Legislature(1999 - 2000)
03/02/2000 08:10 AM House CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 387-FREEDOM OF RELIGION CO-CHAIRMAN MORGAN announced that the first order of business would be HOUSE BILL NO. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." Number 0071 REVEREND JOSEPH STORY, Government Relations Representative, Northwest Religious Liberty Association, read the following testimony: We strongly support bill [HB] 387 for several reasons. First, we are mindful of the fact that the Supreme Court's decision in Sherbert v. Verner (1963) specifically involved a Seventh-day Adventist church member who had been discriminated against at her place of employment on the basis of her firmly held beliefs. We take special interest in the fact that it was in this particular case that the high court ruled that the state's interest in denying unemployment benefits - merely because Mrs. Sherbert would not make herself available for work on Saturday (her Sabbath) as required by the state's unemployment compensation law - was insufficiently compelling to warrant an infringement upon this most fundamental right: the free exercise of religion. Second, Representatives Croft, Dyson, Coghill and Halcro's efforts to restore the "compelling state interest" and the "least restrictive means" tests as established in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), respectively, could not come at a better time. Such a provision will effectively restore an individual's right to free exercise of religious convictions at the state level, and prevent the unnecessary discrimination that occurs on a daily basis in the public sector, particularly in the workplace. As [Justice] Sandra Day O'Connor stated in the Supreme Court's decision in Employment Division of Oregon v. Smith, the court made a critical mistake when they failed to offer "convincing" evidence "to depart from the settled First Amendment jurisprudence." The fundamental departure allows states to "make criminal an individual's religiously motivated conduct" in a way that burdens [an] individual's free exercise of religion"; puts at a clear disadvantage minority religions and religious practices when leaving accommodation to the political process; and enables government to ignore religious claims altogether, if it suits them, without offering any compelling justification to support their actions (494 U.S. 872 at 897, 902). However, as Justice O'Connor reiterated in Smith: The essence of a free exercise claim is relief from a burden imposed by government on religious practice or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community(494 U.S. 872 at 897). Number 0395 Finally, to place on the shoulders of government the burden to prove a compelling interest in order to protect the greater, or common good, is to place an individual's claim to religious freedom in its rightful place. America's founders, namely Thomas Jefferson and James Madison, believed that the free exercise of religion was the most "liberal" of all the rights Americans could claim, the one right that placed the greatest trust in the capacity of private choice, and the one least dependent on positive law. In other words, a right that was considered "unalienable." Again as Justice O'Connor stated in Smith, "The First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority" (494 U.S. 872 at 897, 902). We believe that HB 387 will restore this historical intent at the state level. REPRESENTATIVE DYSON asked if his understanding that [HB 387] would change from a "reasonableness" standard to a "compelling state interest" standard was correct. REVEREND STORY answered yes. He noted that the "compelling state interest" standard was the law of the land from 1963-1990 and then under the national Religious Freedom Restoration Acts(RFRA) from 1993-1997. REPRESENTATIVE DYSON inquired as to what would happen if HB 387 passes and a person claims, as a part of his/her religion, to use a controlled substance, which is in conflict with the state's laws, in the exercise of that religion. Representative Dyson mentioned that he was thinking of peyote. REVEREND STORY pointed out that was the issue in Employment Division of Oregon v. Smith. He explained that the State of Oregon had provisions for counties to vote themselves dry. Within those provisions there were exceptions that in dry counties, those religions that used alcohol as part of its liturgy would be accepted. With regard to peyote, Reverend Story commented that although peyote is used in Native American religious ceremonies, it is not widely abused. On the other hand, alcohol is a widely abused drug and there have been exceptions made for that. Reverend Story said, "It does seem to me that the courts are able to handle these exceptions on a case-by-case basis." He noted that he had often wondered why Oregon did not deal with it on that basis [a case-by-case basis]. Number 0726 REPRESENTATIVE DYSON related his understanding that Reverend Story is saying that the courts could handle such a conflict and by inference, decide whether religion is being used as a phony shield in order to abuse drug laws. REVEREND STORY agreed. He explained that the "compelling interest" test gives the courts the latitude to deal with specific issues. REPRESENTATIVE DYSON turned to the situation in Alaska