Legislature(1999 - 2000)

03/30/2000 08:10 AM House STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
             HOUSE STATE AFFAIRS STANDING COMMITTEE                                                                             
                         March 30, 2000                                                                                         
                            8:10 a.m.                                                                                           
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Jeannette James, Chair                                                                                           
Representative Joe Green                                                                                                        
Representative Jim Whitaker                                                                                                     
Representative Bill Hudson                                                                                                      
Representative Beth Kerttula                                                                                                    
Representative Hal Smalley                                                                                                      
Representative Scott Ogan                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
OTHER HOUSE MEMBERS PRESENT                                                                                                     
                                                                                                                                
Representative John Coghill                                                                                                     
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
HOUSE BILL NO. 387                                                                                                              
"An    Act   prohibiting    governmental    entities,    including                                                              
municipalities and school districts, from restricting a person's                                                                
free exercise of religion."                                                                                                     
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB 387                                                                                                                  
SHORT TITLE: FREEDOM OF RELIGION                                                                                                
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/16/00      2215     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 2/16/00      2215     (H)  CRA, HES, STA, JUD                                                                                  
 2/23/00      2289     (H)  COSPONSOR(S): COGHILL, DYSON                                                                        
 2/25/00      2315     (H)  COSPONSOR(S): HALCRO                                                                                
 3/01/00      2376     (H)  COSPONSOR(S): CISSNA                                                                                
 3/02/00               (H)  CRA AT  8:00 AM CAPITOL 124                                                                         
 3/02/00               (H)  Moved Out of Committee                                                                              
 3/02/00               (H)  MINUTE(CRA)                                                                                         
 3/03/00      2391     (H)  CRA RPT 1DP 5NR                                                                                     
 3/03/00      2391     (H)  DP: DYSON; NR: MURKOWSKI, HALCRO,                                                                   
 3/03/00      2392     (H)  JOULE, HARRIS, MORGAN                                                                               
 3/03/00      2392     (H)  INDETERMINATE FN (LAW/ALL DEPTS)                                                                    
 3/07/00               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 3/07/00               (H)  Moved CSHB 387(HES) Out of Committee                                                                
 3/07/00               (H)  MINUTE(HES)                                                                                         
 3/07/00               (H)  MINUTE(HES)                                                                                         
 3/07/00               (H)  MINUTE(HES)                                                                                         
 3/15/00      2492     (H)  HES RPT CS(HES) NT 5DP 2NR                                                                          
 3/15/00      2492     (H)  DP: GREEN, DYSON, COGHILL, WHITAKER,                                                                
 3/15/00      2492     (H)  BRICE; NR: MORGAN, KEMPLEN                                                                          
 3/15/00      2492     (H)  INDETERMINATE FN (LAW/ALL DEPTS)                                                                    
 3/15/00      2492     (H)  REFERRED TO STATE AFFAIRS                                                                           
 3/15/00      2559     (H)  COSPONSOR(S): WHITAKER                                                                              
 3/28/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 3/28/00               (H)  BILL POSTPONED                                                                                      
 3/30/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
REPRESENTATIVE ERIC CROFT                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 400                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Presented sponsor statement for HB 387.                                                                    
                                                                                                                                
JOSEPH STORY, Government Relations Representative                                                                               
Northwest Religious Liberty Association                                                                                         
1507 Davidoff Street                                                                                                            
Sitka, Alaska 99835                                                                                                             
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
ROBERT NICHOLSON                                                                                                                
Presbyterian Church                                                                                                             
PO Box 210609                                                                                                                   
Auke Bay, Alaska 99821                                                                                                          
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
KATHERINE HARRIS                                                                                                                
PO Box 964                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Commented on HB 387.                                                                                       
                                                                                                                                
LAURIE CUMMINGS                                                                                                                 
Sitka, Alaska                                                                                                                   
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
RANDY MEYER                                                                                                                     
935 McGrath Road                                                                                                                
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
SYLVIA HERNANDEZ                                                                                                                
PO Box 974                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
JENNIFER RUDINGER, Executive Director                                                                                           
Alaska Civil Liberties Union                                                                                                    
PO Box 201844                                                                                                                   
Anchorage, Alaska 99520-1844                                                                                                    
POSITION STATEMENT:  Commented on HB 387.                                                                                       
                                                                                                                                
PAUL BERAN, Pastor                                                                                                              
Resurrection Lutheran Church                                                                                                    
12175 Glacier Highway B-4                                                                                                       
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
JIMMIE STORY                                                                                                                    
Sitka, Alaska                                                                                                                   
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
KAREN POWER                                                                                                                     
PO Box 798                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
SHIRLEY DOWNING                                                                                                                 
Sitka, Alaska                                                                                                                   
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
GEORGE ELIASON                                                                                                                  
Sitka, Alaska                                                                                                                   
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
ALTHEA BUCKINGHAM                                                                                                               
Sitka, Alaska                                                                                                                   
POSITION STATEMENT:  Testified in support of HB 387.                                                                            
                                                                                                                                
PETER PORRINO                                                                                                                   
PO Box 965                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
HEATHER ALEXANDER                                                                                                               
PO Box 942                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
JEAN HATEM                                                                                                                      
PO Box 942                                                                                                                      
Tok, Alaska 99780                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 387.                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 00-25, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  JEANNETTE JAMES  called the  House  State Affairs  Standing                                                              
Committee meeting  to order at 8:10  a.m.  Members present  at the                                                              
call  to order  were  Representatives  James, Green,  Smalley  and                                                              
Ogan.  Representatives  Hudson, Kerttula, and Whitaker  arrived as                                                              
the meeting was in progress.                                                                                                    
                                                                                                                                
HB 387-FREEDOM OF RELIGION                                                                                                    
                                                                                                                                
CHAIR JAMES  announced the  only order of  business is  HOUSE BILL                                                              
NO.  387, "An  Act  prohibiting governmental  entities,  including                                                              
municipalities and  school districts, from restricting  a person's                                                              
free exercise of religion."                                                                                                     
                                                                                                                                
Number 0045                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ERIC CROFT said  HB 387 is  a very important  bill                                                              
that  if properly  drafted, will  accomplish today  and next  year                                                              
absolutely nothing  because its purpose  is to preserve  the legal                                                              
status quo  in the area  of religious freedom.   He noted  that it                                                              
requires a  little bit of legal history  to talk about  why HB 387                                                              
is important  and yet accomplish  nothing.  He explained  that the                                                              
problem  to be  addressed is  a reversal  in  the federal  Supreme                                                              
Court   of at least  a 25-year  protection for religious  freedom.                                                              
He  commented  that early  in  American  history it  was  somewhat                                                              
unclear how much  protection there was under the  First Amendment.                                                              
However, it became clear through  jurisprudence in the '70s that a                                                              
facially neutral  law, one not  directed at a religious  practice,                                                              
no longer had to provide a religious exemption to general laws.                                                                 
                                                                                                                                
REPRESENTATIVE  CROFT reminded  the committee  that passing  a law                                                              
that  was intended  to  stop a  particular  religious practice  is                                                              
illegal, for  example, not allowing  Catholic services.   He added                                                              
that the Catholic  example is an easy one to figure,  but a harder                                                              
case is a general law, not directed  at any religion, which has an                                                              
unintended  effect of  stopping a  religious practice.   Then  the                                                              
question arises  whether an exception  has to be made.   He stated                                                              
he uses Prohibition as an example  because it was not intended for                                                              
or  directed  at  the Catholic  religion  but  rather  dealt  with                                                              
alcohol  issues.   If  the Prohibition  law  had  been applied  to                                                              
Sunday worship  services, it would  have had a dramatic  effect on                                                              
the  Catholic  religion.   He  said  that Prohibition  itself  had                                                              
exceptions  for  religious  practice,  but  what  if  it  had  not                                                              
exceptions.                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked what if  a general facially neutral law                                                              
passed  and without  intention wiped  out  a particular  religious                                                              
practice.   He asked if then an  exception has to be  made and can                                                              
the court  say that  religious practice has  been so  impeded that                                                              
the  court is  going  to  read in  an  exception to  protect  this                                                              
religion.   That is the nub  of the issue  in HB 387.   Until 1990                                                              
the  answer  in   both  federal  and  state  courts   was  in  the                                                              
affirmative and an exception would  have had to be made.  He noted                                                              
that  a consistent  line  of cases  in the  federal  court and  in                                                              
Alaska  state court  said that even  a facially  neutral law  must                                                              
make  an  exception  if  it  can   be  proven  that  it  places  a                                                              
substantial  burden  on religious  practice.   He  explained  that                                                              
incidental,  little  things perhaps  would  not  be exempt  but  a                                                              
substantial burden  on religious practice must be  exempted unless                                                              
the government  can show  a compelling state  interest of  why the                                                              
religious practice  cannot be exempted.  Therefore,  the situation                                                              
becomes a "justify this law" scenario  wherein the judge in effect                                                              
says "tell  me how much this  hurts your religious  practice," and                                                              
if  it is  a  substantial  burden, the  judge  turns  then to  the                                                              
government and  says "is  there a really  good reason not  to give                                                              
them an exception;  is there a  really good reason why  you cannot                                                              
find  some  way  to  do  this  without  impeding  their  religious                                                              
practice."  If the  answer is no to the above  questions, then the                                                              
government  has to  let the  religious person  go ahead.   If  the                                                              
answer is  yes "because our  correctional system will  not operate                                                              
or we  cannot accomplish the  purpose of the  law if we  make this                                                              
exception," then maybe the exception can be denied.                                                                             
                                                                                                                                
Number 0523                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT explained that  the general framework for the                                                              
previously discussed  situations is  called the "compelling  state                                                              
interest"  test  wherein  the  government   is  asked  to  show  a                                                              
compelling state  interest in requiring uniformity  and not giving                                                              
an  exception.   He  commented that  both  federal  and state  law                                                              
followed  the  "compelling" idea  until  1990.   He  informed  the                                                              
committee that in  1990, the United States Supreme  Court reversed                                                              
that precedent  which  had been  established clearly for  at least                                                              
25 years  but by implication in  other cases long before  that and                                                              
by a very narrow  vote, voted that the government  did not have to                                                              
make  any  exceptions  at  all anymore.    Therefore,  a  facially                                                              
neutral  law just  stood,  and the  government  was  not going  to                                                              
listen to  exceptions at  all.  He said  that the government  kept                                                              
the  part  about when  a  law  was  directed  at a  religion  with                                                              
intention to  stop a  religious practice, but  the entire  area of                                                              
jurisprudence that  spoke about forcing the government  to make an                                                              
exception  for certain  religious practices  was wiped  out.   The                                                              
result was a bipartisan firestorm  of protest which caused passage                                                              
on  the federal  level of  the Religious  Freedom Restoration  Act                                                              
(federal  RFRA) signed  by  President Clinton  and  overwhelmingly                                                              
passed by a  bipartisan group (both Republicans  and Democrats) in                                                              
Congress.                                                                                                                       
                                                                                                                                
