Legislature(1995 - 1996)
03/25/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 308 PROHIBIT SAME SEX MARRIAGES
SENATOR LEMAN presented SB 308 for the Senate HES Committee. SB
308 has three main provisions. Section 1 clarifies that a marriage
is between one man and one woman. According to the Department of
Law, existing statute is enforced that way, however 22 years ago
some of the words were changed in a revisor's bill; with the
possibility the change could be substantive. The second provision,
in Section 2, prevents Alaska from acknowledging same sex marriages
acknowledged by other states. The third provision prevents a same
sex relationship, not consummated by marriage, from being
recognized by the state as being entitled to the benefits of
marriage. The impetus for the legislation is a court case in the
State of Hawaii. A number of states are concerned that public
policy should be determined by the states and their legislatures,
not by a handful of judges.
SENATOR ADAMS asked for a legal analysis of SB 308. SENATOR LEMAN
responded his analysis is that the bill is legal.
SENATOR TAYLOR questioned the amendment added to Representative
Kelly's bill. SENATOR LEMAN explained a bill passed the House that
deals with benefits at the University of Alaska and State of
Alaska. A second bill in the House contains parts of SB 308,
specifically the definition of marriage.
Number 386
SENATOR ELLIS asked if the State of Alaska has ever recognized a
marriage between two people of the same gender. SENATOR LEMAN
replied it has not. SENATOR ELLIS asked if that is existing law.
SENATOR LEMAN answered it is, and DOL enforces it that way.
JOANNE JENCKES testified from Kenai in support of SB 308 as it will
help to preserve the family.
DAN DAVIS testified from Delta in strong support of SB 308 as it
addresses a serious social problem. He commended the Senate for
taking action on this issue and believes the state must do
everything in its power to promote the standard heterosexual
husband-wife family. Elevating the dangerous practices of
homosexuality with legally protected status is devoid of reason and
morality. Statistics show the average life expectancy of a
homosexual male and lesbian female is 43 and 45 years respectively.
MICHAEL JOHNSTON, the state director of the National Campaign to
Protect Marriage, testified from Anchorage in support of SB 308. SB
308 is a common sense approach to deal with two primary issues:
ambiguity and the Alaska marriage statute. The issue of ambiguity
revolves around gender neutral language. Marriage has never been
neutral and statutory changes to gender neutral language were not
intended by the legislature to legalize same sex marriages. The
statutory issue deals with potential controversy in other
jurisdictions. Several states have passed legislation similar to
SB 308, and 22 states are currently considering similar
legislation. SB 308 provides for a strong public policy against
same sex marriages necessary to support an extension from the
requirement for the state to give full faith and credit to public
acts, records and judicial proceedings of every other state as
described in the U.S. Constitution. Opponents argue SB 308 is
unnecessary, warrants extensive litigation, and is discriminatory.
The threat of costly litigation is a moot point because if Alaska
does not take action now and establish a clear policy, it will be
a matter of time before same sex marital contracts from other
states will be contested in Alaska courts.
KATE WATTUM testified from Fairbanks in opposition of SB 308 as it
fuels the fires of intolerance and hatred and sends the message
that discrimination is acceptable. It is a nonsense law that will
mobilize, not stop, activists. SB 308 puts discriminatory views
into law by not acknowledging equal rights for all citizens.
Number 490
BOB KNIGHT, representing the Family Research Council in Washington,
D.C. stated an overwhelming number of studies show communities with
the most intact families are healthier, and children in intact
families experience higher academic achievement, are more secure
psychologically and economically, commit fewer crimes, and are far
less likely to fall into social pathologies such as unwed
pregnancies, drug abuse, venereal disease and deviancies of all
types. Marriage and the family are the key organizing principle
behind all civilizations, and exist for procreative purposes. In
a same sex relationship, one gender is radically excluded. The
U.S. Supreme Court declared in 1885 that the law protecting
marriage was so important that any state wanting to become part of
the union must protect it. Same sex couples can have marriage
ceremonies, but legally sanctioning those marriages would have
serious consequences for others. Schools would have to teach that
homosexual sex is the equivalent of marital love between husband
and wife; businesses would be forced to subsidize homosexual
relationships or face the full power of the law wielded against
them; churches believe that homosexuality is a sin and would find
themselves outside the law and it could affect tax-exempt status;
and groups like the Boy Scouts of America, already under severe
attack in the courts, would be under increasing pressure to have
homosexual leaders. Opening the door to same sex marriages would
prevent the denial of multiple partner unions.
