Legislature(1999 - 2000)
04/04/2000 08:10 AM House STA
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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 0047 CHAIR JAMES announced the first order of business is HOUSE BILL NO. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." Number 0208 PHILLIP REEVES, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, said he is here to represent the Department of Law. He noted there are a number of agency representatives who are going to testify regarding direct impacts they are concerned about under HB 387 on their specific programs. He explained he is here to speak to two more general concerns that are relevant to the basic decision of whether HB 387 should be passed when faced with the specific problems that other agencies foresee. The Department of Law's first issue is with the lack of any necessity for placing these constitutional protections into state statute because the sponsor of HB 387 has expressly stated that the intent is to establish in state statute the same protections that the Alaska Supreme Court has expressly found to be provided under Section 4 of the Alaska State Constitution. Therefore, HB 387 is intended to merely duplicate those constitutional rights. MR. REEVES mentioned that sponsors have suggested that they are intending to pre-empt any potential movement of the Alaska Supreme Court in the direction of the U.S. Supreme Court's 1990 decision in Oregon v. Smith. The U.S. Supreme Court determined that under the U.S. Constitution's protection of freedom of religion law of general application (in the Smith case, anti-drug laws) are applicable to restrict religious activities if the state had a "reasonable basis" for enacting the regulation. He informed the committee that this stated intention by HB 387 sponsors to pre-empt any change by the Alaska Supreme Court ignores the fact that the Alaska court has specifically addressed the U.S. Supreme Court's decision in Smith in the 1994 case of Swanner v. Anchorage Equal Rights Commission. The Alaska Court expressly found that the Alaska State Constitution's protection of freedom of religion is much broader than the U.S. constitutional protection. Consequently the Alaska Supreme Court specifically reviewed the Smith decision and rejected it in 1994 and maintained the broader protection for the Alaska State Constitution. In summation, there is no reasonable basis for concern that the Alaska Supreme Court is about to narrow the Alaska State Constitution's protections of freedom of religion; hence there is no reason to attempt to restate and duplicate the constitutional protections in statute. MR. REEVES said that the second problem with HB 387 is the problem identified by Representative Kerttula at last Thursday's hearing (3/30/00). The problem is the very real possibility that the current Alaska constitutional rights to freedom of religion as defined by the Alaska Supreme Court decision may be substantially altered by use of terms and language in HB 387 that are different than the terms and language used in Alaska court decisions. He stated that the sponsor suggests that HB 387 language will maintain the status quo, but he thinks that the committee heard suggestions in public testimony that the public is expecting to get greatly expanded rights or at least an expansion of their rights to freedom of religion. One example of direct expansion of rights under HB 387 is the allowance of award of damages because HB 387, as written, provides that a person may claim and be awarded "appropriate relief" for a civil claim. He said that the term "appropriate relief" opens the door for a court to determine that damages would be appropriate in a particular case. He explained that this is a substantial expansion of rights that are available when contesting a law directly under the Constitution because the Alaska Supreme Court has specifically determined that unless there is a statutory right to damages a contest of the constitutionality of a law will not raise the right to damages against the legislature or local government. MR. REEVES commented that HB 387 places potential financial liability on all state agencies, municipalities, and school districts even though the defendant agency will typically have no prior notice or knowledge of the claimed impact on religion of the challenged law or policy. He mentioned that they have no prior notice as HB 387 expressly focuses on agency rules of general applicability that do not intentionally discriminate against religion. He envisioned that an agency will likely learn for the first time of the claimed discriminatory impact through receipt of a court complaint seeking both injunctive relief and damages for unintended, unforeseen consequences of a law of general application. He indicated that under HB 387, an agency thus has no opportunity to address or accommodate the challenged burden to religion prior to attachment of liability for damages. MR. REEVES summarized by saying that the Department of Law is concerned that HB 387 will encourage more litigation against state and local government agencies by providing a new financial incentive to sue for damages when claiming that a constitutional infringement has happened. He emphasized that the Department of Law is also concerned that HB 387 will encourage more litigation by providing extensive statutory language that is different from the court opinions and will lead to many people to believe there is a broader protection of freedom of religion than under the current status quo. He acknowledged that the Department of Law believes that many people may feel that freedom of religion has been elevated above other civil rights in Alaska and will thus potentially litigate to establish those new rights. Number 0693 CHAIR JAMES remarked that freedom of religion, the First Amendment, is listed as number one in the original Bill of Rights in the U.S. She asked if civil rights was one of the original Bill of Rights and inquired as to where civil rights protection came from. MR. REEVES replied that he believes civil rights are scattered throughout the Constitution, but the 14th Amendment specifically re-states First Amendment rights and additional civil rights protection and provides that the federal government may enforce those against the states. CHAIR JAMES said she would take that to mean that number one is higher than number fourteen, and it seems to her that maybe [religion] does have a little higher status than other civil rights. She believes that the founding fathers did that was because one of the reasons the founding fathers were here was to escape intimidation problems regarding religion. She noted that she is expressing a personal opinion as a lay person and probably most of the public may feel the same way as she does. She asked Mr. Reeves to repeat the information about agencies and payment of damages. Number 0879 MR. REEVES answered that he believed a number of the agencies have representatives here who will speak to specific concerns they have as to claims including damages that may be made against their programs. He is concerned about the use of different language in HB 387 other than that used in the Alaska Supreme Court cases, and of course different language in the constitutional protection which is the current codified language because it will lead people to believe that they have broader rights or different rights than under the current law. This could lead to additional litigation to determine the extent of those rights. Number 0930 CHAIR JAMES asked if Mr. Reeves was saying that if the committee passes HB 387 as it is currently written with this different language that HB 387 may not be constitutional. MR. REEVES