Legislature(2001 - 2002)
04/10/2001 08:09 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 195 - FREEDOM OF RELIGION Number 0132 CHAIR COGHILL announced that the first order of business would be HOUSE BILL NO. 195, "An Act requiring governmental entities to meet certain requirements before placing a burden on a person's free exercise of religion." Number 0156 REPRESENTATIVE FRED DYSON, Alaska State Legislature, came forward to testify as sponsor of HB 195. He began by saying, "One of the really disgusting things about my critics is how often they're right." Jennifer Rudinger, Executive Director of the Alaska Civil Liberties Union, had suggested four amendments to HB 195, and the co-sponsors, myself and Representative Eric Croft, agree that two of them should be adopted. As for the other two suggestions, "One of them we think she's wrong and one of them we still have to think about," Representative Dyson said. Number 0271 REPRESENTATIVE DYSON explained that the first change with which he and Representative Croft concur is that everywhere in the bill where it says the government shouldn't put a "burden" on religious expression, it should instead say "substantial burden". The second change with which they concur is on page 2, line 21, where the words "clear and convincing" should be deleted. He said the choice before this committee is to do nothing, to accept those two amendments and fix that part now and pass the bill out, or to pass the bill out "and we'll fix it in Judiciary, if that committee agrees." CHAIR COGHILL noted that Ms. Rudinger was on the teleconference line as were three other witnesses. Number 0395 REPRESENTATIVE JAMES said she was inclined to agree with saying "substantial burden" as opposed to "burden", but that she had a problem with deleting "clear and convincing" as opposed to just "demonstrating" because it seems that might weaken the most important part and leave the bill unbalanced. She asked Representative Dyson to respond to that. Number 0477 REPRESENTATIVE DYSON deferred to Representative Croft and suggested that the committee also hear from Ms. Rudinger on the subject. Number 0511 REPRESENTATIVE ERIC CROFT, Alaska State Legislature, co-sponsor of HB 195, came forward to testify. He said one of the goals of HB 195 is to get as close as possible to Alaska state law before the United States Supreme Court's 1990 Smith decision. That state law was a set of standards that had evolved over 30 years and had been found to work to protect religions liberty, he said. The "clear and convincing" standard was never part of that jurisprudence, and it is a very tough standard, "the toughest standard we use in the civil law," he explained. REPRESENTATIVE CROFT said the state legal tradition involves some very careful balancing. He gave examples of cases including one involving the Sikh religion, "where they are required by their religion to carry knives. That is legitimate. That's part of the Sikh tradition. But schoolchildren wanting to carry their Sikh knives to school?" Another case concerned whether prisoners have the right to wear a crucifix and whether that could be used as a weapon. "So these [cases] involve some very difficult balancing issues on public safety," he said. "The balance that was struck is the one we wanted to restore, and this ["clear and convincing" standard] wasn't part of it." REPRESENTATIVE DYSON suggested asking Ms. Rudinger to comment. Number 0694 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AKCLU), testified by teleconference. She said the AKCLU had just given the committee a position paper, which on page 10 briefly discusses the group's objections to the "clear and convincing" evidence standard. She said that since "strict scrutiny" [the highest level of scrutiny that can applied to a statute] will be applied to any law that substantially burdens free exercise, "it's not necessary to throw 'clear and convincing' into it." She continued: You're already using the very highest standard. ... But when you start talking about evidence, it's not clear how that is going to be interpreted. You don't usually find a clear and convincing evidence standard in this kind of a case, and often cases like this can be disposed of on what's called summary judgment, where the court can just look at the law, both sides stipulate to what the facts are, and then the court will do the weighing under strict scrutiny. If you demand a showing of evidence, it might be interpreted to push this thing to trial, which is more expensive for the person claiming free exercise of religion, because they're the ones trying to get exempt from a government law, and now to have to have the government putting out evidence, then the other person will have to put out evidence, and it might actually drive up the cost of litigation. And since it is unnecessary, we just would urge that it be stricken to really tone down the standard and make it more clear. Number 0865 CHAIR COGHILL sought to clarify the places in HB 195 where the co-sponsors were recommending that amendments be made: Page 2, line 21, Delete "clear and convincing" Page 2, line 19, before "burden", Insert "substantial" Insert change throughout the bill. REPRESENTATIVE DYSON said that was correct, and added: Page 