Legislature(2001 - 2002)
04/05/2001 08:05 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 195 - FREEDOM OF RELIGION Number 1300 CHAIR COGHILL announced that the next order of business before the committee would be HOUSE BILL NO. 195, "An Act requiring governmental entities to meet certain requirements before placing a burden on a person's free exercise of religion." Number 1270 REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor of HB 195, came forward, accompanied by Representative Eric Croft, cosponsor. [After a brief return to HB 167, the hearing for HB 195 was continued and thus their testimony is found in the subsequent minutes listed for the same date.] HB 195 - FREEDOM OF RELIGION CHAIR COGHILL returned attention to HOUSE BILL NO. 195, "An Act requiring governmental entities to meet certain requirements before placing a burden on a person's free exercise of religion." REPRESENTATIVE DYSON commented that HB 195 probably should be titled, "Standards for Religious Freedom Restoration Act." In this country, since 1963, the standard for government intervention in religion has been that there must be "a compelling state interest," he explained. Further, if it is demonstrated that there is a compelling state interest for the state to interfere in somebody's practice of religion, then that the government must take the least restrictive way of dealing with it. REPRESENTATIVE DYSON explained that in the 1990 case, Employment Division of Oregon v. Smith, the United States Supreme Court decision eliminated the "compelling interest" and "least restrictive" provisions from federal law. "Virtually immediately, the United States Congress wheeled into action and on almost unanimous vote of both houses, put through a religious freedom Act restoring those two criteria to the government's restriction of religious practice," Representative Dyson said. The Supreme Court then overturned that congressional action, saying this is a state issue and not the purview of the federal government. The court encouraged the states to restore this historic standard for government intervention in religion, and that is what HB 195 does. Several other states already have done so. REPRESENTATIVE DYSON credited Representative Croft for "heroically" carrying the bill last session, noting that Representative Croft had asked him to work on it this session with him. Representative Dyson suggested that questions be directed to Representative Croft. He added, "I think you will hear some discussion from some parts of the administration waving red flags on this." He encouraged the committee to focus on whether this standard caused problems before 1990. He said, "Indeed, if there are any problems with us having this kind of protection for religion in our country, those problems would have shown up in the pre-1990 time frame. Number 0971 REPRESENTATIVE ERIC CROFT, Alaska State Legislature, speaking as cosponsor, pointed out the irony that "it was the liberal Warren Court that put in this protection, and it was the conservative Scalia and Rehnquist court that took it out." REPRESENTATIVE CROFT said the protection now in place is easy to administer. It says that it is all right to limit a person's practice of religion as long as that was not the intent of the law. There are no exceptions. By contrast, the protection sought in HB 195 opens the way for discussion and questions. It has to be applied case-by-case, considering how much of a burden is being put on a person's religious practice and how much of a problem that practice creates for the government. "It's inherently messy," he acknowledged. He concluded: We are proud in this state of our constitutional rights. I think our constitution is in some cases a model, and our court ... has continued to apply the test of compelling state interest even after the federal court retreated. But ... Representative Dyson and I wanted to make sure that we didn't retreat from that standard, to buttress that position. Number 0645 CHAIR COGHILL asked if HB 195 was prescriptive and not prompted by any current problem. REPRESENTATIVE DYSON said he knows of no current problems with unconstitutional impingement of religious freedom in Alaska. "What we are trying to do here," he explained, "is make sure that this very clear standard that has worked well is in place as future cases come up." He added that the American Civil Liberties Union "has come down very firmly on the same side on this, as has Edward Kennedy and a number of other strange bedfellows, and I'm delighted to be in their company on this issue." CHAIR COGHILL told the House State Affairs Standing Committee members that a policy call is what he wanted from them. He suggested leaving "all the Supreme Court cases" for the scheduled House Judiciary Standing Committee hearing. He added: I want to make very clear the policy call that we're asking about, and that is we're going to restrict the government to the point where they have to show reason to lay a burden on the exercise of religion, and those tests are going to be a "compelling interest" and a "least restrictive means." CHAIR COGHILL asked Representative Dyson for examples of compelling interest and least restrictive means. Number 0482 REPRESENTATIVE DYSON directed attention to committee members' packets. He noted that when the standard was established in 1963, the court said three questions must be asked. The first of those was, does the government create an infringement on a constitutional right to practice religion? That is, has a government action somehow impaired someone's practice of religion? For example, a rabbi was holding Sabbath services in his garage. The government came along and said, "You're not zoned to have religious ceremonies here, and you can't do that." There had been no complaints from neighbors and no one had