Legislature(1997 - 1998)
04/02/1998 09:05 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JOINT RESOLUTION NO. 42
Proposing an amendment to the Constitution of the State
of Alaska relating to marriage.
CS FOR SENATE JOINT RESOLUTION NO. 42(JUD)
Proposing an amendment to the Constitution of the State
of Alaska relating to marriage.
CO-CHAIR SHARP: SJR 42. We have gone through hours and
hours of public hearing with this committee on this bill.
SENATOR PHILLIPS: SJR 42. Do we have any committee
substitute?
CO-CHAIR SHARP: No. A judiciary...
SENATOR PHILLIPS: I would move the judiciary version of SJR
42 with the accompanying one fiscal note.
SENATOR ADAMS: Objection.
CO-CHAIR SHARP: There has been objection.
SENATOR ADAMS: I am looking for the judiciary committee
substitute. Is that in the packet?
SENATOR PHILLIPS: Yeah, it is, Mr. Chairman.
CO-CHAIR SHARP: Beg your pardon?
SENATOR PHILLIPS: Yeah, it should be.
CO-CHAIR SHARP: Judiciary is in here on mine.
SENATOR PHILLIPS: Want to know what the changes are?
(pause on record)
CO-CHAIR SHARP: Is it in your folder?
SENATOR ADAMS: Mr. Chairman, could we go over just the
changes real quick?
CO-CHAIR SHARP: I think every member has the two bills in
front of them.
SENATOR PHILLIPS: Did you want an answer?
SENATOR ADAMS: Yeah, go over the changes, would you?
SENATOR PHILLPS: Oh, O.K. That's what I though you said.
O.K., Mr. Chairman, obviously I'm not an expert on this, but
I can at least try. If you look at the original version it
had article 12, Judiciary put it in article 1. And
Judiciary deleted the original language up to the second
sentence. "The Legislature may, by law, enact judicial
requirements relating to marriage" and inserted "No
provisions of this Constitution may be interpreted to
require the State to recognize or permit marriage between
individuals of the same sex. Additional requirements
related to marriage may be established to the extent
permitted by the Constitution of the United States and the
Constitution of the State of Alaska." Now, Mr. Chairman,
those are the main changes.
CO-CHAIR SHARP: Senator Donley?
SENATOR DONLEY: As much as I am reluctant...it seems to me
the initial sentence covers pretty much everything that the
entire paragraph covers. I mean it defines what a marriage
is. The constitutional construction clearly, from the
recent State Supreme Court cases, (unintelligible) clearly
indicates that a subsequent amendment cannot be invalidated
by a prior section of the Constitution. So that with just
the first sentence nobody could interpret the Constitution,
any other clause of the State's Constitution overriding that
first sentence which defines a marriage as existing between
one man and one woman. And I don't understand the necessity
of the third sentence, "additional requirements may be
established". Typically the Constitution, where it says,
"additional requirements" it specifies that it be done by
statute or by the Legislature. But this doesn't say. It
just says "additional requirements may be established". It
begs the question by "who" to me. Every other sections of
the Constitution specify "who" shall establish subsequent
provisions.
(Tape SFC-109, Side B changed to SFC-110, Side A at
approximately 10:40 a.m.)
CO-CHAIR SHARP: Senator Leman, could you explain the nature
of the changes between the original bill and the judiciary
version and some of the...did you hear some of Senator
Donley's...?
SENATOR LEMAN: I just stepped in and didn't hear that...
SENATOR DONLEY: Do you want me to...I could
CO-CHAIR SHARP: O.K.
SENATOR LEMAN: I just heard the comments that...I know what
the differences are, but I did not hear his questions.
CO-CHAIR SHARP: Did you hear, Senator Donley?
SENATOR DONLEY: I liked the original version better than
the judiciary version, my first impression. So, why the
changes and why did the judiciary committee think this
version was better?
SENATOR LEMAN: The overall reason is to remove ambiguity in
the future and future challenges. Wanted to make sure that
it's very clear and that's the reason for it. And I'll let
Mr. Polley go through and explain each one in detail.