REPRESENTATIVE CROFT said that unfortunately  the federal RFRA was                                                              
declared  unconstitutional  on  the  grounds of  lack  of  federal                                                              
authority to tell states and municipalities  the standard by which                                                              
they  must  govern.   He  noted that  unconstitutionality  of  the                                                              
federal RFRA  was not declared  on the  merits of the  Act itself,                                                              
but it  was based  on federal  authority.   He explained  that the                                                              
federal government is  a limited government, and in  order to have                                                              
authority  to do  things,  for  example, it  establishes  commerce                                                              
clauses  [or other  such  clauses].   The  federal government  has                                                              
other things that are in their power,  for instance, trade between                                                              
the  states  and various  things  like  that,  none of  which  are                                                              
directly applicable  to HB  387.  He  mentioned that  the Congress                                                              
said to the government that the government  did not have the right                                                              
to pass such  a law in the  area of religious freedom;  that right                                                              
was left up to the states.                                                                                                      
                                                                                                                                
REPRESENTATIVE   CROFT   indicated  that   he   had  started   his                                                              
presentation  by saying that  he wanted  to draft  a law  that was                                                              
very important  but would  accomplish nothing  because he  and co-                                                              
sponsors believe  that the Alaska  Supreme Court has  retained the                                                              
prior respectful standard for religious  practice.  He agreed that                                                              
the  federal standard  had retreated  to  a law  that provided  no                                                              
exception.    He informed  the  committee  that it  appeared  that                                                              
Alaska had  stayed at the high  level by retaining  the compelling                                                              
state interest test, but that could  change in the same way it did                                                              
at the federal  level.  He emphasized  that what he would  like to                                                              
accomplish   with   HB   387   is    buttress   Alaska's   current                                                              
constitutional  rights wherein if  Alaska's Supreme  Court decides                                                              
at  some  point  to  follow  the Smith  v.  Emp.  Div.,  494  U.S.                                                            
872(1990) decision  backwards, there will be a  statute that fills                                                              
the void.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  CROFT acknowledged  that the  committee will  hear                                                              
different testimony  and when that  happens he suggested  that the                                                              
committee ask if it believes HB 387  will cause dire consequences.                                                              
He remarked  that HB 387  tends to create  angst because it  is so                                                              
broad and  general.  He reminded  the committee that  people worry                                                              
and  usually go to him with their  specific "what ifs" as if he is                                                              
the judge  to determine  something.  He  responds by saying  "I do                                                              
not know"  because his interest  is in  making sure the  test that                                                              
the court  uses is the  right one; really  it is for the  court to                                                              
determine on "what ifs."                                                                                                        
                                                                                                                                
Number 0614                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated that  it is interesting that from both                                                              
the right  and the left he  has received pressure to  make various                                                              
carve outs or exemptions  in HB 387.  He reiterated  that this has                                                              
happened in every  case where HB 387 was heard  and typically, not                                                              
uniformly,  conservative  members  of  the  legislature  in  other                                                              
states where  a similar  bill has been  presented will  attempt to                                                              
carve out  the Corrections Department  and say that they  know how                                                              
the compelling  state interest standard  should always  operate in                                                              
prisoner  litigation.   He  said  that according  to  conservative                                                              
legislative members  the prisoner should always  lose.  Similarly,                                                              
typically but not uniformly, liberal  members of legislatures that                                                              
have  considered a  like  bill will  say  carve  out civil  rights                                                              
litigation  because  they  know  how  in  a  collision  between  a                                                              
religious  and a  civil right,  religious  exercise should  always                                                              
lose whereas  civil right should always  win.  He is  reluctant to                                                              
do  either   because in  both cases  there is  often a  compelling                                                              
state interest in enforcing racial  and other discrimination laws.                                                              
There  is  often a  compelling  state  interest  in the  safe  and                                                              
efficient running  of a prison system.   He explained that  is the                                                              
way  cases  have turned  out  under  the  standard, and  very  few                                                              
prisoner religious exemptions win.                                                                                              
Number 0953                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CROFT commented  that  in civil  rights cases  the                                                              
situation  is similar.   Over  and over,  case law  has been  that                                                              
enforcement of racial and other civil  rights laws is a compelling                                                              
state interest worthy  of not granting an exception.   When people                                                              
say  they do  not  want  to rent  to  black people  for  religious                                                              
reasons,  the  courts  have  found  in a  number  cases  that  the                                                              
interest in combating racial discrimination  is a compelling state                                                              
interest.  The  decision has been that the person  should possibly                                                              
be in  some other line  of business  if his/her religion  prevents                                                              
him/her from  renting to that group  of people.  However,  in some                                                              
factual situations  the compelling  state interest can  get closer                                                              
to the  line.   For example,  suppose an  owner of a  20-apartment                                                              
complex has some religious objection  as to whom he/she will rent,                                                              
but a renter  does have civil rights and really  would have little                                                              
impact on  the owner's religion or  inaction with the  owner since                                                              
each  lives  in his/her  own  apartment.    Now imagine  an  owner                                                              
renting  a room  in  his own  home  to the  same  renter, and  the                                                              
committee  can  see  how  different  the  situation  is  regarding                                                              
religious impact.   Rather  than categorically exempting  prisoner                                                              
litigation or civil rights interaction,  he feels that putting the                                                              
proper standard in  place is where the legislature  should be.  He                                                              
does not want  to decide particular cases but wants  to decide the                                                              
standard and make sure that the standard  stays in place no matter                                                              
what happens.                                                                                                                   
                                                                                                                                
REPRESENTATIVE CROFT  reminded the committee that  when people ask                                                              
him "what if" he  answers he does not know.  If  HB 387 is written                                                              
correctly, it embodies  what is currently in the  law and protects                                                              
it.   He  recognized that  if people  are  worried about  dramatic                                                              
consequences  to  HB  387,  he  asks  "in  what  way  have  I  not                                                              
accurately  reflected  the  law  as  it  is"  because  if  he  has                                                              
accurately reflected  the law, what dire consequences  could there                                                              
be.  He advised  the committee that people will  ask the committee                                                              
to  consider either  specific examples  or  dire consequences  and                                                              
when  that  happens,  he  asked the  committee  to  encourage  the                                                              
questioner  to identify  in what  way  HB 387  has not  accurately                                                              
reflected  the current  constitutional  protection.   He  observed                                                              
that  his goal  in  writing  HB 387  was  to reflect  the  current                                                              
constitutional protection and he  is willing at each stage to more                                                              
accurately  reflect the state  of protections  as they  exist now.                                                              
Nonetheless,  he stated he  is not willing  to carve  out specific                                                              
areas just because  he could pretend to know how  it should always                                                              
turn out.                                                                                                                       
                                                                                                                                
Number 1203                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN  said he had understood  Representative Croft                                                              
to say  that the  federal Supreme  Court had rescinded  [religious                                                              
exemptions]  and   then  Congress  came  back  and   said  it  was                                                              
unacceptable.    Representative  Green  asked  if  HB  387  was  a                                                              
preemptive strike that the Alaska  Supreme Court might do what the                                                              
federal  Supreme Court  did and the  legislature  is ahead  of the                                                              
game.                                                                                                                           
REPRESENTATIVE  CROFT  answered in  the affirmative;  however,  he                                                              
does not  have any  indication that  the Alaska  Supreme Court  is                                                              
heading in that  direction.  He noted that the major  court in the                                                              
land retreated  and  other state  courts are following  suit.   He                                                              
hoped and  thought that the Alaska  Supreme Court would  stay with                                                              
the higher  level of  protection,  but there has  been a  movement                                                              
ever  since   the federal  RFRA was  declared unconstitutional  to                                                              
have all 50 states buttress their  RFRA.  He explained that one of                                                              
the  justifications  that  the  U.S. Supreme  Court  used  is  the                                                              
standard that they adopted in the  Smith case in 1990 which was an                                                            
opinion by Justice Scalia.  He commented  that the Smith case is a                                                            
very clean  and easy  one, but it  is messy  if trying  to provide                                                              
religious  exemptions.   With  the Smith  decision  the answer  is                                                            
always  no, and  no  one has  to  worry about  troublesome  little                                                              
rights.   He indicated  that with the  Smith decision  the federal                                                            
government  now  has a  much  more  predictable standard,  and  he                                                              
acknowledged  that it does  have that advantage.   He  agreed that                                                              
case-by-case  law  determination  of whether  someone's  religious                                                              
practice has  been impinged and  whether the government  has shown                                                              
enough justification is a time-consuming process.                                                                               
                                                                                                                                
Number 1323                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA  asked if the  U.S. Supreme Court  case in                                                              
Texas  right  now is  going  to  play into  Alaska  Supreme  Court                                                              
decisions.                                                                                                                      
                                                                                                                                
REPRESENTATIVE CROFT  replied that he has not read  the Texas case                                                              
even  though he  saw  it in  the paper  so  he does  not know  the                                                              
details.  He said that there has  been much turmoil in the circuit                                                              
courts after the  Smith decision, and he thinks  that many circuit                                                            
court judges just could not quite  believe that they were supposed                                                              
to retreat  that far.   Circuit  court judges  have tried  various                                                              
ways to find the religious protections  that were there before the                                                              
Smith decision.   He noted that he thinks the  Smith decision will                                                          
be reviewed,  and Justice O'Connor  continues to dissent  in cases                                                              
that apply  the Smith decision.   He explained that  she continues                                                            
to complain  about the direction  in which the U.S.  Supreme Court                                                              
moved.   Nevertheless, it  seems as  if there  are still  at least                                                              
five votes  to keep  the Smith  decision.   He commented  that the                                                            
Texas case  is probably another  opportunity even though  it seems                                                              
as if the federal court is standing by its decision.                                                                            
                                                                                                                                
Number 1404                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA  asked if Alaska's Supreme  Court has used                                                              
the  old rule  under Alaska  State Constitution  and Alaska  rules                                                              
notwithstanding what the U.S. Supreme Court does.                                                                               
                                                                                                                                
REPRESENTATIVE  CROFT replied  in the affirmative.   He  mentioned                                                              
that  Alaska  does not  get  as many  precedent-setting  cases  as                                                              
California or  New York, consequently  Alaska courts are  often on                                                              
their own.   He indicated that he  knew of one case post  Smith on                                                            
this issue,  and it  has purported  to keep the same  standard [as                                                              
the old rule].                                                                                                                  
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked if  Representative  Croft had  any                                                              
indication  that the  Alaska Supreme  Court is  going to take  any                                                              
action that will lead Alaska down a different direction.                                                                        
                                                                                                                                
Number 1473                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  answered that he did not know  if the Alaska                                                              
Supreme Court is going to stay forever or reverse tomorrow.                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked if  Representative  Croft had  any                                                              
indication if  there is  any reversal coming  or any case  that is                                                              
going to radically change this right now.                                                                                       
                                                                                                                                