Number 562
KIMBERLY MACK testified from Barrow in opposition to SB 308. Gay
marriages do not threaten anyone. The presumption that gay people
are strange is not justified or fair. In long term homosexual
relationships, partners need the same benefits and protections as
married couples. Gay people contribute to society and deserve to
be acknowledged and receive the same protections as everyone else.
MARK TUMIO testified from Texas in opposition to SB 308. He
appreciated the fact that SB 308 has not been veiled in vague terms
and promoted through excuses of financial or economic concerns,
like HB 226. Ten percent of our society is denied the basic right
of equal protection under the law, granted to opposite sex couples.
Opposite sex couples get this right regardless of whether they are
in good marriages or whether they are good and moral people: it is
a right associated solely with their sexuality. Many churches,
throughout history, have sanctioned same sex or multiple partner
marriages. Gays and lesbians are not trying to change the law:
that is being done by the sponsor of SB 308. Gays and lesbians are
only asking to be treated fairly: this is not a gay agenda, it is
a human agenda. The Hawaii court case will not be settled for
several years and invalidating marriages from other states will not
pass constitutional muster.
TAPE 96-27, SIDE B
Number 572
STEVE FITCHER, Director of the National Legal Foundation, stated if
Hawaii recognizes same sex marriages, homosexual couples from all
over America will travel to Hawaii to marry and return to their
native states and seek to have those marriages recognized,
according to two Law Review articles. Both authors believe that a
state's best defense, if opposed to recognizing same sex marriages,
is a choice of law issue which should be shown with a strong public
policy against such marriages. SB 308 is well drafted for that
purpose. Two reasons to enforce SB 308 are morality and the impact
to the state. The framers of the Constitution left the police
power to the states which includes public safety and public
morality. Additionally, the U.S. Supreme Court has already ruled,
in Powers v. Hardwick, that the majority sentiments about
homosexuality can be grounds for legislation. Regarding the impact
of recognition to the state, in the Hawaii case itself, the Hawaii
Supreme Court recognized 14 broad areas of their state code which
would be impacted, and that list was not exhaustive. He believes
the bill is constitutional as there is no fundamental right either
to homosexual sodomy or to homosexual marriage arriving from the
privacy right or anywhere else. The key difference between Hawaii
and Alaska is that in Hawaii the Supreme Court remanded the case
instructing the trial court to use a strict scrutiny standard. In
Alaska a rational basis test is used.
Number 529
SENATOR TAYLOR noted he had a full copy of the lawsuit and appeal
filed against the University of Alaska; the points made to the
court in that case are available to the committee.
MILDRED BOESSER, representing the City and Borough of Juneau Human
Rights Commission on SB 308 and HB 226, stated the commission voted
unanimously at its March 1996 meeting to go on record as opposing
SB 308 as a violation of human rights. She read a statement from
the committee in opposition to HB 226 (available in committee
packets). She noted she is a lifelong committed Christian and
disagreed with the statement that all major churches define
homosexuality as a sin. The Episcopal church does not do so. She
believes it is more important to enlarge the concept of marriage
rather than redefine or undermine traditional marriage.
SENATOR TAYLOR asked Ms. Boesser about the heresy trial in the
Episcopal church. MS. BOESSER replied a small group of bishops,
mostly retired, have brought a heresy trial against a fellow bishop
who ordained a gay man living in a committed homosexual
relationship. The case is not about the fact that a gay man was
ordained, it is about the fact that this bishop is living in an
open relationship. She believed that policy to be hypocritical.
SENATOR TAYLOR commented that is similar to the President's
position on the military.
