Legislature(1999 - 2000)
03/30/2000 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
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 30, 2000
8:10 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Joe Green
Representative Jim Whitaker
Representative Bill Hudson
Representative Beth Kerttula
Representative Hal Smalley
Representative Scott Ogan
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative John Coghill
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."
- HEARD AND HELD
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
3/02/00 (H) Moved Out of Committee
3/02/00 (H) MINUTE(CRA)
3/03/00 2391 (H) CRA RPT 1DP 5NR
3/03/00 2391 (H) DP: DYSON; NR: MURKOWSKI, HALCRO,
3/03/00 2392 (H) JOULE, HARRIS, MORGAN
3/03/00 2392 (H) INDETERMINATE FN (LAW/ALL DEPTS)
3/07/00 (H) HES AT 3:00 PM CAPITOL 106
3/07/00 (H) Moved CSHB 387(HES) Out of Committee
3/07/00 (H) MINUTE(HES)
3/07/00 (H) MINUTE(HES)
3/07/00 (H) MINUTE(HES)
3/15/00 2492 (H) HES RPT CS(HES) NT 5DP 2NR
3/15/00 2492 (H) DP: GREEN, DYSON, COGHILL, WHITAKER,
3/15/00 2492 (H) BRICE; NR: MORGAN, KEMPLEN
3/15/00 2492 (H) INDETERMINATE FN (LAW/ALL DEPTS)
3/15/00 2492 (H) REFERRED TO STATE AFFAIRS
3/15/00 2559 (H) COSPONSOR(S): WHITAKER
3/28/00 (H) STA AT 8:00 AM CAPITOL 102
3/28/00 (H) BILL POSTPONED
3/30/00 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Presented sponsor statement for HB 387.
JOSEPH STORY, Government Relations Representative
Northwest Religious Liberty Association
1507 Davidoff Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387.
ROBERT NICHOLSON
Presbyterian Church
PO Box 210609
Auke Bay, Alaska 99821
POSITION STATEMENT: Testified in support of HB 387.
KATHERINE HARRIS
PO Box 964
Tok, Alaska 99780
POSITION STATEMENT: Commented on HB 387.
LAURIE CUMMINGS
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 387.
RANDY MEYER
935 McGrath Road
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 387.
SYLVIA HERNANDEZ
PO Box 974
Tok, Alaska 99780
POSITION STATEMENT: Testified in opposition to HB 387.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Alaska 99520-1844
POSITION STATEMENT: Commented on HB 387.
PAUL BERAN, Pastor
Resurrection Lutheran Church
12175 Glacier Highway B-4
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 387.
JIMMIE STORY
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 387.
KAREN POWER
PO Box 798
Tok, Alaska 99780
POSITION STATEMENT: Testified in opposition to HB 387.
SHIRLEY DOWNING
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 387.
GEORGE ELIASON
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 387.
ALTHEA BUCKINGHAM
Sitka, Alaska
POSITION STATEMENT: Testified in support of HB 387.
PETER PORRINO
PO Box 965
Tok, Alaska 99780
POSITION STATEMENT: Testified in opposition to HB 387.
HEATHER ALEXANDER
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Testified in opposition to HB 387.
JEAN HATEM
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Testified in opposition to HB 387.
ACTION NARRATIVE
TAPE 00-25, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:10 a.m. Members present at the
call to order were Representatives James, Green, Smalley and
Ogan. Representatives Hudson, Kerttula, and Whitaker arrived as
the meeting was in progress.
HB 387-FREEDOM OF RELIGION
CHAIR JAMES announced the only 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 0045
REPRESENTATIVE ERIC CROFT said HB 387 is a very important bill
that if properly drafted, will accomplish today and next year
absolutely nothing because its purpose is to preserve the legal
status quo in the area of religious freedom. He noted that it
requires a little bit of legal history to talk about why HB 387
is important and yet accomplish nothing. He explained that the
problem to be addressed is a reversal in the federal Supreme
Court of at least a 25-year protection for religious freedom.
He commented that early in American history it was somewhat
unclear how much protection there was under the First Amendment.
However, it became clear through jurisprudence in the '70s that a
facially neutral law, one not directed at a religious practice,
no longer had to provide a religious exemption to general laws.
REPRESENTATIVE CROFT reminded the committee that passing a law
that was intended to stop a particular religious practice is
illegal, for example, not allowing Catholic services. He added
that the Catholic example is an easy one to figure, but a harder
case is a general law, not directed at any religion, which has an
unintended effect of stopping a religious practice. Then the
question arises whether an exception has to be made. He stated
he uses Prohibition as an example because it was not intended for
or directed at the Catholic religion but rather dealt with
alcohol issues. If the Prohibition law had been applied to
Sunday worship services, it would have had a dramatic effect on
the Catholic religion. He said that Prohibition itself had
exceptions for religious practice, but what if it had not
exceptions.