REPRESENTATIVE CROFT  replied that he had no  secret communication                                                              
from the  judiciary that they  are about to  do this.  He  said he                                                              
did  not  know whether  they  would  keep  it forever  or  reverse                                                              
tomorrow.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  OGAN said  that there  are a  number of  redundant                                                              
sentences throughout HB 387 and one  of them is in Sec. 6(a), page                                                              
3,  line  5  which  states:   "A  municipality  may  not  place  a                                                              
substantial  burden  on  a  person's  free  exercise  of  religion                                                              
unless" and line 7 which states:   "the burden is in the form of a                                                              
rule of general applicability...".   He asked Representative Croft                                                              
to discuss what those passages mean.                                                                                            
                                                                                                                                
Number 1515                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CROFT  answered  that  there  are  two  levels  of                                                              
protection.   He noted that one  level is that  religious practice                                                              
cannot be targeted  at all and the other is that  even a generally                                                              
applicable  law cannot  place a  substantial  burden on  someone's                                                              
religion without justification.   Therefore, Section 6 is meant to                                                              
encompass both of  those protections.  He explained  that if there                                                              
is a law  without general applicability that  specifically targets                                                              
a religious  practice, it  would be  unconstitutional, and  he did                                                              
not want to  imply that he was  changing that rule by HB  387.  He                                                              
commented  that the first  test is  that a  law must have  general                                                              
applicability  and  does not  intentionally  discriminate  against                                                              
religion.   Even if  that test  is met,  the law  has to meet  the                                                              
compelling state interest and least restrictive means test.                                                                     
                                                                                                                                
REPRESENTATIVE OGAN said that Sec.  6(2), page 3, line 9 states as                                                              
follows:   "application of the burden  to the person  is essential                                                              
to further  a compelling governmental  interest..." and that  is a                                                              
little  troublesome   to  him  because  one   person's  compelling                                                              
government  interest  is  another person's  violation  of  his/her                                                              
religious rights.  For example, he  has a constituent who believes                                                              
very strongly that a social security  number is a precursor to the                                                              
mark of the beast  and that person does not have  or want a social                                                              
security  number, yet  he/she cannot  get a job  without a  social                                                              
security  number.   Representative Ogan  inquired as  to how  Sec.                                                              
6(2) is going to affect his constituent.                                                                                        
                                                                                                                                
Number 1635                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  replied that  he has received  concerns from                                                              
both ends of the  spectrum and he really feels that  in some cases                                                              
HB 387 puts  him in the middle  in that there are many  people who                                                              
believe that HB  387 is not enough.  He observed  that some people                                                              
think that  Sec. 6(a) should read  "may never place  a substantial                                                              
burden  on   a  person's...religion"   and  he  had   some  heated                                                              
discussions  with a  group from Tok  during hearings.   He  stated                                                              
that generally applicable laws have  many unintended consequences.                                                              
In  his   view,  some  ability  is   needed  to  say   that  anti-                                                              
discrimination  laws have  been passed;  if someone has  religious                                                              
reasons for  not renting  to  black  people then  maybe it  can be                                                              
assumed that the  religious reason is valid.  He  noted that a way                                                              
is needed to balance between religious  practices and governmental                                                              
interests.  Again in answer to Representative  Ogan's observation,                                                              
Representative Croft agreed that  there are redundant sentences in                                                              
HB 387 because  it talks about  the same thing in  three different                                                              
areas; school districts,  municipalities, and state  agencies.  He                                                              
explained that when  people say they are worried  that HB 387 does                                                              
not  provide enough  religious  protection,  he  answers that  the                                                              
alternative is no  protection just as federal  courts have already                                                              
done and is the  current state of federal law.   He commented that                                                              
the Smith  decision  says "no exception."   An  exception that  at                                                            
least provides a balance is preferable to no exception at all.                                                                  
                                                                                                                                
Number 1753                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN asked if  people have  some kind of  latitude                                                              
regarding  a person's  life style  which flies  in the  face of  a                                                              
property owner's  religious belief and wondered  if Representative                                                              
Croft recalled that case.                                                                                                       
                                                                                                                                
Number 1818                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  replied that yes  he did remember  the case.                                                              
He noted that there have been a number  of different cases and one                                                              
of those  is the Swanner  case in Alaska.   He explained  that the                                                            
Swanner decision held  that there was a compelling  state interest                                                            
in enforcing civil  rights laws that protected  unmarried couples.                                                              
He commented that  there have been cases that  have disagreed with                                                              
the Swanner  decision in  other states.   He mentioned  that these                                                            
are  examples  of what  he  was  talking  about in  the  beginning                                                              
wherein his  answer is that he does  not know what will  happen in                                                              
those particular  cases.   He does  know that  the Alaska  Supreme                                                              
Court found  that civil rights is  a compelling state  interest in                                                              
the Swanner case  which dealt with unmarried people  who wanted to                                                            
rent  a home.   He  and the  Alaska Civil  Liberties Union  (ACLU)                                                              
think that  the closer  a situation  gets to  actually impeding  a                                                              
religious  practice, the  more it  makes a difference  in a  legal                                                              
decision.   For example, renting out  a room in the  owner's home,                                                              
as  opposed  to  renting  a  separate  apartment  unit,  exerts  a                                                              
completely  different impact  on the  owner's religious  practice.                                                              
He emphasized that there are differences  in degree of impingement                                                              
on religious practice  even within that specific  application, and                                                              
that is  the very reason  he will not  predict how it  should come                                                              
out because  he has  not heard  all of  the facts.   He wants  the                                                              
standard to be  there, and the Alaska Supreme Court  has said that                                                              
civil rights is a compelling interest.                                                                                          
                                                                                                                                
Number 1935                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN said  that the  First Amendment  to the  U.S.                                                              
Constitution says  that Congress shall make no  law respecting the                                                              
establishment of religion, prohibiting  the free exercise thereof,                                                              
or  abridging  the  freedom  of speech.    He  explained  that  he                                                              
personally  believes  that the  U.S.  Supreme Court  has  somewhat                                                              
perverted the  intention of the  First Amendment by  violating his                                                              
constitutional right  to go to a school and express  his religious                                                              
beliefs.   He commented  that he believes  that the intent  of the                                                              
First Amendment  was to prohibit the government  from establishing                                                              
an official  religion in the United  States which would  result in                                                              
persecution  of people  who did  not conform.   He  had done  some                                                              
reading of the  original Constitution at the time  of the original                                                              
constitutional  convention  and   had  read  that  after  the  Ten                                                              
Amendments were ratified, the Anglican  Church was abolished.  The                                                              
result was  a period of  darkness that  came over the  country and                                                              
some of  the framers  of the  Constitution such  as Patrick  Henry                                                              
became concerned.  Representative  Ogan indicated that the country                                                              
kind of slipped  into a period of debauchery more  or less because                                                              
all of  a sudden the state-supported  ministers from  the Anglican                                                              
Church were  no longer getting a  salary, and the whole  system of                                                              
established religion disintegrated.   He acknowledged that it took                                                              
a while for other religions to take  hold and get the country back                                                              
on  a moral  course.   He remarked  that  he is  offended that  he                                                              
cannot talk  about his religious  beliefs in a school  even though                                                              
freedom of speech is guaranteed by  constitutional amendments.  He                                                              
asked  if he  could go  into a  public school  classroom and  talk                                                              
about Christianity  under HB  387 and  not be violating  someone's                                                              
civil rights.                                                                                                                   
                                                                                                                                
Number 1976                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CROFT replied that  he did not  know.  He  said he                                                              
does not  know how any  particular factual  situation is  going to                                                              
work out.   He noted that he  does know the clearest  case was the                                                              
Wisconsin v.  Yoder, 406  U.S. 205 (1972),  which he cited  in his                                                            
sponsor statement.   He  explained that the  Yoder case  was about                                                            
children wanting  to home  school at some  level because  of their                                                              
religious  beliefs;   this  was  before  home  schooling   was  as                                                              
established as it  is today.  He commented that  the case involved                                                              
Old Order Amish  religious members in Wisconsin  who believed that                                                              
a basic eighth  grade education was sufficient  (reading, writing,                                                              
and arithmetic)  and after  that went for  a life of  agriculture,                                                              
prayer,  and life  consistent with  the Old  Order Amish  beliefs.                                                              
Old  Order Amish  members  wanted  their children  to  get out  of                                                              
school after the eighth grade and  take a different path than what                                                              
public school dictated.                                                                                                         
                                                                                                                                
REPRESENTATIVE   CROFT  indicated   that  Pennsylvania   had  much                                                              
experience  with Old Order  Amish and  accommodated the  Old Order                                                              
Amish belief by allowing Old Order  Amish children to go to school                                                              
until  eighth grade  and then  established  a special  vocational-                                                              
technical  school for  the children.   He  informed the  committee                                                              
that the Pennsylvania accommodation  was as a result of 200 years'                                                              
experience with  the Amish whereas  Wisconsin did  not accommodate                                                              
them and  insisted on  the children  staying in  school until  the                                                              
12th grade.   The Yoder  case was the  defining case in  this area                                                            
when the  U.S. Supreme  Court decided  that under this  compelling                                                              
interest, Wisconsin  had to respect  Old Order Amish beliefs.   He                                                              
acknowledged  that  compelling state  interest  has  been used  in                                                              
school context,  but he does not  know how the  particular context                                                              
of Representative Ogan going into  a classroom would play out.  He                                                              
does know  that the Yoder  case established a general  recognition                                                            
of  the religious  rights  of children  and  in  some cases  their                                                              
opportunity to  opt out of school  generally, or of  the Halloween                                                              
pageant  with  its  ghosts  and  goblins  contradictory  to  their                                                              
religious beliefs.   He recognized  that it does many  things that                                                              
to this day  are incorporated into  the best practice.   Back then                                                              
there were cases  that forced people to respect  religious rights,                                                              
but now  it is  routinely done as  a matter  of respect  for those                                                              
rights.  There was a time when religious  rights had to be forced,                                                              
but now he thinks they are done fairly voluntarily.                                                                             
                                                                                                                                
Number 2234                                                                                                                     
                                                                                                                                
REPRESENTATIVE  WHITAKER said  he is  a little  bit confused.   He                                                              
explained that he  thought he understood the intent  of HB 387 and                                                              
now after listening for a few minutes  he is not sure that he does                                                              
understand.  He asked Representative  Croft to very pointedly tell                                                              
the  committee  what  Representative  Croft  is trying  to  do  in                                                              
sponsoring HB 387 and where does it take the committee.                                                                         
                                                                                                                                
