Legislature(1999 - 2000)
03/02/2000 08:10 AM House CRA
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE COMMUNITY AND REGIONAL AFFAIRS
STANDING COMMITTEE
March 2, 2000
8:10 a.m.
MEMBERS PRESENT
Representative John Harris, Co-Chairman
Representative Carl Morgan, Co-Chairman
Representative Andrew Halcro
Representative Lisa Murkowski
Representative Fred Dyson
Representative Reggie Joule
MEMBERS ABSENT
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 387
"An Act prohibiting governmental entities, including municipalities
and school districts, from restricting a person's free exercise of
religion."
- MOVED OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 387
SHORT TITLE: FREEDOM OF RELIGION
Jrn-Date Jrn-Page Action
2/16/00 2215 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2215 (H) CRA, HES, STA, JUD
2/23/00 2289 (H) COSPONSOR(S): COGHILL, DYSON
2/25/00 2315 (H) COSPONSOR(S): HALCRO
3/01/00 2376 (H) COSPONSOR(S): CISSNA
3/02/00 (H) CRA AT 8:00 AM CAPITOL 124
WITNESS REGISTER
REVEREND JOSEPH STORY, Government Relations Representative
Northwest Religious Liberty Association
1507 Davidoff Street
Sitka, Alaska 99835
POSITION STATEMENT: Supported HB 387.
REPRESENTATIVE CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Testified as sponsor of HB 387.
GEORGE ELIASON
102 Kuhnle Drive
Sitka, Alaska 99835
POSITION STATEMENT: Urged the committee's support of HB 387.
AMY JO RIST
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
MICHAEL S. REILLY
PO Box 974
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
LYLE AXELARRIS
PO Box 964
Tok, Alaska 99780
POSITION STATEMENT: Discussed concerns with HB 387.
REVEREND ROBERT NICHOLSON, Pastor
Chapel by the Lake
Minister, Presbyterian Church USA
Box 210607
Auke Bay, Alaska 99821
POSITION STATEMENT: Supported HB 387.
HEATHER ALEXANDER
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Expressed concern with HB 387.
JEAN HATEM
PO Box 974
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
TABATHA PARKER
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
KAREN POWER
PO Box 789
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
THOMAS POWER
PO Box 789
Tok, Alaska 99780
POSITION STATEMENT: Opposed HB 387.
KEITH FREDRICKSON
No address provided.
POSITION STATEMENT: Supported HB 387.
ACTION NARRATIVE
TAPE 00-15, SIDE A
Number 0001
CO-CHAIRMAN MORGAN called the House Community and Regional Affairs
Standing Committee meeting to order at 8:10 a.m. Members present
at the call to order were Representatives Harris, Morgan, Halcro,
Murkowski, Dyson and Joule. Representative Kookesh was not in
attendance.
HB 387-FREEDOM OF RELIGION
CO-CHAIRMAN MORGAN announced that the first order of business would
be HOUSE BILL NO. 387, "An Act prohibiting governmental entities,
including municipalities and school districts, from restricting a
person's free exercise of religion."
Number 0071
REVEREND JOSEPH STORY, Government Relations Representative,
Northwest Religious Liberty Association, read the following
testimony:
We strongly support bill [HB] 387 for several reasons.
First, we are mindful of the fact that the Supreme
Court's decision in Sherbert v. Verner (1963)
specifically involved a Seventh-day Adventist church
member who had been discriminated against at her place of
employment on the basis of her firmly held beliefs. We
take special interest in the fact that it was in this
particular case that the high court ruled that the
state's interest in denying unemployment benefits -
merely because Mrs. Sherbert would not make herself
available for work on Saturday (her Sabbath) as required
by the state's unemployment compensation law - was
insufficiently compelling to warrant an infringement upon
this most fundamental right: the free exercise of
religion.
Second, Representatives Croft, Dyson, Coghill and
Halcro's efforts to restore the "compelling state
interest" and the "least restrictive means" tests as
established in Sherbert v. Verner (1963) and Wisconsin v.
Yoder (1972), respectively, could not come at a better
time. Such a provision will effectively restore an
individual's right to free exercise of religious
convictions at the state level, and prevent the
unnecessary discrimination that occurs on a daily basis
in the public sector, particularly in the workplace. As
[Justice] Sandra Day O'Connor stated in the Supreme
Court's decision in Employment Division of Oregon v.
