Legislature(2005 - 2006)SENATE FINANCE 532
03/09/2006 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SJR 20 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 20 | TELECONFERENCED | |
| + | TELECONFERENCED |
MINUTES
SENATE FINANCE COMMITTEE
March 9, 2006
9:06 a.m.
CALL TO ORDER
Co-Chair Lyda Green convened the meeting at approximately
9:06:07 AM.
PRESENT
Senator Lyda Green, Co-Chair
Senator Gary Wilken, Co-Chair
Senator Con Bunde, Vice Chair
Senator Bert Stedman
Also Attending: SENATOR RALPH SEEKINS
Testifiers are identified in the body of the minutes.
SUMMARY INFORMATION
SJR 20-CONST. AM: BENEFITS & MARRIAGE
The Committee heard from the sponsor, a consultant and took
public testimony. The resolution was held in Committee.
9:06:38 AM
SENATE JOINT RESOLUTION NO. 20
Proposing an amendment to the section of the Constitution
of the State of Alaska relating to marriage.
This was the first hearing for this resolution in the Senate
Finance Committee.
9:07:59 AM
SENATOR RALPH SEEKINS, sponsor of the resolution, testified this
resolution would allow Alaskans to address the fundamental issue
of marriage. The rulings of several court cases challenge
Alaska's right to limit marriage to a union between one man and
one woman. The legislature had believed that this matter was
settled in 1996 with the passage of an amendment to the Alaska
Constitution, commonly referred to as the Defense of Marriage
Act. However, the court cases have challenged the issue. The
most recent was a decision rendered in October 2005 in which the
court held that the marriage amendment did not specifically
address limits of benefits.
Senator Seekins ascertained that to many Alaskans, that
reasoning conflicts with their understanding of their vote on
the 1996 constitutional amendment. None had believed that the
amendment would provide that spousal benefits would be extended
to couples not legally married.
Senator Seekins reported that a substantial number of Alaskans
have requested that their original vote be clarified. This right
belongs to the people.
Senator Seekins explained that this resolution would provide
that to receive spousal benefits, a couple must be legally
married.
9:12:25 AM
KEVIN CLARKSON, Attorney retained by Legislative Counsel, made
the following presentation to the Committee. [Note: A copy of
the testimony is on file, which contains materials referenced in
footnote format.]
I would like to thank the Co-Chairs of the Committee,
Senator Green and Senator Wilken, the Vice Chair of the
Committee, Senator Bunde, and the members of the Committee,
Senators Dyson, Hoffman, Olson, and Stedman, for the
opportunity to speak today regarding SJR 20, a proposed
amendment to the Alaska Constitution to preserve the
attributes, benefits and privileges of marriage to married
couples.
By way of introduction, I was legal counsel for the Alaska
Legislature in 1998 in the legal action that related to
whether the Marriage Amendment, Art. I, Section 25 of the
Alaska Constitution, would remain on the general ballot so
that the People of Alaska could vote to ratify it. I also
represented the Alaska Legislature in the original same-sex
marriage case itself, and I was one of the primary drafters
of the Marriage Amendment.
HISTORICAL BACKGROUND
In order to understand the significance of SJR 20 it is
essential to understand the history that has lead up to its
introduction in the Legislature at this time. Relevant
history includes events in the United States Congress, the
Lower forty-eight states, and also in Alaska.
I. The Federal Defense of Marriage Act
In 1996, Congress adopted the federal Defense of Marriage
Act (DOMA). Pub. L. 104-199, 100 Stat. 2419 (Sept. 21,
1996). Congress passed DOMA because of a decades-long
assault that had been made in various courts challenging
the definition and constitutionality of marriage, and
particularly in response to a Hawaii court decision that
suggested there might be a right to same-sex "marriage" in
the Hawaii Constitution. The legislative history of DOMA
reflects a congressional concern about the effect that
legalizing same-sex "marriage" in Hawaii would have on
other states, federal laws, the institution of marriage,
traditional notions of morality, and state sovereignty.
H.R. Rep. No. 104-664 at 1-18 (1996), reprinted in 1996
U.S.C.C.A.N. 2905-23. DOMA has two sections, one defining
"marriage" for purposes of federal law, and the other
affirming federalism principles under the authority granted
by Article IV, Section 1 of the Constitution, the Full
Faith and Credit Clause. The first section states that for
purposes of federal law, marriage means a legal union
between a man and a woman.
In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the
United States, the word marriage means only a legal
union between one man and one woman as husband and
wife, and the word spouse refers only to a person of
the opposite sex who is a husband or a wife.
Pub. L. 104-199, sec 1, 100 Stat. 2419 (Sep. 21, 1996),
codified at 1 U.S.C. 7 (1997). The second section
reaffirmed the power of the states to make their own
decisions about marriage:
No State, territory, or possession of the United
States, or Indian tribe, shall be required to give
effect to any public act, record, or judicial
proceeding of any other State, territory, possession,
or tribe respecting a relationship between persons of
the same sex that is treated as a marriage under the
laws of such other State, territory, possession, or
tribe, or a right or claim arising from such
relationship.
Pub. L. 104-199 sec. 2, 100 Stat. 2419 (Sep. 21, 1996),
codified at 28 U.S.C. 1738C (1997).
By way of DOMA, all of the various attributes, benefits,
and privileges of marriage that are created or assigned by
federal law, are assigned or provided only to (1)
"marriages," which are limited to only legal unions between
one man and one woman as husband and wife and (2)
"spouses," which is defined as a person of the opposite sex
who is a husband or a wife. None of the various attributes,
benefits and/or privileges of marriage that exist under
federal law are available to any unmarried couples, whether
same-sex or opposite sex.
II. The Alaska Marriage Amendment
The Alaska Marriage Amendment, Art. I. Section 25, was
ratified by the People, on a vote of 68%-32% in November,
1998. The Alaska Marriage Amendment can be said to have its
origin in reaction to a specific judicial decision. The
Marriage Amendment was ratified in response to a decision
by a state superior court judge in a case called Brause v.
Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super.
Ct. 1998). On February 28, 1998 this superior court judge
ruled that the Alaska Constitution provided a fundamental
right to marry someone of the same sex.
A. The Evolution of Alaska's Marriage Statute
The origin of Alaska's marriage statute, AS 25.05.011, is a
territorial law: "Marriage is a civil contract, which may
be entered into by males of the age of twenty-one years,
and females of the age of eighteen years." After statehood
in 1959, this law was slightly revised to read: "Marriage
is a civil contract requiring both a license and
solemnization which may be entered into by a male who is 21
years of age or older with a female who is 18 years of age
or older." In 1970, the statute was modified to reduce from
"21" to "19" the age at which a man could marry. Up to this
point in time Alaska's marriage statute clearly restricted
marriage to one man and one woman.
Something very interesting, and also very unintended,
occurred in 1974. The Alaska Revisor of Statutes set upon
the task of rendering Alaska's Statutes "gender neutral" in
language and in the process made two unintended substantive
changes to the marriage statute, one clear and express and
the other implicit. The express substantive change which
the Revisor of Statute's made was to change the age of
permissible marriage for both genders to "19" from the
previous "19" for men and "18" for women. The second
substantive change, which was only implicit in effect was
to eliminate the words "man" and "woman" from the statute
and insert the word "person" in their place. While this
"gender neutrality" goal may have seemed "noble" and
"appropriate" in the context of the codification of
Alaska's statutes, from the standpoint of the substantive
meaning and effect of the marriage law the result was
drastic. By eliminating the words "man" and "woman" from
the marriage statute the Revisor's "gender neutral"
language had the appearance of changing Alaska's definition
of marriage to a civil contract which could be entered into
between any two "persons" (presumably of any combination of
either gender) age 19 years or older.
The statute was again modified in 1975, this time by the
Alaska Legislature itself, to reduce the legal age of
marriage to "18" for both men and women. Apparently unaware
of the prior apparent substantive change, the Legislature
retained the "gender neutral" language without the
slightest comment. The marriage statute remained unchanged
and unchallenged in this form for the next twenty-one (21)
years until 1996.
B. Related Gay Rights Controversies
Previous to the Marriage Amendment drama, a number of
controversies regarding similar issues had already been
played out in Alaska. The earliest case was decided in
1978. In 1976, the mayor of Anchorage deleted from a draft
of the 1976-77 Anchorage Blue Book, reference to the Alaska
Gay Coalition. The Coalition subsequently sued claiming
their First Amendment speech rights had been violated
because they were not allowed to access the public forum
created by the Blue Book. The superior court initially
granted the Coalition a temporary injunction prohibiting
distribution of the Blue Book, but later decided against
the Coalition after a trial. The Alaska Supreme Court
reversed, holding that the Blue Book was a public forum and
that the mayor had improperly denied the Coalition its
First Amendment rights because of disapproval of the
Coalition's aims by not allowing their message to be
printed in it.
A few years later, the issue of "sexual orientation" was
raised in a family law setting. In S.N.E. v. R.L.B.11, a
father sough to have the custody of his child changed so as
to give him custody. The father alleged that the mother was
a lesbian and that the child's best interests, therefore,
demanded that he be the primary custodian of the child. The
superior court ruled in favor of the father and the mother
appealed. The Alaska Supreme Court reversed, holding that
that there was no evidence that the mother's lesbianism
"has or is likely to affect the child adversely" and that
any perceived stigma on the child because of the mother's
lifestyle could not justify a change of custody.
In January 1993, the Anchorage City Assembly enacted an
ordinance that banned discrimination based on sexual
orientation in public employment over the veto of Mayor Tom
Fink. A group called Citizens to Repeal the Homosexual
Ordinance immediately began collecting petition signatures
to subject the matter to a vote in the April elections.
Within a month, the group submitted 20,000 signatures, even
though only 5,700 were needed. The city clerked certified
the initiative and a group of plaintiffs sued to challenge
the certification. The superior court denied a stay, but
that decision was appealed to the Alaska Supreme Court,
which granted the stay on April 14, 1993. Following the
stay, the superior court found that the "referendum
petition presented the ordinance in a biased and partisan
light" because its title read: "Referendum Petition to
Repeal a Special Homosexual Ordinance." Focusing on the
disagreement between the ordinance's opponents and
supporters about whether or not the ordinance granted
"special rights" the superior court held that the
petition's characterization was misleading because of its
partisanship. The Alaska Supreme Court took this
characterization as accurate and held that inaccurate
referendum petitions are not "legally acceptable." The
basis for this decision was the court's belief that an
inaccurate petition undercuts the screening function
provided by the requirement that a referendum petition have
a certain number of signatures to be certified. Thus, the
Alaska Supreme Court invalidated the petition and the
ballot initiative was not the subject of a vote.