replied no but that he was suggesting that the sponsor has clearly indicated his intent that HB 387 preserve the status quo and there will be no change in the current protections provided under the constitutional analysis of the Alaska Supreme Court. He suggested that the Department of Law has some real concerns about whether that is the case since the language in the statute is significantly different than used in the court decisions. It is difficult to predict exactly how the court will interpret the statute. REPRESENTATIVE OGAN said he is not familiar with the Oregon v. Smith case and asked if Mr. Reeves could provide a thumbnail sketch of the case for the committee. Number 1026 MR. REEVES replied that he can give a very broad sketch because he is not a scholar on the case. He believes that the case involved an Oregon criminal anti-drug law where some people had been incarcerated for use of peyote, which they claimed under their religious practices. The U.S. Supreme Court determined that since the anti-drug laws were laws of general application and were not targeting religion, they were applicable to these gentlemen. He added that the incarcerated people could not avoid the application of those laws under the federal constitutional rights of freedom of religion. REPRESENTATIVE OGAN asked if their prosecution was upheld. MR. REEVES answered yes, and he believes that it actually had to do with a state program. Number 1117 ROBERT ROYCE, Assistant Attorney General, Governmental Affairs Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage to provide information on HB 387. He reminded that committee that Representative Croft at last Thursday's hearing had asked for the differences between the current state of the law and the accuracy of the provisions in HB 387. He noted that the Findings section, Sec. 2(2) of HB 387, provides that under the authority of Emp. Div. v. Smith "the government no longer had to make reasonable exceptions to general laws in order to accommodate the religious beliefs of its citizens." He explained that the quote is not entirely accurate because the Smith decision itself recognizes three exceptions to holding that religiously motivated activity does not excuse compliance with an otherwise valid, neutral and generally applicable law toward religion. MR. ROYCE commented that he could briefly address Representative Ogan's questions regarding the facts of Smith. In the Smith case, two native Americans used peyote in their religious ceremonies, and the use of peyote without a prescription was illegal under Oregon state law. As a result, the native Americans were fired from their jobs with a private drug rehabilitation clinic, and they claimed that they were entitled to a religious exemption from the criminal law for purposes of obtaining unemployment compensation. He indicated that the U.S. Supreme Court upheld Oregon's denial of unemployment compensation to the native Americans holding that the use of peyote, even though religiously motivated, did not constitutionally entitle them to a religious exemption to the criminal law under the First Amendment right to the free exercise of their religion. However, the court did acknowledge that there were exceptions to its holding. The first exception is for the so-called hybrid rights claim or theory recognized in Wisconsin v. Yoder. That case was brought up last Thursday (3/30/00) and referred to in the sponsor statement. He remarked that the Yoder case is where the Amish brought a free exercise claim combined with a substitutive due process right to direct the upbringing of their children that did entitle them to religious exemption from the compulsory school attendance law in Wisconsin. However, the Yoder court did not reach its decision by applying the rigid legal standard of the compelling interest test but instead looked to the history of the Amish religion and their education and decided that there was really no harm to the state's asserted interest by allowing the Amish to adhere to their faith. He stated that the Amish continued to educate their children after the eighth grade, and they were all productive members of society. The important point is that Smith did not overrule Wisconsin v. Yoder. He reiterated that Smith distinguished Yoder on the basis of the hybrid rights exception, so the sponsor statement that Smith somehow changed Wisconsin v. Yoder, or retreated from Yoder, is really not accurate. MR. ROYCE said that the second exception recognized in the Smith decision is for laws that are not generally applicable or neutral toward religion, and HB 387 says that the state may not place a substantial burden on a person's free exercise of religion, unless it is in the form of a rule of general applicability and does not intentionally discriminate against religion or among religions. Thus, HB 387 says a law is invalid period if it is not generally applicable toward religion. This provision does not accurately reflect the status of the law because the U.S. Supreme Court in Lukumi v. City of Hialeah said that a law that is even motivated to effect or restrict religious practice is not automatically rendered unconstitutional, rather there may be situations where the state can set forth compelling interests to justify a direct restriction on religious practice. He noted that Lukumi was a case that was decided after Smith. In that case, members of the Sanateria religion claimed they had a right to engage in the ritual of animal sacrifice. He explained that the city of Hialeah in Florida passed an ordinance that forbid animal sacrifice for religious rituals within city limits. He commented that the court held that the compelling interest test may be applied in situations where the law is not neutral towards religion so the court struck down the ordinance because the state's asserted interest in public health and the disposal of animal carcasses in open public places was under inclusive since the ordinance did not deal with the disposal of carcasses by hunters, the slaughter of animals for food or euthanasia for pets. MR. ROYCE reiterated that HB 387 does change the law in providing that any law that intentionally discriminates against religion is per se invalid even though a state may have sufficient interests to justify such a law. He mentioned that in one U.S. Supreme Court case he had read that there are 300 recognized religions in this country which makes it difficult to foresee exactly what conduct harmful to state interest can be justified by a compelling state interest. MR. ROYCE indicated that the third exception to Smith is in unemployment cases that do not involve a violation of a criminal law as a result of religiously motivated activity. He informed the committee that courts apply a balancing test in situations where the government conditions the availability of a monetary benefit or violating one's religious beliefs or practices, but Smith does not change or retreat from this principle. Number 1645 MR. ROYCE emphasized that HB 387 requires that if a person can show a substantial burden on his/her right to free exercise, the state must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. As an example of how demanding the statutory compelling state interest (CSI) test is, he referred the committee's attention to a 1995 court case in California that was decided under the federal Religious Freedom Act which contains the identical legal standards as HB 387. He explained that in Chemma v. Thompson three elementary school children claimed their Sikh religion required them to wear knives at all times, but when school officials barred the children from wearing knives to school, the children's parents sued the school district. The