Smith, the court made a critical mistake when they failed
to offer "convincing" evidence "to depart from the
settled First Amendment jurisprudence." The fundamental
departure allows states to "make criminal an individual's
religiously motivated conduct" in a way that burdens [an]
individual's free exercise of religion"; puts at a clear
disadvantage minority religions and religious practices
when leaving accommodation to the political process; and
enables government to ignore religious claims altogether,
if it suits them, without offering any compelling
justification to support their actions (494 U.S. 872 at
897, 902). However, as Justice O'Connor reiterated in
Smith:
The essence of a free exercise claim
is relief from a burden imposed by
government on religious practice or
beliefs, whether the burden is
imposed directly through laws that
prohibit or compel specific
religious practices or indirectly
through laws that, in effect, make
abandonment of one's own religion or
conformity to the religious beliefs
of others the price of an equal
place in the civil community(494
U.S. 872 at 897).
Number 0395
Finally, to place on the shoulders of government the
burden to prove a compelling interest in order to protect
the greater, or common good, is to place an individual's
claim to religious freedom in its rightful place.
America's founders, namely Thomas Jefferson and James
Madison, believed that the free exercise of religion was
the most "liberal" of all the rights Americans could
claim, the one right that placed the greatest trust in
the capacity of private choice, and the one least
dependent on positive law. In other words, a right that
was considered "unalienable." Again as Justice O'Connor
stated in Smith, "The First Amendment was enacted
precisely to protect the rights of those whose religious
practices are not shared by the majority" (494 U.S. 872
at 897, 902). We believe that HB 387 will restore this
historical intent at the state level.
REPRESENTATIVE DYSON asked if his understanding that [HB 387] would
change from a "reasonableness" standard to a "compelling state
interest" standard was correct.
REVEREND STORY answered yes. He noted that the "compelling state
interest" standard was the law of the land from 1963-1990 and then
under the national Religious Freedom Restoration Acts(RFRA) from
1993-1997.
REPRESENTATIVE DYSON inquired as to what would happen if HB 387
passes and a person claims, as a part of his/her religion, to use
a controlled substance, which is in conflict with the state's laws,
in the exercise of that religion. Representative Dyson mentioned
that he was thinking of peyote.
REVEREND STORY pointed out that was the issue in Employment
Division of Oregon v. Smith. He explained that the State of Oregon
had provisions for counties to vote themselves dry. Within those
provisions there were exceptions that in dry counties, those
religions that used alcohol as part of its liturgy would be
accepted. With regard to peyote, Reverend Story commented that
although peyote is used in Native American religious ceremonies, it
is not widely abused. On the other hand, alcohol is a widely
abused drug and there have been exceptions made for that. Reverend
Story said, "It does seem to me that the courts are able to handle
these exceptions on a case-by-case basis." He noted that he had
often wondered why Oregon did not deal with it on that basis [a
case-by-case basis].
Number 0726
REPRESENTATIVE DYSON related his understanding that Reverend Story
is saying that the courts could handle such a conflict and by
inference, decide whether religion is being used as a phony shield
in order to abuse drug laws.
REVEREND STORY agreed. He explained that the "compelling interest"
test gives the courts the latitude to deal with specific issues.
REPRESENTATIVE DYSON turned to the situation in Alaska of the
natural resource work that is scattered across remote areas of the
state. Those employees work very different schedules. He inquired
as to what would happen if an employee brought to the site by the
employer, refuses to work one out of every seven days due to a
religious belief. What will the "reasonable compelling interest"
say the employer should do to accommodate that employee?
REVEREND STORY recalled that when the "compelling interest" test
was used, the courts also used the "undue hardship" to employers in
the interpretation of this. Again, the court did a reasonable job.
He pointed out that there is 30 years of experience with this
["compelling interest" standard].
REPRESENTATIVE DYSON surmised then that on an off-shore oil
platform or a floating processor, the employer would not have to
make extra space or have extra helicopter flights [in order to
accommodate a religious practice]. That would be viewed as an
"undue hardship" on the employer.
REVEREND STORY indicated agreement. However, this would place
pressure on the employer, the employer that makes no attempt to
accommodate an employee when accommodation is possible, to make
reasonable attempts to accommodate the employee. Although one
would not expect employers to go through undue hardship, one would
expect the employer to provide a reasonable accommodation.