REPRESENTATIVE  CROFT replied  (jokingly)  that if  Representative                                                              
Whitaker  had been  on  time  Representative Whitaker  would  have                                                              
heard  the  sponsor   statement  (everybody  laughed).     In  all                                                              
seriousness,  he added,  HB 387 tries  to reassert  a standard  of                                                              
review for  questions of  religious rights that  has long  been in                                                              
both the state and federal courts.   The standard of review is the                                                              
compelling state interest test that  says that an exception may be                                                              
made to  a general  law if  the general  law places a  substantial                                                              
burden  upon  a religious  practice,  as  long as  the  government                                                              
cannot  show  that it  has  a  compelling  state interest  in  not                                                              
granting an  exception.   The compelling  state interest  test has                                                              
long been the law  in both state and federal courts,  but in 1990,                                                              
the federal court  retreated from that standard.   Now the federal                                                              
court said no  court is under obligation to provide  any exception                                                              
at all if it  is a generally applicable law and  not targeted at a                                                              
specific religion.   He indicated  that the "no  exception stance"                                                              
was a shock to many people in this  country and raised much effort                                                              
to try and  cure it.  There are  some states that do  not have the                                                              
benefit  of both a  good supreme  court and  a well-written  state                                                              
constitution.  The  1990 federal court retreat was  the end of the                                                              
ball game for some states since those  states had no greater state                                                              
protection,  so when  the federal  court  retreated, those  states                                                              
were stuck with a lower standard.   He reiterated that the federal                                                              
Supreme Court retreated from a standard  of providing an exception                                                              
for  substantial   burdens  on   religious  practice   unless  the                                                              
government  could show  compelling  state interest  to a  standard                                                              
that allowed no exception at all.                                                                                               
                                                                                                                                
Number 2364                                                                                                                     
                                                                                                                                
REPRESENTATIVE WHITAKER  said he  understood that HB  387 provides                                                              
for  common sense  exceptions  as  determined by  the  court to  a                                                              
generally applicable law relating to a religious matter.                                                                        
                                                                                                                                
CHAIR  JAMES noted  that  in her  lifetime  she has  seen a  great                                                              
erosion of  all of the  Bill of Rights.   She understood  that the                                                              
purpose  of HB  387  is  to maintain  the  status quo,  which  she                                                              
believes  is  a reasonable  way  to  address  these issues.    She                                                              
commented that while legislators  are making legislative decisions                                                              
about  laws and  all things  they do,  legislators are  constantly                                                              
being  barraged  with hypotheticals.    She  asked  Representative                                                              
Croft if he believes that hypotheticals  can become misleading and                                                              
distracting.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CROFT replied  that he  thinks that  hypotheticals                                                              
can be used either  to illuminate the possible  consequences or to                                                              
confuse  the   issue  depending   upon  the  probability   of  the                                                              
hypothetical.     He mentioned  that he thinks that  a far-fetched                                                              
hypothetical  can  be  confusing,  but  a  presenting  a  probable                                                              
hypothetical  is   just  the  legislator  doing   his/her  job  in                                                              
examining the possible consequences of legislation.                                                                             
                                                                                                                                
Number 2520                                                                                                                     
                                                                                                                                
REPRESENTATIVE   HUDSON  indicated   that  hypotheticals   or  any                                                              
testimony that  is given in committee  becomes part of  the record                                                              
which  can  become  a  defining  element  of  the  application  of                                                              
whatever law is  being passed.  Therefore, legislators  do need to                                                              
be careful with hypotheticals.                                                                                                  
                                                                                                                                
CHAIR JAMES  agreed with  Representative  Hudson.  She  recognized                                                              
that  hypotheticals  serve a  purpose,  but  many times  they  are                                                              
emotional  and  leading.   Hypotheticals  can  be void  of  facts,                                                              
especially  when based  on bits and  pieces of  a larger  picture.                                                              
She is  disappointed in  judicial decisions much  of the  time and                                                              
has even stated that she has little  faith because of the way they                                                              
are done, but it  is the best system available at  this time.  She                                                              
understands that  people have concerns  regarding HB 387,  but she                                                              
believes  that it  is on  target  because basic  rights have  been                                                              
eroded over the years.                                                                                                          
                                                                                                                                
Number 2623                                                                                                                     
                                                                                                                                
REPRESENTATIVE   CROFT  recognized   that   people  can   disagree                                                              
regarding  to  what degree rights have been eroded,  but he agrees                                                              
with Chair  James.   There is  no question  that rights  have been                                                              
eroded in  this area in  the Smith case,  and even  Justice Scalia                                                            
would agree that  it was a major change from  protecting religion.                                                              
He stated that whether or not a person  agrees that there has been                                                              
erosion in other areas of the Bill  of Rights, there certainly has                                                              
been erosion  in the federal courts  in this area, and  he is just                                                              
trying to prevent erosion from happening.                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA  asked if HB 387 changes  the Alaska State                                                              
Constitution.   She  said that  no matter  what HB  387 says,  the                                                              
state  court  can  make  a decision  based  on  the  Alaska  State                                                              
Constitution.  She asked Representative  Croft if he liked the law                                                              
as it is interpreted by the state court now.                                                                                    
                                                                                                                                
REPRESENTATIVE CROFT replied in the affirmative.                                                                                
                                                                                                                                
REPRESENTATIVE  KERTTULA reminded  the committee  that any  time a                                                              
piece  of legislation  is presented,  using  possibly a  different                                                              
word here or  there, legislators run the risk of  seeing the court                                                              
come in and make a new interpretation.                                                                                          
                                                                                                                                
Number 2731                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT replied that  he cannot change how the Alaska                                                              
Supreme Court or  the federal Supreme Court is  going to interpret                                                              
their  respective constitutions  and  he cannot  tell  them to  do                                                              
that.   Further, he  added, it  turns out  that the federal  court                                                              
does not  have the power to  tell states how to  protect religious                                                              
freedom.  He said that the only body  that can provide some surety                                                              
here is the  state legislature because  it is not a  government of                                                              
limited powers  and it  has the ability  to set  this policy.   He                                                              
noted that  the legislature  has the  constitutional authority  to                                                              
protect religious practice.                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked  Representative  Croft if  he  was                                                              
running a risk  with HB 387 that  somewhere along the line  a word                                                              
or two gets out  of place or a hypothetical comes  up that someone                                                              
feels very strongly about and puts it on the record.                                                                            
                                                                                                                                
Number 2769                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  replied that there  is always a risk  in any                                                              
legislation  that it  could either  be  misinterpreted or  drafted                                                              
incorrectly so  he loves Representative Kerttula's  help in making                                                              
sure that  HB 137 accurately  reflects the  state of the  law that                                                              
most  agree is appropriate.                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA  said thank you,  but she likes  the state                                                              
of the law as it is.                                                                                                            
                                                                                                                                
REPRESENTATIVE  OGAN  commented that  there  is  a move  afoot  to                                                              
restore  the  Ten Commandments  to  schools  and display  them  in                                                              
schools.   He mentioned  that many people  might say that  part of                                                              
the  problem  with the  school  system  is because  any  religious                                                              
expression has been litigated out  of schools.  He asked if HB 387                                                              
would impede  display  of the Ten  Commandments  in schools  if it                                                              
becomes constitutionally correct to display them.                                                                               
                                                                                                                                
Number 2807                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  answered that he  did not think that  HB 387                                                              
would impede  display of the Ten  Commandments.  He said  that the                                                              
answer to all  the hypotheticals is  going to be "I do  not know."                                                              
He noted  that he is talking  about describing the  legal standard                                                              
correctly  and allowing  the judiciary  to  make determination  of                                                              
what happens under certain facts and that legal standard.                                                                       
                                                                                                                                
JOSEPH STORY, Government Relations Representative, Northwest                                                                    
Religious Liberty Association, read his testimony as follows:                                                                   
                                                                                                                                
     We strongly  support House Bill 387 for  several reasons                                                                   
     but I  wish to  express my appreciation  to the  sponsor                                                                   
     and cosponsors  of this  bill.   First, we support  this                                                                   
     bill  and  are mindful  of  the  fact that  the  Supreme                                                                   
     Court's   decision   in  Sherbert   v.   Verner   (1963)                                                                 
     specifically  involved  a Seventh-day  Adventist  church                                                                   
     member who  had been discriminated against  at her place                                                                   
     of employment  on the basis of her firmly  held beliefs.                                                                   
     We  take special  interest in  the fact that  it was  in                                                                   
     this particular case that the  high court ruled that the                                                                   
     state's  interest  in  denying   unemployment  benefits,                                                                   
     merely  because Mrs.  Sherbert  would  not make  herself                                                                   
     available  for   work  on  Saturday  (her   Sabbath)  as                                                                   
     required by  the state's unemployment compensation  law,                                                                   
     was    insufficiently   compelling    to   warrant    an                                                                   
     infringement  upon  this most  fundamental  right:   the                                                                   
     free exercise of religion.                                                                                                 
                                                                                                                                
     Second, the sponsors efforts  to restore the "compelling                                                                   
     state interest"  and "least restrictive means"  tests as                                                                   
     established  in  Sherbert  v. Verner  and  Wisconsin  v.                                                               
     Yoder (1972),  respectively, could not come  at a better                                                                 
     time.   Such  a provision  will  effectively restore  an                                                                   
     individual's right  to free exercise of  their religious                                                                   
     convictions  at   the  state  level,  and   prevent  the                                                                   
     unnecessary discrimination that  occurs on a daily basis                                                                   
     in  the public  sector, particularly  in the  workplace.                                                                   
     As  Justice Sandra  Day O'Connor stated  in the  Supreme                                                                   
     Court's  decision in  Employment Division  of Oregon  v.                                                                 
     Smith,  the  court made  a  critical mistake  when  they                                                                 
     failed to offer "convincing  evidence to depart from the                                                                   
     settled   First   Amendment    jurisprudence."      This                                                                   
     fundamental   departure  allows   states  to  1)   "make                                                                   
     criminal an individual's religiously  motivated conduct"                                                                   
     in a  way that burdens  [an] individual's free  exercise                                                                   
     of religion;  2) puts at  a clear disadvantage  minority                                                                   
     religions   and   religious   practices   when   leaving                                                                   
     accommodation to  the political process; and  3) enables                                                                   
     government to ignore religious  claims altogether, if it                                                                   
     suits    them,   without    offering   any    compelling                                                                   
     justification to support their  actions (494 U.S. 872 at                                                                   
     897,902).   However, as  Justice O'Connor reiterated  in                                                                   
     Smith,                                                                                                                   
                                                                                                                                
          The  essence  of  a  free  exercise  claim  is                                                                        
          relief from a burden imposed  by government on                                                                        
          religious  practice  or beliefs,  whether  the                                                                        
          burden is  imposed directly through  laws that                                                                        
          prohibit   or   compel    specific   religious                                                                        
          practices,  or indirectly  through laws  that,                                                                        
          in  effect,  make  abandonment  of  one's  own                                                                        
          religion   or  conformity  to  the   religious                                                                        
          beliefs of others the price  of an equal place                                                                        
          in the civil community  (494 U.S. 872 at 897).                                                                        
                                                                                                                                