2, line 1, [in the title] before "burden", Insert "substantial" Number 0930 REPRESENTATIVE DYSON added that some of the national groups with whom the sponsors have been corresponding agree with Representative James that the "clear and convincing" language -- although it may be implied, as Representative Croft and Ms. Rudinger believe -- should stay in. Among them is the lead attorney for the Home School Legal Defense Fund. CHAIR COGHILL explained that he wanted to make sure that it is clear what the sponsors are proposing before continuing with testimony and proceeding with discussion. He announced his intention to try to move HB 195 to the next committee of referral. Noting that it has a House Judiciary Standing Committee referral and that some of the issues "go right into constitutional questions," he said he is looking for a clear policy recommendation [from the House State Affairs Standing Committee] and suggested focusing on the bill as a whole. Number 1132 R.D. LEVNO, testified by teleconference. She said she has been an Alaskan since 1969 and represents an unorganized part of the community that is "alarmed at the increased encroachment and entanglement of religion and government and law." She said she opposed HB 195, and stated, "We have hundreds of religions and hundreds of minorities, and I think HB 195 can pit one religion against another and can make it hard to defend against minority discrimination of all kinds on the excuse of religious beliefs." CHAIR COGHILL asked Ms. Levno if she was speaking as an individual or for a group. MS. LEVNO said she was speaking for herself. Number 1253 MICHAEL STARK, Assistant Attorney General, Criminal Division, Department of Law, said he had served as lead counsel for the Department of Corrections for the past 21 years and is [speaking for both departments] this morning. MR. STARK said Mr. Royce would address some of the more general concerns of the Department of Law and other agencies concerning the bill. He referred to earlier testimony saying, "We know that there's not a problem in Alaska in terms of analyzing religious issues and substantial religious burdens on people's exercise of religions." He said as he understands the sponsors' statement, they want this law adopted just in case the [state] Supreme Court changes its mind and decides to follow the U.S. Supreme Court's view in overturning the Smith decision. He said the pre-Smith analysis is the one now being applied by the Alaska courts and suggested, "This is not a problem that's broken; it doesn't need to be fixed." Number 1346 MR. STARK said he much preferred the wording "substantial burden", as it is consistent with all of the pre-Smith federal case law and with Alaska case law. Similarly, he said, there is no need for the "clear and convincing" evidence standard. Number 1378 MR. STARK said one other aspect of HB 195 that is "very troublesome" is on page 2, line 23. Currently, if a governmental entity places a burden on somebody's free exercise of religion, the government has to demonstrate that there is a compelling state interest to do that. If the government does that, then the burden must be the least restrictive means of furthering that compelling governmental interest. "And certainly from the corrections standpoint, that creates a number of problems," he said, "particularly in light of the resources that are available to the Department of Corrections." MR. STARK reminded the committee that the people with whom the Department of Corrections is dealing are prisoners, including murderers, kidnappers, rapists, and armed robbers. He characterized them as people who have not demonstrated the best civic responsibility and who often look for ways to "jerk the chain" of the system. "Certainly a number of them have very sincere, legitimate religious beliefs, and those have been honored," he said. There is a chaplain's office in the Department of Corrections central office and volunteer chaplains throughout the state work with inmates in the facilities. Mr. Stark assured the committee, "There's not a problem with inmates being able to practice their religion." MR. STARK predicted that if HB 195 is passed and includes the "least restrictive means" of furthering a compelling governmental interest, the Department of Corrections will have problems. In the Corrections setting, when an inmate requests something to practice religion, the compelling governmental interest that must be considered typically is security of the facility and safety of persons, he explained. Number 1528 MR. STARK listed requests that inmates have made. They include: To wear headwear in which contraband or weapons can be hidden. To meet in groups for religious purposes at times when sufficient staff is not available to supervise them. To use candles. To use wine as part of a religious sacrament. To have special foods that are expensive or difficult to obtain or which have not passed health inspections. [However, he said, most facilities have potlatches once or twice a year that include food from the wild that is part of the Native culture.] To not participate in required aspects of the sexual offender treatment because its "against their religion" to talk about their offenses or to submit to a test that objectively