MARSHA BUCK, representing Parents, Families, and Friends of
Lesbians and Gays (PFLAG) Juneau, testified in opposition to SB 308
and HB 226 because both bills are based on erroneous information
and are discriminatory and unconstitutional. Gay and lesbian
people have a God-given sexual orientation. Lying about one's
opponent is effective political weaponry, however gays and lesbians
are not anyone's opponents, they are constituents. She emphasized
PFLAG-Juneau is opposed specifically to SB 308 because if passed,
it is only a matter of time before an expensive court case will
ensue, and the law will be found to be unconstitutional based on
the state reciprocity provision in the U.S. Constitution.
Number 410
CAROL ANDERSON testified in opposition to SB 308 as it is an
attempt to deny the basic human right of marriage to lesbians and
gays. Gays and lesbians have been around since the beginning of
time making their quiet contributions to society. Many gays and
lesbians are afraid to publically object to bills such as these
because there are no city, state, or federal laws to protect them
from discrimination. They could be fired from jobs, evicted from
homes, and lose custody of children. SB 308 will codify the
discriminatory practice of allowing people to marry a person only
of the opposite sex. Gay people want the status of legal families,
to provide for their children, to be allowed hospital visitation,
and to be entitled as surviving spouses to social security
benefits, and to avoid inheritance problems.
SENATOR TAYLOR clarified that no one in Alaska pays inheritance
taxes to the State of Alaska unless they pay federal inheritance
taxes. For a couple, the net estate must be worth $1.2 million;
for an individual the net estate must be $600,000. He wondered if
Ms. Anderson was referring to the transfer of property without the
requirement of probate. A husband and wife owning property jointly
in an estate called "tenants by the entirety with right of
survivorship" provides that when one spouse dies, the property
automatically transfers to the other spouse on the filing of the
death certificate with the recorder's office. Same sex partners
would not have that opportunity under Alaska real estate law,
because the property is not owned by a married couple with right of
survivorship.
PHIL REEMTSMA, a member of Cavalry Baptist Church in Kenai,
testified in support of SB 308. The issue of same sex marriages is
not one of discrimination, it is an issue about the erosion of
society. Scripturally speaking, the Bible declares homosexuality
to be a sin. Homosexuals are not born as homosexuals, otherwise
many homosexuals would not change to heterosexual lifestyles.
Opponents of same sex marriages are not hate mongers.
SUSAN MOELLER, a nurse from Anchorage, stated she often works with
families in their homes in stressful situations and often sees
people in same sex relationships caring for their partner's
relatives. She supports all families, regardless of sexual
orientation, and believes recognizing same sex marriages will
strengthen relationships and not be harmful to anyone.
MARY BISHOP, President of Fairbanks PFLAG, testified on her own
behalf. PFLAG is a gay/straight reliance with the mission of
continuing relationships between gay children and their families.
In a school in Utah all extracurricular organizations were
terminated rather than allow an organization named the Gay/Straight
Alliance to meet. In a neighboring school, an organization named
Students Against Faggots Everywhere (SAFE) was meeting at the
school and was not questioned. She asked which high school
committee members would want their children to attend. She
supported Ms. Boesser's testimony.
Number 263
SUSAN HARGESS, Chair of the Southeast Alaska Gay and Lesbian
Alliance, testified in opposition to SB 308. This legislation is
discriminatory and will not help preserve families, since
relationships will be strengthened by more people living in
committed relationships. She considers herself an honest
hardworking person, deserving of the same benefits as other people,
including the right to choose who to marry.
SARA BOESSER, speaking for the Committee for Equality, opposed SB
308. It discriminates on the basis of gender in that it forces a
person to only select for marriage a person of the opposite gender.
As far as breaking other states' contracts, this bill is the most
blatantly anti-gay/lesbian bill to date in the legislature. Press
reports nationwide show that hate crimes increase when lesbian and
gay citizens are subjected to hearing anti-gay bills that are being
debated by legislatures. Not long ago, legislative bodies
prevented slaves from marrying one another, fortunately time and
reason have caused those laws to end and that practice changed.
