorage Equal Rights Cornmn., 874 P.2d 274 (Alaska 1994)]. 2:26:24 PM REPRESENTATIVE KELLER referred to Mr. Decker's statement that the balance was to protect the rights of people that were in that public space. He requested an illustration because it is a balance he had never considered, and asked what the balance was between what and what. MR. DECKER explained that, as a first principle, the nation as a society decided, beginning 1964, that when a place is open to all comers they cannot turn people away because of their race, sex, physical disability, national origin or religion. Both the United States Supreme Court and Alaska Supreme Court, he pointed out, decided that when there are laws of general applicability that apply to everyone equally, the balance that society struck is that when religious organizations want to fully practice their faith and shield out a space that is not open to all comers, it should keep that space private. Although, he said, when the decision is made on the frontend to open up a banquet hall, it should be available to all comers. He reiterated that the balance has worked well for the public as well as the churches for 62 years. 2:29:30 PM REPRESENTATIVE CLAMAN referred to a question he had asked Bishop Edward Burns, and asked whether the Catholic Church would rent the Shrine of St. Therese to a Lutheran couple who wanted their wedding reception there, and a Catholic priest had not performed the ceremony. He said he was advised that unless the Lutheran couple converted just before their wedding they couldn't get the priest to marry them. REPRESENTATIVE CLAMAN asked, in the context of the public accommodations questions raised in the ACLU's letter and proposed amendments, Mr. Decker's perspective about the Catholic Church if it is renting to the Lutheran couple for a reception after being married in the Lutheran Church. He further asked whether that means they are now becoming public for purposes of renting to a gay couple that wants to have their wedding reception at the Shrine of St. Terese. MR. DECKER responded that if the Catholic Church has taken the position it will not marry this couple because they are Lutheran that is certainly within its rights under the First Amendment. He reiterated that separate from the religious ceremony, the church made the decision that it is willing to rent to these individuals, irrespective of the fact they are Lutheran and not Catholic, then its decision to rent the secular reception space to that couple makes it a place of public accommodation. 2:31:56 PM REPRESENTATIVE CLAMAN surmised that on the one hand it is a solution in search of a problem, and on the other hand even if the legislature passes the current bill, a potential lawsuit is lurking for the Catholic Church if it is renting the Shrine of St. Therese to a non-member of the church for a reception. 2:32:26 PM MR. DECKER reiterated that if the Catholic Church decided to rent part of the Shrine of St. Therese for secular purposes, such as secular wedding receptions, then it is open to all comers. A problem would arise if the Catholic Church then decided to not rent that space to someone of the protected class. In the event the Catholic Church is concerned about that, and it does want to maintain its ability to choose to rent or not rent that space on the basis of protected class, the wiser course of action would be for the Catholic Church to decide to not make that space open to the public and keep it private and available to Catholic individuals. 2:33:42 PM REPRESENTATIVE CLAMAN surmised that from Mr. Decker's perspective, even if the bill is passed as written without either of his proposed amendments, the statute wouldn't protect the church and he would still have the same public accommodation arguments regardless of what the statute says. MR. DECKER agreed, and he said, "Certainly under federal non- discrimination law." REPRESENTATIVE CLAMAN referred to Mr. Decker's two suggested amendments and asked how they solve the problems he raised. MR. DECKER pointed to the robust constitutional freedoms of clergy and religious organizations in that they do not have to solemnize marriages if their faith teaches that a certain type of marriage is outside the boundary of that faith. He added, that freedom has existed under the First Amendment for over 200 years. Mr. Decker continued that the second proposed amendment clarifies this public/private distinction and, he reiterated, if churches want to continue unfettered discretion, the wiser course of action is to designate spaces as private, thereby, making it unavailable to all comers and the non-discrimination laws do not apply, such as private places, private clubs, private organizations and religious organizations. He reiterated that once the decision is made to be open to the public, it must be open to the public. He explained that the two amendments focus on the constitutional right to choose which marriages to solemnize, and clarifies that it is in private spaces that they have unfettered discretion about whom to admit and serve. 