measures deviant sexual arousal. To practice witchcraft or cult behavior such as making dolls in the likeness of a staff member or another inmate, and poking it with sharp objects. To participate in religious meetings with members of the public, including minors not accompanied by a parent or a guardian. To use tobacco as part of a religion. To wear robes and other religious garments that can be used to hide contraband or weapons. To use sweat lodges at unreasonable times. To not participate in groups or classes or work or be housed with members of other races [which he said is a very common request]. To associate only with members of the inmate's own religion. MR. STARK explained that if the law requires the least restrictive means, there will be violations under this statute and there will be liability because it is not practically possible given the resources that the state has. He testified: The correctional staff are stretched to the limit in just maintaining safety in the facility and carrying on their regular duties. They don't have time to provide the staff that can address almost every one of these concerns if, in fact, there were enough staff persons simply to be present when inmates requested to practice these particular religious beliefs. Number 1869 MR. STARK told the committee that Congress passed a federal law that went into effect in September 2000. That law, the Religious Land Use and Institutionalized Persons Act, includes the standard that is in HB 195 and covers prisoners. "We're dealing with the problems that has caused," he said. "There is no need for this state law." Number 1920 REPRESENTATIVE WILSON said she thought there are things prisons have to do because of safety, and that the prisoners lose some privileges simply because they are in prison. "How much weight does that hold?" she asked. MR. STARK replied: If this bill becomes law, none. You don't make any allowances in here for that situation. What the courts have held is that prisoners obviously lose some rights by virtue of incarceration, but only those rights which are necessary to further a compelling governmental interest. So if they have any constitutional rights, they're only limited to the extent necessary to manage the facility and preserve security... REPRESENTATIVE WILSON asked, "What about when something has ... to do with safety of others?" MR. STARK said: That is the compelling governmental interest we are talking about. So if there is something that one inmate wants to do which threatens the safety of other people, then we identify that compelling interest and then ... do a balancing. Under present law ... [prison officials] look at what the right is the inmate wants versus what the concern is, and if there is a way to balance those interests and still allow it to happen. That's not the "least restrictive means" test that this bill would impose. Number 2020 REPRESENTATIVE JAMES recalled that during World War II, a person didn't get to be a conscientious objector simply because he said fighting was against his religion. He had to show evidence that he belonged to an organized religion that included that prohibition against fighting in its creed. She said she did not want to support "religion with a small r," simply what a prisoner believes, but only the practice of an organized religion that includes rules and regulations that make the follower a better person and doesn't allow them to be criminals. She said the United States Constitution protects prisoners from illegal search and seizure, gives them due process, and assures that they are assumed innocent until proven guilty, but "I believe after that, they can lose every freedom they have while they're incarcerated." She acknowledged that over the years, judges and legislators have modified the legal system, "and maybe they've modified so much that we're in a trap." Number 2121 MR. STARK said Representative James had raised a valid point "in terms of what we'd all like to think religion is, which is to make us better people." The problem, he said, is that there are ... hundreds of religions around the world. "Our Constitution didn't just say the three or four principal religions are the ones that are protected; they're all protected," he said. This bill talks about free exercise of religion, and some religions believe in violence against other people. Number 2223 REPRESENTATIVE JAMES asked Mr. Stark how he would define a "cult." MR. STARK said he'd have to think about that. REPRESENTATIVE STEVENS observed that HB 195 seems to speak to all Alaskans, not just those who are institutionalized. "Is there a way of exempting them [prisoners] from the requirements of this bill and placing them under federal law?" he asked. Number 2233 MR. STARK said everyone is under federal law, and it was not necessary to include anything pertaining to that in this bill. CHAIR COGHILL recalled that last year, there had been extensive discussion of exemptions. He then noted that there were many department people present to testify and asked that those from the Department of Law keep in mind that HB 195 was going to be heard in the House Judiciary Standing Committee that he wanted the public policy debate to begin in the House State Affairs Standing Committee also