Just a year before the marriage amendment was adopted, the
Alaska Supreme Court heard a case involving two employees
of the University of Alaska who wanted health insurance for
their same-sex partners. The employees challenged the
University's decision not to extend the benefits, claiming
a violation of the state Human Rights Act's prohibition of
marital status discrimination. The superior court ruled in
favor of the plaintiffs and held that the University would
have to either stop offering benefits for spouses, or
provide benefits to the same-sex partners of employees. The
University chose to offer the benefits. While the appeal of
the superior court's decision was pending, the Alaska
Legislature amended the state discrimination law to allow
employers to offer different benefits to employees with
spouses and children than those without. Thus, at the
conclusion of the appeal, the Alaska Supreme Court could
only rule that the University had violated the pre-
amendment act.
Each of these decisions contributed to the highly charged
atmosphere in which Alaska's marriage statute was
challenged in the Brause case.
C. Alaska's Defense of Marriage Act
As referenced above, in early 1995, in addition to the
Brause litigation filed in superior court in Anchorage and
discussed below, which challenged the traditional opposite-
sex definition of marriage, a separate action filed in
Superior Court in Fairbanks challenged the University of
Alaska Fairbanks' ("UAF") policies limiting spousal
benefits to the "husbands" or "wives" of its married
employees. A superior court judge in Fairbanks set loose a
firestorm when she ruled that UAF could not legally limit
spousal benefits to traditional "husbands" and "wives,"
basing her decision in part upon the Revisor of Statutes'
1974 bill and Senate Judiciary Committee "gender neutral"
amendment, tinkering with the marriage statute so as to
eliminate the words "man" and "woman" from the definition
of marriage and defining "marriage" as a civil contract
between two "persons."
Suddenly at that time, the Alaska Legislature was aware of
the potential substantive change (and to at least a portion
of the Alaska Judiciary a very real substantive change)
which had been made to the marriage statute. In March,
1995, Representative Norman Rokeberg introduced House Bill
227, which was designed to amend the Alaska marriage
statute to specify that (1) only one man and one woman can
legally marry in Alaska, and (2) no out-of-state marriage
between individuals of the same-sex would be recognized as
valid in Alaska. At about the same time, Representative
Pete Kelly introduced HB 226 proposing very similar changes
to the Alaska marriage statute.
When asked for its comments regarding HB 227, the Alaska
Department of Law offered the opinion that the legislation
was unnecessary. Assistant Attorney General John Gaguine
offered the Department of Law's opinion to Representative
Rokeberg to the effect that the Alaska Supreme Court would
most likely find that the 1974 revisions to the marriage
statute were not intended to allow legalized same-sex
marriage. Mr. Gaguine explained that oddly enough, this
event was not unique to Alaska. Prior to 1970, the State of
Washington's marriage statute (RCW 26.04.010) provided that
only "males" and "females" could marry each other. In 1970,
however, Washington's marriage statute was amended to make
the age of consent for marriage the same for both genders,
and in these same changes (just as had occurred in Alaska)
the words "male" and "female" were eliminated and replaced
with the word "persons."
Mr. Gaguine explained that the Washington Court of Appeals
had been required to review the changes to Washington's
marriage statute in 1974 in a case called Singer v. Hara,
and in that case concluded that the changes were not
intended to allow same-sex marriage. In reaching this
conclusion the Washington Court of Appeals noted that 1972
changes to Washington's community property laws had
retained references to "husband" and "wife," therefore,
indicating a lack of intention by the Washington
Legislature to allow same-sex marriage.
Mr. Gaguine also explained that Courts from other states
and jurisdictions in addition to Washington had also
concluded that same-sex marriages were not authorized by
"gender neutral" language changes to marriage statutes. The
courts in these cases decided the question presented to
them regarding same-sex marriage upon the simple basis of
reviewing the dictionary definition of "marriage" which
refers to a relationship between a "man" and a "woman" or
between members of "opposite sexes." To these courts, the
simple use of the word "marriage" and nothing more signaled
legislative intent to limit the marriage relationship to a
contract between one man and one woman.
In light of the superior court's ruling in Tumeo, however,
the Alaska Legislature was not willing to simply entrust
the marriage statutes to the Alaska Judiciary. Accordingly,
the Legislature went forward with its proposed changes to
the marriage statutes. The changes had two ultimate goals:
(1) to clearly provide that for purposes of legal
recognition and status, marriage in Alaska could only exist
between one man and one woman; and (2) to clearly prevent
any same-sex marriage, which might at some time be
recognized as valid in another state (at that time,
potentially Hawaii), from receiving the legal status and
recognition of marriage in Alaska simply because the
participants in that possible same-sex marriage moved their
residence to Alaska.
As finally amended, the Alaska marriage statutes provide as
follows: "Marriage is a civil contract entered into between
one man and one woman that requires both a license and
solemnization."
D. The Brause v. Bureau of Vital Statistics Case
The Plaintiffs in the Brause case sought marriage as a
doorway to the benefits and privileges that the law bestows
upon married couples. The Plaintiffs in Brause argued
repeatedly that there are some 115 benefits and privileges
available to married couples under Alaska law, which they
could not access. The Plaintiffs in Brause sought to use
the status of marriage as a doorway by which they could
access the various benefits and privileges of marriage, and
attach them to their same sex relationship. The Brause
litigation treated marital status and marital benefits as
being inseparable. In Brause the Plaintiffs specifically
sought benefits based on marital status. In fact, the
superior court's ruling in Brause treated marital status
and benefits as being inseparable. "Once married," the
superior court noted, "the state provides benefits and
imposes duties that are significant and valuable to society
as well as to the individual members of the marriage."
Brause, 1998 WL 88743 at * 2. Put another way, the superior
court's ruling treated the benefits, privileges and duties
of marriage as being entirely consequent upon marital
status.
The Marriage Amendment presupposed this context. The
Marriage Amendment was specifically designed to close
marital status as a doorway by which same-sex couples, or
any combination of opposite sex individuals other than "one
man and one woman," might access the benefits and
privileges of marriage. The Marriage Amendment as it was
originally introduced in the Legislature as SJR 42
contained three sentences:
To be valid or recognized in this State, a marriage
may exist only between one man and one woman. No
provision of this Constitution may be interpreted to
require the State to recognize or permit marriage
between individuals of the same sex. Additional
requirements related to marriage may be established to
the extent permitted by the Constitution of the United
States and the Constitution of the State of Alaska.
The third sentence of the Marriage Amendment was dropped by
the Legislature during the legislative process.
Before the popular vote, a group of citizens including the
Alaska Civil Liberties Union challenged the
constitutionality of the proposed amendment in two actions.
Bess v. Ulmer, Case No. 3AN-98-7776 Civil (Alaska Super.
Ct. 1998); and Dodd v. Ulmer, Case No. 3AN-98-8114 Civil
(Alaska Super. Ct. 1998). The Alaska Supreme Court
consolidated the cases and then in its decision allowed the
Amendment to proceed to a vote, with one change. The Alaska
Supreme Court, rightly or wrongly, deleted the second
sentence of the Marriage Amendment because the Court viewed
the sentence as being "superfluous." See Bess v. Ulmer, 985
P.2d 979, 995 (Alaska 1999).
The first sentence of the Marriage Amendment was presented
to the People of Alaska for ratification and it was
ratified by a vote of 68%-32%. See Liz Ruskin, Limit on
Marriage Passes in Landslide, Anchorage Daily News,
November 4, 1998, § A, p. 1.
Following ratification of the Marriage Amendment, the
Brause case did not end. Confirming that their primary
focus in that case was the benefits and privileges that are
attached to marriage and not marriage itself as a status,
the Plaintiffs in Brause continued their quest in that case
to receive the 115 benefits and privileges that are
attached to marriage. Because marriage status had been
foreclosed to them by way of the Marriage Amendment, the
Brause Plaintiffs sought to require the State to give them
all of the various attributes, benefits and privileges of
marriage outside of marriage. The Brause Plaintiffs' claims
were dismissed, however, because their claims for marriage
benefits and privileges were not ripe. See Brause v. Bureau
of Vital Statistics, 21 P.3d 357, 358 (Alaska 2001).
III. The ACLU v. State Case
Another case, the ACLU v. State litigation, began shortly
after the Marriage Amendment was ratified. In this new
case, the ACLU and eighteen individuals who alleged that
they comprised nine lesbian or gay couples (hereafter
referred to collectively as "the ACLU") filed suit against
the State of Alaska and the Municipality of Anchorage. The
ACLU complained that the state and the municipality
maintained employee benefits programs that offer valuable
benefits to their employee's spouses that are not offered
to the same sex partners of lesbian and gay employees. In
other words, the ACLU argued to the effect that when nearly
seventy percent of Alaskans voted to ratify the Alaska
Marriage Amendment they voted to command government to give
marriage benefits to same sex couples, just as if they were
married. The ACLU also argued that those same Alaskans'
vote was part of an invidious discriminatory scheme against
lesbian and gay people. According to the ACLU, because the
Marriage Amendment was created as part of an invidious
discriminatory scheme, and because it foreclosed the option
of marriage to same sex couples, the Alaska Constitution
had to be interpreted to command government to treat same
sex couples just as if they were married. The ACLU argued
that public employees with same sex partners were being
singled out and treated differently due to "sexual
orientation" or "gender," because unlike an unmarried
male/female couple who can choose to get married if they
want to, the same sex couple "can't get married." And thus,
the Amendment that was designed to end the constitutional
debate in Alaska over same sex marriage, became the force
of the claim that same sex couples must be treated "just as
if they are married," even though they are not. Most
Alaskan's heads were spinning upon hearing this argument.
The state superior court dismissed the ACLU's claims. See
ACLU v. State, 3AN-99-11179 Civil (Alaska Super. Ct. 1999).
The superior court reasoned that public employees with same
sex partners are denied marriage benefits, not because of
their sexual orientation or their gender, but instead
simply because they are not married. The court concluded
that no sexual orientation discrimination existed because
same sex couples are treated exactly the same as every
unmarried heterosexual couple, who also do not qualify for
marital benefits. Finally, the superior court concluded
that no gender discrimination existed because men and women
equally receive marital benefits for their spouses. The
ACLU appealed to the Alaska Supreme Court and on October
28, 2005 the Supreme Court reversed the superior court's
decision. ACLU v. State, 122 P.3d 781 (Alaska 2005).