Number 1098
REPRESENTATIVE JOULE inquired as to the number of people in Alaska
who would be prone to using peyote for religious practices.
REPRESENTATIVE DYSON commented that peyote is probably not a
problem in Alaska. However, he said he would not be surprised if
Alaska does not have a case in which marijuana is said to be part
of a religious practice.
REVEREND STORY said that he could not provide a definitive answer,
although he is not aware of anyone in Alaska using peyote in
religious practices.
CO-CHAIRMAN HARRIS inquired as to the Supreme Court's compelling
reason to overturn the law [compelling interest standard] that had
been in place for many years.
REVEREND STORY said that he believes that there has been a general
shift in judicial doctrine within the Supreme Court in regards to
the responsibility of the federal government versus state
government and their jurisdictions. In overturning the national
RFRA, U.S. Supreme Court Justice Scalia, in the majority opinion,
added that he believes this [freedom of religion] is an area in
which the states retain the right to regulate. In further response
to Co-Chairman Harris, Reverend Story informed the committee that
he is aware of eight states that have passed legislation similar to
HB 387. He knew of 21 states, including Alaska, that have local
statutes in the works.
Number 1327
REPRESENTATIVE MURKOWSKI related her understanding that the Smith
case said, "The government can prohibit conduct mandated by an
individual's religious beliefs so long as that prohibition is
generally applicable." Therefore, if Red Dog mine, for example,
informed every potential employee that he/she would work two weeks
on and one week off, that would be a generally applicable
condition. If HB 387 were passed and someone knowing the
aforementioned conditions came on and requested a specific day off,
could Red Dog [the employer] refuse the accommodation on the basis
of an undue hardship.
REVEREND STORY stated that in his opinion, an employer that stated
the conditions of employment up-front would have an advantage in
any case that might be brought against them. This has been
litigated and in general, when the employer has clearly stated [the
conditions of employment] the employee who enters such a situation
would be expected to abide by those conditions. He did not expect
that in such a case the employee would find relief in the courts.
REPRESENTATIVE JOULE informed the committee that Cominco has
voluntarily set up a chapel area and the schedule allows
flexibility as well.
REPRESENTATIVE DYSON said he believes that there have been at least
one or more persons in the corrections system who have sued in
order to have peyote available to them in prison in Alaska.
REPRESENTATIVE JOULE commented that he assumed that [the peyote use
in religious practices] would be minimal in Alaska.
Number 1671
REPRESENTATIVE DYSON inquired as what would happen if a person in
the corrections system or an employee of Cominco said that he/she
needed a minister of that person's specific religion.
REPRESENTATIVE CROFT, Alaska State Legislature, testified as
sponsor of HB 387. He echoed Reverend Story's comments that this
legislation would reassert the "compelling state interest" standard
that says one needs to accommodate religious practices unless there
is a good reason not to or there is no other way. However, each
factual situation will need to be determined on its individual
merit. Generally, the prisoner suits have not been successful
under the old standard. He believed that the one or two successful
prisoner suits were cases in which the prisoner wanted to wear
his/her Star of David or crucifix.
REPRESENTATIVE CROFT informed the committee that the federal
constitutional provision says, "Congress shall make no law
respecting an establishment of a religion or prohibiting the free
exercise thereof." Alaska's constitutional provision on this
matter is almost identical. The language does not state that
everyone's religious beliefs have to be facilitated. The question
is whether one is effectively prohibiting a person's religious
beliefs. Therefore, he did not believe a pastor of every
denomination in every prison would have to be provided.
REPRESENTATIVE MURKOWSKI mentioned that she understood subsistence
to be a whole way of life that includes spiritual aspects. She
posed a situation in which a Native group does something, within
that spiritual aspect, contrary to the state's laws. Could this
freedom of religion clause allow this group to practice their of
way of life which includes a spirituality?
REPRESENTATIVE CROFT stated that the answer in all these areas is
"it could." However, he believes the courts have done well to
filter out those factual situations that make sense and those that
[do not]. He said that kind of thing has happened in a more
limited and rational context. Under the compelling state interest
standard there was a decision, Frank v. State, in which an
Athabascan elder took a moose for the potlatch of another elder.