objected. REPRESENTATIVE DYSON said the second question is whether the government has a compelling state interest that justifies burdening the religious activity in question. The term "compelling" means "very important, or of the highest magnitude," he explained. He described the case of two drug counselors in Oregon who said they were of a Native American religion and that using peyote was part of their religious service. "The government said they could not be drug counselors and use hallucinogens at coffee break; there is a compelling state interest why that doesn't work," he said. REPRESENTATIVE DYSON said the third question is, "If a compelling interest does exist, are there alternative means by which the government can achieve its goal and thus not burden the religious action?" For example, if religion requires a person to wear some kind of headgear and that person's job requires wearing a crash helmet, then the crash helmet can go over the headgear. Number 0233 CHAIR COGHILL said he would like to postpone discussion to allow witnesses to testify. Number 0150 ROBERT ROYCE, Assistant Attorney General, Governmental Affairs Section, Department of Law, Anchorage, testified by teleconference. He called attention to Section 2 of HB 195, where, under "Findings," paragraph (2) says: In 1990, the United States Supreme Court retreated from over 200 years of respect for the right to free exercise of religion in Employment Division v. Smith ... by holding that the government no longer had to make reasonable exceptions to general laws in order to accommodate the religious beliefs of its citizens; MR. ROYCE said he thought that finding is "somewhat inaccurate" because the Smith decision recognized several exceptions to its holdings and because the Supreme Court in that case was not dealing just with the accommodation of religious beliefs, "which are always 100 percent protected;" it [also] was dealing with religiously motivated activity that resulted in violation of a generally applicable criminal law. MR. ROYCE explained that in the Smith case, the Supreme Court considered a free exercise claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged the Oregon statute. TAPE 01-35, SIDE A MR. ROYCE cited the Sherbert v. Verner case, which established the so-called Sherbert Balancing Test. He said that test would have asked whether Oregon's prohibition would have substantially burdened a religious practice, and, if it did, whether the burden was justified by a compelling governmental interest. The application of that Sherbert Balancing Test would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. MR. ROYCE noted that the Smith decision itself recognized several exceptions. The first exception would be the "hybrid rights exception," which is set out in the Wisconsin v. Yoder case. Wisconsin had a mandatory school attendance law and Amish parents refused for religious reasons to send their children to the school. The court allowed them an exception to that generally applicable law because there was a combination of the right to free exercise of religion and also the right of parents to control their children's education. Another exception is in the Smith case, where the government is providing monetary benefits, unemployment compensation, and the balance again tips in favor in favor of the individual. MR. ROYCE said in the Sherbert case, the Thomas case, and the Hobie case, the court explained that the compelling state interest was appropriate because there was already an individualized mechanism set up by the government. For example, when somebody leaves a job, there is an unemployment hearing to determine whether there was good cause, and the court says you can't deny somebody benefits that are available to everybody unless you meet the compelling interest test. MR. ROYCE returned to the Smith case, saying: The court said where there's a generally applicable and neutral law, such as Oregon's, the sounder approach and the approach in accord with the vast majority of our precedents is to hold the test inapplicable to free exercise challenges. So under Smith; neutral, generally applicable laws that only incidentally affect religious exercise do not require justification by compelling state interest. Number 0281 CHAIR COGHILL said he wanted to keep the discussion in the House State Affairs Standing Committee on a broader policy level because HB 195 is scheduled to go on to a House Judiciary Standing Committee hearing. He asked Mr. Royce to help in getting the language right. He asked him if he thought that "retreating from 200 years of respect for the right to exercise freedom of religion" was too broad a statement? MR. ROYCE said yes; the majority opinion in the Smith decision did not overrule any prior precedent. It either distinguished them or tried to reconcile them; which, he said, is not an easy thing to do in covering 200 years of free exercise jurisprudence and in a somewhat unclear area of the law. Number 0366 CHAIR COGHILL sought further clarification, asking, "So the assertion then is debatable, ... the assertion that 200 years of law had been retreated from?" MR. ROYCE replied, "Yes. There are arguments on both sides." Number 0395 CHAIR COGHILL said he wanted it on the record that the assertion is debatable. The other thing he said he wished to clarify was the bar that keeps a government from placing a burden. "I think we need to get to that," he said. CHAIR COGHILL told Mr. Royce, "I'd like to hear from you some more on this particular bill. It's not my intention to move it out today; we're running up against the clock ...." He explained that he wanted to take testimony from some people in the room, "not to cut you off, but to give you an idea of what other people might say as well." MR. ROYCE concurred, but said he would like to make an additional point. CHAIR COGHILL