TAPE 00-25, SIDE B                                                                                                              
Number 2988                                                                                                                     
                                                                                                                                
     Third,  to  place on  the  shoulders of  government  the                                                                   
     burden  to  prove  a compelling  interest  in  order  to                                                                   
     protect  the greater,  or common  good, is  to place  an                                                                   
     individual's claim to religious  freedom in its rightful                                                                   
     place.  America's founders,  namely Thomas Jefferson and                                                                   
     James  Madison,  believed  that  the  free  exercise  of                                                                   
     religion  was  the  most "liberal"  of  all  the  rights                                                                   
     Americans  could claim,  the one right  that placed  the                                                                   
     greatest trust  in the capacity  of private  choice, and                                                                   
     the  one least  dependent  on positive  law.   In  other                                                                   
     words,  a  right  that  was   considered  "inalienable."                                                                   
     Again, as  Justice O'Connor stated in Smith,  "The First                                                                 
     Amendment  was enacted precisely  to protect the  rights                                                                   
     of  those whose religious  practices  are not shared  by                                                                   
     the majority"  (493 U.S. 872  at 902).  We  believe that                                                                   
     HB 387 will restore this historical  intent at the state                                                                   
     level.                                                                                                                     
                                                                                                                                
MR. STORY said he would like to mention something about                                                                         
exemptions.  He read the following testimony:                                                                                   
                                                                                                                                
     Smith left the Free Exercise  Clause virtually toothless                                                                 
     in all  but the  rarest of  cases.   Yet the ACLU  would                                                                   
     rather    leave    religious    believers    statutorily                                                                   
     defenseless than  enact a Religious Freedom  Restoration                                                                   
     Act  (like  the Alaska's  Religious  Freedom  Protection                                                                   
     Act) that would  apply to all claims and  all Americans.                                                                   
     Specifically,  we have learned  that the ACLU  wants the                                                                   
     Alaska Religious  Freedom Protection  Act amended  so it                                                                   
     could not be invoked by many  believers against an anti-                                                                   
     discrimination law.  Call it  by any other name but this                                                                   
     would be  a carve out, a  repudiation of the  bedrock of                                                                   
     "inalienable rights" and equal protection of the laws.                                                                     
                                                                                                                                
     For  the  following  reasons,  the  Northwest  Religious                                                                   
     Liberty Association, a member  of the National Coalition                                                                   
     for  the  Free  Exercise  of  Religion,  would  have  to                                                                   
     vigorously   oppose   the   Alaska   Religious   Freedom                                                                   
     Protection Act if it were amended  to exclude a class of                                                                   
     religious practices or claims from its protection.                                                                         
                                                                                                                                
     The  free  exercise of  religion  should not  always  be                                                                   
     subordinated  to other  civil rights.   As  a matter  of                                                                   
     principle, should the first  freedom always prevail over                                                                   
     anti-discrimination  law?   No.   Society's interest  in                                                                   
     eradicating  racial  discrimination   will  continue  to                                                                   
     trump   claims  that  one's   religion  compels   racist                                                                   
     practices.                                                                                                                 
                                                                                                                                
     But neither  should the opposite extreme  be legislated:                                                                   
     that   certain   civil  rights   always   outweigh   the                                                                   
     believer's   interest   in   religious  exercise.      A                                                                   
     principled Religious Freedom  Protection Act would apply                                                                   
     the same  test to all religious practices  substantially                                                                   
     burdened by government, and  leave the courts a case-by-                                                                   
     case  application of  that uniform  test.  The  explicit                                                                   
     and prominent  constitutional  regard for free  exercise                                                                   
     of  religion  admits  of no  exceptions,  qualifiers  or                                                                   
     disclaimers.                                                                                                               
                                                                                                                                
     The first freedom  protected by the framers  in our Bill                                                                   
     of  Rights  is religious  freedom  including  protection                                                                   
     from government  prohibition on  "the free exercise"  of                                                                   
     religion.    Religious  freedom   is  a  "civil  right,"                                                                   
     arguably the foundational and  preeminent one upon which                                                                   
     all   others  depend.     If  a   government  will   not                                                                   
     accommodate  a  citizen's  fulfillment  of  his  or  her                                                                   
     obligation  to God, then  no other  human right is  safe                                                                   
     from government.                                                                                                           
                                                                                                                                
     This first  freedom includes practices inside  houses of                                                                   
     worship.   But  it also  encompasses the  living out  of                                                                   
     one's beliefs  in the marketplace of ideas,  of jobs, of                                                                   
     housing.   Those who  support a  civil rights carve  out                                                                   
     amendment to  the free exercise of the  Alaska Religious                                                                   
     Freedom  Protection  Act either  do not  understand  the                                                                   
     comprehensive nature of most  religious devotion or else                                                                   
     they    dangerously    overweight    the    government's                                                                   
     constitutional authority to burden it.                                                                                     
                                                                                                                                
     The ACLU's  proposed civil rights carve  out presupposes                                                                   
     that  the  First Amendment's  religion  clauses  protect                                                                   
     little  more than  religious beliefs,  and only if  such                                                                   
     beliefs do not infect the policies  and practices of its                                                                   
     adherents  outside their  houses  of worship.   But,  as                                                                   
     millions of religious Americans  know, they do not leave                                                                   
     their  religion at  the  door to  their  office, at  the                                                                   
     factory punch  clock, or at  the schoolhouse gate.   And                                                                   
     among   religious   Americans    are   landlords   whose                                                                   
     consciences  do not  allow them  to  rent their  private                                                                   
     property  for  what they  deem  to be  sinful  purposes.                                                                   
     They  also  include  employers  who want  to  work  with                                                                   
     people  who  share  their  most   important  values  and                                                                   
     priorities, including  religious ones.   Religious "free                                                                   
     exercise"  is not  confined to one's  Sabbath, home,  or                                                                   
     house of worship.                                                                                                          
                                                                                                                                
     Consequently,  free exercise  of religion will  conflict                                                                   
     with the interests of third  parties who want employment                                                                   
     at the believer's private workplace  or want to rent the                                                                   
     believer's private property.                                                                                               
                                                                                                                                
     The  Coalition For  The Free  Exercise  of Religion,  an                                                                   
     extraordinary  coalition of  some 80 organizations  that                                                                   
     drafted the model state RFRA  supports a "clean" bill, a                                                                   
     Religious  Freedom Protection  Act free  of any kind  of                                                                   
     carve  outs, exceptions  or second  class treatment  for                                                                   
     particular religious claims or claimants.                                                                                  
                                                                                                                                
     But the RFRA  Coalition also resists any  carve outs for                                                                   
     a very  practical reason:   80 groups could  never agree                                                                   
     on what  to carve out.   The Coalition is  held together                                                                   
     by one  magnetic commitment:   we  all agree that  every                                                                   
     sincere  religious  practice  will be  entitled  to  the                                                                   
     protection of strict scrutiny.                                                                                             
                                                                                                                                
     If  the  Alaska  Religious  Freedom  Protection  Act  is                                                                   
     amended so that it could not  be raised as a defense to,                                                                   
     e.g.,   discrimination   law,   then   the   Coalition's                                                                   
     magnetism will have been lost.   Coalition members would                                                                   
     spin  off  what  religions,   religious  practices,  and                                                                   
     government interests  should be winners and  losers.  At                                                                   
     the  end  of  this  political  power  play,  the  Alaska                                                                   
     Religious Freedom Protection  Act would only protect the                                                                   
     politically correct  and politically powerful  religious                                                                   
     practices.  Minority  faiths would be left  in the carve                                                                   
     out pile.   And religious  freedom as a universal  right                                                                   
     in America would be a thing of the past.                                                                                   
                                                                                                                                
     A  final  example  of  why   carve  out  exemptions  are                                                                   
     detrimental.     In   June  of  last   year  the   Texas                                                                   
     legislature  enacted a  RFRA with a  civil rights  carve                                                                   
     out.   The  Senate,  having  breached the  principle  of                                                                   
     "protection  for  all  without  exceptions,"  the  House                                                                   
     could  hardly  object  to the  Senate's  version,  which                                                                   
     contained  carve  outs for  incarcerated  persons and  a                                                                   
     special   provision  on  regulation   of  land   use  by                                                                   
     religious  groups.  One  carve out  begat another.   And                                                                   
     thus shall  it be if Alaska  opens the Pandora's  box of                                                                   
     stripping   the  Religious   Freedom  Protection   Act's                                                                   
     protection  from  disfavored   religious  practices  and                                                                   
     believers.                                                                                                                 
                                                                                                                                
     Please  oppose any  carve out amendments  to House  Bill                                                                   
     387.  On  the basis of this reasoning, we  strongly urge                                                                   
     you to support House Bill 387 without any exemptions.                                                                      
                                                                                                                                
Number 2621                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN said he assumed  that Mr. Story had seen model                                                              
legislation  that other  states have  done.   Representative  Ogan                                                              
asked if  HB 387 was  identical to  other states' legislation  and                                                              
was Mr. Story comfortable with the language in HB 387.                                                                          
                                                                                                                                
MR. STORY replied that HB 387 was  very similar to other states if                                                              
the language is based very strongly  on the old U.S. Supreme Court                                                              
test  of compelling  interest and  using  least restrictive  means                                                              
when  there is a  compelling  interest.   He said  that HB 387  is                                                              
perhaps more  redundant than most  state statutes  addressing this                                                              
issue, but  otherwise the language  is very similar, and  it looks                                                              
like a good bill  to maintain the status quo as  he believes it is                                                              
in Alaska.                                                                                                                      
                                                                                                                                
REPRESENTATIVE OGAN noted that probably  the most compelling state                                                              
interest  that  comes  to  his  mind  in  which  the  state  might                                                              
interject  itself [between  religious practice  and state  law] is                                                              
with  people   who  hold  Christian   Science  beliefs   in  which                                                              
practitioners do faith  healing or another religion  that does not                                                              
accept blood transfusions.   He explained that maybe  the state at                                                              
some point is  going to feel that they have  a compelling interest                                                              
to go in and preempt someone's religious  belief.  He asked how HB
387  would   affect  those  religions   [who  are  at   odds  with                                                              
traditional practices].                                                                                                         
                                                                                                                                
Number 2507                                                                                                                     
                                                                                                                                
MR. STORY answered that he does not  know.  However, HB 387 is not                                                              
aimed at those kinds of religious  practices any more than current                                                              
practice is  aimed at  those religious  practices.  He  envisioned                                                              
that the  rule would have to  be to say  "where are we at  on that                                                              
issue now"  and "what has been our  practice in the past."   If no                                                              
prior practice  exists regarding  something, then courts  may have                                                              
to rule  on a practice  in the future,  and it might  be something                                                              
that  the legislature  may  want to  address  in the  future.   He                                                              
cannot answer beyond  that, but he emphasized that  HB 387 is not,                                                              
as  he understands  it,  aimed at  establishing  a  religion or  a                                                              
religious practice, and it is certainly  requiring that there be a                                                              
compelling  interest on  the part  of  the state  before they  can                                                              
burden someone's religious practice.   He does not see that HB 387                                                              
establishes or disestablishes anything.                                                                                         
                                                                                                                                