The potlatch was an integral part of the funeral and the moose meat
was an integral part of the potlatch. The elder who took the moose
out of season was prosecuted and the courts overturned the
conviction. The courts said that no compelling state interest was
shown.
Number 2096
REPRESENTATIVE CROFT commented that protecting an individual's
rights in general and their religious freedom rights in particular,
is a messy business. With regard to why Justice Scalia, the most
conservative justice, overturned this protection of religious
principles, he believes Justice Scalia felt the compelling state
interest was messy while the Smith decision is very clean and easy.
However, in his opinion and that of many others, the Smith case
does not honor our tradition of tolerance for religious practice.
Representative Croft said that freedom of religion addresses the
essential issue with regard to whether the government should make
an exception to a generally neutral law. In prohibition, there was
an exception for wine at religious ceremonies, but under Smith
there does not have to be. He explained that under Smith it could
be said that it was not directed at Catholic practice and that no
alcohol means no alcohol and thus no alcohol on Sunday at Mass.
Representative Croft could not believe that is what is meant when
"we" in America talk about religious freedom.
REPRESENTATIVE DYSON recalled that when he worked in the oil fields
at Prudhoe Bay, employees were required to shave their beards for
the Scott air packs thatwere used for rescue work. He then
mentioned the "Old Believers" on the Kenai who grow facial hair as
soon as they are able. Representative Dyson said that he is
delighted to be in such an enlightened state. With regard to the
Athabascan case, he believes the courts were able to make a
determination similar to that of the conscientious objector.
Number 2376
GEORGE ELIASON testified via teleconference from Sitka. He
informed the committee that religious freedom and liberty is the
most precious liberty that one may possess. The Alaska Religious
Liberty Act is intended to provide basic protection for the free
exercise of religion since the U.S. Supreme Court has sharply
curtailed the scope of the First Amendment's protection of
religious freedom. As Representative Croft's sponsor statement
says, this Act "will provide statutory protection for religious
freedom in Alaska by enshrining the compelling state interest test
for all state, municipal, and school district actions." He urged
the committee's support of HB 387. Mr. Eliason said that Thomas
Jefferson said it best, "It behooves every man who values liberty
of conscious for himself to resist invasions of it in the case of
others for their cases may, by change of circumstances, become his
own."
AMY JO RIST testified via teleconference from Tok. Ms. Rist said
that she believes HB 387 is unconstitutional and it does not
protect religious freedom. The "general rule of applicability" can
be selective. If a law says that people cannot practice religion
on a certain day, then it is selective for a certain religion.
Furthermore, the compelling government interest [standard] can
selectively prohibit religious freedom. In conclusion, Ms. Rist
stated that she strongly opposes HB 387.
Number 2529
MICHAEL S. REILLY testified via teleconference from Tok. He stated
that he opposed HB 387, which he believes is unconstitutional.
Furthermore, he believes that the "compelling interest" language is
vague and subjective. Mr. Reilly said that he believes HB 387 will
infringe on religious freedoms.
REPRESENTATIVE DYSON inquired as to how Mr. Reilly felt that HB 387
would infringe on religious freedoms.
MR. REILLY answered that HB 387 would infringe on religious
freedoms through selectability and the "compelling interest of the
state" language. The state can determine however it pleases what
the compelling interest of the state would be. Mr. Reilly believes
that specific religions can be targeted through a generalization
through the "compelling interest" language.
REPRESENTATIVE DYSON asked whether Mr. Reilly had any suggestions
with regard to making the language more clear and more protective.
MR. REILLY replied that there should not be any restrictions
applied at all. In further response to Representative Dyson, Mr.
Reilly informed the committee that he heard about HB 387 via the
Internet.
REPRESENTATIVE CROFT surmised then that Mr. Reilly would prefer
that [the state] not be allowed to infringe on religious practices
even if a compelling interest is shown.
MR. REILLY agreed.
REPRESENTATIVE CROFT commented that now the situation is much worse
and HB 387 offers a middle ground. Currently, under federal court
law no exception at all has to be made. Under HB 387 exceptions
would be provided. Therefore, Representative Croft seemed to
believe that [HB 387] would move toward a better situation,
although it may not move as far as Mr. Reilly would like.
MR. REILLY agreed that HB 387 does not go far enough.