MR. POLLEY: Thank-you. For the record, my name is Mike
Polley, staff aide to Senator Leman. First, just some
background comments on the genesis of both these proposals.
The first version, here, draft "A", is actually identical to
a version that Legal Services drafted back in 1996, when the
Legislature initially addressed this subject. And, at that
time, one of the proposals being considered was that it
should be in the structure of an amendment to the
Constitution rather than a statute. At that time it was
decided that a statute was sufficient, since there had been
no Court ruling on the subject, saying that any
constitutional rights were implicated. And, so, the
decision was made to abandon that and go with the statute.
So, when we initially introduced the bill, we simply took
the language that had been prepared back in 1996 and
introduced it. Subsequent to that, we consulted with
attorneys who have been involved in the litigation on same
sex marriage in both the State of Hawaii and also the State
of Vermont, which are the only two other states, aside from
Alaska, which are dealing with this issue in their Courts.
Those attorneys reviewed the language of our 1996 draft and
felt that it was inadequate and it could potentially create
some ambiguity. So, if I could turn to the new draft, just
very quickly...the first line, to be valid or recognized in
the State, a marriage may exist only between one man and one
woman. Basically, the term "valid" applies to marriages
that are entered in to in our State, the term "recognized"
would deal with the matter of the potentiality in the future
if another state or foreign jurisdiction were to legalize a
same sex union would Alaska then have to recognize that
marriage. And so, the two verbs there, "valid" and
"recognized" apply to the in-state and out-of-state
questions. And then, "only" is the limiting word and
obviously one man and one woman simply restating what has
always been the law in Alaska.
The second line, "no provision of this Constitution may be
interpreted to require the State to recognize or permit
marriage between individuals of the same sex" is in the
amendment to basically deal with the scenario that if a
Court found a contradiction between the first sentence and
the overall values or vision of the document and shows the
latter. In other words, what we are trying to do is preempt
a situation, such as what occurred in Colorado, where the
voters there actually passed a constitutional amendment
saying that no special preferences could be granted to
people based upon their sexual preference. That was an
amendment to the constitution. The Colorado Supreme Court
actually struck down an amendment to their own constitution
because they found it to be inconsistent with other parts of
the constitution. I realize that legally, that's a hard
concept to digest, that the...we've always thought that any
amendment to the constitution is going to trump other parts
of the constitution. But, at least in the case of
Colorado, an amendment to the constitution did not suffice.
So, the second line, here, we believe is necessary, so that
it states very specifically "no provision of this
Constitution may be interpreted to require that the State
recognize or permit marriages between individuals of the
same sex". In other words, what we're trying to do is
prevent a situation where the Court might find that the
first sentence in the amendment conflicts with due process,
equal protection or some other part of the Constitution that
they would say would override that.
The third sentence, "additional requirements related to
marriage may be established" is basically just to...set in
to address other scenarios because we believe that Judge
Michalski's opinion implicates our statutes far beyond the
narrow question of whether people of the same sex should be
allowed to marry. I mean, what he has found, is a
fundamental constitutional right to choose one's life
partner without setting any parameters on that. And so, in
our mind, that could potentially be invoked to strike on
other parts of our marriage statutes, such as limitations on
consanguinity and also restrictions based on age. So, the
third sentence is just an overall statement that it's
appropriate for the Legislature to act in the area of our
marriage statutes. Anyway, I apologize for the long winded
explanation.
CO-CHAIR SHARP: Senator Donley?
SENATOR DONLEY: But it doesn't say the Legislature and I
think it is pretty consistent throughout the Alaska State
Constitution...if you find the language that appears in the
original resolution, "...the Legislature by law may
enact..." and this one just says, "Additional requirements
may be established...". But it doesn't give the power to
that to anybody specifically.
MR. POLLEY: Through the Chair, Senator Donley, I don't
believe it would do any injury to the amendment if the
committee wanted to insert, after the word "established",
"established by the Legislature to the extent permitted"...
SENATOR DONLEY: Or etcetera.