More recently, mixed race marriages were also made illegal by
legislative bodies. Finally some states crossed that norm and
declared those marriages legal. Around the country, bills like SB
308 sprung up, however the Constitution's full faith and credit
clause, which requires states to uphold one another's judicial
proceedings, overturned those unconstitutional laws, because legal
comity is required across state lines for state contracts. She
questioned why heterosexual couples are not required to promise to
procreate when applying for marriage licenses if that is the
premise for marriage. Would elderly people, or sterile people be
denied licenses? A major battle cry against the women's vote was
that it would destroy the family. The Hawaiian court case will not
be reheard in lower court until midsummer, with a decision at the
end of 1996. Since either side promises a Supreme Court appeal,
Hawaii's court will not have Supreme Court resolution until 1997 or
1998. This same bill has been proposed, almost verbatim, to over
20 states. In the majority of those states the bill has been
rejected. This issue needs legal research and there is ample time
to follow the Hawaii case. Religious groups do not have to approve
or religiously bless same gender marriages, but to pressure the
state to break gender nondiscrimination and contract law across
state lines is unconscionable. The decision about who can receive
a state marriage license with all the benefits it provides should
be left to the courts.
KRISTIANE HOOPER testified in opposition to SB 308 and HB 226 based
on the fact it violates her civil rights and discriminates by
determining who can marry based on gender.
DANIEL COLLISON, board member of the Southeast Alaska Gay and
Lesbian Alliance, read testimony to committee members from a paper
on themes from, "The Significance of the Frontier in American
History" by Frederick Jackson Turner. He submitted written
testimony to be included in committee members' packets.
TAPE 96-28, SIDE A
Number 000
MARY GRAHAM, testified in opposition to SB 308, and thinks it is
best to leave the law as is and let the issue be decided by the
U.S. Supreme Court. State resources need to be used for more
pressing issues. Regarding religion, the Universalist Church does
not believe gay and lesbian people are living in sin, and supports
the union of such relationships.
MARK MOLINHAUER testified in support of SB 308 and HB 226 and urged
committee members to not let the threat of a lawsuit influence
their votes. This issue is a matter of state's rights and
sovereignty, and is not about hate but about the institution of
marriage. He discussed historical examples of the disintegration
of societies based on moral values. He argued that the concept of
enlarging the institution of marriage could lead to marriages
between pedophiles and minors.
CONNIE FAIPEAS testified in opposition to SB 308 from Fairbanks.
The state is obligated to provide an impartial licensing system for
many things, marriage being one. Religious interpretation is not
the job of the state; it is the job of individual churches and
their members. The state subsidizes marriage in the form of tax
and inheritance laws, and denying those benefits to some is blatant
discrimination. She asked Senator Taylor if he was implying that
because inheritance laws only affect estates over $600,000, those
laws are non-discriminatory because they only affect a small number
of people.
SENATOR TAYLOR clarified he was trying to explain the difference
between the inheritance laws and the opportunity to avoid probate
in the conveyance of real property. He agreed that law is
discriminatory in that there is a distinction and a difference
within the federal tax code between single individuals and married
couples, but that discrimination has been sanctioned by both the
Constitution and federal government, because it has been challenged
and upheld in court several times.
JANINE WILLIAMSON, testifying via teleconference from Fairbanks,
believed both SB 308 and HB 226 to be hypocritical as they deny
people in committed relationships benefits solely because their
partners are the same gender. Married couples can partake in all
kinds of immoral behavior and still receive benefits. Both bills
deny her not only the ability to marry, but benefits also.
LYNN STIMLER, representing the Alaska Civil Liberties Union,
expressed concern that SB 308 will not meet constitutional muster.
She made the following points. Marriage has traditionally been
defined as a union between people of different sexes. As recently
as 1967, state governments were able to deny interracial couples
the right to marry. Marriage requirements differ from state to
state, in terms of parental consent for certain ages, and blood
tests, therefore denying full faith and credit for marriages
recognized in one state and not another will create a climate of
uncertainty. Any marriage recognized in any state could be denied
the recognition of other states unless it was performed in the
exact same way which leads directly to the full faith and credit
analysis. The U.S. Constitution and Alaska Constitution provide
that judgments of one state be recognized as valid in another
state. This clause has only been addressed by the Supreme Court;
it has never ruled on whether marriages must be accorded full faith
and credit. She discussed the legal analysis of both sides of the
argument and warned that if SB 308 passes, Alaska faces a very
expensive court challenge. She also believed the right to
interstate travel might also be implicated. The ACLU recommends
Alaska not pass SB 308 at this time, and wait for other states to
bear the cost of this challenge.