The State of Alaska, Department of Law, argued that the
Marriage Amendment foreclosed the ACLU's claim that the
Alaska Constitution mandated the extension of marriage
benefits and privileges to unmarried same-sex partners. The
Alaska Supreme Court rejected the State's argument. ACLU,
122 P.3d at 786-87. The Court reasoned that:
The Marriage Amendment could have the effect of
foreclosing the present challenge only if it could be
read to prohibit public employees from offering
benefits to their employees' same-sex domestic
partners. ...That the Marriage Amendment effectively
prevents same-sex couples from marrying does not
automatically permit the government to treat them
differently in other ways.
Id. Because the Marriage Amendment did not foreclose the
legislative and executive branches of government from
voluntarily choosing to extend benefits to same sex
partners, the Court concluded that the Marriage Amendment
stood as no barrier to the ACLU's claim that the Alaska
Constitution commanded the legislative and executive
branches of government to extend benefits to same sex
partners. Interestingly, the Court did not address another
possible interpretation of the Marriage Amendment, which
would have simply construed the Amendment to foreclose any
judicially commanded extension of marriage benefits and
privileges to unmarried same-sex couples under the guise of
constitutional interpretation. Id.
The Court, like the ACLU, used the Marriage Amendment as
the driving force for its decision that the Alaska
Constitution commands government to treat unmarried same
sex couples just as if they are married, even though they
are not. Id. at 787-88. The Court explained:
We agree with the [ACLU]...that the proper comparison
is between same-sex couples and opposite sex couples,
whether or not they are married. The municipality
correctly observes that no unmarried employees,
whether they are members of same-sex or opposite-sex
couples, can obtain the disputed benefits for their
domestic partners. But this does not mean that these
programs treat same-sex and opposite-sex couples the
same. Unmarried public employees in opposite-sex
domestic relationships have the opportunity to obtain
these benefits, because employees are not prevented by
law from marrying their opposite-sex domestic
partners. In comparison, public employees in committed
same-sex relationships are absolutely denied any
opportunity to obtain these benefits because these
employees are barred by law from marrying their same-
sex partners in Alaska or having any marriage
performed elsewhere recognized in Alaska. Same-sex
unmarried couples therefore have no way of obtaining
these benefits, whereas opposite-sex unmarried couples
may become eligible for them by marrying. The programs
consequently treat same-sex couples differently from
opposite-sex couples.
Id. at 788. In other words, the governments' employee
benefits programs that denied marriage benefits to
unmarried same-sex couples were discriminatory, and thus in
violation of the Equal Protection Clause of the Alaska
Constitution, only because the Marriage Amendment
forecloses marriage to same-sex couples.
Put another way, according to the Alaska Supreme Court, the
Marriage Amendment required the Court to command government
to extend marriage benefits to unmarried same-sex partners.
Id. The Court put this very conclusion into words in
footnote 38 of its Opinion:
We recognize that the benefits programs became
discriminatory only after the legislature acted in
1996 and 1998 and the electorate adopted the Marriage
Amendment in 1998.
Id. at 789 n. 38. Thus, apparently, according to the Alaska
Supreme Court, when 68% of Alaskans voted to ratify the
Marriage Amendment in 1998 they voted to command government
to treat unmarried same-sex couples just as if they are
married, even though they are not.
IV. Future Impacts of ACLU v. State
A. All of the Benefits and Privileges of Marriage Will Be
Required to Be Given to Same Sex Relationships
Although ACLU v. State technically addresses only
employment benefits in the context of public employment,
State, Borough, or Municipal, the impact of the decision
stretches much further. Based upon the logic of ACLU v.
State, virtually every distinction that exists in Alaska
law and public policy between married couples and unmarried
same-sex partners will eventually fall to an equal
protection challenge under the Alaska Constitution. There
is no logical basis upon which to limit the reach of the
ACLU v. State decision to simply public employment
benefits. Effectively, the Alaska Supreme Court decision is
a first step in the direction of constitutionally mandated
domestic partnerships in Alaska just as was imposed upon
the State of Vermont by the Vermont Supreme Court in Baker
v. State, 744 A2d 864, 886-89 (Vt 1999).
If Alaska Supreme Court believes that unmarried same-sex
partners are unconstitutionally discriminated against
because the government denies them the employment benefits
that are extended to married men and women, it appears a
foregone conclusion that the Court will believe that the
state unconstitutionally discriminates against same-sex
partners when it denies them other benefits and privileges
of marriage, including, but not necessarily limited to, (1)
the right of intestate succession; (2) the privilege of not
being required to testify against a spouse; (3) the right
to receive workers' compensation benefits on the death of a
partner; (4) the right to maintain a legal action for loss
of consortium, or a wrongful death action for the death of
a partner; and/or (5) the right to receive spousal support
on the dissolution of a relationship.
B. Private Employers must Extend Marriage Benefits to the
Same Sex Partners of Their Employees
It is not a correct statement that the impact of ACLU v.
State will be felt only in the context of public
employment. The logic of the ACLU v. State decision reaches
into private employment as well as public employment. Under
Alaska law, every private employment contract between
employer and employee contains an implied covenant of good
faith and fair dealing. Charles v. Interior Regional
Housing Auth., 55 P.3d 57, 62 n. 29 (Alaska 2002); Holland
v. Union Oil Co. of Ca., Inc., 993 P.2d 1026, 1032 (Alaska
2000); Belluomini v. Fred Meyer of Alaska, Inc,, 993 P.2d
1009, 1012-13 (Alaska 1999). One of the things that the
implied covenant of good faith and fair dealing requires is
that employers treat "like employees alike." Charles, 55
P.3d at 62 n. 29; Holland, 993 P.2d at 1032; Fred Meyer,
993 P.2d at 1012-13. The legal concept of treating "like
employees alike" is much akin to the equal protection
concept of not discriminating between "similarly situated
individuals." Thus, it requires no stretch of logic to
predict that the Alaska Supreme Court will conclude that a
private employer violates the implied covenant of good
faith and fair dealing when that private employer extends
employment benefits to the spouses of its married employees
but not to the same-sex partners of its "like" gay or
lesbian employees.
V. SJR 20
SJR 20 is designed to allow the People of Alaska the
opportunity to address the ACLU v. State decision. SJR 20
is also designed to allow the People of Alaska to decide
whether they agree or disagree with the Alaska Supreme
Court's interpretation of the meaning and effect of the
Marriage Amendment. SJR 20 would add a second sentence to
Art. I, Section 25 that would state:
No other union is similarly situated to a marriage
between a man and a woman and, therefore, a marriage
between a man and a woman is the only union that shall
be valid or recognized in this state and to which the
rights, benefits, obligations, qualities, or effects
of marriage shall be extended or assigned.
The first phrase of SJR 20 is designed to eliminate the
fundamental basis for any equal protection claim, in any
context, that involves an effort to compare married couples
to unmarried same-sex partners, or for that matter to any
unmarried combination of opposite sex individuals. The
following language of SJR 20 is designed to confirm that
marriage benefits and privileges, qualities, effects and
obligations, are limited to marriage relationships as
previously defined by the Alaska Constitution. The word
benefits is designed to address such things as employment
benefits. The word privileges is designed to address such
things as the spousal privilege regarding court testimony.
The words qualities and effects are designed to address the
various legal qualities and effects of marriage under
Alaska law. The word obligations is intended to address
such obligations as spousal support in a divorce context.
Nothing in SJR 20 would prohibit private employers from
voluntarily deciding to extend marriage like benefits to
employees with same-sex partners. A few private employers
have decided to voluntarily extend employment benefits to
the same-sex partners of their employees. SJR 20 would have
the effect of precluding a public employer from extending
employment benefits to unmarried same-sex partners.
However, in this regard, it is important to note that AS
25.05.013(b), passed by the Alaska Legislature in 1996,
already prohibits any public employer from extending
marriage benefits to same-sex partners. Any public employer
who currently extends marriage benefits to the same-sex
partners of employees does so in violation of Alaska law.
VI. MARRIAGE AMENDMENTS ACROSS THE COUNTRY
States With Marriage Amendments:
1. Alaska (1998 by 68%)
2. Arkansas (2004 by 75%)
3. Georgia (2004 by 77%)
4. Hawaii (1998 by 69%)
5. Kansas (2005 by 70%)
6. Kentucky (2004 by 75%)
7. Louisiana (2004 by 78%)
8. Michigan (2004 by 59%)
9. Mississippi (2004 by 86%)
10. Missouri (2004 by 71%)
11. Montana (2004 by 66%)
12. Nebraska (2000 by 70%)
13. Nevada (2002 by 67%)
14. North Dakota (2004 by 73%)
15. Ohio (2004 by 62%)
16. Oklahoma (2004 by 76%)
17. Oregon (2004 by 57%)
18. Texas (2005 by 76%)
19. Utah (2004 by 66%)
States where Amendments Are Expected to Be Voted On In
2006:
1. Alabama
2. Arizona
3. Colorado
4. Idaho
5. Indiana
6. New Hampshire
7. South Carolina
8. South Dakota
9. Tennessee
10. Virginia
11. West Virginia
12. Wisconsin
When marriage related Amendments are presented to the
People for a vote they routinely pass by overwhelming
margins. Marriage amendments voted on by the people across
the country have passed by an average pass rate of 71%,
ranging from 57% in Oregon to 86% in Mississippi. SJR 20
would have the effect of bringing Alaska's Marriage
Amendment into line with marriage amendments that have
passed in other states. Eleven of the nineteen existing
marriage related amendments that have been passed in other
states contain provisions similar to those of SJR 20 and
specifically prohibit the extension of marriage benefits
and privileges to unmarried same-sex partners. Seven
amendments prohibit same-sex domestic partnerships and also
prohibit the extension of marriage benefits to same-sex
partners. Four other amendments have the effect of
prohibiting the extension of marriage benefits to same-sex
partners by prohibiting same-sex domestic partnerships.
A. Amendments That, Like SJR 20, Specifically Foreclose the
Extension of Marriage Benefits and Privileges to Same-Sex
Partners
The Georgia Amendment provides in part that:
. . . . No union between persons of the same sex shall
be recognized by this state as entitled to the
benefits of marriage...
GA CONST Art. I, Sec. IV.
The Kansas Amendment provides in part:
No relationship, other than a marriage, shall be
recognized by the state as entitling the parties to
the rights or incidents of marriage...
The Louisiana Amendment provides in part:
...No official or court of the state of Louisiana
shall construe this constitution or any state law to
require that marriage or the legal incidents thereof
be conferred upon any member of a union other than the
union of one man and one woman. A legal status
identical or substantially similar to that of marriage
for unmarried individuals shall not be valid or
recognized...
The North Dakota Amendment provides in part:
...No other domestic union, however denominated, may
be recognized as a marriage or given the same or
substantially equivalent legal effect.
The Ohio Amendment provides in part:
...This state and its political subdivisions shall not
create or recognize a legal status for relationships
of unmarried individuals that intends to approximate
the design, qualities, significance or effect of
marriage.