Number 2653
LYLE AXELARRIS testified via teleconference from Tok. Mr.
Axelarris commented that thus far the hearing has missed the point.
He did not see a need for state governments or school boards to
have the compelling interest exception to religious freedoms.
"State agencies, school boards, municipal governments have no right
whatsoever to restrict our religion in any way." He noted his
agreement with Mr. Reilly in that HB 387 does not go far enough.
Mr. Axelarris said that he viewed the language of HB 387 as
covertly manipulative and anti-American. The bill allows a large
loophole with regard to the most fundamental right enjoyed by
Americans.
MR. AXELARRIS said, "I don't see what could possibly compel the
government to restrict religious freedom." He could not imagine
what would be so compelling to allow a school board or a state
agency such as the Department of Transportation (DOT) [to restrict
one's religious freedom]. This seems to be a gross abuse of the
power granted to the legislators. Furthermore, the language is
very vague and does not clearly state who will make decisions to
restrict religious freedom nor is the process of how these
restrictions take place clear.
CO-CHAIRMAN HARRIS recalled that Mr. Axelarris believes that there
should not be any restrictions or laws against the practice of any
religion. He asked, "Sir, do you believe that anything in the name
of religion that infringes on the rights of others should be
allowed." Co-Chairman Harris related his belief that this
country's philosophy is to allow people to practice their
religions, but not heavily impact the rights of others to practice
their religions or lack there of. This bill seems to assure that
a person's right to practice a religion is upheld and not abused,
while at the same time it does not force that religion on other
persons.
MR. AXELARRIS restated his belief that no one should have the right
to restrict another's freedom, which is why he opposes HB 387. He
reiterated that HB 387 [would allow] state governments, school
boards and municipal governments to restrict a person's religious
freedom. Mr. Axelarris said, "I don't agree with you [Co-Chairman
Harris] that that's what this bill attempts to do. If that is your
true intention, then why doesn't the bill say 'Again, we support
everyone's right to practice their religion freely, except where
one person challenges that it interrupts with their freedom.'"
Instead, Mr. Axelarris saw HB 387 as open-ended due to the vague
"compelling interest" [language] allowing the governmental bodies
to restrict religious practices. Mr. Axelarris related his
observation that the government, at all levels, is acting as a
parent with the citizens as their children. He believes that is
really offensive and insulting to the citizens of Alaska. Mr.
Axelarris said, "What you're suggesting, from your statement, was
that the state government in all its forms needs to look out for
the citizens and that they can't handle it amongst themselves. If
a problem does exist, ... in a truly equal and free expression of
religious freedoms, then I believe that could be handled in the
courts. But to make a blanket statement law like this is opening
us up to a big danger in our encroachment of human rights."
[This question was not recorded due to the tape changing to Side B.
Therefore, the question was reconstructed per the committee
secretary's log notes as follows: REPRESENTATIVE HALCRO asked if
Mr. Axelarris would be (upset) if the state no longer plowed the
roads (in the Tok area.)]
TAPE 00-15, SIDE B
MR. AXELARRIS replied no and said that he could handle that
himself.
Number 2949
REPRESENTATIVE CROFT expressed the need to distinguish between two
ways of infringing on someone's religious freedom. First, when
someone tries to stop religious freedom, that is always prohibited.
Even after the Smith decision, there was a U.S. Supreme Court case.
That case revolved around some animal cruelty laws put in place in
a municipality in Florida. He indicated that animal cruelty laws
would seem fine, except that these were aimed at the influx of
Caribbean immigrants who practiced a certain religion that included
an animal sacrificing element. The courts found that this
particular law was intended to stop a religious practice.
Representative Croft stressed that such situations would, even
after Smith, be prohibited.
REPRESENTATIVE CROFT commented that the need for a "compelling
interest escape hatch" is to address those laws that are not
directed at religion, but incidentally impact religion. For
example, what if the State of Kentucky had a regulation stating
that every Kentucky tourism official shall wear a hat that says,
"Welcome to Kentucky." What would happen if someone wanted to wear
his/her yarmulke underneath the "Welcome to Kentucky" hat? The
regulations and the Smith decision would not allow such. He
indicated that it [the compelling state interest standard] is a way
to filter out those laws that incidentally affect religious
practice and do not need to. Representative Croft turned to the
prior mention of the Old Believers, who could probably obtain an
exemption. However, if the person who is an Old Believer was doing
work on an oil rig, that exemption probably could not be obtained
because there would be a compelling state interest for the safety
of the employees and there is no other way for the person to do the
work without the mask that requires no facial hair. Representative
Croft stressed that there do need to be exceptions for those
incidental impacts.