2:36:27 PM REPRESENTATIVE MILLETT offered a scenario of the Catholic Church deciding to make the Shrine of St. Therese a private club, and a person submitted an application, met all of the criteria of that club, and was granted access for a fee, she asked whether that would be acceptable. MR. DECKER responded that the Catholic Church wouldn't need to go that far because it is a religious organization and it could simply choose to rent the space only to Catholic individuals and there would be no administrative hoops to go through. CHAIR LEDOUX asked whether the Catholic Church could decide to rent the space only to Christians, such as groups similar to Catholicism. MR. DECKER answered that in both federal and state constitutional law there is a well-established principle that courts cannot interrogate the nuances of religious belief; therefore, if the Catholic Church takes the position that consistent with their religious faith, they only want to make the space available to other individuals who believe that Jesus is the Messiah they would have a strong argument that the space is in fact private because the test in terms of public accommodation is whether it is open to all comers. In the event it is not open to all comers and if the reason the church decided not to make it open to all comers is grounded in its religious belief, it would have a strong argument that the space is private and not public. CHAIR LEDOUX asked why the church couldn't set out that one of the tenets in the church is that it will rent the space to all people who believe that marriage is between one man and one woman. 2:39:41 PM MR. DECKER replied that he does not want to get to the nuances of .... CHAIR LEDOUX expressed, that is exactly what the committee is getting into, the nuances. 2:39:57 PM MR. DECKER related that he does not want to get into the nuances of Catholic doctrine because he is not an expert. The test in terms of public accommodation is whether it is open to all comers; therefore, if the Shrine of St. Therese is open to all comers to rent for a secular reception space, it needs to be open to all comers. The church can decide to open it up to the private members of its community in which case ... CHAIR LEDOUX interjected that she did not believe Mr. Decker was answering her question. CHAIR LEDOUX restated her question and asked why the church couldn't simply say that it would rent the space out to all people who believe that marriage is between one man and one woman. She pointed out that Mr. Decker said that the church could only rent to people who accepted Jesus as the Messiah, so why couldn't the church say it would only rent to people who believe that marriage is between one man and one woman. She expressed that that is a fundamental doctrine of the faith, and then asked whether the Supreme Court actually said that sexual orientation is a protected class. MR. DECKER responded no, the United States Supreme Court has ... CHAIR LEDOUX said, thank you. 2:42:08 PM REPRESENTATIVE KREISS-TOMKINS asked whether Mr. Decker is aware of an instance in Alaska where this legislation would enable an organization that wants to change its policies but thus far has declined due to fear of exposing itself to liability. MR. DECKER replied that he was not aware of any organization that, but for the fear of liability, has been inhibited from changing its policies. As the ACLU sees it, there are no problems out there that this bill would solve, he said 2:43:29 PM REPRESENTATIVE KREISS-TOMKINS referred to Mr. Decker's statement that the United States Supreme Court has not defined sexual orientation as a protected class, and commented that the basic discussion here is gay marriages. With regard to the protected class, where does a gay couple, that is getting married, fall into this area of non-discrimination given that gay couples and sexual orientation has not been defined as a protected class. MR. DECKER reiterated that no couple, whether same sex or opposite sex, has a constitutional right to have a particular religious individual marry them, and there is nothing in Alaska law or nationwide that obligates any religious person or clergy to officiate any wedding. He explained that the intersection between a same sex couple wishing to celebrate their marriage in a secular wedding reception would interact with this law in communities such as Anchorage, which decided to include sexual orientation as part of its existing non-discrimination law. That couple, if a space is open to the public, has the same rights as everyone else to use the space, he said. 2:45:47 PM REPRESENTATIVE KREISS-TOMKINS surmised there isn't a protected class on the federal or state level, but this law would trump the definition of protected classes on a municipal level in communities, such as Anchorage, that have defined sexual orientation as a protected class. Therefore, protections that exist for this protected class, on a municipal level, would be trumped by this law, he asked. MR. DECKER said that Representative Kreiss-Tomkins was entirely accurate as it would trump municipal protections, and it is also accurate to say that both federally and statewide, sexual orientation is not a protected class. REPRESENTATIVE KREISS-TOMKINS asked whether sexual orientation is a protected class in the City and Borough of Juneau. MR. DECKER advised sexual orientation is not a protected class in the City and Borough of Juneau. REPRESENTATIVE KREISS-TOMKINS asked whether it is accurate to say that the Catholic Church in Juneau could decline to rent out the Shrine of St. Therese to a gay couple that is having a secular non-religious celebration because gay couples and sexual orientation is not a protected class. MR. DECKER responded that Representative Kreiss-Tomkins was correct in that sexual orientation is not a protected class in the City and Borough of Juneau, the Catholic Church has the legal ability to choose to rent or not rent space to individuals based upon their sexual orientation. 