OH CONST. Art. XV, Sec. 11.
The Oklahoma Amendment provides in part:
...Neither this Constitution nor any other provision
of law shall be construed to require that marital
status or the legal incidents thereof be conferred
upon unmarried couples or groups.
OK CONST. Art. 2, Sec 35.
The Utah Amendment provides in part:
...No other domestic union, however denominated, may
be recognized as a marriage or given the same or
substantially equivalent legal effect...
UTAH CONST Art. 1, Sec. 29.
B. State Amendments That Foreclose the Extension of
Marriage Benefits to Same-Sex Partners by Foreclosing the
Creation or Recognition of Same-Sex Domestic Partnerships
or Civil Unions
Some state amendments foreclose the extension of marriage
benefits and privileges to same-sex partners by foreclosing
the recognition of same-sex domestic partnerships or civil
unions.
The Kentucky Amendment provides:
Only a marriage between one man and one woman shall be
valid or recognized as a marriage in Kentucky. A legal
status identical or substantially similar to that of
marriage for unmarried individuals shall not be valid
or recognized.
The Arkansas Amendment provides:
Section 1. Marriage.
Marriage consists only of the union of one man and one
woman.
Section 2. Marital status.
Legal status for unmarried persons which is identical
or substantially similar to marital status shall not
be valid or recognized in Arkansas, except that the
legislature may recognize a common law marriage from
another state between a man and a woman.
ARK CONST Amend. 83.
The Nebraska Amendment provides in part:
...The uniting of two persons of the same sex in a
civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized
in Nebraska.
The Texas Amendment provides in part:
...This state or a political subdivision of this state
may not create or recognize any legal status identical
or similar to marriage...
TX CONST Art. 1, Sec. 32.
VII. Potential Federal Constitutional Challenges to SJR 20
Generally speaking, if a law bears a rational relation to a
legitimate end, it will be upheld against a federal
constitutional challenge. Yet in 1996, using only rational
basis review, the United States Supreme Court struck down a
Colorado constitutional amendment which classified on the
basis of "homosexual, lesbian or bisexual orientation."
This case, Romer v. Evans, is the most likely basis for a
challenge to SJR 20. It was specifically mentioned by the
Alaska Supreme Court in ACLU v. State.
Romer invalidated the following Colorado Constitutional
Amendment, that was put on the ballot by initiative:
No Protected Status Based on Homosexual, Lesbian, or
Bisexual Orientation. Neither the State of Colorado,
through any of its branches or departments, nor any of
its agencies, political subdivisions, municipalities
or school districts, shall enact, adopt or enforce any
statute, regulation, ordinance or policy whereby
homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or
otherwise be the basis of or entitle any person or
class of persons to have or claim any minority status,
quota preferences, protected status or claim of
discrimination. This Section of the Constitution shall
be in all respects self-executing.
The United States Supreme Court interpreted this text not
merely as repealing ordinances passed by municipalities
prohibiting discrimination on the basis of "sexual
orientation," but also as prohibiting "all legislative,
executive or judicial action at any level of state or local
government designed to protect the named class, a class we
shall refer to as homosexual persons or gays and lesbians."
The Amendment "imposes a special disability upon those
persons alone." Therefore, the Court explained:
We find nothing special in the protections Amendment 2
withholds. These are protections taken for granted by
most people either because they already have them or
do not need them; these are protections against
exclusion from an almost limitless number of
transactions and endeavors that constitute ordinary
civic life in a free society.
Amendment 2 was "at once too narrow and too broad." It was
too narrow because it characterized a class of people by "a
single trait." It was too broad because, on the basis of
that single trait, it "then denie[d] them protection across
the board." Based on this combination of targeting and
potentially limitless breadth, the Court concluded that
Amendment 2 could not possibly be justified by the State's
purported reasons (i.e., conserving resources, respecting
associational privacy). It was not only irrational, it was
evil. The rationale of Amendment 2 was "inexplicable by
anything but animus toward the class it affects."
Romer has a narrow and a shallow bite:
It is narrow in the sense that the Court decided only
the case before it and avoided creating broad rules
that courts might apply in other cases. The decision
is shallow in the sense that the Court's reasoning was
almost subrational--there is more reflex than reason
in Justice Kennedy's opinion in Romer.
Romer is far more notable for what it did not do than for
what it did do. Romer would have come out the same way had
the Amendment been targeted at any "narrowly defined"
group. The Court, seemed more concerned about suspect laws
than suspect classifications. It was "the extreme
overbreadth of Amendment 2--not the identity of the class
of persons covered by the Amendment--that concerned Justice
Kennedy and his colleagues in the Romer majority." This can
be seen by the fact that Romer left Bowers v. Hardwick
standing, and did not hold that sexual orientation is a
suspect classification. In sum:
It was the 'sheer breadth' of Amendment 2, not any
perceived 'widespread animus against gays,' that
undermined the state's attempt to provide an innocent
explanation in support of the law. Romer is not a 'gay
rights' case; it is a case about a purposeless and
unlimited legal disability.
The "rule of Romer," is something like the following: (1)
does a law narrowly target a specific group, and impose
upon it a broad and undifferentiated disability? (2) do the
justifications offered by the State patently fail to offer
a rational purpose for the law? (3) if the answers to (1)
and (2) are yes, then one may infer the presence of
irrational "animus." One does not begin, in other words, by
searching the public record for "evidence" of "animus." In
any heated debate, both sides are likely to hurl some dirt.
Instead, one looks at the law itself and the justifications
offered for it, and only infers "animus" if these first two
conditions are not met.
"Those who wish to use Romer and the rational basis test to
overturn conventional marriage laws are tilting at
windmills." This is so because:
Laws defining marriage as a relationship between one
man and one woman do not target a class of persons and
deny that class the opportunity to protect itself
politically against a limitless number of
discriminatory harms and exclusions. Marriage laws
define and regulate the institution of marriage, but
they do not forbid any individual or group that seek
the law's protection against any kind of public or
private discrimination.
Rather than being based upon "animus," marriage laws and
laws limiting the benefits and privileges of marriage to
married couples have a variety of rational purposes,
including, but not limited to (1) encouraging childbirth
within marriage, (2) offering and encouraging the
advantages of dual-gender parenting, (3) providing positive
educative effects, and (4) avoiding a slippery slope
whereby marriage becomes anarchic and incoherent.
9:33:22 AM
Senator Seekins stated this resolution is intended to clarify
the people's intent. The people wrote the Alaska Constitution
and the people should decide how to interpret the constitution.
9:34:07 AM
PETE NAKAMURA, MD, retired physician and former Director of the
Division of Public Health, Department of Health and Social
Services testified in Juneau about his 40-year marriage and two
successful children. Despite a prior commitment to deliver Meals
on Wheels to senior and disabled residents, he had determined
that speaking to this resolution was also important. He
continued reading testimony into the record as follows.
…Upon reviewing SJR 20, I cannot help but view it as a
hateful proposal to target a minority group based on
prejudicial beliefs. If enacted, SJR 20 will target
individuals whose beliefs and lifestyles are different from
that of the originators of this bill as well as that of a
cadre of their constituents. I recognize and appreciate
that we are all different but those individuals targeted
are similar in many ways to the proponents of this bill.
They are not "bad Alaskans," "nonproductive contributors to
our society and state," or pose an "endangerment to their
neighbors". They are not targeted because they are
criminals or leeches upon society. Just like you and I,
they have a mix of ambitions, needs, educational
attainments, personal dreams, contribute to society in
different ways, and are good neighbors and friends.
Amending the constitution to achieve the goal of denying
defined privileges to a targeted minority group is not only
a misdirected cost of time, money, and energy, but a real
danger. If successful, it will open Pandora's box to the
prejudicial targeting of any minority group resulting in
the denial of privileges and benefits. No minority rights
will be safe. I believe that it is our constitution, with
the interpretation of our higher courts, that these rights
are intended to be protected.
The question often proposed by the proponents of this bill
is whether the total population of this State should be
given the opportunity to vote on this issue. There are
times and issues where the vote of the populous is not
needed and the judgment of our judicial system is to be
held responsible for protecting the rights of the few.
Voting on highly emotional or volatile issues is often
based on prejudicial feelings and not on what is right. The
situation in Palestine and Iraq are current examples of the
democratic vote gone awry. At a hearing before the Senate
Judicial Committee, I responded to this question by
wondering if civil rights for Blacks would have been
achieved if left to the vote of the residents of the South.
I pondered if the fate of my family interned behind barbed
wire fences might have been worse if it had been put to the
vote of the public: a public which expressed their opinions
with bricks and rocks through store front windows. With
their children dying in Pacific battlefields, who could
have expected parents to be concerned about the rights of
my family and me? At times, the outcome is as important as
the process.
It is only my opinion but I did want to go on record as
opposing SJR 20, an unfair, unjust, and harmful proposal.
Will you, Alaska, or I be any better if the proposed
amendment is successful? I doubt it. Will some good
citizens be harmed? Absolutely!
9:39:55 AM
Co-Chair Green cited Mr. Clarkson's testimony claiming that this
resolution would not prevent private employers from providing
benefits for same-sex partnerships.
9:40:13 AM
Dr. Nakamura acknowledged this, but countered that it would
encourage disproportionate treatment.
9:40:28 AM
M.V. LEE BADGETT, PhD., Professor of Economics, University of
Massachusetts, and visiting professor at University of
California, Los Angles School of Law, testified via
teleconference from an offnet location. She asserted that
including employees' domestic partners in public employers'
health care and other benefits would have positive effects on
state and local government employers in Alaska. The possibility
of cost increases is usually high on the list of concerns,
although a great deal of evidence suggests that cost increases
would not occur. Just as important are the benefits that the
State of Alaska would realize. She anticipated certain benefits
based on her research and that of other academics. She continued
outlining her written testimony as follows.
1. Spending related to Medicaid and uncompensated health
care for uninsured people is likely to fall by $0.8-1.1
million per year.
Offering domestic partner benefits to public employees
will likely reduce the number of people who are uninsured
or who are currently enrolled in Medicaid and other
government-sponsored health care programs. A recent study
shows that people with unmarried partners - either same-
sex or different-sex partners - are much more likely to be
uninsured or on Medicaid than are married people (Ash and
Badgett, 2005). That study finds that if employers offer
domestic partner benefits, some people who are currently
uninsured are likely to receive insurance. Overall,
calculations using Census data and other government data
suggests that the State of Alaska could save $0.8-1.1
million dollars per year if public employers offer health
care coverage to all domestic partners.