of the natural resource work that is scattered across remote areas of the state. Those employees work very different schedules. He inquired as to what would happen if an employee brought to the site by the employer, refuses to work one out of every seven days due to a religious belief. What will the "reasonable compelling interest" say the employer should do to accommodate that employee? REVEREND STORY recalled that when the "compelling interest" test was used, the courts also used the "undue hardship" to employers in the interpretation of this. Again, the court did a reasonable job. He pointed out that there is 30 years of experience with this ["compelling interest" standard]. REPRESENTATIVE DYSON surmised then that on an off-shore oil platform or a floating processor, the employer would not have to make extra space or have extra helicopter flights [in order to accommodate a religious practice]. That would be viewed as an "undue hardship" on the employer. REVEREND STORY indicated agreement. However, this would place pressure on the employer, the employer that makes no attempt to accommodate an employee when accommodation is possible, to make reasonable attempts to accommodate the employee. Although one would not expect employers to go through undue hardship, one would expect the employer to provide a reasonable accommodation. Number 1098 REPRESENTATIVE JOULE inquired as to the number of people in Alaska who would be prone to using peyote for religious practices. REPRESENTATIVE DYSON commented that peyote is probably not a problem in Alaska. However, he said he would not be surprised if Alaska does not have a case in which marijuana is said to be part of a religious practice. REVEREND STORY said that he could not provide a definitive answer, although he is not aware of anyone in Alaska using peyote in religious practices. CO-CHAIRMAN HARRIS inquired as to the Supreme Court's compelling reason to overturn the law [compelling interest standard] that had been in place for many years. REVEREND STORY said that he believes that there has been a general shift in judicial doctrine within the Supreme Court in regards to the responsibility of the federal government versus state government and their jurisdictions. In overturning the national RFRA, U.S. Supreme Court Justice Scalia, in the majority opinion, added that he believes this [freedom of religion] is an area in which the states retain the right to regulate. In further response to Co-Chairman Harris, Reverend Story informed the committee that he is aware of eight states that have passed legislation similar to HB 387. He knew of 21 states, including Alaska, that have local statutes in the works. Number 1327 REPRESENTATIVE MURKOWSKI related her understanding that the Smith case said, "The government can prohibit conduct mandated by an individual's religious beliefs so long as that prohibition is generally applicable." Therefore, if Red Dog mine, for example, informed every potential employee that he/she would work two weeks on and one week off, that would be a generally applicable condition. If HB 387 were passed and someone knowing the aforementioned conditions came on and requested a specific day off, could Red Dog [the employer] refuse the accommodation on the basis of an undue hardship. REVEREND STORY stated that in his opinion, an employer that stated the conditions of employment up-front would have an advantage in any case that might be brought against them. This has been litigated and in general, when the employer has clearly stated [the conditions of employment] the employee who enters such a situation would be expected to abide by those conditions. He did not expect that in such a case the employee would find relief in the courts. REPRESENTATIVE JOULE informed the committee that Cominco has voluntarily set up a chapel area and the schedule allows flexibility as well. REPRESENTATIVE DYSON said he believes that there have been at least one or more persons in the corrections system who have sued in order to have peyote available to them in prison in Alaska. REPRESENTATIVE JOULE commented that he assumed that [the peyote use in religious practices] would be minimal in Alaska. Number 1671 REPRESENTATIVE DYSON inquired as what would happen if a person in the corrections system or an employee of Cominco said that he/she needed a minister of that person's specific religion. REPRESENTATIVE CROFT, Alaska State Legislature, testified as sponsor of HB 387. He echoed Reverend Story's comments that this legislation would reassert the "compelling state interest" standard that says one needs to accommodate religious practices unless there is a good reason not to or there is no other way. However, each factual situation will need to be determined on its individual merit. Generally, the prisoner suits have not been successful under the old standard. He believed that the one or two successful prisoner suits were cases in which the prisoner wanted to wear his/her Star of David or crucifix. REPRESENTATIVE CROFT informed the committee that the federal constitutional provision says, "Congress shall make no law respecting an establishment of a religion or prohibiting the free exercise thereof." Alaska's constitutional provision on this matter is almost identical. The language does not state that everyone's religious