Number 2449                                                                                                                     
                                                                                                                                
CHAIR  JAMES acknowledged  that it  is  hard to  believe that  the                                                              
committee is  passing legislation (if  HB 387 passes)  that really                                                              
does  nothing for  any of these  cases,  but what  HB 387 does  is                                                              
establish for  the future the test  that the state  currently uses                                                              
so that the state knows what those tests are.                                                                                   
                                                                                                                                
ROBERT NICHOLSON,  Presbyterian Church,  said that his  church all                                                              
across the  U.S.A. is concerned  that there be  such a bill  as HB
387 and  urges it  passage.   He noted  that he  is going  to talk                                                              
about a moose, Presbyterians, Orthodox  Jews, and parties, none of                                                              
which is  hypothetical but  each of  which is  very concrete.   He                                                              
explained that  Athabaskans for two  or three thousand  years have                                                              
had their  heritage and religious  tradition of taking a  moose at                                                              
the time of  a potlatch when someone  dies.  He commented  that if                                                              
the moose  is taken  out of  season that  violates state  fish and                                                              
game law  and the  question becomes  is there  a compelling  state                                                              
interest to prosecute.  He mentioned  that is one concrete example                                                              
of no compelling state interest according to his belief.                                                                        
                                                                                                                                
MR. NICHOLSON indicated secondly  that a Presbyterian colleague of                                                              
his is a pastor in Oregon of a church  about the size of Chapel By                                                              
the Lake.  He remarked that it outgrew  a small facility and built                                                              
a facility  much like  the one  at Auke  Lake.   He said that  the                                                              
municipality in Oregon  approved the building use  permit, but the                                                              
municipality declared that the church  could not have any weddings                                                              
or funerals in the new building.   He said that the church example                                                              
is concrete, and he asks "what is  the compelling state interest."                                                              
He  stated  that  the  Oregon church  had  ten  acres,  plenty  of                                                              
parking, met all  the building codes, did everything  by the book,                                                              
no  public health  hazards, but  that  is a  specific example  [of                                                              
compelling  state  interest overriding  religious  practice].  His                                                              
examples deal with groups whereas  Joe's examples are dealing with                                                              
individual rights.                                                                                                              
                                                                                                                                
MR.  NICHOLSON said  his third  example is  dealing with  Orthodox                                                              
Jews.   He  noted that  Orthodox Jews  do not  believe in  driving                                                              
their  automobiles on  Sunday  or the  Sabbath.   Therefore,  they                                                              
agree that they  are going to walk to the nearest  Orthodox Jewish                                                              
home, read the Torah, pray, thank  God for their life together and                                                              
then  walk home.    He  explained that  there  is no  traffic,  no                                                              
parking, no  impact on the  environment, and no  pollution whereas                                                              
at Joe's house on the same night,  there is a knock-down, drag-out                                                              
party with  booze and loud music  that tears up  the neighborhood.                                                              
Joe  does not  have  a license  to  be a  tavern  either, yet  the                                                              
Orthodox Jew meeting is against the  law, but Joe's party is okay.                                                              
Mr.  Nicholson  mentioned  that  the Orthodox  Jew  meeting  is  a                                                              
concrete  example   of  what   can  happen   and  where   in  some                                                              
municipalities  Orthodox  Jews  meeting in  homes  [is  considered                                                              
illegal].   These are just  three examples  of the kind  of things                                                              
that  HB 387  would help  the courts  understand as  they look  at                                                              
these issues.                                                                                                                   
                                                                                                                                
Number 2218                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN acknowledged  that he  does believe  that the                                                              
state  has  a compelling  interest  because  regarding  the  moose                                                              
issue,  the state  has  a constitutional  mandate  to sustain  and                                                              
manage [wildlife].   If  someone is  going to  shoot the  last two                                                              
moose, then the state constitutionally [has to take action].                                                                    
                                                                                                                                
MR.  NICHOLSON  agreed  that  Representative  Ogan  is  absolutely                                                              
right,  and  Mr. Nicholson  would  not  want  to go  [against  the                                                              
constitution].                                                                                                                  
                                                                                                                                
REPRESENTATIVE OGAN noted that there  is an exemption in state law                                                              
that allows  for potlatches so native  people can go out  an get a                                                              
moose for potlatches.                                                                                                           
                                                                                                                                
REPRESENTATIVE  KERTTULA wondered  where Mr. Nicholson's  Orthodox                                                              
Jew example came from and where did that happen.                                                                                
                                                                                                                                
Number 2152                                                                                                                     
                                                                                                                                
MR. NICHOLSON  replied that his  [Presbyterian] Office  of General                                                              
Assembly had sent that undocumented anecdote to him.                                                                            
                                                                                                                                
REPRESENTATIVE  KERTTULA   asked  if  the  Orthodox   Jew  example                                                              
happened in Alaska.                                                                                                             
                                                                                                                                
MR. NICHOLSON  answered no,  none of his  examples are  in Alaska,                                                              
but  he  wanted   to  give  concrete  examples   of  how,  without                                                              
legislation in place, these kinds of things would be decided.                                                                   
                                                                                                                                
KATHERINE HARRIS  testified via teleconference  from Tok  and said                                                              
that  her understanding  of  the history  of  HB 387  is that  the                                                              
impetus for its  creation was the U.S. Supreme  Court ruling which                                                              
took the U.S.  Constitution and interpreted  it in a way  so as to                                                              
remove protection of  religious freedom.  She assumed  that if the                                                              
true intention of HB 387 is to protect  religious freedom then the                                                              
legislature  should   want  to  write  a  bill   which  cannot  be                                                              
interpreted by  the courts in such  a way as to  remove protection                                                              
of religious  freedom.  She  noted that HB  387 does not  do this,                                                              
and  many  legislative   debates  rest  on  the   assumption  that                                                              
religious freedom  is protected.   During a  recent debate  in the                                                              
Senate   State   Affairs  Committee   on   SB  292   relating   to                                                              
vaccinations,  members of  that committee  repeatedly stated  that                                                              
people who have  a religious objection to vaccinations  are exempt                                                              
from having  their children  vaccinated but are  they?   She asked                                                              
where is it  codified in law in  a way that cannot  be interpreted                                                              
in a such a  way as to violate religious freedom.   She asked what                                                              
if the  government feels it  has a compelling government  interest                                                              
to vaccinate  all children and the  least restrictive means  to do                                                              
so is to vaccinate them.                                                                                                        
                                                                                                                                
MS. HARRIS asked what if the government  decides secular education                                                              
or the  teaching of  evolution is a  compelling interest  and thus                                                              
bans religious education as the least  restrictive means for doing                                                              
so.    She  explained  that  the writing  of  HB  387  places  the                                                              
interpretation once  again in the hands of the court  and even the                                                              
sponsor of HB  387 first talks about the danger  of depending upon                                                              
the interpretation of the courts  to protect religious freedom and                                                              
then  relies  upon  their  judgment   in  determining  substantial                                                              
burden,  compelling   governmental  interest,   least  restrictive                                                              
means,  not to  mention  very   unclear assets  of  HB 387,  which                                                              
relates  to a  third  party.   She  commented  that  if there  are                                                              
specific religious freedoms which  are always ensured, state them.                                                              
Freedom  of religious  expression is  always protected,  including                                                              
but  not  limited to,  the  right  for parents  to  educate  their                                                              
children  in the  manner  they see  fit and  the  right for  every                                                              
individual  to  choose their  medicine  for themselves  and  their                                                              
children.     She  mentioned  that   the  debate   over  religious                                                              
expression gets convoluted  and truthfully stupid.   She said that                                                              
people  are  seeking   a  right  to  express   their  religion  in                                                              
spirituality.                                                                                                                   
                                                                                                                                
MS.  HARRIS asked  why the  debate  always turns  to running  stop                                                              
signs and  serving filet mignon to  prisoners.  She has  the right                                                              
to express her spirituality for herself  and with her children; it                                                              
is inherent  in her existence  as a human  being.   She emphasized                                                              
that the  committee's job  as legislators is  to codify  law which                                                              
ensures that  no government policy,  no prejudiced neighbor  or no                                                              
court of law ever violates [the right to express spirituality].                                                                 
Number 1917                                                                                                                     
                                                                                                                                
LAURIE CUMMINGS  testified via teleconference from  Sitka in favor                                                              
of HB 387.                                                                                                                      
                                                                                                                                
RANDY  MEYER  testified  via  teleconference   from  Fairbanks  in                                                              
support of  HB 387.   He  said he is  a member  of the North  Pole                                                              
Seventh  Day Adventist  Church and  he  would like  to testify  in                                                              
relation to his own experience regarding  freedom of religion.  He                                                              
noted that his  family has lived in America since  the early 1800s                                                              
and  came  to  America  because  of the  issue  of  freedom.    He                                                              
explained that  freedom of religion  is one of the  most important                                                              
things that exists  in this country, and it is why  he lives here,                                                              
and why his  family has lived  here for almost two  hundred years.                                                              
He  commented  that  he  lives  in  Alaska  now  because  he  sees                                                              
religious freedom in Alaska being  protected more than he has seen                                                              
in other  parts of the  Lower 48.   He mentioned that  he believes                                                              
and continues to  support HB 387 because of the fact  that it does                                                              
put forth the precedent of least restrictive means.                                                                             
                                                                                                                                
Number 1886                                                                                                                     
                                                                                                                                
SYLVIA  HERNANDEZ  testified via  teleconference  from  Tok.   She                                                              
noted   that  repeatedly   over   the   course   of  this   debate                                                              
Representative Croft  has said that he does not  see repercussions                                                              
of HB 387,  and she thinks it  is a responsibility on  the part of                                                              
legislators to  have the vision to  see repercussions that  a bill                                                              
will have on  constituents.  She explained that  the sponsor could                                                              
write a clearer bill that does not  leave room for interpretation.                                                              
The sponsor leaves  no room and no definition about  what a really                                                              
good  reason  for   government  [intervention]  would   be.    She                                                              
mentioned that  no standard [has  been established  regarding when                                                              
the government will intervene], and  the sponsor wants to keep the                                                              
status  quo.  She  asked why  Alaska could  not have  a bill  that                                                              
really represents religious freedom.                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT  replied that it would be  irresponsible when                                                              
purporting  to change the  law to  not talk  about how the  change                                                              
would  affect  [constituents].   He  is  trying  to keep  the  law                                                              
exactly  the  way  it  is  so  that  is  why  he  believes  it  is                                                              
appropriate to say  that he wants the same sort  of standards that                                                              
exist now to  continue.  He is  not an expert in how  every single                                                              
factual situation  will turn  out now.   He  has tried to  clarify                                                              
definitions in  HB 387, particularly "substantial  burden" instead                                                              
of  "burden,"  but  fundamental problems  that  some  people  have                                                              
cannot be avoided since they simply  do not trust the judiciary to                                                              
enforce HB  387 correctly.   At some  level people must  trust the                                                              
judiciary  to   correctly  apply  the  right  standard   when  the                                                              
judiciary  is given  that standard.   He agreed  that the  federal                                                              
court at least  has switched to an improper standard  and believes                                                              
that  it  is applying  the  wrong  law.   He  emphasized  that  in                                                              
particular instances  people are going  to have to  trust somebody                                                              
to  [make  a decision].      He  remarked that  Alaska  has  three                                                              
branches of government:   the legislative branch   tries to put in                                                              
proper standards,  the executive branch  has another job,  and the                                                              
judiciary  branch   interprets  the  laws.    He   recognized  Ms.                                                              
Hernandez's  point, but  he does  not think  there is  any way  to                                                              
avoid some discretion  in this matter regarding  different factual                                                              
situations.                                                                                                                     
                                                                                                                                