SENATOR LEMAN: Or worded as we have elsewhere. I believe
we have, Mr. Chairman and Senator Donley, we could say, "The
Legislature may establish additional requirements to the
extent permitted by the Constitution of the United States
and the Constitution of the State of Alaska" or something to
that effect. Too many things we are trying to get to that I
believe are in existing statute are age and blood quantum,
you know, those are things that are in existing statute and
those are legitimate. We don't want to see claims brought
against those types of restrictions that we have in existing
law.
SENATOR DONLEY: Why did the judiciary committee want to add
the caveat, "...may be established to the extent permitted
by the Constitution of the United States and the
Constitution of the State of Alaska". I mean it just seems
like that's a given. All through the Constitution we see
the Legislature given the power to, as in the original
proposal, make statutes, all of which are tempered by the
fact that they have to be consistent with the U.S.
Constitution and the State Constitution. Now, occasionally,
you may want to specify the standards of the U.S.
Constitution and not the Alaska Constitution and that would
be appropriate but it doesn't mean that the State shouldn't,
but, as long as you are covering both, here, that's the
default. I mean, that's what would be the default factor,
anyhow.
MR. POLLEY: Through the Chair, Senator Donley, the thought
behind adding the term "Constitution of the United States
and Constitution of the State of Alaska" is to address the
concerns some people have expressed that yeah, there have
been some fears, we believe they're unfounded, that this
could lead to other unwarranted restrictions on marriage, as
in the case brought to this committee's attention most
often, you know, that interracial marriage used to not be
allowed, you know, and is this opening the door to setting a
restriction like that. Well, of course, the Supreme Court
has struck down bans on interracial marriage as being
unconstitutional. And so the purpose in having that
language is just to clarify for people, and admittedly it
is...there is a slight redundancy to it, because obviously
the primacy of Federal law exists here, but basically what
this language is trying to do is clarify for people that,
you know, the Legislature is obviously not going to be
getting into areas of reexamining laws interracial marriage.
I mean, that's not the scope of this amendment.
SENATOR PHILLIPS: Mr. Chair?
CO-CHAIR SHARP: Senator Phillips?
SENATOR PHILLIPS: At the hearing on Tuesday night, there
were a few that expressed that concern. It was brought up
at the hearing.
CO-CHAIR SHARP: Senator Parnell?
SENATOR PARNELL: And I agree with Senator Donley to the
extent that it is a little ambiguous unless we insert
something about the "Legislature enacting". And I would
propose an amendment on page one, line nine, before the word
"additional", insert "The Legislature may enact..." and then
strike the words, beginning at line nine, "...may be
established..." so the sentence would read, "The
Legislature may enact additional requirements related to
marriage to the extent permitted by the Constitution of the
United States and the Constitution of the State of Alaska."
CO-CHAIR SHARP: Senator Parnell has proposed an amendment,
which would be amendment number one, on line nine,
preceeding...adding to the beginning of the sentence, "the
Legislature may enact additional requirements related to
marriage...", delelting the words "may be established" so
that it would read, "The Legislature may enact additional
requirements r elated to marriage to the extent permitted by
the Constitution..." and so on. Is that correct?
SENATOR PARNELL: Yes.
CO-CHAIR SHARP: That is the amendment and it will be
amendment number one. Any discussion on amendment number
one? Any objection to amendment number one? Amendment
number one has been adopted.
SENATOR ADAMS: Mr. Chairman? Point of order.
CO-CHAIR SHARP: Senator Adams?
SENATOR ADAMS: Wasn't there a motion before that particular
amendment to move out the bill. We're not doing this
particularly properly. There's a motion to move out the
bill. We should have removed that before we went to
amendment number one, Mr. Chairman.
SENATOR PHILLIPS: That's correct.
CO-CHAIR SHARP: Had you moved that? O.K. Senator
Phillips?
SENATOR PHILLIPS: I will just withdraw the motion...
CO-CHAIR SHARP: Senator Phillips has asked to be able to
withdraw his motion to move the bill out of committee. Any
objection? Hearing no objection...Senator Parnell? The
bill has got...
SENATOR PARNELL: O.K., the bill is back before us
and...what became of it? Was my motion ruled out of order?