court held that the school could not overcome the rigorous standards of RFRA's compelling interest test; therefore, the court allowed the children back to school grounds with their knives. The total ban on weapons was not the least restrictive means of furthering the school's interest in safety since the knives could be dulled or riveted to their sheaths. MR. ROYCE reminded the committee that the least restrictive means test as laid out in HB 387 is nowhere to be found in the Sherbert or Yoder decision or the Alaska Supreme Court decisions in Frank where the court allowed the taking of moose out of season for religious reasons. He recognized that the CSI test and the least restrictive means test is criticized by the U.S. Supreme Court in a case decided after Smith in the City of Barrow v. Flores decision. The Flores decision takes away the flexible approach that courts have used in applying an open balancing test where the state's interest can outweigh a burden on religious exercise under an intermediate standard of review. MR. ROYCE stated that HB 387 would make it harder for government employers to manage its employees because HB 387 requires a public employer to accommodate its employees' religious beliefs in virtually every case, since the public employer would probably not be able to satisfy the CSI test. Therefore, mere administrative convenience or avoidance of costs to the government is not enough to satisfy the test. He also noted that HB 387 potentially elevates religious rights of government employees over private employee rights because government employees would have statutory protection to free exercise of religion unlike private employees. For example, a private employee who did not want to work on Saturday due to religious beliefs would not be protected by HB 387 unless he/she quit the job and sought unemployment benefits. However, a government employee would have to be accommodated in every situation if he/she continued in his/her job. Number 1821 MICHAEL STARK, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, said he is here today on behalf of the Department of Corrections, and he would like to explain to the committee some of the serious problems that the Department of Corrections will experience if HB 387 is adopted. Contrary to representations that HB 387 will not change the status of the law, it will change the status of the law especially so in prisons and corrections area. He noted that HB 387 does add another component, another layer, to the standard used in evaluating challenges to impacts on religion, and it does restore the CSI test. He explained that HB 387 adds an additional layer to a CSI test. Whereas under pre-Smith, that is all the government had to do, and even that was not an easy task obviously, but they had to just establish a CSI. He commented that HB 387 adds another layer in that even if the government can establish a CSI, the only way the government can burden someone's religious belief is by the least restrictive means possible, and that is the specific rub, the difficulty, for the Department of Corrections. MR. STARK distributed information which showed some specific examples, not hypotheticals, of inmate requests that the Department of Corrections has received. He wanted the committee to understand that this proposed new standard is more burdensome than any that has existed up till now. He indicated that the U.S. Supreme Court recognized that prisons are a special situation dealing with intractable individuals, persons that do not get along with society and harm other people, and they are put in prison for punishment. When that happens, some of their rights are lost or are modified, particularly in the area of constitutional rights, which inmates certainly do not lose entirely, but they must give way to valid "penalogical" state interests. The most obvious interest that comes to mind is security of the facility and protection of people, inmates and staff. He acknowledged that inmates cannot be allowed to hurt other people. MR. STARK reminded the committee that the court said that whenever there is a First Amendment right that might be infringed, such as right to practice religion, there is a balancing that takes place. If there is a valid "penalogical" interest on the part of the state prison system, then the valid state interest is weighed against the inmate's right to practice religion. If the state's interest is more important, then it prevails. The court reviews if there are less onerous ways for the inmate to practice religion than the ways the inmate asserts. The court also reviews what is the impact on staff, on other inmates, financial burden and all kinds of things which require balancing. The foregoing explanation has been the standard up till today, which the courts still utilize in the prison context, irrespective of what is going on outside the prison. MR. STARK said that HB 387 will drastically change how courts have been reviewing cases because HB 387 will require that the Department of Corrections establish a CSI any time the department wants to say no to an inmate's request to practice religion in a certain way. Even if the Department of Corrections can establish a CSI, it will only be able to stop the inmate's asserted right if the department can do it by the least restrictive means possible, and that is something that is not physically possible in many situations. MR. STARK referred to the first page of his examples that talks about a situation the Department of Corrections had several years ago regarding witchcraft practice. He commented that the courts have recognized witchcraft as a valid religion, one of the 300 or so already mentioned. Most of the 300 religions are represented in the prison system. If not legitimately, then inmates take these religions on to jerk the chain of the system. This does not mean that many inmates do not have legitimate religious interests, but many of them will do anything they can to cause problems for the prison system. These people are not the most socially compliant folks, or they would not be where they are. Number 2115 MR. STARK said that the Department of Corrections had a situation where inmates were asserting their right to witchcraft as being their religion. A number of inmates from rural areas of the state, primarily Alaska natives, were frightened of some of these practices. He noted that the inmates' right caused serious problems in two of the department's facilities in Fairbanks and Palmer because the frightened inmates were threatening to kill this person [practicing witchcraft]. He explained that the frightened inmates thought something was going to happen to them because of the witchcraft so they wanted to stop it. MR. STARK referred to the second page that lists a whole number of requests that come in routinely. One inmate was part of a Muslim sect that required him to wear a large turban at all times; whereas many Muslim sects require wearing of a turban at certain times during the day when they are praying. The request for this inmate to continue to wear his turban fortunately came from the Palmer minimum custody facility where this inmate was incarcerated. First of all, the facility determined that the request was a legitimate religious tenet by consulting with the department's chaplaincy service, which is available to make those determinations, and this inmate was sincere in his beliefs. However, had this request come from the Spring Creek Correctional Center where maximum security inmates are housed, the department would have had many more problems. He acknowledged that the concern was that somebody could hide weapons under the turban very easily, such as homemade knives, guns, contraband