Census data show that 326 same-sex couples and 3398
different-sex unmarried couples in Alaska include one
public employee (Census data analyzed by Gary Gates,
Ph.D.). Those couples have a total of 4,500 children under
18 living with them. National data suggest that 14% of the
same-sex partners and 23% of the different-sex partners
will be uninsured, so Alaska will cut the number of
uninsured by 1,300 - 1,800 people by offering partner
benefits, depending on how many children of these couples
are uninsured. If uninsured partners of public employees
sign up for an employee's health plan, then the state will
save money on state-supported health care programs since
uninsured people still require health care but often
cannot pay for it. The state and local government
contribution to uncompensated care averaged $276 per
uninsured person according to a recent study (Hadley and
Holahan, 2003, in 2005 dollars). Providing insurance to
1,300-1,800 people will reduce state and local
expenditures for uncompensated care by one-third to one-
half million dollars.
In addition, 2% of the same-sex partners and 4% of the
different-sex partners are likely to be on Medicaid,
suggesting that partner benefits could cut the number of
Medicaid recipients by 242-333 people. Since the State of
Alaska will pay half of the average Medicaid spending of
$2,927 per child and $3,861 per adult, partner benefits
could save the state $0.5 to 0.6 million per year. (These
figures come from State Health Facts, www.kff.org, and are
adjusted for inflation.)
Putting the two effects together-less uncompensated care
and fewer Medicaid recipients-shows that the state could
save $0.8-1.1 million per year in current health care-
related expenditures. If the state covers only same-sex
partners, the savings will be much smaller, approximately
$50,000 per year.
9:44:04 AM
2. Current employees will be healthier, more satisfied,
and less likely to leave their jobs.
A growing body of research shows that offering domestic
partner benefits has several positive effects on current
employees. These effects on employees would likely benefit
public employers in Alaska.
First, a supportive workplace climate and supportive
policies, including domestic partner benefits, increase
disclosure, or "coming out", of lesbian, gay, and bisexual
employees. (Badgett, 2001; Button, 2001; Driscoll, Kelly,
and Fassinger, 1996; Griffith & Hebl, 2001; Ragins &
Cornwell, 2001; Ragins & Cornwell, forthcoming; Rostosky &
Riggle, 2002)
Second, this increase in disclosure has positive benefits
to worker health. Using different measures of general
anxiety or anxiety in particular contexts, several studies
found either that people who were more out reported lower
levels of anxiety and less conflict between work and
personal life, or that more closeted people reported
higher levels of anxiety (Jordan & Deluty, 1998; Day &
Schoenrade, 1997; Griffith & Hebl, 2002; Hall 1989).
Third, lesbian, gay, and bisexual workers who are more out
will be better workers. Several studies show that out
workers report greater job satisfaction (Driscoll, Kelly,
and Fassinger, 1996; Day & Schoenrade, 1997; Griffith &
Hebl, 2002). In addition, Day & Schoenrade's survey
participants who were more out also reported sharing their
employer's values and goals more than workers who were
more closeted.
However, some studies looked for but did not find this
link (Ellis & Riggle, 1995; Ragins and & Corwell, 2001). A
study by Ellis and Riggle (1995) shows that more out
workers report higher levels of job satisfaction with
their co-workers. Finally, partner benefits reduce gay,
lesbian, and bisexual workers' turnover and increase their
commitment to firms (Ragins & Corwell, forthcoming).
9:45:29 AM
3. Domestic partner benefits will increase the
competitiveness of public employers in recruiting and
retaining talented and committed employees.
Many Alaskan employers already offer domestic partner
benefits to employees, including Providence Health Systems
Alaska, BP Exploration, Chevron, and Wells Fargo.
Therefore, in order to remain attractive to employees who
have or might someday have domestic partners, public
employers will need to offer comparable benefits. In a
national 2004 Harris Interactive/Witeck-Combs
Communication poll, one third of heterosexual respondents
believed that a law preventing employers from offering
domestic partner benefits would have "quite a bit" or "a
great deal" of an impact on employers' ability to recruit
and retain the most qualified employees.
Indeed, evidence suggests that employees make decisions
about job offers based on domestic partner benefits. A
March 2003 poll by Harris Interactive/Witeck-Combs found
that 6% of heterosexual workers reported that domestic
partner benefits would be the most important factor in
deciding to accept a new job-more than those who would
look for on-site child care. In that study, almost half
(48%) of lesbian, gay, and bisexual employees said that
partner benefits would be their most important
consideration if offered another job. Furthermore, 7% of
heterosexual workers who actually changed jobs reported
that partner benefits were the most important factor in
that decision - a factor almost as common as changing jobs
for better retirement benefits (12%).
Offering domestic partner benefits also sends an important
positive signal to a much larger group of employees. A
2004 Harris Interactive/Witeck-Combs poll finds
significant support for the principle of equal benefits
for all employees: 64% of heterosexual employees agreed
that "Regardless of their sexual orientation, all
employees are entitled to equal benefits on the job, such
as health insurance for their partners or spouses." A
recent study by Richard Florida found that heterosexual
employees, even those without unmarried partners, often
look for domestic partner benefits as a signal of an
employer that values diversity and creativity. In a
follow-up study, Florida argued that regions that do not
embrace the benefits of diversity-friendly policies risk
alienating the creative workforce that is the key to
gaining a competitive edge in the global market. Public
recognition of these benefits sends a strong signal to the
private sector.
This evidence suggests that partner benefits will become
increasingly important in competing for talented and
committed employees of all sexual orientations.
Recruitment and turnover are costly for public employers,
therefore offering partner benefits could lower those
costs.
9:47:30 AM
4. Health care costs would increase by a small amount, and
the increase would likely be shared by public employers
and employees.
The State of Alaska (and some local employers) provides
employees with a "benefit credit" with which to pay for
health insurance and other employee benefits. If an
employee's benefit costs exceed the credit, then the
employee pays the difference. In 2005-6, the benefit
credit ranged from $705 to $852 per month for state
employees whose benefits were administered by the state
rather than a union. This benefit credit was sufficient to
pay for one of the health care plans offered by the state,
but at least employees would need to pay some share of the
premium. Most importantly, the state's contribution (and
the employee's monthly health premium) does not depend on
the number of dependents that the employee has. Therefore,
in the short run, the state's (and similar local
employers') extra cost for domestic partner benefits would
be zero.
Over time, though, as domestic partners and their children
sign up for coverage, the state plan and union plans will
incur additional expenses. Because the state's Select
Benefits medical plan is self-insured, the state plan
would be responsible for paying those costs. The costs
incurred by the state will depend on whether the state
pays for the added costs by increasing the benefit credit
or whether those added costs are shifted to employees by
keeping the benefit credit fixed while premiums rise.
To estimate the total cost of providing health insurance
coverage to the domestic partners of state and local
government employees in Alaska, I use the State of Alaska
Group Health and Life Fund (from FY 2005 financial report)
as a proxy for all public employees affected. In 2005, the
average annual health care expenses in this fund were
$9,945 per employee. If each employee has on average two
dependents, then the health care costs per person were
$3,315. Multiplying that cost per person by the number of
predicted partners gives the total cost increase to state
and local employers. To calculate predicted partners we
multiply the census figure for partners described earlier
by the likely take-up rates for partners and children --
19%-27% for same-sex partners and 26%-35% for different
sex partners (Ash and Badgett, 2995) - since some partners
will already have health insurance and others might not
take up the coverage because employees will be taxed on
any costs borne by employers. The number of new adults and
children covered would be 2,100-2,800, adding $7-9 million
in costs to state health care plans, which corresponds to
a 5-6% increase in health care costs. If public employers
extended health insurance benefits to domestic partners
and children of same-sex employees only, the added costs
would be $400,000 to $550,000, or a 0.3%-0.4% increase in
health care costs.
9:49:08 AM
SARA GRAY, Juneau resident since 1988, and State employee
testified in Juneau that she was fortunate to be "white,
professional and heterosexual". Although the limitations of this
resolution do not apply to her it affects her deeply, as an
Alaskan citizen, because "it speaks to oppression". She did not
want her state to be oppressive. Rather it should "make every
effort to enliven and bring great nurturing and growth to any
element of the human family condition of the state of Alaska."
Alaska should lead the nation in this. As an employee of the
State, she receives "wonderful benefits" and is treated
respectfully by her employer. She has many colleagues who are
also professional and serve the State well, some of whom would
be oppressed if this resolution passed. Both those in same-sex
and heterosexual relationships arrive to work and perform the
duties assigned to them. Some of her co-workers who are in same-
sex relationships have children and some of those are foster
children. These co-workers take their children to the doctor,
shop for necessities, pay mortgages, serve on community
committees, and otherwise contribute to the community. She asked
the Committee to stop action on this resolution and to "keep in
mind that every time that you make any decisions that you make
sure that you validate without oppression".
EDITH BAILY, heterosexual, retired commissioned officer,
grandmother, and foster mother testified via teleconference from
Anchorage, reading her written statement into the record as
follows.
I am a heterosexual, retired commissioned officer,
grandmother of five, mother of four, and foster mother of
45. Of those 45 foster kids, five identified themselves as
gay or lesbian. I was with them when they struggled with
their orientation, saying that they didn't want to be gay -
gays are hated. It was through raising these teens that I
came to truly understand that sexual orientation is not a
choice. Since sexual orientation is not a choice, why
consider denying rights based on it. It saves no money. If
a person was not gay he or she could marry and would
receive benefits for their spouse.
As a female, I value my right to vote. It was only in 1920
that we gained the right to vote. That was only 20 years
before I was born. Probably few Americans now want to deny
women the right to vote. It just sounds ridiculous to
consider.
I was a young adult during the civil rights movement. We
look back on those days and wonder why we denied individual
rights based on the color of their skin. It was only 1964
that the 19th amendment was passed that assured the black
vote. It seems so ridiculous when we look back. What were
we afraid of?
Now we are standing at the pivotal point of rights for gay
and lesbian. Let us not make those same stupid mistakes
again. Forget about quoting the Bible. I remember Bible
versus quoted that supported denying rights to both women
and blacks at the time. We don't consider them to apply
now.
It seems to be such a contradiction of the Republican
ideology of "less government" to find that now there is a
consideration that the government move into the bedroom and
deny rights based on sexual orientation. Alaska prizes its
right to privacy as expressed in its Constitution.
Government must stay out of the private lives of the
people.
My hope is to live long enough to see everyone treated
equally. Please help realize this dream by voting no on SJR
20.
9:57:02 AM
SHERRY MODROW, President, Unitarian Universalist Fellowship of
Fairbanks, testified via teleconference from Fairbanks against
this resolution as follows.