beliefs have to be facilitated. The question is whether one is effectively prohibiting a person's religious beliefs. Therefore, he did not believe a pastor of every denomination in every prison would have to be provided. REPRESENTATIVE MURKOWSKI mentioned that she understood subsistence to be a whole way of life that includes spiritual aspects. She posed a situation in which a Native group does something, within that spiritual aspect, contrary to the state's laws. Could this freedom of religion clause allow this group to practice their of way of life which includes a spirituality? REPRESENTATIVE CROFT stated that the answer in all these areas is "it could." However, he believes the courts have done well to filter out those factual situations that make sense and those that [do not]. He said that kind of thing has happened in a more limited and rational context. Under the compelling state interest standard there was a decision, Frank v. State, in which an Athabascan elder took a moose for the potlatch of another elder. The potlatch was an integral part of the funeral and the moose meat was an integral part of the potlatch. The elder who took the moose out of season was prosecuted and the courts overturned the conviction. The courts said that no compelling state interest was shown. Number 2096 REPRESENTATIVE CROFT commented that protecting an individual's rights in general and their religious freedom rights in particular, is a messy business. With regard to why Justice Scalia, the most conservative justice, overturned this protection of religious principles, he believes Justice Scalia felt the compelling state interest was messy while the Smith decision is very clean and easy. However, in his opinion and that of many others, the Smith case does not honor our tradition of tolerance for religious practice. Representative Croft said that freedom of religion addresses the essential issue with regard to whether the government should make an exception to a generally neutral law. In prohibition, there was an exception for wine at religious ceremonies, but under Smith there does not have to be. He explained that under Smith it could be said that it was not directed at Catholic practice and that no alcohol means no alcohol and thus no alcohol on Sunday at Mass. Representative Croft could not believe that is what is meant when "we" in America talk about religious freedom. REPRESENTATIVE DYSON recalled that when he worked in the oil fields at Prudhoe Bay, employees were required to shave their beards for the Scott air packs thatwere used for rescue work. He then mentioned the "Old Believers" on the Kenai who grow facial hair as soon as they are able. Representative Dyson said that he is delighted to be in such an enlightened state. With regard to the Athabascan case, he believes the courts were able to make a determination similar to that of the conscientious objector. Number 2376 GEORGE ELIASON testified via teleconference from Sitka. He informed the committee that religious freedom and liberty is the most precious liberty that one may possess. The Alaska Religious Liberty Act is intended to provide basic protection for the free exercise of religion since the U.S. Supreme Court has sharply curtailed the scope of the First Amendment's protection of religious freedom. As Representative Croft's sponsor statement says, this Act "will provide statutory protection for religious freedom in Alaska by enshrining the compelling state interest test for all state, municipal, and school district actions." He urged the committee's support of HB 387. Mr. Eliason said that Thomas Jefferson said it best, "It behooves every man who values liberty of conscious for himself to resist invasions of it in the case of others for their cases may, by change of circumstances, become his own." AMY JO RIST testified via teleconference from Tok. Ms. Rist said that she believes HB 387 is unconstitutional and it does not protect religious freedom. The "general rule of applicability" can be selective. If a law says that people cannot practice religion on a certain day, then it is selective for a certain religion. Furthermore, the compelling government interest [standard] can selectively prohibit religious freedom. In conclusion, Ms. Rist stated that she strongly opposes HB 387. Number 2529 MICHAEL S. REILLY testified via teleconference from Tok. He stated that he opposed HB 387, which he believes is unconstitutional. Furthermore, he believes that the "compelling interest" language is vague and subjective. Mr. Reilly said that he believes HB 387 will infringe on religious freedoms. REPRESENTATIVE DYSON inquired as to how Mr. Reilly felt that HB 387 would infringe on religious freedoms. MR. REILLY answered that HB 387 would infringe on religious freedoms through selectability and the "compelling interest of the state" language. The state can determine however it pleases what the compelling interest of the state would be. Mr. Reilly believes that specific religions can be targeted through a generalization through the "compelling interest" language. REPRESENTATIVE DYSON asked whether Mr. Reilly had any suggestions with regard to making the language more clear and more protective. MR. REILLY replied that there should not be any restrictions applied at all. In further response to Representative