or whatever it might be, which could be taken out at any time resulting in a threat to other people. MR. STARK emphasized that threats are not hollow threats because he had seen hollowed out Bibles from both Spring Creek and Lemon Creek here in Juneau where inmates have carved out holes, and they have had drugs and weapons hidden inside their Bible (religious inmates who held their Bible and guess what is inside). At the Palmer facility, the department decided that this person was not a security threat, and it allowed him to wear his turban. He reminded the committee that the department probably could have survived a challenge to [use of the turban] as it would have done at Spring Creek in not allowing [use of the turban] at all because of the dangerous people that are there with weapons problems and gang problems. He recognized that under the standard that exists today in testing challenges to religious practices in prison, that case would not have been a problem for the state, but it would very much be a problem under HB 387. A threat to security is a probable state interest, and courts have accepted that as a CSI in the prison context. He asked what would be the least restrictive means in that situation to deal with that problem. He asked if the inmate should be required to take off the turban from to time to time to search underneath it, and his answer was "perhaps," but he does not know. He acknowledged that the turban example is a problem. Number 2329 MR. STARK stated that the other legitimate requests that would create problems are requests to use wine in religious ceremonies. There are persons who actually come in from outside to help conduct religious ceremonies and insist that wine be part of the ceremony, and in the past, courts have accepted that grape juice be used. He asked if would wine be required under HB 387; fine, if it can be controlled without inmates getting access to the wine because inmates can get become intoxicated, start fighting and create real problems. MR. STARK said that one request that would be a real problem is inmates who are placed in segregation. He reminded the committee that the department has solitary confinement, segregation for inmates who are acting out the most, those who threaten to kill people, those who fight and those who resist authority. He said that prison facilities incarcerate murderers, child molesters, rapists and kidnappers. The committee members and he would have a hard time understanding what makes these folks click. These inmates are segregated from the general population because they prey on other inmates and assault them. If these [dangerous] inmates requested to have a religious group service rather than be able to exercise their religion individually in their own cell, they would have a right to do that under HB 387. MR. STARK said that now there is a CSI to protect security and protect others from violence, but the least restrictive means in the above described situation would be to bring staff members to this group when an inmate holds religious group services. He noted that if five or six inmates have [requested religious group services, assign] seven staff, and that will probably deter violence but maybe not. However, the problem is the department does not have six or seven staff able to go there while these inmates have their religious services. There is a vacancy factor in the Department of Corrections and it is stretched very thin; the department is managing, but it is tight because additional staff just are not available. Therefore, the Department of Corrections under the standard of HB 387 would probably lose a challenge if the department denied an inmate's request for religious group services. Number 2461 MR. STARK reminded the committee that robes are easy to hide weapons in. He indicated that inmates requested special foods, which are difficult or expensive to obtain, or which are not safe under health restrictions. There have been requests for native foods, and the Department of Corrections tries to accommodate inmates a few times a year by letting potlatches take place in most of the facilities. Inmates also ask for natural foods and game. In those cases, the Department of Environmental Conservation (DEC) has been accommodating, but many of those foods would not be able to pass DEC tests because they were not processed in proper kitchens, and there is a risk of disease. Under the HB 387 standard, he wondered if the Department of Corrections would have to have its own testing for food because that would be a least restrictive means, rather than barring food and those kinds of food requests would have to be provided on a regular basis, not just two or three times a year on special occasions. Refusal to participate in groups, classes, work or be housed with members of other races can be legitimate based on religious practice. There are a number of religions which say that their members cannot mix with other races, so if an inmate refuses to be housed in the same part of the facility with other races in consideration of his/her religious tenet, just imagine the kinds of problems this would cause. MR. STARK acknowledged that the department has been very fortunate in its facilities probably because they are so small in having escaped the types of race problems that exist in other facilities. The Spring Creek Correctional Center superintendent had informed him that the department did have a number of inmates some years ago that subscribed to some Christian religion (not meaning to say anything derogatory about Christians) in which the inmates said they could not mix their race. He stated that a number of those people have now left the facility, or the department spread them out to keep them apart because when they got together, it caused dissention and concerns. MR. STARK said that gangs are another problem in many prison systems around the country. Under the guise of religion, the gangs group together, have meetings and have supposed religious ceremonies, which creates a violence problem. The department has been very fortunate that no Alaskan prisoner in an Alaskan facility has ever been killed, although one Alaskan prisoner was killed in a federal facility a number of years ago. These problems [that he has talked about] are not hypothetical, and they do occur in prison systems around the country all the time. He agreed with Mr. Royce that cost and administrative inconvenience do not establish a CSI, so just the fact that it would cost more to hire more staff does not survive a challenge under the test in HB 387. MR. STARK informed the committee that the concerns are two: 1) the standard is much more difficult to meet, and 2) it will create many more lawsuits against the facilities because the facilities cannot meet the test. The facilities will not allow a religious practice due to obvious security concerns, and then they will be challenged in court. The lawsuits will be more complicated because it involves much staff time responding to discovery requests, and it is going to tie up state resources. He remarked that the committee had probably heard of the Cleary case that is certainly an extreme example, but thousands of hours of staff time went into that early in the case producing documents, discovery requests, depositions and those kinds of things. These are lawsuits that the department may well win in the long run but lose the battle by having to go to court on so many lawsuits. He stated that he thinks that HB 387 is a bad idea and adds more to the standard than has ever existed by using the phrase "least restrictive means." He reiterated that HB 387 does not maintain the status quo, and it does do some serious things in the prison