REPRESENTATIVE CROFT commented that he had expected to hear from
municipalities, state agencies and school districts with concerns
as to whether HB 387 went too far. He was not prepared to hear
that this line of opposition [that the bill does not go far
enough]. He echoed earlier comments that [HB 387] would merely
restore what was in place prior to the 1990 Smith decision. "In
fact, the Alaska Supreme Court really hasn't yet retreated from
this. This is more of a protection in case they do. ... The
Alaska [Supreme Court] ... has shown some indication since Smith
that it's willing to stick to its interpretation of the Alaska
Constitution to that higher standard, but who knows whether
tomorrow they do."
Number 2754
MR. AXELARRIS replied, in response to Representative Dyson, that he
heard of HB 387 via the legislature's home page on the Internet.
REPRESENTATIVE DYSON stated that he was wondering whether someone
had been alerting people with regards to this threat to one's civil
liberties.
MR. AXELARRIS commented that he had heard much talk about this [HB
387] in town.
MR. AXELARRIS returned to Representative Halcro's comments about
plowing the roads. He said that he pays federal taxes and the
federal government subsidizes and assists the state in order that
the state can provide services such as DOT plowing the roads.
However, he emphasized that he did not pay taxes to DOT so that it
could tell him what he can and cannot do in his religious life. He
indicated that his religious life is completely separate from his
relationship with the government.
REPRESENTATIVE HALCRO related his understanding that Mr. Axelarris'
testimony indicated that he wanted government "to get out." He
posed a situation in which a person has a belief that he/she does
not have to stop at stop signs. He asked Mr. Axelarris if he
believes that the aforementioned person would have the right not to
stop at a stop sign?
MR. AXELARRIS commented that he believed that [scenario] to be
ridiculous.
REPRESENTATIVE HALCRO rebutted that it is no different from a
prisoner wanting to smoke pot or some of the other poor excuses for
religion that surface in order to meet a particular need. He
asked, "Should government not have sideboards on what is acceptable
and what is not acceptable as religious practices?"
MR. AXELARRIS reiterated that he has difficulty in taking this
[possible scenario] serious because Representative Halcro is
judging. With regard to people smoking pot in prison, that could
be a sacred element of a religious practice. Running stop signs is
a danger to others whereas smoking pot does not endanger others.
Number 2592
REPRESENTATIVE HALCRO restated his question: "Should government be
able to put some sideboards on religious practices or the courts
put sideboards on some religious practices that they feel are
specifically intended to either evade the law or to justify some
bizarre position?" In response to Mr. Axelarris, Representative
Halcro explained that sideboards mean that it [government] could
determine whether a religious practice is acceptable. Or, in the
case of an employee working at a remote oil rig site, should
government have the right to say that the employee knew the job
he/she was taking and there is no way that he/she can be flown back
every Sunday for Mass. Therefore, the employer does not have to
provide the employee with the ability to go to Mass. Should
government have the ability to do that?
MR. AXELARRIS said that he believed the oil worker should be
allowed to practice his/her religion on the job. With regards to
whether the government should have some sideboards or an agency to
define what is or is not a religion, that is "tricky." A person's
expression of religion or spirituality is personal. He
acknowledged that when a person's practices infringe upon another's
rights then the case should be taken to court. He reiterated that
a blanket statement should not be made and left open for
governments to interpret and make general laws that could restrict
one's religious freedom.
Number 2465
REVEREND ROBERT NICHOLSON, Pastor, Chapel by the Lake; Minister,
Presbyterian Church USA, informed the committee that Presbyterian
Church USA is a 2.3 million member denomination in the USA and is
part of the religious coalition that supports HB 387. He thanked
the committee for being sensitive to the point, the issue and
having the bill before the committee. He offered his support and
encouragement in this effort. Reverend Nicholson commented that it
is interesting that thus far the discussions have been in regard to
individual liberties and religious practices, not about groups.