wanted to give the sponsors a chance to respond. Number 2321 REPRESENTATIVE DYSON wished to make three points. He said: We're only going back to a standard that has been in place since 1960 ..., and as the gentleman testifying says, it's not a problem because the state has been applying it. I absolutely cannot understand the logic that says that this bill, which only puts into law that which has was in law for 30 years and has been practiced by a Supreme Court, is going to cause any, let alone a landslide of issues coming up. Secondly, just before he [Mr. Stark] finished his testimony, he said that now with the new federal law, the institutions are under this same standard and so this law is not needed.... If, indeed, we pass this and it just has the same standard as the federal law that's already in effect, nothing changes except that it might be dealt with in a state court. Lastly, every issue that has come up in this discussion has been dealt with before, at least in a generic sense, and I can show you pages of citations ... For instance, in Felix v. Rowan, in federal court, they said, "Prison order, security and administrative efficiency is a part of the compelling state interest." The state can use that, so if somebody wants to do their ceremony at a time that's inconvenient because of staffing ..., the state can ... [deny that on the basis of] administrative efficiency. There's quite a few citations on that. Same thing on the discrimination. These have gone to court; these have been decided, and the precedents are there .... Number 2456 RICHARD BLOCK, Christian Science Committee on Publication for Alaska, expressed support for the adoption of HB 195. He said what he sees as the value of adopting this legislation is the overall tenor of the whole bill: it sets out an expression by the legislature as to how it regards legitimate religious activity in the state and asserts that it wants to see legitimate activity protected. For that reason, he would like to see HB 195 adopted. He also noted support for the changes proposed by Representative Dyson. CHAIR COGHILL noted that HB 195 has once again brought about discussion of what is religion and how is it protected in this society, an issue that has been debated since the founding of this country. Number 2577 LARRY PERSILY, Deputy Commissioner, Department of Revenue, came forward to testify. He explained that he deals with the divisions of charitable gaming, permanent fund dividend, and child enforcement support. Child support covers more than 100,000 people, there are more than 600,000 dividend applications a year, and there are hundreds of charitable gaming licensees. Every week, he sees formal appeals, notices of reconsideration, or court cases in which someone is challenging department decisions. MR. PERSILY said that as he looks at HB 195, he sees an increase in the number of appeals having to deal with those three areas. For example, doing missionary work outside of Alaska is not an allowable absence under the dividend statutes. Under this bill, someone denied a dividend because he or she left the state for a church program is going to come back and say, "show me the compelling state interest." The Child Support Division already has had some people protest that it is against their religion to submit to genetic testing. "We've won those cases, but I look at HB 195 and wonder, will we win the next one?" he said. Other potentially problematic areas include the alcohol excise tax, which applies to sacramental wines, and state regulation of bingo games run by churches. MR. PERSILY said he did not expect religious groups to be unreasonable. But in light of dealing with hundreds of thousands of cases a year, "I believe this bill would increase the number [of cases] that go to formal hearing and that end up in court, which detracts from time we're able to spend on other cases," he said. Although the Department of Revenue tries to be as accommodating as it can within the law, "I see some problems coming down the road with HB 195," he concluded. Number 2800 CHAIR COGHILL observed that any time the legislature discusses limiting government, it is important to realize that the limitation may cause problems for [some] agencies of government. He said it is important to remember that the whole idea of our government is restricting government and guaranteeing individual freedom. Number 2897 ANGELA SALERNO, Program Coordinator, Division of Public Assistance, Department of Health and Social Services, came forward to testify. She expressed concern about the language in Section 4 that allows a person to bring civil action against an agency when the person feels his or her free exercise of religion has been substantially burdened. She said that could make the division quite vulnerable to costly litigation. MS. SALERNO explained: We're now in the business in Public Assistance of assisting families toward self-sufficiency, off welfare towards work. When an applicant comes to the Public Assistance office, they're routinely told that work is part of the deal. They are required to fill out a family self-sufficiency plan that gives the steps they are going to take toward self-sufficiency through work. The eligibility technician, a fairly low-level