2:47:37 PM PAMELA SAMASH, asked whether she could ask questions of the committee CHAIR LEDOUX explained that testimony does not include questions. MS. SAMASH offered testimony, as follows: Alrighty, thank you for your time and hearing our testimonies today. Please vote yes on HB 236. I believe this bill should pass because we as Christians are being targeted and singled out and we need protection. As a Christian myself, I cannot participate in certain clubs or activities contradicting to the Bible. And that's my right as an American citizen to believe and serve any god I feel is best for me. The Christian church, like me, cannot support or participate in those organizations or activities against the Bible either. It's important that we have a law that keeps us from persecution and from those who feel offended if we deny access to our buildings or services for anti-Christian events. The church's financial status is generally fragile and that's because we are trying to help people in our communities that have needs. Like those with addictions, or single moms, homeless people, orphans in other countries, et cetra. One lawsuit can shut down not only the church but all of the services they provide to those in dire need. This is America and it makes me really sad that we need to testify to protect our own Christian rights. I'm asking, please, that you vote yes on HB 236 and protect our religious freedoms. And since I can't ask you a question, all I can respond to my interpretation of the bill is when you were asking about ... does people that believe in Jesus or believe in sex of one man and one woman only allowed to use the church, you know, like facility. And I thought that was a really good question and I can't -- I'm not his lawyer and I'm not Talerico, so if I'm messing this up, forgive me. I feel like the answer to that question isn't like everybody that walks through the door has to take a quiz on if they believe the doctrine of church as much as does the activity that they're participating in support or contradict the doctrine of the church. In other words, if you have 10 people in there that want to participate in some homosexual event and the doctrine says that homosexuality is wrong, you could ask those 10 people and maybe 8 out of 10 of them would say, we believe Jesus is the Son of God. But, you know, the Bible says, and I'm not calling homosexuals' demons okay, not sayin that. But the Bible says even demons believe Jesus Christ is the Son of God. Believing Jesus Christ is the Son of God isn't -- is -- is not -- is wonderful, but the thing is, does the activity support or go against the Christian church's doctrine. That's, to me, the real point, you know. So, I just wanna clarify that that's my interpretation of what it means and it would be sad to see a church, you know, that has strong religious beliefs in certain areas, not just homosexuality but any area, you know. Like you said Klu Klux Kan somebody mentioned, you know. Nobody believes in hurting somebody just cause of the color of their skin, that's ridiculous, you know. And fer sure we wouldn't -- I know my church wouldn't want the Klu Klux Klan to do a ceremony because they're hurting people no matter of their protected class or whatever, by law or not, because they go against our doctrine of love for each other and killing people is not love. So, that's what I wanted to share with you. Thank you. 2:53:25 PM REPRESENTATIVE KREISS-TOMKIN offered a scenario of the NWACP having a hall and it decided to open that hall in a non-private manner beyond the functions of the NWACP chapter and rent it to all comers. He asked whether the Klu Klux Klan could rent that space in the category of "all comers" and would they have grounds to do so and appeal for a non-discrimination in asking to rent that facility. MR. DECKER reiterated his previous testimony that the Klu Klux Klan is not a protected class and if the NWACP does have a space open to all comers it is still able to turn people away as long as that decision is not based upon a protected class. The NWACP is well within its rights to refuse to rent the space, he said. 2:55:08 PM CHAIR LEDOUX offered a scenario of a religion and one of its tenets was anti-miscegenation law, and she asked whether the NWACP must rent its space to an organization with a tenet that white people can't marry black people. MR. DECKER related that religion is a protected class and for over one-half century the nation decided that public spaces cannot decline to serve people simply based on the customer's religion. He noted that the hypothetical is interesting, and there may be a problem if the NWACP's decision not to rent a public space, otherwise was made available to all comers, simply based on the religion of a specific applicant. Although, this hypothetical is unlikely to occur, but if it does the safer course of action for the NWACP would be to decide it will not rent the space to all comers and keep it private, he said. CHAIR LEDOUX, after ascertaining no one wished to testify, closed public testimony. 