Number 1622                                                                                                                     
                                                                                                                                
JENNIFER  RUDINGER,  Executive Director,  Alaska  Civil  Liberties                                                              
Union (ACLU),  testified via teleconference  from Anchorage.   She                                                              
said she had  sent many materials to committee  members and wanted                                                              
them be distributed  to every person on the committee.   She noted                                                              
there is  one  page of amendments that the ACLU  is suggesting for                                                              
HB 387  and an 11-page  position paper  that the ACLU  has drafted                                                              
outlining  the current  state  of  the law  that  she thinks  will                                                              
answer some  questions  that have  been asked in terms  of how are                                                              
cases coming  down around the country.   She explained  that there                                                              
are  a  couple  of  two-page  letters   written  by  the  National                                                              
Association  for  the Advancement  of  Colored People  (NAACP)  in                                                              
opposition to the federal Religious  Liberty Protection Act (RLPA)                                                              
unless some civil rights amendments are added.                                                                                  
                                                                                                                                
MS.  RUDINGER commented  that  there is  a  two-page testimony  by                                                              
Texas  Representative Scott  Hochberg regarding  the civil  rights                                                              
amendment to  the Texas Religious  Freedom Restoration  Act (RFRA)                                                              
which was  signed into law last  year by Governor George  W. Bush.                                                              
She  mentioned that  there  is also  a  two-page  letter from  the                                                              
National Fair Housing Alliance and  several letters form religious                                                              
organizations  including the  Coalition for  the Free Exercise  of                                                              
Religion, the Episcopal  Church, the United Church  of Christ, the                                                              
Friends Committee, United Synagogues  of Conservative Judaism, the                                                              
Evangelical Lutheran Church in America,  and the Union of American                                                              
Hebrew Congregations.   The  committee will  be receiving  a four-                                                              
page  article from  the  Jewish  Telegraphic Agency  citing  their                                                              
withdrawal, as  well as the  withdrawal of Baptists,  from support                                                              
of the federal  RLPA.  She indicated  it is a little  difficult to                                                              
talk in  too much depth  until the committee  has had a  chance to                                                              
see  those materials  because she  would like  the opportunity  to                                                              
answer questions  about the materials.   She asked Chair  James if                                                              
she could  come back  and testify  after the  committee has  had a                                                              
chance to review the materials.                                                                                                 
                                                                                                                                
Number 1428                                                                                                                     
                                                                                                                                
CHAIR  JAMES replied  that  the materials  that  Ms. Rudinger  had                                                              
provided  were received  just before the  committee meeting  began                                                              
and they are being copied.  She said  that the committee will have                                                              
time before  HB 387  is up  before the  committee again  to review                                                              
those documents that Ms. Rudinger is presenting.                                                                                
                                                                                                                                
MS. RUDINGER stated  that she would be happy to  come back another                                                              
day since  HB 387 is going  to be held  over and she  is available                                                              
any time.                                                                                                                       
                                                                                                                                
Number 1342                                                                                                                     
                                                                                                                                
CHAIR JAMES  answered that  even though she  wants to  get through                                                              
all  the public  testimony and  close public  testimony today  she                                                              
could allow  Ms. Rudinger  to provide  her testimony  at the  next                                                              
hearing without opening public testimony again.                                                                                 
                                                                                                                                
MS. RUDINGER  said that is fine and  it will be helpful  for folks                                                              
who may have questions after they read her material.                                                                            
                                                                                                                                
PAUL  BERAN, Pastor,  Resurrection  Lutheran Church,  representing                                                              
the Evangelical  Lutheran Church of  America (ELCA), said  that at                                                              
first  the ELCA  was a  supporter of  RFRA movements  but now  has                                                              
withdrawn  its support.   He  explained  that he  wanted to  speak                                                              
against HB 387  for two reasons.   First of all, HB 387  is a very                                                              
broad-ranging bill that  has broad powers.  He  commented that the                                                              
danger is elevating freedom of religion,  which is very important,                                                              
at  the expense  of  other freedoms  as outlined  in  the Bill  of                                                              
Rights.   The second problem  is closely tied  to that; if  HB 387                                                              
becomes almost  an elevation  of one area,  it then falls  prey to                                                              
the danger  of abuse.  If abuse  happens then the whole  area that                                                              
is being  protected falls  into disarray  and the illustration  of                                                              
history that comes most to his mind  is the nation of Russia where                                                              
government  and the  church have  shared the same  bedroom  to the                                                              
detriment of both.  Therefore, he  would like to encourage that HB
387 be  thought through carefully,  and he leans toward  voting no                                                              
or encouraging a no vote on HB 387.                                                                                             
                                                                                                                                
Number 1204                                                                                                                     
                                                                                                                                
CHAIR JAMES  said she is  having a hard  time sorting  Mr. Beran's                                                              
statements in regard  to the purpose of HB 387.   She noted she is                                                              
guided by history,  circumstance and the change  in society today.                                                              
First of  all, [religious] freedom  enjoyed in this nation  is one                                                              
of  the  reasons why  this  nation  exists  and folks  who  wanted                                                              
freedom of religion came here for  that reason.  She has read many                                                              
stories about  [people seeking  freedom of  religion] and  some of                                                              
her relatives came from Sweden.   In the book Immigrants, it tells                                                            
how the  immigrants were seeking  the ability to meet  in people's                                                              
homes and  worship in a  way that happened  to be in  violation of                                                              
their  country's  religion.    She  understood  from  Mr.  Beran's                                                              
testimony that  he is  fearful of putting  freedom of  religion at                                                              
the  top  of  the heap  because  it  might  interfere  with  other                                                              
religions  or other  freedoms.    She suspected  that  what he  is                                                              
talking about is  civil rights because it seems to  her that civil                                                              
rights are  strongly based in freedom  of religion.  She  asked if                                                              
that was in fact Mr. Beran's concern  or where does his concern on                                                              
that issue lie in particular.                                                                                                   
                                                                                                                                
Number 1069                                                                                                                     
                                                                                                                                
MR. BERAN  replied that civil rights  are one area of  concern but                                                              
not the  only one because religion  is such a  personal commitment                                                              
that  a person  can  abuse  society on  the  basis  of freedom  of                                                              
religion.     For   instance,  unemployment,   education,   family                                                              
responsibility and health [were other areas of concern].                                                                        
                                                                                                                                
CHAIR JAMES  agreed that religion  is very personal and  asked him                                                              
if  he  is  saying  that  the  legislature   should  define  whose                                                              
religions are okay and whose are not.                                                                                           
                                                                                                                                
MR. BERAN answered no, he is not saying that.                                                                                   
                                                                                                                                
CHAIR  JAMES  acknowledged that  in  the  case of  employment  the                                                              
committee had  heard from the  Seventh Day Adventist  Church about                                                              
an issue  where someone  lost their  position  at work because  it                                                              
required  working on Saturday.   The  person would  not work  on a                                                              
Saturday and was  not entitled to unemployment.   She said that in                                                              
that particular  case it  was determined that  the person  did not                                                              
have to work on  Saturday.  She noted that even  though that might                                                              
be her basic belief, she has the  belief that if she wants to have                                                              
a job, she has to do what the employer  requires of her.  However,                                                              
that depends upon whether or not  a state can make a law like that                                                              
because  she thinks  a  private  employer could  probably  present                                                              
terms of the  working agreement and say "either you  work or not,"                                                              
and the  prospective employee can  go find another  job compatible                                                              
with  his/her  religion.   She  asked  Mr.  Beran  if it  was  the                                                              
language in  HB 387  that causes him  to not particularly  support                                                              
it, or  is it the  theory in the  main that this  determination of                                                              
the compelling state  interest as opposed to religious  freedom is                                                              
the standard against which disputes should be measured.                                                                         
                                                                                                                                
Number 0923                                                                                                                     
                                                                                                                                
MR. BERAN  replied that  he believes there  needs to be  a balance                                                              
between religion and state.  He said  that he believed that if one                                                              
gets out of balance the integrity of both sides is impinged.                                                                    
                                                                                                                                
CHAIR JAMES  asked if Mr.  Beran would  agree that the  only place                                                              
wherein balance  in this  conflict can  truly be  found is  in the                                                              
judicial  system.  She  asked whether  a law  can be written  that                                                              
establishes  the  balance.    She asked  if  the  judicial  system                                                              
continues  to measure  this  issue of  religious  freedom and  the                                                              
compelling state  interest, does  Mr. Beran think  that is  a good                                                              
measure of how that should be determined.                                                                                       
                                                                                                                                
MR. BERAN  answered  yes.   He added that  he guesses  he got  the                                                              
feeling  from HB  387  that the  state  is like  the  apex of  the                                                              
pyramid,  and  he thinks  the  state needs  to  be  almost like  a                                                              
parallel bar similar to a teeter-totter.                                                                                        
                                                                                                                                
CHAIR JAMES said  she did not necessarily read that  into the law.                                                              
She explained that her interest in  asking him all these questions                                                              
is to find out  if she is missing something in  HB 387 because she                                                              
always wants to know if there is something not visible to her.                                                                  
                                                                                                                                
Number 0785                                                                                                                     
                                                                                                                                
MR. BERAN replied  that his primary concern in this  is that if it                                                              
be abused  then there would  be a negative  reaction to  the abuse                                                              
that would hurt all religious exercise.                                                                                         
                                                                                                                                
CHAIR JAMES stated  that she does not believe that  HB 387 changes                                                              
anything from  the way  things are currently  being done,  and she                                                              
does believe  that there will continue  to be abuses  because this                                                              
is not a perfect world.  The legislature  has to do what it can to                                                              
try to fix things so that they are  at least as fair and equitable                                                              
as possible.                                                                                                                    
                                                                                                                                