position, the first person the applicant will come into contact with, will routinely tell them that they must work in order to be eligible for public assistance. At that point, if the individual tells the eligibility technician that it's against their religion to work outside the home, they will be denied benefits. Liability could attach at that point ..." TAPE 01-36, SIDE B MS. SALERNO described a case in which applicants, members of a very small Jewish sect, claimed their religion did not allow the woman to work outside the home. The agency lost that case and had to pay court costs and benefits, she said. MS. SALERNO said the agency's other concern is that "if that individual or others do not work outside the home, their clock is still ticking." Welfare benefits now are limited to 60 months. "So if our hands are tied ... and we cannot compel folks to go to work, we have no way to help them become self- sufficient." Number 2917 REPRESENTATIVE JAMES commented, "You shouldn't worry about them running out of their time; it's ... the law, their problem, not yours." Number 2906 CHAIR COGHILL asked Ms. Salerno if the case the department lost was a civil action. MS. SALERNO said it was a civil rights action. Number 2883 DENNY K. WEATHERS, who identified herself as "just an Alaskan" from Prince William Sound, testified by teleconference. She said the moral values in the State of Alaska as well as throughout America have been disintegrating and "I wonder if it could be the powers that be right now, not directly related to you guys, but somewhat." MS. WEATHERS said she said she believes in the Constitution of the United States and of the State of Alaska "in its entirety, not just parts and pieces." She called attention to page 2, lines 20-23 of HB 195. She testified: You have you want to protect the right but that is unless it directly affects the government. In other words, it's OK to have religion as long as it doesn't directly affect the government. OK, in the Statehood Act, Section 3, that was written in 1958, passed in 1959, it says, "the constitution of the State of Alaska shall always be republican in form and shall not be" - and these are the key words - "shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." When you go to the Declaration of Independence, I find that most everything we do in Alaska now is repugnant to that. Look at grievance Number 9, "He has made judges dependent on his will alone for the tenure of their offices and the amount of their payment." That's just one. Look at Number 17, and I'm going to point this out because you guys have full bills and tax bills coming in to do this, Number 17 says, "For imposing taxes on us without our consent." Then you have Number 18, which says "depriving us in many cases of the benefit of trial by jury." I know, Mr. Dyson, you were on the Fisheries Committee where you found out that fishermen even though they requested jury trials are not getting that, given a jury trial. And that brings me to Ms. James .... CHAIR COGHILL apologized for interrupting, but asked the witness to speak to the point of HB 195. He asked her to summarize a yea or nay position on HB 195. Number 2723 MS. WEATHERS continued: [Representative] James brought up the due process in the law, and she was talking about what rights they have. She must be aware that we don't always get due process of the law. Some people ... in Alaska are arrested just because they don't have a Social Security number, and jailed. That's just happened recently because ... you guys passed the Senate Bill 19 and all these other bills that require Social Security. So what I'm getting at is religious beliefs. Social Security number. The right you have to provide it. It goes against people's rights, but you don't seem to care about that. Number 2686 CHAIR COGHILL said: We do care about it, and that's one of the reasons we're having this discussion; and the compelling government interest, the least restrictive means, substantial burdens are the things that we are discussing ... in this particular bill. And there are problems, and they're worthy of legitimate discussion. So I appreciate your weighing in on it. I hope that you'll enjoy listening as we discuss the remainder of this bill, because those are the very things that we will be discussing .... CHAIR COGHILL then called upon Mr. Royce and asked him to summarize the Department of Law's position on HB 195. Number 2649 ROBERT ROYCE, Assistant Attorney General, Governmental Affairs Section, Department of Law, testified by teleconference. He said it is the Department of Law's position that HB 195 has been introduced in response to a federal court decision that the Alaska Supreme Court has refused to adopt. He said he wanted to make sure the committee was aware of the current state of the law regarding free exercise, and he cited Frank v. State, a case in which the court allowed an Athabascan Indian to take a moose out of season for a funeral potlatch. In that case, the court said: No value has a higher place in our constitutional system of government than that of religious freedom. The freedom to believe is protected absolutely. The freedom to act on one's religious belief is also protected, but some protection may be overcome by compelling state