context. Number 2671 REPRESENTATIVE OGAN said he supposed that HB 387 would not be a law of general applicability if the committee exempted the prisons. MR. STARK replied that an exemption could be one approach, one possibility. REPRESENTATIVE OGAN asked if someone's constitutional rights would be violated if prisons are exempted from a statute that supposedly interprets the constitution. MR. STARK answered that HB 387 establishes a statutory standard since it is a parallel standard to that established by the Constitution. Under the Constitution, ironically, the Department of Corrections could continue to do the balancing that has been done as authorized by the U.S. Supreme Court back in 1987, but it would also have to meet the statutory standard which is much more restrictive. REPRESENTATIVE OGAN asked Mr. Stark if Mr. Stark thought that the state could make a CSI to exempt the prison system from HB 387. MR. STARK replied in the affirmative. Number 2739 REPRESENTATIVE HUDSON said that Mr. Stark had made some excellent references to problems related to HB 387 and the prison systems. He asked Mr. Stark, since Mr. Stark is a practicing attorney for many years, if Mr. Stark was aware of any abuses that HB 387 would cure. He asked if a statement in the statutes of a constitutional right has a good purpose, or can Mr. Stark think of any applications where it might have been a positive. MR. STARK explained that he thinks that HB 387 is well intentioned. He would suggest that it is not necessary because religious practice in Alaskan prisons, while curtailed to some degree, has never been a burdensome situation. He mentioned that the Department of Corrections has a very vibrant chaplaincy program. In each facility there are volunteer chaplains and members of religious communities who come in and conduct regular services. If people looked at the list of programs in any of these facilities, they would see religious programs throughout, and that is without HB 387, so there has never been a compelling interest of whatever type requiring this, but it is one that the Department of Corrections always recognized because religious programs offer some rehabilitation to inmates who are legitimately interested. He agreed that perhaps there might be a positive in HB 387, but the downside is so much that it outweighs any positive. Number 2839 ANGELA SALERNO, Division of Public Assistance, Department of Health and Social Services, said that her division is also a little concerned with the language found in Section 7 of HB 387, which allows a person to bring civil action against a state agency when the person feels that their free exercise of religion has been substantially burdened. She noted that HB 387 could make the division vulnerable to costly litigation. She explained that an applicant for public assistance coming into an office would routinely discuss eligibility requirements with his/her eligibility technician (ET) at which time the ET will inform the individual that work activities are a mandated feature of the program. The applicant is required to fill out a family self- sufficiency plan and to make good-faith efforts to go to work. Should the applicant refuse at this point to participate in the development of the plan or to work outside the home, that ET could routinely deny assistance to that person. As she understands it, if that individual were denied benefits and later claimed that it was an infringement of his/her religious rights, the individual could bring civil suit against the division. She indicated that those damages would attach at that point, at that very low level point of conversation, that she/he had with the ET. MS. SALERNO informed the committee that another general concern that the division had is a real life situation of a case that happened not too long ago in which the agency sanctioned a family because the mother refused to work outside the home due to religious reasons. The recipient finally prevailed in the case because the division was not able to show a CSI for this case, and the division had to pay back benefits and costs, and the woman did not work outside the home. Overall, this concerns the division because at that point its hands are tied, and the division then has no way to help the individual become self sufficient, and the 60-month clock is ticking. She reminded the committee that welfare now is a limited benefit, and only 60 months is available to an individual, not a lifetime. She reiterated that the division's ability is impinged to help folks become self sufficient. TAPE 00-27, SIDE B Number 2969 CHAIR JAMES said she understands that people can receive benefits for five years and then fall off the program, but it does not trouble her at all if people want to do that because that is their choice. MS. SALERNO noted that her division is available to help folks and really wants to see people become self sufficient. She explained that her division is mostly concerned about children because every family that falls off the cliff will fall off with their children. She commented that her first story was to illustrate the liability issues. It could very well be that an ET, without an understanding of constitutional law or by making a quick decision, could deny benefits, and that is where damages would attach. Number 2881 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union ACLU), said she is not here to oppose HB 387. However, the ACLU proposes amendments which would simply protect free exercise of religion, while also protecting equal rights and civil rights for all because the Alaska State Constitution explicitly protects both in Article 1, Section 1. She commented that Section 3, Article 1, protects civil rights for all and Section 4, Article 1, protects freedom of religion. She mentioned that the [protections] are equally important, and they can peacefully co- exist. For example, free exercise of religion does not have to in any way contradict equal protection. MS. RUDINGER reminded the committee that the intended purpose of these bills [RFRA] is not to weaken civil rights laws since the intended purpose is to protect a person's religious practice from government interference, which the ACLU wholeheartedly supports, while also not giving one individual a sword with which to deny another person individual rights. In other words, the catch phrase is that this bill should be a shield from government intrusion but not a sword used to harm other people. She recognized that there had been quite a bit of misinterpretation in last week's testimony regarding the position of the ACLU . Since its inception, the ACLU has defended free exercise rights around the country and here in Alaska. The ACLU has specifically defended the rights of students to wear crosses, the star of David, yarmulkes (the Jewish skull cap) and have Bible clubs and Bible groups to pray in school at any time on their own. MS. RUDINGER said that what the ACLU is opposed to is government interference in religion. Right now the ACLU is involved in a case in Florida where the government wants to remove religious symbols from a cemetery, and the ACLU is putting a stop to that or doing their very best to do so. She had cited in her position paper examples of where the ACLU thinks HB 387 would be good. Recently the ACLU in Anchorage consulted on a case where some Muslim parents were going through the tragedy of their baby die of sudden infant death syndrome (SIDS). The parents' religious beliefs held that the baby would not get into heaven if the body was not presented whole unto God. There is a state law of general applicability facially neutral toward religion that says that all SIDS deaths have to be autopsied. She asked the