JIMMIE STORY  testified via teleconference  from Sitka  in support                                                              
of HB 387 and wishes to see a clean bill passed.                                                                                
                                                                                                                                
Number 0688                                                                                                                     
                                                                                                                                
KAREN POWER  testified via teleconference  from Tok  in opposition                                                              
to HB 387  because while Representative  Croft will not  deal with                                                              
hypotheticals, he  has not taken into consideration  the spirit of                                                              
the law  versus the letter  of the  law.  She  said that in  a few                                                              
years the  intent of  HB 387  will disappear  and be forgotten  or                                                              
worse, it will be  warped.  She feared this is  the legacy left to                                                              
her children, the legacy being that  of a warped HB 387 that maybe                                                              
one day in  20 to 50 years  may actually be used to  prosecute and                                                              
discriminate  against different  religions.   She  noted that  the                                                              
United States Constitution  bears out her point  of warping thinks                                                              
beyond  recognition  and  she  thinks  that  is  a  very  accurate                                                              
possibility which could happen to HB 387.                                                                                       
                                                                                                                                
MS. HERNANDEZ stated  that she realized that  Representative Croft                                                              
cannot  foresee everything,  but she  said he  could draft  a bill                                                              
that is clear and leaves no room  for misinterpretation.  She said                                                              
that  the  judicial  system  has  not  done a  very  good  job  of                                                              
interpreting  things the  way that  they were  intended to  be and                                                              
that  is   very  clear  with  what   has  happened  to   the  U.S.                                                              
Constitution.   She reiterated that  Representative Croft  has not                                                              
defined  what "substantial  burden"  or "compelling  interest"  or                                                              
"third party"  means, and she thinks  it is his  responsibility to                                                              
do so in  order for people to  know what people are  supporting or                                                              
not supporting.   For  the moment,  she added,  she is  completely                                                              
opposed to HB 387.                                                                                                              
                                                                                                                                
Number 0605                                                                                                                     
                                                                                                                                
SHIRLEY  DOWNING  testified  via   teleconference  from  Sitka  in                                                              
support  of  HB  387.    She  noted   that  earlier  this  morning                                                              
Representative Croft  had used the word "buttress,"  and she likes                                                              
that term  because she feels that  religious freedom does  need to                                                              
be buttressed  at the state level.   She strongly  urged rejection                                                              
of any "carve outs" or amendments.                                                                                              
                                                                                                                                
Number 0480                                                                                                                     
                                                                                                                                
GEORGE ELIASON testified via teleconference  from Sitka in support                                                              
of HB  387.   He explained  that religious  freedom rights  of the                                                              
citizens  of  Alaska  are  very  important  and  fundamental,  and                                                              
religious liberty  should not be  denied to any class  of citizen.                                                              
He  commented  that HB  387  is  well written  in  protecting  his                                                              
religious practices, yet it does  not interfere with the rights of                                                              
other  persons.   He  urged the  committee  to support  HB 387  as                                                              
written and oppose  any amendments that would  create "carve outs"                                                              
for any group of people.                                                                                                        
                                                                                                                                
ALTHEA  BUCKINGHAM  testified  via teleconference  from  Sitka  in                                                              
support of HB 387.  She informed  the committee that she thinks it                                                              
is a shame that people must fight  to get religious freedom and is                                                              
in favor of  HB 387 as written.   She indicated she does  not want                                                              
to see any changes make to HB 387.                                                                                              
                                                                                                                                
PETER PORRINO testified via teleconference  from Tok in opposition                                                              
to HB 387.   He agreed with Sylvia Hernandez and  does not support                                                              
HB 387  in its current  form for reasons  based on the  words like                                                              
"substantial burden"  and "compelling governmental  interest."  He                                                              
does not  know why  the wording  was changed  from "restricting  a                                                              
person's free exercise of religion"  to "substantial burden" being                                                              
placed on  a religion.   He is concerned  that the courts  may not                                                              
understand the minority  religions, and what may not  appear to be                                                              
a substantial burden to a judge,  may in fact be a great burden to                                                              
an  individual.   He commented  that HB  387 allows  the court  to                                                              
judge the  worth of a religious  practice, which is  really wrong.                                                              
He  agreed with  Chair  James that  HB 387  does  nothing.   Every                                                              
possible  hypothetical  situation, such  as  the  one about  faith                                                              
healing, has been  answered with "I don't know."   It is important                                                              
for people  to know what  HB 387 will protect  in order to  make a                                                              
proper decision on how this will go through.                                                                                    
                                                                                                                                
Number 0213                                                                                                                     
                                                                                                                                
HEATHER  ALEXANDER  testified  via   teleconference  from  Tok  in                                                              
opposition to HB 387.  She stated  that she is speaking against HB
387 because freedom of religious  expression is an innate right of                                                              
all  people and  unless  she  is breaking  a  law,  whether it  be                                                              
running stop  signs or killing  someone, her religious  right must                                                              
be protected.  She noted that it  is Representative Croft's job to                                                              
ensure that  protection.  She  reiterated that people  keep asking                                                              
Representative Croft  about how this  bill will affect  particular                                                              
examples  of religious  examples, and  his answer  is he does  not                                                              
know, but  then he  gives hypothetical  examples that would  never                                                              
happen.   She  commented that  this  is really  confusing, and  as                                                              
Chair James mentioned,  hypotheticals can sway and  mislead people                                                              
into misinterpreting  the  reason for  HB 387.   There should  not                                                              
ever be a  compelling government interest that  keeps someone from                                                              
having  religious freedom.   The  wording in  HB 387  is broad  in                                                              
general to allow  for case-by-case evaluation by the  courts.  She                                                              
favored leaving  the decision  up to the  people because  the time                                                              
has come  in this  new millennium  when people  should trust  that                                                              
people will  make common sense  decisions with mutual  respect for                                                              
each other's rights.                                                                                                            
                                                                                                                                
TAPE 00-26, SIDE A                                                                                                              
Number 0036                                                                                                                     
                                                                                                                                
JEAN HATEM testified via teleconference  from Tok in opposition to                                                              
HB 387.   She asked Representative  Croft again, who is  the third                                                              
party that  he refers to  in HB 387, and  how can he  reassure her                                                              
that  her child  would not  be considered  the third  party?   She                                                              
noted that HB 387 reads as follows  in Section 4(c), line 30, page                                                              
2:  "This section may not be construed  to create an establishment                                                              
of religion  or to  authorize the  infringement of the  individual                                                              
rights  of  a  third  party."   She  asked  what  happens  if  the                                                              
government decides  that they have a compelling  interest that she                                                              
as a parent  is infringing on the  rights of her child  if that is                                                              
what someone  chooses the third party  to refer to.   This section                                                              
needs to be made clear before she  can decide at all about how she                                                              
feels about HB  387; for this reason right now  she cannot support                                                              
HB 387.   She commented that it  is irresponsible to write  a bill                                                              
about which the  sponsor has no idea how it can  be implemented or                                                              
applied.   She  asked  if Representative  Croft  would answer  the                                                              
question "who is the third party?"                                                                                              
                                                                                                                                
Number 0143                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT  replied that  the third party  is infringing                                                              
the rights of another,  and it can be a child or  anyone else.  He                                                              
said that the intent  of HB 387 was to use this  right as a shield                                                              
to protect  the government from  infringing on religious  freedom.                                                              
He noted  that it  was not  directly intended  to  be a sword  for                                                              
someone to  use to infringe  upon other  people's rights.   He has                                                              
had discussions  with various people  about that issue, and  he is                                                              
not  trying to  avoid any  specific hypotheticals.   He  commented                                                              
that hypotheticals can be talked  about, and he can talk about how                                                              
he thinks  they might turn  out.  If  he were proposing  to change                                                              
the  law, he  thinks  that  would be  even  mandatory,  but he  is                                                              
proposing to keep  the law the way it is, so  the question becomes                                                              
what is the current state of the  law.  In some cases he just does                                                              
not know, and his opinion about what  he thinks a judge would rule                                                              
right now can be  talked about, but that is all  it would be, just                                                              
an opinion.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CROFT  referred   to  the  cases  where  Christian                                                              
Scientists  resist immunizing their  children.   He does  not know                                                              
the current state of the law, but  he thought it was mandatory for                                                              
children to be vaccinated for school  admittance.  He thinks there                                                              
is  a compelling  state  interest  in keeping  people  who are  in                                                              
school immunized  so that  other kids do  not catch diseases.   He                                                              
said that they  can home school if  they do not want  to immunize,                                                              
but if they  want to go to  public school, they immunize;  that is                                                              
nothing more  than his  belief about that  hypothetical now.   The                                                              
point is, he  does not intend to change the  current standard, and                                                              
if he  is wrong about  the case and it  goes another way,  that is                                                              
the way  it was intended to  be.  He is  not afraid of any  of the                                                              
hypotheticals,  but he  just wants  it understood  that it  is not                                                              
relevant discussion to  guess at what is going on  now in terms of                                                              
interpretation of the  standard.   He reminded  the committee that                                                              
hypotheticals can  be discussed if someone wants  to discuss them,                                                              
but the real  question should be  what is the current law  now and                                                              
how is it  applied.  He added  that in some instances  he does not                                                              
know what is current law.                                                                                                       
                                                                                                                                
Number 0364                                                                                                                     
                                                                                                                                
CHAIR JAMES agreed that Alaska has  a very fast growing population                                                              
and various types of religions and  needs.  One of the things that                                                              
she  feels  very  proud  about living  in  this  country  is  that                                                              
citizens  do  have  freedom  and   when  people  come  from  other                                                              
countries,  they appreciate  the freedom  much more than  American                                                              
citizens  do because  Americans  take  it for  granted.   She  has                                                              
always  said is  that her  guaranteed American  freedom only  runs                                                              
until it  runs into someone else's  freedom, and then  freedom has                                                              
to be measured as to who is most  impaired by that collision.  She                                                              
explained  that  she  thinks  that this  country  works  [on  that                                                              
premise]  and  does  not see  it  working  any  other way,  so  in                                                              
religion it  is the same  issue.  She  commented that  religion is                                                              
number one on the Bill of Rights  in the federal Constitution, and                                                              
she thinks  this whole  country was  founded on religious  freedom                                                              
because most  of the folks who came  here early on were  coming to                                                              
get away  from some kind of  religious oppression.   She mentioned                                                              
that  religious  freedom is  one  of  the most  important  rights;                                                              
however,  she does  believe  that people  must  live alongside  of                                                              
other people ,and  some religions even make their  own communities                                                              
(the Amish is a  good example) so they do not  have infractions or                                                              
problems with  people around them.   She acknowledged that  HB 387                                                              
is a tough issue to decide.  [HB 387 was heard and held.]                                                                       
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 0609                                                                                                                     
                                                                                                                                
There being  no further business  before the committee,  the House                                                              
State Affairs  Standing  Committee meeting  was adjourned  at 9:52                                                              
a.m.                                                                                                                            

Document Name Date/Time Subjects