Legislature(1999 - 2000)

03/07/2000 04:10 PM House HES

Audio Topic
* first hearing in first committee of referral
+ 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                                                                   
          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                                                                   
     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                                                              
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                                                              
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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