committee to imagine the parents' fear that their baby would not go to heaven if the government performed an autopsy on their baby. Given there are less restrictive means of determining the cause of death, the ACLU had agreed with the plaintiff's attorney that those folks should not be subject to this law. She informed the committee that the ACLU thinks that HB 387 would actually help the parents because it would clarify their rights. Number 2621 MS. RUDINGER emphasized that the reason the ACLU is coming to the committee with proposed amendments is because the ACLU thinks these claims are going to most often occur is in religion vs. religion discrimination. Specifically the ACLU is seeking to protect equal rights for everybody in employment, housing and education. Anti-discrimination laws in Alaska fall into place regarding those rights, and so the ACLU proposes to simply clarify subsection (d) and rephrase it to read "this section may not be construed to create an establishment of religion" (which she thinks all agree upon) "or to authorize the infringement of the rights of others by the person claiming a religious exemption to a facially neutral law of general applicability" and then add one more sentence, which would explicitly allow avoidance of extended litigation: "this Act does not establish or eliminate a defense to a civil action or a criminal prosecution under federal, state, or local civil rights laws" or take out "civil rights" and say "anti-discrimination laws." Number 2495 MS. RUDINGER remarked that free exercise is absolutely fundamentally important, but everyone's free exercise is important and should not be an excuse for one person to hurt another person. She reminded the committee that she is not here to oppose HB 387; the Coalition essentially is urging similar amendments to what the ACLU has proposed. The ACLU is working with the NAACP [National Association for the Advancement of Colored People], the Fair Housing Alliance, the Episcopalians, the Friends Committee, the United Church of Christ, several Jewish organizations and the Evangelical Lutheran Church simply to protect religious freedom as it is codified in anti- discrimination laws. REPRESENTATIVE HUDSON asked for a layman's quick example of how a religious right might be in opposition to a civil right if the committee were to pass HB 387 because Ms. Rudinger had said that guaranteeing a religious right should not violate civil rights. He asked her to explain what she means. Number 2402 MS. RUDINGER replied that she can give some specific examples of cases that were brought to her by the Fair Housing Alliance. She said that in one case called Chap v. Bowman, Chap wanted to buy a house right next door to Bowman's from Bowman. Bowman asked Chap whether Chap was a "good Christian" and whether Chap "had chosen Jesus as his Saviour." She explained that Bowman told Chap that money was not a problem, and Bowman would sell the house to a good Christian for less than full price . But what ACLU saw here was that anti-discrimination laws protect people in the housing arena, who want to purchase a house, from being discriminated against because of their religious beliefs. She noted that Chap simply did not comply with Bowman's religious beliefs, and so, despite the fact that Chap offered Bowman cash in full, Bowman would not sell to Chap. MS. RUDINGER cited another example of a campground in Ohio where the owners of a house and the campground leased property to a tenant. The campground owners sought eviction because the tenant did not meet the owners' religious requirements including participation in the campground's religious activities. These are cases where the Fair Housing Alliance has had to step in, and under existing anti-discrimination laws, protect the religious rights of the tenant in this case. Another example cited in her position paper includes religious landlords not wanting to rent to unmarried couples because of the landlord's sincerely held religious belief that sex outside of marriage constitutes the sin of fornication. This attitude is currently under review in the 9th Circuit Court of Appeals, and that was also the fact pattern in the Alaska Supreme Court Swanner case, which has been cited for the committee. In the Alaska Supreme Court case, judges found that the state has a CSI in preventing this kind of discrimination in the commercial housing arena. It is important to note that no state or federal anti-discrimination law applies to the private home, consequently, a landlord or anyone who wants to discriminate against people coming into their private home has a right to refuse to let anyone into their home for any reason, and no one has to be religious to do it. She added that the Alaska Supreme Court has recognized the sanctity of the home. Number 2208 MS. RUDINGER said she understands that the famous Bob Jones University case is an example of an organization that is anti- Catholic, against mixed marriages and against interracial dating. The Bob Jones University wanted to discriminate on the basis of race, and that went all the way to the U.S. Supreme Court. The NAACP has submitted concerns about how this could play out in terms of race discrimination, since there are religions that hold that mixed marriages are against God's law or claim Biblical justification for certain types of racial discrimination. She noted that the NAACP is concerned if there is no explicit exception for civil rights laws, and this does have to be evaluated under strict scrutiny. MS. RUDINGER explained that while the government may probably be able to show a CSI in preventing race discrimination based on past history in this country, the government would have a tougher time showing, as has already been testified today, that applying the civil rights law to this one landlord is the least restrictive means. In other words, HB 387 could be used as a shield by individuals claiming the right to discriminate for any reason, and it may be that the least restrictive means of upholding the law would be to allow individual exceptions. She commented that the ACLU thinks that individual exceptions is what rightly frightens the NAACP. Number 2118 MS. RUDINGER mentioned that the committee has heard from folks who are concerned about domestic violence and religions that justify domestic violence. The United States has more than 1500 different religious bodies and sects; there are 75 divisions of Baptists alone. This country has churches, mosques and synagogues all co-existing in relative harmony. The ACLU seeks to protect one religion from discrimination by another in its amendment and to protect everyone's right to equality as the Alaska State Constitution guarantees. CHAIR JAMES asked what happens when a church builds a retirement home for folks expecting that the people who come into the retirement home are from that religion. Number 2067 MS. RUDINGER replied that religious organizations are typically exempt from anti-discrimination laws. She said that the federal standard is that religious organizations can prefer members of their own religion, and the ACLU does not object to that. She noted that she thinks that religious organizations would continue to be exempt; nevertheless, what the ACLU is concerned about is that individuals would be able to claim HB 387 as a sword to harm the rights of others. Number 2027 CHAIR JAMES asked Representative Croft what his attitude was about the proposed amendments as suggested by the ACLU and the Department of Corrections. REPRESENTATIVE CROFT answered that he does not like either the civil rights "carve out" or the prison "carve out" that Representative Ogan talked about. Representative Croft stated that Thomas Jefferson