2:58:15 PM JOSHUA BANKS, Staff, Representative Dave Talerico, Alaska State Legislature, advised he is available. REPRESENTATIVE KREISS-TOMKINS asked the names of local governments in Alaska that have defined sexual orientation as a protected class. MR. DECKER responded he was unaware of all of the communities that have labeled sexual orientation as a protected class, but this legislation is not targeted toward same sex marriages. Although, the U.S. Supreme Court's ruling on same sex marriage was the start of laws similar to HB 236, it is not identical. The intention of the bill is not to target same sex marriage, but to allow any religious organization to officiate weddings based upon their religious views, he said. 3:00:21 PM REPRESENTATIVE KREISS-TOMKINS offered that he was unsure whether the solemnization of marriage is the crux here, but everyone including the ACLU agreed that that is a "cumbiyah" point. He opined that the crux of the differing perspectives is the accommodation of a facility that could be related to the solemnization formation or celebration of a wedding reception. He asked, if this is not related to same sex marriage, what class, besides sexual orientation and same sex marriages, is out there that is creating a quandary for religious institutions. REPRESENTATIVE KREISS-TOMKINS further asked whether there is an institution in Anchorage that has definitively changed its practices, such that instead of opening its facilities to the public and all comers, has made itself private to avoid this quandary in response to the Anchorage Assembly defining sexual orientation as a protected class. 3:01:51 PM MR. BANKS, in response to the first question, advised that to his knowledge in the State of Alaska there are not any instances of a pastor or any religious organization being forced to officiate a wedding or have a reception at their church facility. Although, he pointed out, Representative Talerico received concerns from pastors and clergy that the U.S. Supreme Court ruling would potentially put them in a position where they would have to refuse to officiate the wedding or refuse to allow a reception at their facility which would possibly lead to civil litigation. 3:03:00 PM REPRESENTATIVE KREISS-TOMKINS asked for clarification that these are Anchorage clergy that currently make space available to rent to the public and all comers. MR. BANKS clarified that the pastors are constituents and live within District 6. He added that they spoke directly to Representative Talerico and he was unaware of their locations and whether they do open their facilities to the public, but he would follow up on the question. 3:03:42 PM REPRESENTATIVE KREISS-TOMKINS asked whether any community, within District 6, has defined sexual orientation as a protected class; therefore, creating this problem for religious institutions. MR. BANKS opined that he did not believe so. 3:04:13 PM REPRESENTATIVE CLAMAN referred to the two proposed amendments within the letter from the American Civil Liberties Union of Alaska and asked whether he had reviewed those amendments with Representative Talerico prior to this hearing. MR. BANKS responded that this bill was pre-filed in January and the sponsor did not reach out to the ACLU of Alaska regarding this. He added that outside of the quote from Mr. Decker in the Alaska Dispatch News, the sponsor's office has not heard any comments or had any contacts from the ACLU regarding this bill and this is completely new to the sponsor. REPRESENTATIVE CLAMAN restated his question and asked whether Mr. Banks had an opportunity to show the sponsor this letter prior to this hearing. MR. BANKS responded, no. 3:05:11 PM REPRESENTATIVE MILLETT commented that Fundamentalist Mormons believe in polygamy and performing a marriage is something a religious organization wouldn't have to perform, as an example of something outside of same sex marriage, that doesn't fit into the doctrine of the Catholic Church. REPRESENTATIVE CLAMAN noted that before passing this bill out he would be curious to see what Representative Talerico thinks of either of the two proposed amendments. 3:06:12 PM CHAIR LEDOUX advised she had reviewed the amendments and that that issue will not hold up the bill. REPRESENTATIVE LYNN related that this is a good bill and he supports it because it is common sense. 3:06:30 PM REPRESENTATIVE KELLER moved to report HB 236, labeled 29- LS1290\A out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 236 passed from the House Judiciary Standing Committee.