CO-CHAIR SHARP: Yes.
SENATOR PARNELL: O.K. I'll start over again. My motion is
page one, line nine, before the word "additional" insert the
words, "The Legislature may enact..." and then delete the
words at line nine, page one...beginning at page nine...or
page one, line nine, "may be established"...those three
words should be deleted.
CO-CHAIR SHARP: O.K. Does the Secretary have that
amendment?
MADAME SECRETARY: Yes.
CO-CHAIR SHARP: Which will be amendment number one. Any
objection to that amendment? Amendment number one has been
adopted.
SENATOR PHILLIPS: All right, Mr. Chairman, I'll move
the...I guess it will be the Finance Committee substitute?
CO-CHAIR SHARP: Yes.
SENATOR PHILLIPS: Number SJR 42...
SENATOR ADAMS: Object.
CO-CHAIR SHARP: There has been objection. Senator Adams?
SENATOR ADAMS: May I speak to my...
SENATOR PHILLIPS: (unintelligible)
SENATOR ADAMS: I yield to my collegue.
SENATOR PHILLIPS: With the accompanying three thousand
dollar fiscal note.
CO-CHAIR SHARP: O.K. It has been moved that CSSJR 42(FIN)
be moved out of committee with individual recommendations
and accompanying fiscal note. Senator Adams?
SENATOR ADAMS: Just briefly, Mr. Chairman, CSSJR 42, what
it lacks, I believe, it lacks respect and compassion for
people in the State of Alaska. I am a married man, six kids
and a Quaker. And I listened to the testimony from some of
the religious groups. But I believe that before we pass
something like this is that we should wait for the Courts to
take it. I think that many Alaskans, no matter where you
live in rural or urban areas, have been government
infringing on individual rights. And that's basically what
this does. I thought we took a sworn oath of office that we
would protect the Constitution. That every Alaskan should
have equal protection, equal treatment. But we're not doing
it with this piece of legislation. One of the things that
we try to do, is we Legislators...to do, is try to push
morality, I think, on people. None of us...none of the
sixty Legislators are perfect. How many, like myself, can
stand up and say, "Should I push the morality of what I do
on the people of the State of Alaska?" 'Cause I love to
gamble. I play poker once a week. I play cribbage. I go
to the horse races. So, I love to gamble. After one
hundred and twenty-one days I like to drink. But I do not
pass that on to the people. And, as a normal human being,
also, is I do lust for certain things. A new car, and
perhaps something beautiful of the opposite sex. So, there
is nobody that is perfect in the Legislature. Any why are
we trying to pass on morality? I think morality should not
be a Legislative matter and we're trying to do this. And I
think that is wrong. We could beg, also, in different
sections of the statutes, the invasion of privacy. And I
think that's basically what we're trying to do. And I would
ask members, that we should at least wait for a Court
decision on this piece of legislation. I know I might be
the lone wolf in this particular argument but I think it is
the only decent thing to do, is not to pass this.
CO-CHAIR SHARP: Any other committee comments? There has
been objection, please call the roll.
MADAME SECRETARY: Senator Torgerson?
SENATOR TORGERSON: Yes.
MADAME SECRETARY: Senator Parnell?
SENATOR PARNELL: Yes.
MADAME SECRETARY: Senator Donley?
SENATOR DONLEY: Yes.
MADAME SECRETARY: Senator Adams?
SENATOR ADAMS: No.
MADAME SECRETARY: Senator Phillips?
SENATOR PHILLIPS: Yes.
MADAME SECRETARY: Senator Pearce?
SENATOR PEARCE: Yes.
MADAME SECRETARY: Senator Sharp?
CO-CHAIR SHARP: Yes.
MADAME SECRETARY: Six yeas, one nay.
CO-CHAIR SHARP: SJR 42(FIN) with accompanying fiscal notes
moves out of committee on a vote of six yeas and one nay.
End of verbatim transcript, SJR 42.
ADJOURNMENT
Co-chair Sharp adjourned the meeting until 9:00 a.m.
tomorrow.
SFC-98 -1- 4/02/98
SJR 42
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