I'm here to speak against SJR 20 because it would
discriminate against families. My faith advocates equal
treatment under the law for all people in committed
relationships. The Unitarian Universalist denomination has
been on record as supporting equity for bisexual, gay and
lesbian people for over 35 years. We feel it is
appropriate, just and right that people who have built
their lives together should share benefits offered by their
employers.
As Unitarian Universalists, we affirm and support the value
and dignity of each person and of all families. We oppose
using the constitution of this state to promote certain
religious doctrines over others. This resolution
discriminates against my religion and against my religious
beliefs.
Ms. Modrow stated that she is the co-owner of a small business
that chose to provide health care benefits to all its employees.
This proposed constitutional amendment has the potential to
eliminate her option to do this and force her to discriminate
based on marital status. She continued as follows.
This resolution makes poor business sense. This Act would
invite, and it might require, discrimination based upon
misconceptions, stereotypes and certain religious beliefs.
The proposed amendment ignores the substantial amount of
literature documenting that family members overwhelmingly
have longer lives, better health, greater chances of
economic success and more successful children than do
single people, regardless of how the family is constructed.
SJR 20 is poor public policy and it blurs the lines between
religion, privacy and the proper role of the state of
Alaska.
10:00:08 AM
CHARLES NORTHRUP testified via teleconference from an offnet
location that he has been away from Alaska for the past six
years helping to develop independent media in Croatia and Bosnia
as part of a U.S. agency for international development program.
These efforts have similarity to earlier work he did in
assisting in brining public broadcasting to rural Alaska. He was
hired to manage the first public station in Alaska and moved to
Fairbanks in 1963. He quickly learned about the "Alaska spirit",
which provided that the only thing that mattered was his
performance. His youth, inexperience or appearance was not
factored into whether he was accepted.
Mr. Northrup asked the Committee to consider this in
deliberating on SJR 20. This resolution would create two classes
of employees. He requested that employees not be treated
differently from their colleagues for non-work related reasons.
Mr. Northrup informed that he has two sons; one is married with
two children. The other son and his partner adopted children.
Both sons have provided him with grandchildren. He requested
that the Committee "please let the court decision stand."
10:04:20 AM
SHIRLEY RIVAS testified via teleconference from Anchorage to ask
the cost of the proposed constitutional amendment.
10:04:57 AM
Co-Chair Wilken cited the figure from fiscal note #1 from the
Office of the Lieutenant Governor, Division of Elections at
$1,500.
10:05:19 AM
Co-Chair Green clarified this would be the cost to include the
question on the ballot of the next general election.
10:05:27 AM
Ms. Rivas commented this amount seemed low. She asked who was
paying for the testimony of Mr. Clarkson.
10:05:43 AM
Co-Chair Green responded that the Legislative Counsel contracted
with Mr. Clarkson.
10:05:51 AM
Ms. Rivas asked if the State of Alaska is therefore paying the
cost.
Co-Chair Green did not answer and directed the witness to
provide her testimony.
10:06:07 AM
Ms. Rivas indicated she had several other questions. She was
totally opposed to SJR 20. She is the mother of a gay son.
Homosexuality is not a choice but a biological fact. It is wrong
to penalize citizens that this legislative body is also supposed
to be representing.
10:07:25 AM
JAMES JOHNSON, Vice President, Faculty and Staff Relations,
University of Alaska, testified in Juneau as follows.
I am here today representing the University of Alaska, an
employer of approximately 4,700 full-time faculty and staff
across the state. Including employees and their dependents,
the university now covers approximately 10,000 lives with
health and other benefits. Over the years the university
has provided benefit programs that meet the needs of our
employees and that, through aggressive management, are very
cost effective.
As an employer, the university desires to protect an
important benefit it now provides to its employees who are
financially interdependent partners. Under the university's
program, financially interdependent partners who meet at
least thirteen criteria are provided health, tuition, and
other benefits comparable to those provided to our married
employees. As of November 2005, 111 employees had 147
dependents under the program.
The university wants to protect this benefit because we
think it is in the best interest of the university and our
employees. While most of our employees are Alaskans when
they are hired, by necessity most of our faculty are
recruited from a national an international market. In order
to compete in that market for the top faculty and staff, we
must offer a market competitive compensation package. Since
close to half the universities across the nation provide
domestic partner benefits, we believe it is critical that
we provide similar benefits, for if we do not, we would
limit considerably the pools of candidates for our
positions.
At the same time this benefit is important for recruitment
and retention, it is very inexpensive. The cost is less
than 1.5% of the university's annual health benefits cost,
under 1% of the university's overall benefits cost, and
about one sixth of one percent of our overall compensation
cost.
In closing, SJR 20, as currently conceived, would preclude
the university from providing a benefit program that we
believe is in the interest of our employees. We therefore
respectfully request that you protect the university's
strong interest in maintaining our financially
interdependent partner benefits program.
10:10:32 AM
JEANNE LAURENCELLE, United Universalist Fellowship of Fairbanks,
Social Action Committee, testified via teleconference from
Fairbanks reading a statement into the record as follows.
Unitarian Universalists affirm the inherent worth and
dignity of every person. Our record is one of opposing
slavery when it was a divisive issue. Unitarians supported
women's suffrage when it was a divisive issue. We supported
civil rights when other denominations shied away. History
bears us out. I am here today to testify on behalf of all
unmarried couples, gay and straight. History will bear us
out.
We absolutely reject the call to "let the people decide" in
this matter. We assert that the rights of a minority should
never be subject to the vote of a majority. This is a
matter of justice.
We are proud that our constitution guarantees every Alaskan
equal rights, opportunities, and protections under the law.
This also is a matter of justice, which should not be
undermined by legislation such as the proposed
constitutional amendment - an amendment which was crafted
with the express intent of depriving a group of Alaskans of
rights and benefits.
I am pleased to report that the opinions of Lutherans,
Episcopalians, Methodists, Presbyterians are evolving to a
greater recognition that gays and lesbians are valued
individuals created and loved by God. A local example:
Fairbanks Lutheran Church has adopted a resolution
welcoming and valuing all people…regardless of sexual
orientation. Gays are welcomed to fully participate in the
life of the congregation.
Even Dr. James Dobson of Focus on the Family, who strongly
opposes gay marriage and civil unions, is now supporting a
benefits bill in Colorado that includes unmarried and same-
sex couples. A February 19th article in the Christian Post
quotes Dr. Dobson as calling it a "fairness bill". Further
it states that "Focus believes the 'reciprocal beneficiary'
bill they support will address the issue of benefits
separately from marriage."
We are right there with Dr. Dobson. We too believe that
this is a matter of fairness; and we too believe that
benefits can be addressed separately from marriage.
If benefits for unmarried couples and gays are morally
acceptable to the Christian Right in Colorado, they must be
morally acceptable in Alaska too.
As I am sure you know, the cost of implementing benefits
for state workers is miniscule. This is not a financial
issue.
Focus on the Family endorses benefits legislation to
include unmarried couples and same-sex couples in Colorado,
so this cannot be a moral issue.
The Alaska Supreme Court found unanimously that the state
must provide partner benefits for gay employees, so this is
not a legal issue.
By process of elimination it seems that this must be an
issue simply of discomfort and dislike, prejudice, driving
a push to deprive others of rights and benefits.
I urge you to oppose SJR 20, an unabashed attempt to
discriminate against Alaskans.
10:14:09 AM
DEBBIE JOSLIN, President, Eagle Forum Alaska, testified via
teleconference from offnet location in Glennallen on behalf of
the over 1,000 members of the organization. She read testimony
into the record as follows.
I want to start by thanking the legislature for introducing
this bill. We appreciate your giving the people of Alaska
an opportunity to weigh in on this. In 1998, the people of
Alaska voted by a majority of almost 70 percent to add to
the State Constitution, that marriage is only between one
man and one woman. In October 2005, the Alaska Supreme
Court was asked to decide whether homosexual couples were
being discriminated against because they were denied one of
the privileges of a married couple.
While the answer was clearly no, our constitution stated
that marriage was something that can only be entered by one
man and one woman. The Alaska Supreme Court decided that
case in favor of the plaintiffs based on their own personal
opinions. Their decision was in direct violation of the
will of the people of Alaska and our constitution.
The question before the legislature today is whether or not
to allow the people of Alaska to have a chance to clarify
what was put into the constitution in 1998. We thought the
wording was clear, but the Court ignored the marriage
amendment. There is ample evidence to believe that the
people of Alaska do not agree with the Court.
You are elected representatives to this government have
been appointed to represent the will of the people and as
such we ask you to allow us to weigh in on this subject.
The people who are testifying against this bill are not
hurt by its passage. They will have the right to voice
their opinions on the November ballot too.
You're being told that the issue here is discrimination
because of the equal protection clause. That is clearly
wrong. No one is being discriminated against. Our society
has always held that marriage is for the public good.
Marriage has been the preferred relationship since the
beginning of man. It is in marriage that children are born
and reared in the best ways possible for society. Marriage
is for the good of our children and should be protected
along with its rights, privileges and responsibilities.
Children raised by a mother and father are healthier and
happier.
State statutes holds that certain criteria must be met
before issuing a license to practice medicine or law in
this state. Am I being discriminated against because I am
not allowed a license to practice law or medicine?
Certainly not. My equal protection is not being infringed
on. I do not posses the qualifications for these licenses
and neither do homosexual couples posses the qualifications
of marriage. Nor should they be entitled to its benefits.
That is not a discrimination fact. It's just merely a fact.
This legislature is duty bound to uphold the will of the
people. The people spoke loud and clear in 1998 and we wish
to have the opportunity to reiterate what we said then.
Please pass SJR 20 and allow us that right.
10:17:10 AM
DAVE BONSON testified via teleconference from Anchorage in
support of SJR 20. Focus on the Family is not in support of
benefits for same sex couples. Rather the organization recently
began a campaign in support of this resolution. A small vocal
minority is propelled by the American Civil Liberties Union in
Alaska to stop this. The issue is solely the right of the people
to vote to support what they affirmed in 1998 with the marriage
amendment, which passed with a 68 percent majority.
Mr. Bonson expressed that the limited number of testifiers
speaking in favor of this resolution is not an issue, as 68
percent of voters supported the constitutional amendment.
Mr. Bonson spoke as a husband and father, that he was
disappointed with the situation of not only recognizing bad
behavior but also rewarding it. To suggest that homosexuality is
innate and this is supported by science is completely wrong.
Rather the science is clear that this is elected behavior,
although some may have less resistance than others. However,
some may have less resistance to alcohol and drug abuse, but
those people are discriminated against in that they are not
allowed to fly planes or drive cars.