invited him to go ahead and make the additional point. Number 0461 MR. ROYCE said even though the free exercise clause of the Alaska constitution is identical to the free exercise clause of the federal constitution, the Alaska Supreme Court is not required to adopt or to apply the Smith test, and they have, in fact, expressly declined it. He continued: The important point is that the Alaska Supreme Court has adopted the Sherbert Test to determine whether the free exercise clause under the Alaska constitution requires an exemption from a ... neutral law, but the elements are different than what is proposed in HB 195. The court says to get a religious exemption, ... you have to have religion involved, the conduct in question is religiously based, and the claimant must be sincere in his or her religious belief. Once those requirements are met, religiously impelled actions can be forbidden only where they pose some substantial threat to public safety, peace, or order. ... That's not the same test that is set out in HB 195. House Bill 195 says "any burden," not just "a substantial burden" that's required under federal case law; and you have [in HB 195] a "clear and convincing evidence" standard that isn't under current jurisprudence in Alaska law; and you have [in HB 195] the "least restrictive means" test, which has not been applied by the Alaska Supreme Court. So I think the bill is improper because it is changing the way the judiciary would have to evaluate free exercise claims. Number 0592 CHAIR COGHILL said he thinks that is the public policy call the legislature is considering making, and that he thinks the legislature is well within its right to do that. "It would certainly be a discussion between us and the judiciary somewhere along the line, there's no doubt," he said. Number 0645 GARY WATERHOUSE, Pastor, Juneau and Sitka Seventh Day Adventist Churches, came forward to testify. He said part of his responsibilities also are as the representative of the Northwest Religious Liberty Association, which includes Alaska, Washington, and Oregon. He said he had a statement prepared by Greg Hamilton, president of the Northwest Religious Liberty Association, which Mr. Hamilton had asked him to read to the committee. CHAIR COGHILL said time was too short to allow for the seven- minute oral presentation, but that the committee would take that statement on record. He asked Mr. Waterhouse if he was correct in assuming that they were in agreement with HB 195. MR. WATERHOUSE said they were in agreement with it, and that it was fine with him to distribute written copies of the letter. However, "there is an amendment that we are suggesting in the paper, and that is in the last part of the paper that you have." CHAIR COGHILL asked if he would make sure the committee had that as well as the written testimony. He said he would commit to him to entertain that amendment. MR. WATERHOUSE said he would be available for a later committee meeting. Number 0849 AL SUNDQUIST, President, Alaska Chapter, Americans United for Separation of Church and State, testified by teleconference. He said: We are opposed to HB 195, the Religious Freedom Restoration Act. Some interest groups aligned with the so-called "religious right" have signaled their intentions to use such laws as the Religious Freedom Protection Act currently being proposed in Alaska as a means to restrict the civil rights of others. We are deeply concerned with this possibility. For example, in Swanner v. [Anchorage] Equal Rights Commission, the court held that it did not abridge the free exercise of religion to force a landlord to rent to unmarried couples. In pursuance of applicable anti- discrimination laws, we are concerned that HB 195 could be used to try to overturn this wise decision, pitting a new religion claim against the present civil rights protections. For these reasons, Americans United opposes the Religious Freedom Protection Act in its current form and urges you to vote no on HB 195. Thank you. Number 0964 CHAIR COGHILL asked if they "had come up with any proposed language that might help you keep it from doing the harm that you say it might?" MR. SUNDQUIST said he thought so, but did not have it with him at the moment. He said he would be happy to work with the legislature on modifying the language. CHAIR COGHILL asked if he had been in touch with the sponsor of HB 195. MR. SUNDQUIST said he had not. CHAIR COGHILL suggested that he do so. He added: I think you'll find him a very reasonable man and I think that you could have a very profitable discussion on that issue. I don't think he's interested in doing harm to people; I think he's just trying to put a test on the government with some bar for them to go over before they can compel somebody. Number 1060 EDWARD C. FURMAN came forward to testify. He said when Patrick Henry, a Founding Father of the federal constitution, was alive, he saw a terrible thing: a man being whipped because he would not take a license. Mr. Furman emphasized the need to look at the common law and the state constitution. The attorney general has turned his back on Alaska's constitution, he said, and has let American politics and lawyers come into our state and deny our constitutional right. CHAIR COGHILL expressed appreciation for Mr. Furman's testimony. He said constitutional rights are part of the issue "and what bar we are going to place on government and what the compelling interests are." He asked Mr. Furman if he could come back to testify again. MR. FURMAN said he could. CHAIR COGHILL said he was not going to cut off public testimony and still wanted to hear from department people who were present. He stated his intention to put HB 195 at the top of the calendar for the next meeting of the committee. [HB 195 was held over.]
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