Dyson, Mr. Reilly informed the committee that he heard about HB 387 via the Internet. REPRESENTATIVE CROFT surmised then that Mr. Reilly would prefer that [the state] not be allowed to infringe on religious practices even if a compelling interest is shown. MR. REILLY agreed. REPRESENTATIVE CROFT commented that now the situation is much worse and HB 387 offers a middle ground. Currently, under federal court law no exception at all has to be made. Under HB 387 exceptions would be provided. Therefore, Representative Croft seemed to believe that [HB 387] would move toward a better situation, although it may not move as far as Mr. Reilly would like. MR. REILLY agreed that HB 387 does not go far enough. Number 2653 LYLE AXELARRIS testified via teleconference from Tok. Mr. Axelarris commented that thus far the hearing has missed the point. He did not see a need for state governments or school boards to have the compelling interest exception to religious freedoms. "State agencies, school boards, municipal governments have no right whatsoever to restrict our religion in any way." He noted his agreement with Mr. Reilly in that HB 387 does not go far enough. Mr. Axelarris said that he viewed the language of HB 387 as covertly manipulative and anti-American. The bill allows a large loophole with regard to the most fundamental right enjoyed by Americans. MR. AXELARRIS said, "I don't see what could possibly compel the government to restrict religious freedom." He could not imagine what would be so compelling to allow a school board or a state agency such as the Department of Transportation (DOT) [to restrict one's religious freedom]. This seems to be a gross abuse of the power granted to the legislators. Furthermore, the language is very vague and does not clearly state who will make decisions to restrict religious freedom nor is the process of how these restrictions take place clear. CO-CHAIRMAN HARRIS recalled that Mr. Axelarris believes that there should not be any restrictions or laws against the practice of any religion. He asked, "Sir, do you believe that anything in the name of religion that infringes on the rights of others should be allowed." Co-Chairman Harris related his belief that this country's philosophy is to allow people to practice their religions, but not heavily impact the rights of others to practice their religions or lack there of. This bill seems to assure that a person's right to practice a religion is upheld and not abused, while at the same time it does not force that religion on other persons. MR. AXELARRIS restated his belief that no one should have the right to restrict another's freedom, which is why he opposes HB 387. He reiterated that HB 387 [would allow] state governments, school boards and municipal governments to restrict a person's religious freedom. Mr. Axelarris said, "I don't agree with you [Co-Chairman Harris] that that's what this bill attempts to do. If that is your true intention, then why doesn't the bill say 'Again, we support everyone's right to practice their religion freely, except where one person challenges that it interrupts with their freedom.'" Instead, Mr. Axelarris saw HB 387 as open-ended due to the vague "compelling interest" [language] allowing the governmental bodies to restrict religious practices. Mr. Axelarris related his observation that the government, at all levels, is acting as a parent with the citizens as their children. He believes that is really offensive and insulting to the citizens of Alaska. Mr. Axelarris said, "What you're suggesting, from your statement, was that the state government in all its forms needs to look out for the citizens and that they can't handle it amongst themselves. If a problem does exist, ... in a truly equal and free expression of religious freedoms, then I believe that could be handled in the courts. But to make a blanket statement law like this is opening us up to a big danger in our encroachment of human rights." [This question was not recorded due to the tape changing to Side B. Therefore, the question was reconstructed per the committee secretary's log notes as follows: REPRESENTATIVE HALCRO asked if Mr. Axelarris would be (upset) if the state no longer plowed the roads (in the Tok area.)] TAPE 00-15, SIDE B MR. AXELARRIS replied no and said that he could handle that himself. Number 2949 REPRESENTATIVE CROFT expressed the need to distinguish between two ways of infringing on someone's religious freedom. First, when someone tries to stop religious freedom, that is always prohibited. Even after the Smith decision, there was a U.S. Supreme Court case. That case revolved around some animal cruelty laws put in place in a municipality in Florida. He indicated that animal cruelty laws would seem fine, except that these were aimed at the influx of Caribbean immigrants who practiced a certain religion that included an animal sacrificing element. The courts found that this particular law was intended to stop a religious practice. Representative Croft stressed that such situations would, even after Smith, be prohibited. REPRESENTATIVE CROFT commented that the need for a "compelling interest escape hatch" is to address those laws that are not directed at religion, but incidentally impact religion. For example, what if the State of Kentucky had a regulation stating