Legislature(1999 - 2000)
03/07/2000 04:10 PM House HES
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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 Number 0429 CHAIRMAN DYSON announced the next order of business as House Bill No. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." Number 0478 THE REVEREND ROBERT NICHOLSON, Pastor, Chapel-by-the-Lake Presbyterian Church, Presbyterian Church USA, came forward to testify in support of HB 387. He explained that his church nationally is a part of consortium of about 70 religious denominations that are trying to see that religious freedom acts like this are embraced by the states across the nation because the Supreme Court has backed off from granting the kind of religious freedom that is basic. He related an incident at a church in Oregon that bought ten acres for a parking lot and a buffer around the church but were told by the municipality that it was a good plan, but the church couldn't have any weddings or funerals. This is an example of consequences of not having this bill. It could also limit having prayer meetings and gatherings in homes because they are not licensed as churches. He also pointed out that in China the single religious issue that is giving the government more heartburn is house churches where people walk to the house and gather and worship. Number 0729 REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor of HB 387, presented a proposed committee substitute (CS). Number 0760 REPRESENTATIVE GREEN made a motion to adopt the proposed CS for HB 387, version 1-LS1461\G, Kurtz, 3/7/00, as a work draft. There being no objection, Version G was before the committee. REPRESENTATIVE CROFT explained the three substantive changes in the proposed CS attempt to conform to the state of the law prior to the Smith decision. The law previous to the Smith decision allowed that general applicability which placed a substantial burden on religion was invalid unless the government could show a compelling interest. When Representative Croft wrote the bill, he did not accurately state that substantial burden. It makes someone show there is something more than an incidental effect on a religion, and that it is an important one. REPRESENTATIVE CROFT said in addition, it was not generally true that one got money damages in this area; the proposed CS released that. There was also a section that talked about the individual rights of others, and "the individual rights of a third party" was put in to eliminate some legal confusion. The title was also changed to conform to that substantial burden. NUMBER 0938 THE REVEREND JOSEPH STORY, Pastor, Seventh-Day Adventist Church (Sitka and Juneau), Northwest Religious Liberty Association, testified via teleconference from Portland, Oregon. He 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, Halcro and Cissna'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." This 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). 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. CHAIRMAN DYSON suspended the hearing on HB 387 temporarily in order to take up other matters. HB 387 - FREEDOM OF RELIGION CHAIRMAN DYSON reopened the hearing on HOUSE BILL NO. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." Number 2272 REPRESENTATIVE CROFT apologized for how heavy on the legal analysis this whole thing is, but at its fundamental heart, it is protection of religious liberty. It brings in a lot of legal history and ideas he wanted to go over to briefly establish where it is today. It has been a longstanding course of respect for religious freedom that general respect was specifically codified in constitutional interpretations in the late 1960s and early 1970s that required that a law of general applicability, a law that wasn't targeted at religion. The more important question is when a general law is passed, not directed at religion, but in its application affects a religious practice, puts a substantial burden in the phraseology of the court what should be the decision. There are really two poles there. REPRESENTATIVE CROFT said Justice Scalia would argue and did eventually prevail that general law, since religion isn't being targeted, no exceptions have to be made. So under his interpretation, in prohibition, there had not been an exception for the use of sacramental wine on Sundays for religious practice, if it had just said alcohol was prohibited in this country without exception, and it couldn't be shown that it was targeted at religion, prohibition had many other purposes. There would be no exception, and police could haul away a priest on Sunday who served wine. That seems ridiculous at least contrary to tradition that that could happen. It could without the protection that an exception will be made unless the state can show a compelling interest. TAPE 00-29, SIDE B Number 2352 REPRESENTATIVE CROFT explained that the United States Supreme Court precedents in the 1960s and 1970s said even if a law wasn't intended to affect religion, if that is the effect of it - placing a substantial burden - then the person is excused from compliance with that law unless the government can show a compelling state interest and that this is the least restrictive way to do it. In other words, the burden is reversed. Once it