10:19:55 AM
BILL DEAN testified in Juneau he is married with four sons. He
believed this resolution would allow Alaskans to express their
opinion in the polls. He encouraged its passage from the
Committee. It has been made clear that the majority of Alaskans
desire to reflect the Judeo-Christian ethics in how we do
business and in the way laws are passed.
10:21:36 AM
SEAN BROWN, attorney, small business owner, Christian and
resident of Bethel testified via teleconference from an offnet
location that he and his same sex partner of seven years call
Alaska home. The issue is not as Senator Seekins and Mr.
Clarkson would assert, about same-sex marriage. That matter has
already been settled. But rather the issue is whether the State
of Alaska could provide benefits to the family members of its
employees, who are working in schools, colleges, law
enforcement, judiciary, Department of Law, and numerous other
areas.
Mr. Brown informed that his partner works for the University of
Alaska and as a member of his family, Mr. Brown receives
benefits through the University. He would be directly affected
by passage of this resolution. Notwithstanding the
constitutional amendment that prohibits marriage between same-
sex couples, the fact that the University provided benefits made
them feel a welcome part of the Alaskan community. They became
active in the community by volunteering, opening a business and
investing in the state. They are but one example of a same-sex
couple contributing to the state, many others exists in Bethel
and elsewhere in Alaska, who raise families, attend churches,
open business, etc. The State should support these family units.
This resolution is unquestionably discriminatory and is not in
line with the spirit of Alaska he has come to love. He requested
the Committee not vote in favor of its passage.
10:24:10 AM
ANNA GAGNE-HAWES, University of Alaska student and daughter of a
lesbian mother, testified via teleconference from Fairbanks to
encourage the Committee to vote against SJR 20. Her mother's
partner has been a part of her life since the age of six, which
is literally as long as she could remember. She receives partial
health insurance coverage from this mother. The proposed
constitutional amendment would divide her mothers, and only one
would be legally able to provide her benefit coverage. This
amendment does not only affect people whose lifestyles some may
not agree with, it affects their families as well. She loves and
respects her mothers and would be ashamed if the legislature
passed this amendment that would punish not only partners, but
their children and families as well.
10:25:24 AM
JEFF BOLTON, Alaskan Native, testified via teleconference from
Anchorage against the resolution. A bill that supports
discrimination need not be put to vote. Speaking as a non-
Christian conservative, he asserted that same-sex unions provide
equality and an opportunity to choose partnership for economic,
emotional and other reasons. Past laws stipulated that Blacks
and Whites could not marry each other. Gays should be encouraged
to marry and to make binding commitments. He asked the
legislature to protect his rights and equality.
10:28:32 AM AT EASE
Vice Chair Bunde chaired the remainder of the meeting.
10:29:23 AM
KAYT SUNWOOD testified via teleconference from an offnet site in
Kivalina as a concerned citizen of Alaska and a financially
interdependent partner. She has many colleagues and friends who
are also in unmarried and financially interdependent
partnerships. This resolution would eliminate hers and others'
opportunity to pay for their own health care coverage for
themselves and their families. She found it difficult to
understand the sense of amending the constitution in such an
ambiguous and discriminatory manner. It could prove financially
disastrous to the state beyond the impact to State of Alaska
employees. Some corporations and businesses in Alaska have anti-
discrimination policies and mandates. A discriminatory amendment
such as this could drive these businesses out of the state. She
questioned the wisdom of gambling with Alaska's future in this
manner. She directed the Committee to keep Alaska financially
healthy and stop the progress of this resolution before it cost
the state more than had already been expended.
10:31:47 AM
JANA PEIRCE, Unitarian Universalist Fellowship of Fairbanks,
testified via teleconference from Fairbanks, on behalf of
herself, her husband and the social action committee of the UUF
in opposition of SJR 20 in order to protect the rights and
benefits of all Alaskans. She continued reading the following
statement into the record.
The proposed amendment violates my religious beliefs. Our
principles affirm the inherent worth and dignity of every
individual, and our faith has a long history of opposing
religious and political intolerance. As people of faith we
need to speak out against those who would make "tolerance"
a dirty word.
This resolution is wrong because it would enshrine the
religious beliefs of one group into the state's
constitution. When we let our constitution be used as an
instrument of intolerance, as an attempt to legalize
discrimination, we can no longer celebrate it as an
enlightened document as we have this past year.
But this is not fundamentally an issue of religion. It is
an issue of fairness, which is why the Alaska Supreme Court
ruled unanimously that to deny benefit to the same-sex
partners of public employees is unconstitutional. Changing
the constitution to categorically deny rights to one group
of Alaskans does not make it more fair.
And because the bill is so broadly written it would not
only discriminate against gay and lesbian couples and their
children, it would deny equal compensation to heterosexual
unmarried families as well.
But it is not just a question of equality under the law. It
is also good business: Nearly three-quarters of Fortune 500
companies offer domestic partner benefits. And the number
of private companies extending equal benefits to all
employees has been growing steadily with an average of
three employers per day adding domestic partner health
coverage in 2003, and this trend has continued. Even Dr.
James Dobson, head of the conservative Christian
organization, Focus on the Family, supports a benefits bill
that would include unmarried and gay families.
Bucking this trend will have direct economic consequences
for public and private sector employers in Alaska. Even
more than the anti-marriage amendment, this resolution
would restrict competitiveness for companies. They may have
to increase pay and other compensation to attract top
candidates. They may have a harder time retaining existing
workers, increasing their costs for hiring and training. We
should leave Alaska employers the flexibility to define
their benefits programs as their consciences and their
business sense dictates. We should not tie their hands.
And finally, allowing this resolution to be put before the
voters in a general election is bad governance. The rights
of the minority should never be subject to a popular vote
by the majority. The rights of minorities must be weighed
by a group of reasoned and ethical men and women who have
been charged to act in the public interest. That means our
elected officials or the courts. I am asking this committee
to discharge that duty - and to get it right, so the courts
don't have to.
10:35:01 AM
LESLIE WOOD testified in Juneau that she and her domestic
partner of eight years decided to have children and recently
learned she was pregnant with twins. If this resolution passed,
she would have to work to provide health insurance for her
children. This would make her family unstable. She opposed this
resolution because she did not want the stability of her family
put to vote.
10:36:45 AM
CHUCK O'CONNELL testified via teleconference from Anchorage,
reading his testimony into the record as follows.
I am a married 56-year Alaskan resident with five Alaskan
children, and I am speaking in opposition to SJR 20 for all
seven of us frequent voters.
The First Americans have lived on our continent for at
least 30,000 years; Columbus got close in 1492; the
Pilgrims arrived in 1620; the Declaration of Independence
was signed by 56 delegates on July 4, 1776; and our
Constitution was ratified by fourteen states between 1787
and 1791.
Well guess what? Not one single person alive, during this
entire period of our Nation's early history, had a marriage
license that was issued by a government agency.
I am sure that the millions who were married during this
historical period were recognized as married by their
respective contemporaries. Why-oh-why is my country so
caught up in this "marriage" debate? Marriage is not really
a vital governmental issue, and it is time for politicians
to back off…it is not a time to further limit the rights
and benefits of citizens who share housing without a
government marriage license. The marriage license, after
all, was originally, and has always been a tyrannical way
to legally oppress minorities.
People promoting this amendment are the same ideological
purists who want to make some medical decisions between a
woman and her doctor illegal, they want certain religious
dogma in courthouses and schools, they brazenly interfere
with the right to die, and they oppose enlightened
scientific research with stem cells. For me nothing could
be more threatening than this stupid continued interference
in the personal privacy of some of Alaska's citizens with
whom they do not agree.
This entire interference in marriage was created, in the
first place, by government oppression of a consensual
relationship between consenting adults of mixed race and
now there are those in elective office who are seriously
considering further limiting these constitutional rights
and benefits based solely on who we live with. What the
State should do is get out of the privacy of our homes and
"provide for our public safety, and promote our general
welfare".
Tyranny by the majority is extremely dangerous, remember we
are all minorities in some degree!
Racial segregation, separate but equal, voting rights,
equal access to educational opportunity, the right to
Inter-racial marriage, striking down sodomy laws, and the
constitutional right to equal benefits are all the result
of court decisions. Were it up to the tyranny of the
majority, all of these enumerated rights would not exist.
Marriage has long been a vehicle used to oppress minority
groups. I urge you to keep your oath of office and uphold
the Constitution, don't turn your back and vote to limit
it.
I urge you to oppose SJR 20.
10:41:13 AM
SYLVIA DEAN, Homemaker, Mother, testified in Juneau that she is
sobered that the court might have a superior view over the
rights of the people. Because the will of voters had already
been voiced, the only fair way to uphold the welfare of the
state would be to put this constitutional amendment proposal on
the ballot.
10:42:00 AM
TIM STALARD testified via teleconference from Fairbanks, reading
the following statement into the record.
…I own a travel business here in Fairbanks. I am here today
to oppose SJR 20 because it is discriminatory, it will hurt
our tourism industry, and it is bad for Alaskan families.
I know this resolution will hurt our travel industry from
personal experience. In fact this resolution has already
cost a Fairbanks businessman $20,000 in lost business. I am
arranging for an event for a large group this coming
summer. Because of the possibility that the hotel owner
might vote for this resolution, I decided to take my
business elsewhere. I do not want to subject my customers
to a business that might discriminate against them based on
their marital status or who they love. Even discriminating
against one of my clients is too many.
If our great state passes a discriminatory constitutional
amendment, this will have negative repercussions across our
travel industry. I think everyone has heard Las Vegas'
travel slogan "what happens in Vegas, stays in Vegas". In
other words, people go to Las Vegas - a very popular
destination - to have fun and not to be judged. If Alaska
rolls out a conditional welcome mat that says "Visit Alaska
as long as you are not unmarried, divorced, gay, etc.,"
less people will want to come here. Just like a
politician's campaign message, our travel industry's
marketing message needs broad appeal that does not alienate
potential visitors. The obvious discrimination of SJR 20
will scare visitors away from our state.
I know on a personal level that this resolution is anti-
family and will have devastating affects on family
finances. In addition to my travel business, I also work at
the University of Alaska (UA). My partner and I are
enrolled in the domestic partner benefits program. Through
this program I am able to provide health care and other
benefits to our children. I don't think I need to emphasize
the importance of health insurance to Alaskan families.
But, I fail to see any public policy benefit to denying
health insurance to Alaskan families. As you probably know,
the domestic partner benefits program costs UA less than 2%
of the total benefit program costs. So the cost is small,
but the benefit to families and the employer are huge.
It is not UA who is out of touch with economic and social
reality, it is the radical backers of this resolution.