that every Kentucky tourism official shall wear a hat that says, "Welcome to Kentucky." What would happen if someone wanted to wear his/her yarmulke underneath the "Welcome to Kentucky" hat? The regulations and the Smith decision would not allow such. He indicated that it [the compelling state interest standard] is a way to filter out those laws that incidentally affect religious practice and do not need to. Representative Croft turned to the prior mention of the Old Believers, who could probably obtain an exemption. However, if the person who is an Old Believer was doing work on an oil rig, that exemption probably could not be obtained because there would be a compelling state interest for the safety of the employees and there is no other way for the person to do the work without the mask that requires no facial hair. Representative Croft stressed that there do need to be exceptions for those incidental impacts. REPRESENTATIVE CROFT commented that he had expected to hear from municipalities, state agencies and school districts with concerns as to whether HB 387 went too far. He was not prepared to hear that this line of opposition [that the bill does not go far enough]. He echoed earlier comments that [HB 387] would merely restore what was in place prior to the 1990 Smith decision. "In fact, the Alaska Supreme Court really hasn't yet retreated from this. This is more of a protection in case they do. ... The Alaska [Supreme Court] ... has shown some indication since Smith that it's willing to stick to its interpretation of the Alaska Constitution to that higher standard, but who knows whether tomorrow they do." Number 2754 MR. AXELARRIS replied, in response to Representative Dyson, that he heard of HB 387 via the legislature's home page on the Internet. REPRESENTATIVE DYSON stated that he was wondering whether someone had been alerting people with regards to this threat to one's civil liberties. MR. AXELARRIS commented that he had heard much talk about this [HB 387] in town. MR. AXELARRIS returned to Representative Halcro's comments about plowing the roads. He said that he pays federal taxes and the federal government subsidizes and assists the state in order that the state can provide services such as DOT plowing the roads. However, he emphasized that he did not pay taxes to DOT so that it could tell him what he can and cannot do in his religious life. He indicated that his religious life is completely separate from his relationship with the government. REPRESENTATIVE HALCRO related his understanding that Mr. Axelarris' testimony indicated that he wanted government "to get out." He posed a situation in which a person has a belief that he/she does not have to stop at stop signs. He asked Mr. Axelarris if he believes that the aforementioned person would have the right not to stop at a stop sign? MR. AXELARRIS commented that he believed that [scenario] to be ridiculous. REPRESENTATIVE HALCRO rebutted that it is no different from a prisoner wanting to smoke pot or some of the other poor excuses for religion that surface in order to meet a particular need. He asked, "Should government not have sideboards on what is acceptable and what is not acceptable as religious practices?" MR. AXELARRIS reiterated that he has difficulty in taking this [possible scenario] serious because Representative Halcro is judging. With regard to people smoking pot in prison, that could be a sacred element of a religious practice. Running stop signs is a danger to others whereas smoking pot does not endanger others. Number 2592 REPRESENTATIVE HALCRO restated his question: "Should government be able to put some sideboards on religious practices or the courts put sideboards on some religious practices that they feel are specifically intended to either evade the law or to justify some bizarre position?" In response to Mr. Axelarris, Representative Halcro explained that sideboards mean that it [government] could determine whether a religious practice is acceptable. Or, in the case of an employee working at a remote oil rig site, should government have the right to say that the employee knew the job he/she was taking and there is no way that he/she can be flown back every Sunday for Mass. Therefore, the employer does not have to provide the employee with the ability to go to Mass. Should government have the ability to do that? MR. AXELARRIS said that he believed the oil worker should be allowed to practice his/her religion on the job. With regards to whether the government should have some sideboards or an agency to define what is or is not a religion, that is "tricky." A person's expression of religion or spirituality is personal. He acknowledged that when a person's practices infringe upon another's rights then the case should be taken to court. He reiterated that a blanket statement should not be made and left open for governments to interpret and make general laws that could restrict one's religious freedom. Number 2465 REVEREND ROBERT NICHOLSON, Pastor, Chapel by the Lake; Minister, Presbyterian Church USA, informed the committee that Presbyterian Church USA is a 2.3 million member denomination in the USA and is part of the religious coalition that supports HB 387. He thanked the committee for being sensitive to the point, the issue and having the bill before the committee. He