interest. Because of the close relationship between conduct and belief, and because of the high value we assign to religious beliefs, religiously impelled actions can be forbidden only when they pose some substantial threat to public safety, peace, or order, or where there are competing governmental interests that are the highest order and are not otherwise served. MR. ROYCE said the foregoing is the current status of the law regarding free exercise cases under the Alaska Constitution. Number 2588 MR. ROYCE said it is the Department of Law's position that the constitutional right is already protected, and for the legislature to establish an additional requirement of the "least restrictive means" would change the test. He pointed out that that was an element of the federal act that had been declared unconstitutional, and it was declared unconstitutional in part because ... the least restrictive means was not used in the pre- Smith jurisprudence [which Representative Dyson is aiming to restore]. "So I think that by adding that additional 'least restrictive means' test, which doesn't appear in our state court cases, it would be changing or altering the right under the Alaska Constitution," he said. Number 2532 CHAIR COGHILL asked, "Isn't that part of what was handed back to the states to decide?" MR. ROYCE replied no. He noted that although the sponsor statement for HB 195 says that the states were invited by the court to pass legislation on their own level, "that can be nowhere gleaned from reading the decision.... There has been no invitation by Congress to pass similar legislation on the state level." Number 2487 CHAIR COGHILL told Mr. Royce that he finds himself "in the precarious position of trying to bring us [the House State Affairs Standing Committee] to a policy decision without wading through every Supreme Court case," knowing that HB 195 also has a referral to the House Judiciary Standing Committee and those things are going to be scrutinized there. He asked the House State Affairs Standing Committee to discuss whether the "least restrictive means" is something they want to bring up for discussion because the bill sponsor has asked them to discuss it. Part of what this committee needs to decide is if they want the policy discussion to continue, and if so, in what form, he added. CHAIR COGHILL asked the sponsor to come back before the committee to reiterate the amendments and give any response he wished to what had been said. Number 2390 MS. RUDINGER spoke up to tell the Chair that she was still waiting to testify by teleconference. CHAIR COGHILL said this is third time she had come before the committee. "You dumped a pretty good load of material on our desk a couple of minutes before the meeting, and we're trying to address at least two of those," he said. He explained that he was going to put her written testimony and suggestions for amendments in the record, and that most of the issues she raised were going to be discussed in the House Judiciary Standing Committee. Number 2322 REPRESENTATIVE DYSON said all of the issues Ms. Rudinger is raising are substantial and worthy of discussion, "and my commitment is we will do that, and very thoroughly, in Judiciary." REPRESENTATIVE DYSON said he would prefer to move the bill along, suggesting that the committee make the one amendment Ms. Rudinger had suggested on which all agree, "that is to insert the word 'substantial' in front of 'burden' everywhere it appears." Number 2258 REPRESENTATIVE DYSON said as he understands it, HB 195 is "only protecting that which has been the common practice since 1960 ... and restoring that in statute." He said he was delighted with Mr. Royce's testimony that the [Alaska] Supreme Court has been applying these kinds of standards. He noted that another Supreme Court might not have the same attitude. He went on to say that he was disappointed to have the administration weigh in against HB 195. "Nothing will change," he emphasized, "and to move away from the 'least restrictive' is, I think, a startling position. Government only ought to restrict freedom of speech or freedom of religion in the least restrictive way that still serves the government's compelling interest." CHAIR COGHILL announced that it was becoming apparent that the committee was not going to get to HB 42, and apologized to those waiting. Number 2095 CHAIR COGHILL announced his intention to close testimony on HB 195. He noted the sponsor's suggestion to amend HB 195 by adding the word "substantial". Number 2029 REPRESENTATIVE DYSON pointed out that the word needs to go in the title as well as on line 19. Number 2046 REPRESENTATIVE WILSON offered a conceptual amendment [Amendment 1]: page 1, line 2, before "burden", Insert "substantial" Page 2, line 19, before "burden", Insert "substantial" Insert change throughout the bill There being no objection. Amendment 1 was adopted. CHAIR COGHILL asked the will of the committee on HB 195. Number 2061 REPRESENTATIVE JAMES moved to report HB 195, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 195(STA) was moved from the House State Affairs Standing Committee. CHAIR COGHILL announced that he was moving HB 200 to the bottom of the calendar.
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