Approximately half of the Fortune 500 companies offer
domestic partner benefits and more do each year. This
includes companies such as Alaska Airlines, BP, Ford Motor
Company, Home Depot, Motorola, and Wells Fargo. Offering
domestic partner benefits is an industry best practice,
which helps companies attract and retain the best, most
creative employees.
My final point is that discrimination against non-
traditional unmarried families is bad public policy. I am
32 years old and many in my generation are reluctant or
wait a long time to get married. While my own parents have
been married for more than 30 years, overall my parents'
generation made a mess of marriage. Many of my friends
don't want to get married because of their parents' rocky
marriage relationships and ugly divorces. Also, many
divorced parents are reluctant to marry their new partners.
Regardless of the reasons that Alaskan parents are not
married, it is personal and family business, not the
State's.
The State's business is protecting children and that is why
I ask you to kill this resolution in this committee. SJR 20
might save the state a small amount of money, while hurting
our travel industry, and having devastating financial
impact on Alaskan families.
10:45:43 AM
TIMOTHY DAVIS, 25-year Alaska resident, testified via
teleconference from Anchorage, reading the following statement
into the record.
…During this time, I have seen legislative issues come and
go on the state and local levels that had various impacts
on our quality of life in the Great Land. Never have I seen
a more crucial issue come before us. The protection of
marriage - traditional marriage in our state. It screams
for a vote of the people.
Marriage between one man and one woman has always been the
bedrock for American families and the cornerstone of
American social stability. Meddling with this fundamental
relationship is arrogant of the highest order.
Five Alaskan Supreme Court justices appear to have such
arrogance. They have summarily usurped thousands of years
of history and preempted the right of the people of this
state to affirm what the majority of us know to be the
right and true nature of marriage established by our
creator, God: marriage between one man and one woman.
Further, they expect the majority to pay for the
inordinate, sexual expressions of a few. The ludicrous
nature of their actions can be illustrated. What if the
Court had decided that polygamy was a valid alternative to
our current legal understanding marriage? Would that be
allowed to stand without coming before the people for a
vote? Or what if since it does not seem to matter what the
definition of marriage is, they from their vaulted posts
deem prostitution or any other sexual expression as needing
legal status?
Now these may seem ludicrous examples in their own right,
but such an appearance is only one of degree. When you
change the definition of marriage, which in effect is what
the Court did, as Dr. Nakamura alluded to Pandora's box
earlier, I would say you open Pandora's box for a flood of
other inordinate sexual expressions to be warranted.
I do not trust unelected officials to make such grandiose
decisions for us. I do not trust imperialistic ACLU lawyers
to have the moral rectitude to speak for me. I want to
vote.
Please allow SJR 20 to pass and give the people you serve
the opportunity to speak on this crucial issue. What I
object to is judicial imperialism.
10:48:26 AM
KAREN TAFT WELLS, 27-year State of Alaska employee, testified in
Juneau as follows.
The State Constitution supposedly says I have equal
protection under the law.
What some of your colleagues have proposed to do is to take
that right away from a certain class of people and say
everyone in the state is protected except for gays and
lesbians. By placing an initiative on the fall ballot you
will be asking for discrimination against a certain class
of people. I am one on those people. I sit before you to
ask that you stop this bill right now.
The Supreme Court was right in their unanimous
determination that same sex domestic partners should be
entitled to State employee benefits. The Alaska
constitution bars us from marrying and without that
particular document, we are not able to receive the same
benefits as our married co-workers and are being
discriminated against.
Do you really believe the people of this state can navigate
the legal waters better and more fairly than the Alaska
Supreme Court? I don't. I think the wording of this
initiative is mean spirited and seeks to discriminate
against a class of employees that you, as the body that
represent us, are responsible for protecting. Or, are you
going to concur with these mean spirited people and say,
yes, everyone in the state is equally protected except for
gays and lesbians. A better question would be fairer if you
asked the voters if they want to limit the equal protection
clause so that it no longer applies to unmarried
individuals.
Please stop this initiative today by keeping it in this
committee. Please see that I am human, just like you, that
love arises in me the same as it does you and that there is
no difference in that quality of love. Who cares if my love
is for a woman rather than a man, what business is it of
yours or the people of this state to judge who and how I
love? It is just love, a source of energy available to me
that adds to the goodness in the world and takes nothing
away. It is pure, it is beautiful and worthy of the same
treatment my married co-workers receive. I work side-by-
side employees who are allowed to marry, thus qualifying
for benefits. Those people receive benefits for their
spouses and children. Since I am legally barred from
marrying, I should be entitled to receive those same
benefits from the state through domestic partnership
criteria. Otherwise as I see it, you will be discriminating
against me.
And lastly, what scares me the most is that amending the
constitution for this purpose will set a standard for any
other group that is not in the majority. Because I am a
part of a minority group, should not lessen my value or
worth as an employee. What group will be next? I bet you
dare not speak it for you would be accused of an "ISM" or a
"phobia". Why is homophobia ok, why are special interest
groups coming from Colorado to widen the gap of intolerance
and fear? Do you see what this is doing to me, to those I
love, to the people of this state, the country, the world?
We need tolerance of one another's capacity for tolerance
through leadership and not allow hate and fear to taint our
communities. I will end with my favorite quote "If you
bring forth what is within you, what you bring forth will
save you, if you do not bring forth what is within you,
what you do not bring forth will destroy you." Gospel of
St. Thomas Logan.
10:52:06 AM
LISA FITZPATRICK testified via teleconference from an offnet
location in opposition to SJR 20. She is married with two
children and she appreciates the values that occur with
marriage. She believes in family values and teaches those to her
children.
Ms. Fitzpatrick informed that she is also a lawyer and she
places a high value on the integrity of the constitutions, both
the Alaska and US constitutions. She automatically approaches
with caution and distrust, attempts to modify the constitutions.
The proposed amendment would write discrimination into the
Alaska Constitution. It would target a minority group for the
purpose of denying equal protection of the law based solely on
their status. She asked where the line would be drawn. A
professor in law school taught her that once the rights embedded
in the constitution were tampered with, you embark on a slippery
slope. This proposed resolution would put the state down a
slippery slope of discrimination.
Ms. Fitzpatrick's receipt of benefits would not be personally
affected by the passage of this constitutional amendment;
however she would be personally affected. In raising children,
one of the core values she teaches them is tolerance of other
people and their lifestyles. A discriminatory amendment such as
this would send the opposite message. As a practical matter, if
this resolution passed and the proposed amendment were put
before the people, she could only begin to imagine the
polarization that would ensue and the infighting and hate that
would follow.
Ms. Fitzpatrick was proud to be an Alaskan and proud of the
heritage and the recognized right to privacy. Private lives are
just that: private lives. This should not be changed.
Ms. Fitzpatrick disagreed with the reasoning of putting the
rights of a minority group to a popular vote. The legislators'
duty is to stop these types of resolutions. Allowing such votes
leads to tyranny by majority.
Ms. Fitzpatrick quoted Lillian Helman from testimony before a US
Congressional committee during the commonly referred to McCarthy
hearings, "I won't cut my conscience to suit today's fashion."
Ms. Fitzpatrick applied the statement to her assessment of this
resolution and would not discriminate in this fashion because a
number of interest groups that believes strongly in fundamental
Christian values. This resolution does not represent Christian
values.
10:55:32 AM
Senator Bunde announced that Committee must recess for a session
of the full Senate. Although he had not conferred with Co-Chair
Green, he was certain that due to the volume of interest in this
resolution, it would be scheduled again. Ample notice would be
provided to allow those unable to testify at this meeting an
opportunity to do so.
10:56:07 AM
BRENDA BRAY testified via teleconference from Anchorage that she
has voted consistently in all elections and would continue to do
so. This issue should be brought to a vote of the people. Not
all issues before State government require this, but this issue
is one that does need to reflect the will of the people.
Ms. Bray did not view this resolution as oppressive and brutal
in that it does not forbid employers from offering benefits for
domestic partnerships. Instead, it prevents employers from being
required to provide the benefits.
Ms. Bray spoke as a person with family members who lived
together without marriage she wondered how big the net has to be
in which employers must provide benefits. She has housed many
international students who did not have health benefits, they
became as much a part of her family as her natural children and
she has maintained contact with them. Yet she was unable to
include them in her health care coverage.
Ms. Bray encouraged the Committee to allow the issue to be voted
upon to allow the State to move forward.
10:58:04 AM
SCOTT MILLER testified in Juneau, reading from the following
statement.
This bill is playing with fire, and could be hugely
expensive. From the fiscal note, the State apparently
hasn't analyzed the cost of having same-sex families
covered by employer-provided insurance versus serving them
under, for example, Medicaid, which is largely State
funded. Or the extra cost of being forced by lack of
insurance to postpone care until it requires an emergency
room visit. These are tangled questions, but only the tip
of the iceberg.
Of course, the financial impacts on the men, women and
children in same-sex families of being denied health and
other benefits can be severe, and I'm sure that many
testifying here will describe those impacts. I'm not gay,
and I have no first-hand experience being denied employment
benefits on the basis of my personal identity.
I do, however, have personal experience growing up in a
country divided by discrimination, and I think it's
important to confront the costs of that. Surprising, as it
may seem today, when I was in high school, interracial
marriage was illegal in most of the US. That was the will
of the people. Blacks and whites were not free to marry
until a unanimous decision of the Supreme Court in 1967.
I'm not arguing in favor of gay marriage; that point is
settled in Alaska. I'm talking about the incalculable
costs, in family dissolution, poverty, bad schools, high
crime, disproportionate access to health care, etc., etc.
of trying to create and enforce a group of second-class
citizens. And I'm talking about the spiritual cost of
injustice.
SJR 20 fuels ignorance and divisiveness. Putting this
measure on the ballot invites the same types of costs as
racial discrimination, and there are many more gays in
Alaska than there are blacks. Further, public opinion is
changing. Time Magazine recently cited a poll that showed
only eleven percent of Americans think that gays are
exercising a conscious choice. Sixty percent of all women
and thirty-nine percent of men already understand that
sexual orientation is innate - a quality that a person is
born with - like skin color.
SJR 20 targets Alaskans and their children based on who
they are. I would like to see some analysis of the
implications of that, fiscal and otherwise, and I hope you
would too. To get a qualitative idea of the cost of anti-
gay discrimination, as a member of the Perseverance Theatre
board of directors I invite you to our spring production of
The Laramie Project, a play about the real-life hate-murder
of a gay college student in Wyoming in 1998.
11:00:53 AM
Senator Bunde noted the meeting would technically RECESS to
allow the Committee to reconvene the following day for
consideration of other legislation.
ADJOURNMENT
Vice-Chair Con Bunde adjourned the meeting at 11:01:00 AM
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