has been shown that this puts a substantial burden on one's religious practice, that person is exempt unless the government now has the burden of proof to show that the law should be upheld and applied because it's a compelling state interest. That was the law from the early 1970s. He mentioned the sponsor statement and the Yoder case, which was in some ways the defining law. REPRESENTATIVE CROFT said that all changed in 1990 with the U.S. Supreme Court decision of Smith v. Employment Division, which Pastor Story referred to. In it, Justice Scalia - writing for a divided court, 5-4 - said, quoting Justice O'Connor's dissent: The Court today ... interprets [the free exercise] clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs so long as that prohibition is generally applicable. REPRESENTATIVE CROFT paraphrased the sponsor statement, which read: The Smith decision met a storm of protest. In 1993, a broad bipartisan majority of both houses of Congress passed The Religious Freedom Restoration Act (federal RFRA) and the bill was signed into law by President Clinton. The RFRA attempted to use congressional power to restore the "compelling state interest" test for religious freedom. In 1997, the United States Supreme Court ruled that the federal RFRA statute was an unconstitutional extension of federal power. City of Boerne v. Flores, 521 U.S. 507 (1997). The Flores decision effectively left any protection of religious freedom to the individual states. The Alaska Supreme Court has consistently interpreted the free exercise clause of the Alaska [State] Constitution to require a compelling state interest analysis. There is no present indication that the Alaska Supreme Court intends to follow the direction of the Smith decision in interpreting the Alaska [State] Constitution. However, a change in the composition of the court or judicial philosophy could lead to this change in the future. House Bill 387 ... will provide statutory protection for religious freedom in Alaska by enshrining the compelling state interest test for all state, municipal, and school district actions. House bill 387 is not intended to create an establishment of religion or allow a claim of religious freedom to authorize the infringement of the rights of others. It simply recognizes that Alaskans value their religious liberties and are willing to allow an exception from generally applicable laws for religious freedom unless the government shows a compelling state interest. REPRESENTATIVE CROFT explained to the testifiers that this bill is an increase in protection for religious freedom. It is not something that is intended to or will have the effect of decreasing religious protection. Number 2138 CHAIRMAN DYSON suspended the hearing on HB 387 temporarily in order to hear testimony from an appointee to the Professional Teaching Practices Commission. HB 387 - FREEDOM OF RELIGION Number 1875 CHAIRMAN DYSON returned attention to the hearing on HOUSE BILL NO. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." Number 1861 RICHARD BLOCK, Christian Science Committee on the Publication for the State of Alaska, testified via teleconference from Anchorage. He has been asked by the Christian Science churches in Alaska to keep an eye on how the practice of Christian Science and the church and its activities are viewed by the public, and that includes overviewing legislative activity that would affect the practice of Christian Science by those who follows its beliefs. He expressed support of HB 387 and urged its adoption. He didn't have a copy of the CS, but from Representative Croft's explanation of the changes, he supports the CS. Number 1673 CHRIS SOEBROTO testified via teleconference from Tok. She expressed support for the protection of religious freedom and the intention of HB 387. However, the wording of this bill does not satisfy her because it does not clearly define compelling governmental interest. She urged the committee to take time to clearly define this so that the bill can truly fulfill the purpose originally intended to protect religious freedom in choosing methods of education and medicine. These are at least two areas that are not clearly protected under religious freedom even though they are essential aspects of religious practice. Number 1638 JAMIE NALEPINSKI testified via teleconference from Tok. She expressed agreement with Ms. Soebroto's testimony and agreement with HB 387. Furthermore, when things such as compelling government issues are not clearly defined, it is left for interpretation by a judge. She does not want a judge deciding how she chooses to practice her spirituality or religion. By doing that, people give away their personal power. She urged the committee to take the time to clearly define compelling government issue. Number 1595 LYLE AXELARRIS testified via teleconference from Tok. He expressed support for HB 387 along with the previous testifiers. He supports protection for religious freedom, and he wants to be sure the bill will work. The wording in the bill is still very vague and therefore open to misinterpretation by the courts. To rectify this and safeguard religious freedom, he suggested two statements that should be included in the bill. The first statement comes from the Smith case: "Prohibiting the free exercise