and other drafters such as John Adams did not say freedom of religion except for civil rights and in prisons. He reiterated that these rights create difficulties. He said that the Smith decision which is the decision that retreated from the prior high standard of protection for civil rights in the United States Supreme Court is very clean and easy to administer like all governmental regimes that do not purport to protect civil rights, and it is very easy to predict. There have been various people who talked about the problems government would have with compliance. He explained that the entire thrust in this area is to cause government a problem in administering its provisions when it impacts the free exercise rights of individuals because that is the point of it. He wants to force government to justify its actions when it infringes religious practices of people. He acknowledged that the government can meet HB 387 by showing that there is a very important reason for what the government is doing. Number 1699 REPRESENTATIVE CROFT remarked that in most areas of civil rights it is his opinion that a CSI will be found, and that is borne clearly out by case law in racial discrimination and in other areas of civil rights laws. In other words, the religion usually has to bow to a CSI that is found and similarly in prison litigation most of the time a CSI is found. He reminded the committee that testifiers here today testified that courts had accepted security as a CSI and they have; therefore, he thinks that 9 out of 10, 95 out of 100, civil rights cases do win, and prison officials are able to articulate a CSI. He recognized that the problem really lies in these blanket exemptions in that small 1 out of 10. If prison civil rights are simply carved out, then the legislature has said in effect that HB 387 does not apply in prisons, and religious beliefs or religious protection does not even have any place here at all. He stated that in a rare case a prisoner will win. He is familiar with the prison regulation that banned any necklaces. He said that a prisoner had a small star of David or a small crucifix, and the prison justified the ban on security concerns claiming that the necklace could be used as a weapon of some kind. He commented that such a justification does not even pass the "red face" test, and that is the function of HB 387. REPRESENTATIVE CROFT explained that civil rights encompasses a broad range of activity, and essentially an exemption to a constitutional standard of religious protection is being placed. He asked what is going to happen next in the civil rights arena. Right now civil rights laws do not cover an individual's home, but there are restrictions against discriminating on race, religion or other factors in renting out commercial apartments. It was decided that civil rights laws for good privacy reasons would not be extended to the small area of an individual home, but it had been decided to include the home. He indicated that he and Ms. Rudinger agreed that people should be able to make those decisions in their own home. He informed the committee that civil rights cannot be carved out from religious practice because civil rights includes religious practice. In his opinion, the most flexible, adequate and appropriate way to pass HB 387 is to keep the standard and have factual determinations continue to be made [by courts]. He acknowledged that either prisons could be carved out or recognize that in most prison situations the CSI is going to be met, and a few will not when they cannot pass the "red face" test. The CSI standard can be kept with civil rights, and it will often be met. This is a policy call for this committee, the next committee and the legislature as whole. REPRESENTATIVE CROFT recognized that his opinion on it is nothing more than an opinion, but he thinks that "carve outs" have a comforting simplicity to them because what is going to happen is known in every prisoner and civil rights litigation. The result has been predetermined with "carve outs" and that may be, given the testimony heard today, what the committee feels comfortable with. "Carve outs" certainly are cleaner, but he does not believe that they are the appropriate fix to some of these troubling areas. Number 1601 CHAIR JAMES asked if the least intrusive method does away with a CSI. REPRESENTATIVE CROFT replied that maybe "least intrusive method" should be taken out of HB 387. He said he had thought that "least intrusive method" was a standard part of the CSI test, but if "least intrusive method" is not, and he accepts testimony given here that at least in some cases it is not, then he would not have any objection to taking it out. He explained that he has also been reviewing the Turner case that was cited. He noted that he does think that there are some drafting changes that were suggested today that need to be made here, or even more properly in the Judiciary Committee, to make sure that HB 387 accurately encompasses the current state of the law. REPRESENTATIVE HUDSON said that he was trying to draw up the frame of reference that America's forefathers had when they tried to protect religious freedoms, and he suspects that the reference of religion was a great deal more narrower than today. He stated that the committee has heard from the gentlemen who represents the prison interest that inmates are fabricating new religions perhaps even to justify their own individual freedoms, rights to speak out or to act out while they are incarcerated. He has visited the Lemon Creek Correctional facility on a few afternoons, and he is very glad to get out of there when he is done, but it is good because it shows just how unregulated society really has different viewpoints [than law-abiding citizens]. He commented that he thinks that unless someone has some understanding of what religion is being protected and the protection is not wide open, it surely could infringe upon other people's legitimate civil rights. In some cases religion trumps civil rights generally speaking. But maybe in the context that HB 387 might be applied, he is not so sure, and it worries him a little bit about setting something in the law that might provide a tool for people in a prison setting or even people outside a prison setting [to cause harm]. When starting to protect religion, it is easy to do it when thinking of one's own context, but when thought about in a broader, undefined, evolving context then he gets a little nervous about it. He emphasized that he is nervous about trying to uphold religion in the name of religion without understanding what the broader application of it will be. Number 1292 REPRESENTATIVE CROFT acknowledged that other states that have passed religious freedom protection acts or restoration acts have put in those two "carve outs" because they clearly felt safer and comfortable. He remarked that he has a theoretical disagreement with ["carve outs"] but he perfectly understands the point and the practical difficulties that "carve outs" solve. CHAIR JAMES recognized that people can falsify and take on religions, but if that is a reason why religion is not to be protected, then her religion is not protected and neither is anybody else's. To protect the good, the bad has to be protected as well, and the problem is worse if nothing is protected. She stated that she has always believed that the freedom afforded by this country, of which she is so proud to be a citizen, only extends up to where she runs into someone else's freedom, and everyone needs to understand that. She said that because there are more people now which result in more challenges, different views and diversity, individual freedoms are narrower. She noted that everyone