Number 229
RUSSELL BOWDRE, a farmer from Delta Junction, testified in
opposition to SB 308. He discussed his belief that homosexuality
is not biologically based, because he has never seen same gender
sexual relationships among animals, and believes that does not
occur because the species could not procreate.
MARY ELIZABETH RIDER testified on HB 226 from Anchorage. In the
last few years she has worked to decrease the state's cost of
health care through the medicaid program by encouraging people to
take personal responsibility for themselves and family members. HB
226 places one more barrier in front of people who are trying to
take responsibility for people for whom they are morally, if not
legally, responsible. She discussed a personal situation in which
she cared for a foster child but was not legally able to provide
the child with health insurance coverage. The child became very
ill and died; she was forced to pay $24,000 in medical bills out of
pocket. She likened the situation to gay couples who are unable to
provide coverage for partners, forcing many to use medicaid, which
can be degrading, and expensive to the state.
DEBBIE MARTINEZ, testifying from Fairbanks, urged committee members
to throw out SB 308 and HB 226 as they are motivated by fear and
bigotry. A state marriage is a legal document and should not be
denied to any two adults who choose to enter into it. Hospitals
can deny visitation to same sex partners, families can contest
wills, and although gays and lesbians must pay taxes, they do not
reap benefits.
Number 354
SENATOR TAYLOR commented families cannot contest wills if the
deceased disinherited family members, and encouraged Ms. Martinez
to seek legal advice. If a person disinherits family members,
he/she can leave his/her estate to a chicken if desired.
CINDY BOESSER, a Juneau resident, stated she has many friends and
family members who are gay and lesbian. She believes it is wrong
that those friends cannot have the same benefits she does as a
spouse. Gay couples are perfectly capable of raising children and
are not horrible people.
SENATOR ELLIS asked about the basis for some of the criticism of
the bill in regard to constitutional problems, specifically the
immunities clause, full faith and credit clause, and the privacy
clause of the Alaska Constitution. He believed it is the Judiciary
Committee's responsibility to make recommendations to the full
legislature on those questions.
SENATOR TAYLOR noted he was relying on the materials provided at
this point, and had not done any separate research on those
questions. He referred to a legal opinion in committee packets
from Assistant Attorney General John Gaguine who believes the bill
is constitutional.
SENATOR MILLER added the Department of Law wrote an additional
analysis on its fiscal note which states SB 308 reinforces existing
law.
Number 407
SENATOR TAYLOR believed the fundamental question to be whether a
society has a right to discriminate between various groups. The
Supreme Court has routinely allowed discrimination based on various
subjects and purposes, if those purposes are well founded. There
is a lengthy listing of existing Alaska statutes that discriminate
in that fashion, listed in the brief filed against the University
of Alaska. He believed to discriminate in that fashion to be
constitutional.
SENATOR ELLIS questioned which part of the U.S. Constitution speaks
to comity of contracts.
SENATOR TAYLOR replied that is the full faith and credit provision;
each state should give due deference and respect to each other
state. He added the Uniform Probate Code and Uniform Child
Protection Act were passed because different states have different
laws.
SENATOR ELLIS noted uniform laws are passed to make it easy for
people, not because it is required. SENATOR TAYLOR agreed the
purpose is to make people's lives better.
SENATOR ELLIS repeated his question about whether Senator Taylor
believes SB 308 is constitutional under the state and federal
constitutions. SENATOR TAYLOR answered that is the Attorney
General's opinion, and he believed that opinion to be well founded
in the cases cited and in the discussion in the memorandum.
SENATOR MILLER moved SB 308 out of committee with individual
recommendations. SENATOR ELLIS objected. The motion carried with
Senators Green, Miller and Taylor voting "yea," and Senators Adams
and Ellis voting "nay."
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