of religion includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires)." This reference is from the majority and in his copy it is on page 7, and he will fax it to the committee. He believes that the inclusion of this statement will help to ensure the correct interpretation of this bill, and the constitutional rights to freely exercise religion. MR. AXELARRIS noted that the second statement he believes should be included in HB 387 is a definition of compelling governmental issues and a definition of religious practices. He read the statement he wrote: Compelling governmental interest is when the government finds that the conduct of an individual is harmful to another individual or the community at large. Conduct that falls under the definition of religious practice as is stated below is automatically exempt from restriction even on the compelling governmental interest test. "Religious practices" as it is applied according to the Alaska [State] Constitution, Article I, Section 4, include but are not limited to 1) personal expression in worship in both life and death; 2) the choice of medicine and healing methods or the refusal thereof; 3) the choice of education style and content for adults and children; 4) the choice of dietary practices, including the foods eaten or not eaten, and the foods used for spiritual practices including ceremonies involving around one's death and the means of harvesting such foods; 5) the method of raising and caring for the children under the form of worship. Number 1413 TABITHA PARKER testified via teleconference from Tok. She expressed support for the protection of religious freedom and the intention of HB 387. However, she believes there is a vagueness in certain areas which are problematic and need clarification. She would like to know how the Alaska State Constitution defines compelling governmental interests. It was said in the Community and Regional Affairs Committee meeting last week that compelling governmental interest is the highest standard. If this is true, she wondered why has this not been defined clearly in the bill. Furthermore, her understanding of the compelling governmental interest test is it is more of an interpretation or judgment made by a judge or group of judges that clearly defined objective form of evaluation. MS. PARKER wondered how one's religious rights can be protected when - as in the 1990 Employment Division v. Smith case - the interpretation of the law is decided on by a subjective judicial system which may have absolutely no understanding of the underlying beliefs of the religion judged. This is problematic and has been throughout history. She asked how does one know that "compelling governmental interest" won't be used against religious practices. If compelling governmental interest is determined by the court, then what stops the judge from declaring that it is a compelling governmental interest for example, to restrict the use of alcohol even in religious uses, or to mandate vaccinations even if that seems to fundamentally offend one's religious belief. It seems that compelling governmental interest can override religious freedom at the whim of the court's position. She would like the vagueness of the bill to be more clearly defined to ensure that freedom of religion is protected. Number 1322 MICHAEL REILLY testified via teleconference from Tok. He expressed his support for HB 387 and its intention. He asked the following questions: If the bill becomes law and a religious freedom case goes to the U.S. Supreme Court, would Alaska's law prevent the U.S. Supreme Court from ruling against the religious practitioner? Would compelling governmental interest as stated in HB 387 definitely apply to all laws in all situations? In the Employment Division v. Smith case (1990) the Supreme Court said that the compelling governmental interest does not apply to across the board criminal laws. Would HB 387 guarantee that it does apply to all generally applicable laws? Does it apply to civil laws and what would prevent the Alaska Supreme Court from doing the same thing that the U.S. Supreme Court case did if HB 387 in enacted? Furthermore, could HB 387 be challenged five years down the road and the court throw it out as unconstitutional? Number 1245 AMY JO RIST testified via teleconference from Tok. She expressed support of the protection of religious freedom and the intention of HB 387. She agreed with previous testimony that further clarification is needed regarding compelling governmental interest. She wondered why the state legislature and corporations are not covered along with school districts, municipalities and state agencies in the bill. MR. AXELARRIS said he would be interested in hearing the answers to the questions raised. CHAIRMAN DYSON suggested Mr. Axelarris contact Representative Croft. REPRESENTATIVE CROFT offered to call the Tok Legislative Information Office and talk to the people who testified. Number 1131 REPRESENTATIVE GREEN made a motion to move CSHB 387, version 1- LS461\G, Kurtz, 3/7/00, out of committee with individual recommendations and attached fiscal notes. There being no objection, CSHB 387(HES) moved from the House Health, Education and Social Services Standing Committee.
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