REVEREND NICHOLSON provided the following examples to the
committee. There is a Presbyterian Church in suburban Portland,
Oregon that wanted to build a fellowship hall. The city council
had a conditional building permit requirement and the extension
[for this fellowship hall] was approved with the stipulation that
there could not be any weddings or funerals in the building.
Reverend Nicholson said that is an infringement of the government
on the practice of religion, which is of concern to him. He turned
to the second example which involved the Orthodox Jewish community
that does not use motor vehicles on the Sabbath. He explained that
Orthodox Jews, six or seven, would walk to a designated house in
order to read the Scripture and have prayers. The neighbors
complained that such was a religious meeting. Therefore, the city
council said that such a religious meeting would violate the
residential zoning. However, another neighbor could have 25 people
over for a drunken brawl and that would be okay. He likened the
Jewish example to China's efforts to stamp out house churches.
REPRESENTATIVE CROFT said that he believes the compelling state
interest test is important as it is a reality check on the
aforementioned examples. While it may be appropriate for the state
to restrict buildings due to codes, it is not appropriate to say
that weddings and funerals cannot be held in the building. There
needs to be a balance and this forces review of the need to do
something that impacts a religious practice. If that cannot be
justified as necessary, then an exception can be made. That
scenario is preferable to the government asking how legitimate is
a religious belief. The government can inquire as to whether one
has infringed on another's religious belief and whether there was
no other least restrictive means to do so. That seems to be the
appropriate inquiry and thus he believes the compelling interest
test must remain.
Number 2115
REPRESENTATIVE MURKOWSKI inquired as to whether something has
precipitated this legislation. She also inquired as to whether
this would tie into the church sign issue in Anchorage.
REPRESENTATIVE CROFT explained that in response to the Smith
decision, the Federal Religious Freedom Protection Act was passed
and ruled unconstitutional for various reasons. Therefore, it was
left to the states. Representative Croft said that Alaskans are
fortunate to live in a state which has not retreated from the
compelling interest standard. The impetus for [HB 387] is to
prevent a state level retreat similar to that of the federal
government. With regard to the church sign issue in Anchorage,
Representative Croft said that "we" [the government] do not have
any business telling them [churches] what to put on their signs.
However, he was not sure that the dimensions of the sign is related
to a religious practice.
Number 1941
HEATHER ALEXANDER testified via teleconference from Tok. She felt
that the "compelling state interest" language is broad. With
regard to the aforementioned example of an employee needing to
shave off a beard, that would be a safety issue. Although she
agreed with that [the need for an employee to shave facial hair
because of a safety issue], she felt that a "compelling government
interest" is broad language. She indicated that being able to
bring a civil action is enough; why not leave every decision to be
decided by the court? Ms. Alexander said that she did not really
know what "compelling government interest" means nor the
ramifications that it could incur.
REPRESENTATIVE CROFT pointed out that the compelling state interest
[standard] is one of the highest standards in law. With regard to
merely leaving it out, the court has to be told how to balance what
it is supposed to do. This legislation says that once there is a
challenge, the government has to prove that it has a compelling
state interest.
MS. ALEXANDER said that she felt this is dangerous. She turned to
the hat example, a general law that was made with no intention to
restrict anyone's religious freedom. Although she felt it was
great that "we" do not want to discriminate against the person who
wants to wear another hat due to a religious belief, she did not
believe HB 387 would lead to that down the road. Care must be
taken with the language that is used.
Number 1658
JEAN HATEM testified via teleconference from Tok. Ms. Hatem said
that she strongly opposed HB 387. With regard to the compelling
state interest being one of the highest standards, she questioned
[where that leaves] the individual interest which is what the
entire U.S. Constitution is based on. One of those inalienable
rights is the freedom to practice religious expression. She turned
to the aforementioned examples, especially those set in the
workplace, and said that the compelling interest of the government
is about making money because "we" want to make sure that people
are working. People are being asked to make a decision about work
as opposed to a person's conscious. She did not think that is
something that people should be asked to do. Ms. Hatem stressed
that "we" should protect people's rights and general statements do
not protect people's rights. Furthermore, the "compelling
governmental interest" [language] is so vague.
TABATHA PARKER testified via teleconference from Tok. She opposed
HB 387 as it restricts freedom in this country. If the federal
government retreated in 1990 with the Smith case and Alaska has not
followed suit, why are these changes being proposed now.