offered his support and encouragement in this effort. Reverend Nicholson commented that it is interesting that thus far the discussions have been in regard to individual liberties and religious practices, not about groups. REVEREND NICHOLSON provided the following examples to the committee. There is a Presbyterian Church in suburban Portland, Oregon that wanted to build a fellowship hall. The city council had a conditional building permit requirement and the extension [for this fellowship hall] was approved with the stipulation that there could not be any weddings or funerals in the building. Reverend Nicholson said that is an infringement of the government on the practice of religion, which is of concern to him. He turned to the second example which involved the Orthodox Jewish community that does not use motor vehicles on the Sabbath. He explained that Orthodox Jews, six or seven, would walk to a designated house in order to read the Scripture and have prayers. The neighbors complained that such was a religious meeting. Therefore, the city council said that such a religious meeting would violate the residential zoning. However, another neighbor could have 25 people over for a drunken brawl and that would be okay. He likened the Jewish example to China's efforts to stamp out house churches. REPRESENTATIVE CROFT said that he believes the compelling state interest test is important as it is a reality check on the aforementioned examples. While it may be appropriate for the state to restrict buildings due to codes, it is not appropriate to say that weddings and funerals cannot be held in the building. There needs to be a balance and this forces review of the need to do something that impacts a religious practice. If that cannot be justified as necessary, then an exception can be made. That scenario is preferable to the government asking how legitimate is a religious belief. The government can inquire as to whether one has infringed on another's religious belief and whether there was no other least restrictive means to do so. That seems to be the appropriate inquiry and thus he believes the compelling interest test must remain. Number 2115 REPRESENTATIVE MURKOWSKI inquired as to whether something has precipitated this legislation. She also inquired as to whether this would tie into the church sign issue in Anchorage. REPRESENTATIVE CROFT explained that in response to the Smith decision, the Federal Religious Freedom Protection Act was passed and ruled unconstitutional for various reasons. Therefore, it was left to the states. Representative Croft said that Alaskans are fortunate to live in a state which has not retreated from the compelling interest standard. The impetus for [HB 387] is to prevent a state level retreat similar to that of the federal government. With regard to the church sign issue in Anchorage, Representative Croft said that "we" [the government] do not have any business telling them [churches] what to put on their signs. However, he was not sure that the dimensions of the sign is related to a religious practice. Number 1941 HEATHER ALEXANDER testified via teleconference from Tok. She felt that the "compelling state interest" language is broad. With regard to the aforementioned example of an employee needing to shave off a beard, that would be a safety issue. Although she agreed with that [the need for an employee to shave facial hair because of a safety issue], she felt that a "compelling government interest" is broad language. She indicated that being able to bring a civil action is enough; why not leave every decision to be decided by the court? Ms. Alexander said that she did not really know what "compelling government interest" means nor the ramifications that it could incur. REPRESENTATIVE CROFT pointed out that the compelling state interest [standard] is one of the highest standards in law. With regard to merely leaving it out, the court has to be told how to balance what it is supposed to do. This legislation says that once there is a challenge, the government has to prove that it has a compelling state interest. MS. ALEXANDER said that she felt this is dangerous. She turned to the hat example, a general law that was made with no intention to restrict anyone's religious freedom. Although she felt it was great that "we" do not want to discriminate against the person who wants to wear another hat due to a religious belief, she did not believe HB 387 would lead to that down the road. Care must be taken with the language that is used. Number 1658 JEAN HATEM testified via teleconference from Tok. Ms. Hatem said that she strongly opposed HB 387. With regard to the compelling state interest being one of the highest standards, she questioned [where that leaves] the individual interest which is what the entire U.S. Constitution is based on. One of those inalienable rights is the freedom to practice religious expression. She turned to the aforementioned examples, especially those set in the workplace, and said that the compelling interest of the government is about making money because "we" want to make sure that people are working. People are being asked to make a decision about work as opposed to a person's conscious. She did not think that is something that people should be asked to do. Ms. Hatem stressed that "we" should protect