has to live within those [new] parameters, but no one wants others to invade or infringe upon their individual parameters, and that is the whole issue. She commented that [narrower parameters] are probably something that are understood by everyone, and the opportunity to be protected is coveted in this country. She would put religion ahead of any other civil right, and she says that simply because she thinks it is more important. CHAIR JAMES reiterated that she thinks that most of America's forefathers came to America looking for religious freedom and knew what it was like to not have religious freedom. She said that since Americans depend upon religious beliefs to direct personal lives, she thinks that religion is ahead of any other civil right such as discrimination, any collision between male and female, married and non-married, races or whatever. She explained that it is hard for her to believe that there are religions who would discriminate in such a manner because her religion does not discriminate whether it is against the law or not. She commented that maybe she is a little more biased in that way because she does not understand how other people feel; therefore, she is willing to move HB 387 to the Judiciary Committee. She mentioned that she believes that her vote on HB 387 would be that it does meet the issues that this committee would consider a policy issue and ought to be addressed in this committee. She indicated that legalities and other issues might better be addressed in the Judiciary Committee. Number 1023 REPRESENTATIVE KERTTULA said that constitutional law is a remarkable area of study, but it is not is clean and easy. She noted that the sponsor of HB 387 rightfully continued to say he did not know the answer to many of the questions, and that is truthful because that is the way it often is in constitutional law. However, some of the things that give her pause are because predictions cannot be made, since understanding of all of the religious tenets that other beliefs hold are not known. She asked what happens if the committee allows HB 387 to go forward and it indeed became law. Some of the things heard by the committee are that there will be changes in how monetary awards are given regarding constitutional rights. The committee has entered into the whole discussion about not only having a CSI so that there has to be an extremely good reason for the government to be infringing on a right, but that also a least restrictive means must be established for the imposition of infringement. She indicated that in Alaska traditionally [the courts] have used a sliding scale which Mr. Stark explained as a balancing test and looking at what makes sense. She emphasized that [the courts] have not been as rigid as the U.S. Supreme Court, and that comes about because in Alaska, individuals are valued, and that value really is very high up on the list. In the Alaska State Constitution, civil rights is in Article 1, Section 3, and religion comes in Section 4, so [it is apparent] that Alaskans may look at things just a little bit differently, and Alaskans always have done that. She reminded the committee that state constitutional right has been upheld as recently as 1994 after the U.S. Supreme Court decisions started to affect Alaska. She said that HB 387 obviously causes confusion and is unpredictable. She stated that it would be easy to amend it in statute; if the legislature puts HB 387 in statute, the committee could look forward to seeing amendments. Finally if a situation arises where religion always trumps, she just thinks that it is too big of a risk to see the committee taking this step [of moving HB 387]. She knows everyone feels strongly about [religion] and wants to do the right thing, but she does not feel comfortable with HB 387 at all, even with the civil rights and prison "carve outs" because she believes that the same kind of confusion is left in other areas, notably schools and hospitals. She explained that she thinks everyone is well intentioned, and the committee is making an effort but she cannot support the legislation. Number 7885 REPRESENTATIVE WHITAKER commented that he is fascinated by his attorney colleagues when they use terms such as "comforting, simplicity, clean, and easy" because it gives him pause. He mentioned that he has to stop and think what do those words mean. He asked the committee to take a historical leap and imagine writing the Bill of Rights. Would the committee look at this situation and try to find something with comfort and simplicity? If that were the case, he would say religious freedom is not comforting, simplistic, clean or easy, so to hell with it and not include religious freedom in the Bill of Rights. He emphasized that he would be expeditious and not have religious freedom. Well, [religious freedom] is not going to be clean and easy or comforting in its simplicity but, nonetheless, it is imperative and important. He stated that the committee should accept the challenge and let HB 387 move forward. Number 0680 REPRESENTATIVE OGAN remarked that he is tempted to move a conceptual amendment but he will let it slide for now. He noted that he had heard some compelling arguments regarding "carving out" prisoners, but he just has to believe that the courts have somewhat twisted interpretations of what he believes the First Amendment is all about. He reiterated that [courts] prohibit his free exercise of his religious beliefs in certain governmental activities. He said that nowhere in the Constitution does it say that there is separation of church and state, but he believes that it is a court doctrine, or maybe it was a statement by one of the founding fathers. He noted that in the name of being politically correct [courts], have restricted people's abilities to express their religious beliefs freely. For example, he cannot go into a school and make moral statements about what he thinks would help guide young people to make better decisions in their lives. He reminded the committee that there is a move afoot right now to allow display of the Ten Commandments in schools, and he guesses it is good that the Ten Commandments are carved into the walls of the U.S. Supreme Court [building], otherwise the Ten Commandments would have been painted over by now. He commented that he will let caution go to the wind and go for passing HB 387 out [of committee]. Number 0509 REPRESENTATIVE HUDSON explained that the House State Affairs Standing Committee really is more of a policy forum than the Judiciary Committee. Next to the Floor of the House, the House State Affairs Standing Committee is probably the biggest policy forum in the process. The committee process is paramount, and trying to put something out there truly states a non-conflicting (as much as possible) public policy statement. He indicated that he does not view HB 387 [as non conflicting] because after all of the testimony that he has heard, he is really of the belief that there has to be some "carve outs" in HB 387, or it is not a policy that he can support; for that reason, he will not vote to move it out. Number 0423 REPRESENTATIVE GREEN made a motion to move CSHB 387(HES) out of committee with individual recommendations and attached indeterminate fiscal note. REPRESENTATIVE KERTTULA objected. A roll call vote was taken. Representatives Green, Ogan, Whitaker, and James voted in favor of moving the bill. Representatives Hudson, Kerttula, and Smalley voted against it. Therefore, CSHB 387(HES) moved from the House State Affairs Standing Committee by a vote of 4-3. CHAIR JAMES called for a brief at-ease at 9:40 a.m. and called the meeting back to order at 9:41 a.m.
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