REPRESENTATIVE CROFT explained that he was concerned that at some
point the Alaska Supreme Court may decide to retreat and there
would be no protection at all left for religious freedom. He
reiterated that under Justice Scalia's decision any neutral law,
not determined to be directed at a specific religious practice,
does not require any accommodation at all. Therefore, the notion
was to provide at least the level of protection in HB 387 if the
Alaska Supreme Court did decide to retreat at some point.
Number 1452
KAREN POWER testified via teleconference from Tok. She opposed HB
387 because she believed that this would set up small portions of
the population to dictate what a person's religion is. With this
"compelling interest," the only recourse for an individual is to go
to court. She pointed out that money restraints may keep the
person from going to court. Furthermore, there could be an area
that feels that it is acceptable to suppress someone's freedom of
religion and what good would the court be to that person. She also
commented that plowing the roads and such were not related to the
subject.
THOMAS POWER testified via teleconference from Tok. He agreed with
the others who have spoken from Tok and thus he opposed HB 387.
The language is vague and the bill could eventually result in more
strict restrictions with regard to religion. He agreed that
generating a religion such as the aforementioned filet mignon
religion, is a little wrong. However, if one restricts that
individual, the restrictions will continue and people will lose in
the long run.
REPRESENTATIVE CROFT specified, in response to Representative
Dyson, that HB 387 has the following committee referrals: House
Community & Regional Affairs, House Health, Education & Social
Services, House State Affairs and House Judiciary.
REPRESENTATIVE DYSON stated that he had expected opposition to HB
387 from the educational community. He asked if Representative
Croft had been in touch with those people.
REPRESENTATIVE CROFT answered yes. He informed the committee that
he had received some concern from the Anchorage School Board, which
he felt was in regard to how broad the language was. However, he
noted that he had a brief but positive conversation with Howard
Trickey, Attorney for the Anchorage School Board. He reiterated
that HB 387 would return to a state of law that was fairly
well-developed for about 30 years before the change in 1990. All
the "parade of horribles" did not happen in those 30 years and the
case law became fairly developed with regard to what was compelling
and what was not. He said that they [the Anchorage School Board]
had general angst when he spoke with them.
REPRESENTATIVE DYSON recommended that Representative Croft alert
folks as there will be plenty of time for folks to "weigh in" as
this moves through the committee process. He asked if
Representative Croft had spoken with the Alaska Civil Liberties
Union (ACLU).
REPRESENTATIVE CROFT noted that he had spoken with the ACLU, but he
the ACLU met yesterday and thus he did not know what it had
resolved.
REPRESENTATIVE CROFT announced his appreciation for those in Tok
coming out and being very interested in HB 387. He pointed out
that the federal court has said that it does not have to make any
more exceptions for religious practice at all. The opinion in 1990
said that there is no protection for one's religion from a facially
neutral law. Representative Croft stressed that he is, with HB
387, trying to put that protection back. Although it may be fair
to say that it does not go far enough, he hoped that everyone would
recognize that it is a half-step forward from a full step back.
Justice Scalia's's opinion created a significant loss in 1990. He
emphasized that he was reasserting the rights that were allowed
under various cases, the Yoder decision being the most familiar.
The Yoder decision in Wisconsin allowed Ms. Yoder, a member of the
old Amish religion, to [not attend] school under a compulsory
education law. This [the compelling state interest] standard has
been used many times in order to obtain an exception from the
government. Furthermore, this standard does work.
Number 0940
KEITH FREDRICKSON testified via teleconference from Sitka. Mr.
Fredrickson supported HB 387 and related his belief that
Representative Croft is doing a good job.
REPRESENTATIVE HALCRO related his belief that everyone testifying
from Tok actually made the argument in support of HB 387. This
bill does not take away protections but rather protects people and
their right to practice religion. Currently, there are no
protections [for a person's right to practice religion] and thus HB
387 restores some of those protections.
CO-CHAIRMAN MORGAN closed public testimony.
Number 0751
REPRESENTATIVE DYSON moved to report HB 387 out of committee with
individual recommendations and the accompanying zero fiscal note.
There being no objection, it was so ordered.
ADJOURNMENT
There being no further business before the committee, the House
Community & Regional Affairs Standing Committee meeting was
adjourned at 9:35 a.m.
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