people's rights and general statements do not protect people's rights. Furthermore, the "compelling governmental interest" [language] is so vague. TABATHA PARKER testified via teleconference from Tok. She opposed HB 387 as it restricts freedom in this country. If the federal government retreated in 1990 with the Smith case and Alaska has not followed suit, why are these changes being proposed now. REPRESENTATIVE CROFT explained that he was concerned that at some point the Alaska Supreme Court may decide to retreat and there would be no protection at all left for religious freedom. He reiterated that under Justice Scalia's decision any neutral law, not determined to be directed at a specific religious practice, does not require any accommodation at all. Therefore, the notion was to provide at least the level of protection in HB 387 if the Alaska Supreme Court did decide to retreat at some point. Number 1452 KAREN POWER testified via teleconference from Tok. She opposed HB 387 because she believed that this would set up small portions of the population to dictate what a person's religion is. With this "compelling interest," the only recourse for an individual is to go to court. She pointed out that money restraints may keep the person from going to court. Furthermore, there could be an area that feels that it is acceptable to suppress someone's freedom of religion and what good would the court be to that person. She also commented that plowing the roads and such were not related to the subject. THOMAS POWER testified via teleconference from Tok. He agreed with the others who have spoken from Tok and thus he opposed HB 387. The language is vague and the bill could eventually result in more strict restrictions with regard to religion. He agreed that generating a religion such as the aforementioned filet mignon religion, is a little wrong. However, if one restricts that individual, the restrictions will continue and people will lose in the long run. REPRESENTATIVE CROFT specified, in response to Representative Dyson, that HB 387 has the following committee referrals: House Community & Regional Affairs, House Health, Education & Social Services, House State Affairs and House Judiciary. REPRESENTATIVE DYSON stated that he had expected opposition to HB 387 from the educational community. He asked if Representative Croft had been in touch with those people. REPRESENTATIVE CROFT answered yes. He informed the committee that he had received some concern from the Anchorage School Board, which he felt was in regard to how broad the language was. However, he noted that he had a brief but positive conversation with Howard Trickey, Attorney for the Anchorage School Board. He reiterated that HB 387 would return to a state of law that was fairly well-developed for about 30 years before the change in 1990. All the "parade of horribles" did not happen in those 30 years and the case law became fairly developed with regard to what was compelling and what was not. He said that they [the Anchorage School Board] had general angst when he spoke with them. REPRESENTATIVE DYSON recommended that Representative Croft alert folks as there will be plenty of time for folks to "weigh in" as this moves through the committee process. He asked if Representative Croft had spoken with the Alaska Civil Liberties Union (ACLU). REPRESENTATIVE CROFT noted that he had spoken with the ACLU, but he the ACLU met yesterday and thus he did not know what it had resolved. REPRESENTATIVE CROFT announced his appreciation for those in Tok coming out and being very interested in HB 387. He pointed out that the federal court has said that it does not have to make any more exceptions for religious practice at all. The opinion in 1990 said that there is no protection for one's religion from a facially neutral law. Representative Croft stressed that he is, with HB 387, trying to put that protection back. Although it may be fair to say that it does not go far enough, he hoped that everyone would recognize that it is a half-step forward from a full step back. Justice Scalia's's opinion created a significant loss in 1990. He emphasized that he was reasserting the rights that were allowed under various cases, the Yoder decision being the most familiar. The Yoder decision in Wisconsin allowed Ms. Yoder, a member of the old Amish religion, to [not attend] school under a compulsory education law. This [the compelling state interest] standard has been used many times in order to obtain an exception from the government. Furthermore, this standard does work. Number 0940 KEITH FREDRICKSON testified via teleconference from Sitka. Mr. Fredrickson supported HB 387 and related his belief that Representative Croft is doing a good job. REPRESENTATIVE HALCRO related his belief that everyone testifying from Tok actually made the argument in support of HB 387. This bill does not take away protections but rather protects people and their right to practice religion. Currently, there are no protections [for a person's right to practice religion] and thus HB 387 restores some of those protections. CO-CHAIRMAN MORGAN closed public testimony. Number 0751 REPRESENTATIVE DYSON moved to report HB 387 out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, it was so ordered.
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