REPRESENTATIVE CROFT asked what if a general facially neutral law
passed and without intention wiped out a particular religious
practice. He asked if then an exception has to be made and can
the court say that religious practice has been so impeded that
the court is going to read in an exception to protect this
religion. That is the nub of the issue in HB 387. Until 1990
the answer in both federal and state courts was in the
affirmative and an exception would have had to be made. He noted
that a consistent line of cases in the federal court and in
Alaska state court said that even a facially neutral law must
make an exception if it can be proven that it places a
substantial burden on religious practice. He explained that
incidental, little things perhaps would not be exempt but a
substantial burden on religious practice must be exempted unless
the government can show a compelling state interest of why the
religious practice cannot be exempted. Therefore, the situation
becomes a "justify this law" scenario wherein the judge in effect
says "tell me how much this hurts your religious practice," and
if it is a substantial burden, the judge turns then to the
government and says "is there a really good reason not to give
them an exception; is there a really good reason why you cannot
find some way to do this without impeding their religious
practice." If the answer is no to the above questions, then the
government has to let the religious person go ahead. If the
answer is yes "because our correctional system will not operate
or we cannot accomplish the purpose of the law if we make this
exception," then maybe the exception can be denied.
Number 0523
REPRESENTATIVE CROFT explained that the general framework for the
previously discussed situations is called the "compelling state
interest" test wherein the government is asked to show a
compelling state interest in requiring uniformity and not giving
an exception. He commented that both federal and state law
followed the "compelling" idea until 1990. He informed the
committee that in 1990, the United States Supreme Court reversed
that precedent which had been established clearly for at least
25 years but by implication in other cases long before that and
by a very narrow vote, voted that the government did not have to
make any exceptions at all anymore. Therefore, a facially
neutral law just stood, and the government was not going to
listen to exceptions at all. He said that the government kept
the part about when a law was directed at a religion with
intention to stop a religious practice, but the entire area of
jurisprudence that spoke about forcing the government to make an
exception for certain religious practices was wiped out. The
result was a bipartisan firestorm of protest which caused passage
on the federal level of the Religious Freedom Restoration Act
(federal RFRA) signed by President Clinton and overwhelmingly
passed by a bipartisan group (both Republicans and Democrats) in
Congress.
REPRESENTATIVE CROFT said that unfortunately the federal RFRA was
declared unconstitutional on the grounds of lack of federal
authority to tell states and municipalities the standard by which
they must govern. He noted that unconstitutionality of the
federal RFRA was not declared on the merits of the Act itself,
but it was based on federal authority. He explained that the
federal government is a limited government, and in order to have
authority to do things, for example, it establishes commerce
clauses [or other such clauses]. The federal government has
other things that are in their power, for instance, trade between
the states and various things like that, none of which are
directly applicable to HB 387. He mentioned that the Congress
said to the government that the government did not have the right
to pass such a law in the area of religious freedom; that right
was left up to the states.
REPRESENTATIVE CROFT indicated that he had started his
presentation by saying that he wanted to draft a law that was
very important but would accomplish nothing because he and co-
sponsors believe that the Alaska Supreme Court has retained the
prior respectful standard for religious practice. He agreed that
the federal standard had retreated to a law that provided no
exception. He informed the committee that it appeared that
Alaska had stayed at the high level by retaining the compelling
state interest test, but that could change in the same way it did
at the federal level. He emphasized that what he would like to
accomplish with HB 387 is buttress Alaska's current
constitutional rights wherein if Alaska's Supreme Court decides
at some point to follow the Smith v. Emp. Div., 494 U.S.
872(1990) decision backwards, there will be a statute that fills
the void.
REPRESENTATIVE CROFT acknowledged that the committee will hear
different testimony and when that happens he suggested that the
committee ask if it believes HB 387 will cause dire consequences.
He remarked that HB 387 tends to create angst because it is so
broad and general. He reminded the committee that people worry
and usually go to him with their specific "what ifs" as if he is
the judge to determine something. He responds by saying "I do
not know" because his interest is in making sure the test that
the court uses is the right one; really it is for the court to
determine on "what ifs."
Number 0614
REPRESENTATIVE CROFT stated that it is interesting that from both
the right and the left he has received pressure to make various
carve outs or exemptions in HB 387. He reiterated that this has
happened in every case where HB 387 was heard and typically, not
uniformly, conservative members of the legislature in other
states where a similar bill has been presented will attempt to
carve out the Corrections Department and say that they know how
the compelling state interest standard should always operate in
prisoner litigation. He said that according to conservative
legislative members the prisoner should always lose. Similarly,
typically but not uniformly, liberal members of legislatures that
have considered a like bill will say carve out civil rights
litigation because they know how in a collision between a
religious and a civil right, religious exercise should always
lose whereas civil right should always win. He is reluctant to
do either because in both cases there is often a compelling
state interest in enforcing racial and other discrimination laws.
There is often a compelling state interest in the safe and
efficient running of a prison system. He explained that is the
way cases have turned out under the standard, and very few
prisoner religious exemptions win.
Number 0953
REPRESENTATIVE CROFT commented that in civil rights cases the
situation is similar. Over and over, case law has been that
enforcement of racial and other civil rights laws is a compelling
state interest worthy of not granting an exception. When people
say they do not want to rent to black people for religious
reasons, the courts have found in a number cases that the
interest in combating racial discrimination is a compelling state
interest. The decision has been that the person should possibly
be in some other line of business if his/her religion prevents
him/her from renting to that group of people. However, in some
factual situations the compelling state interest can get closer
to the line. For example, suppose an owner of a 20-apartment
complex has some religious objection as to whom he/she will rent,
but a renter does have civil rights and really would have little
impact on the owner's religion or inaction with the owner since
each lives in his/her own apartment. Now imagine an owner
renting a room in his own home to the same renter, and the
committee can see how different the situation is regarding
religious impact. Rather than categorically exempting prisoner
litigation or civil rights interaction, he feels that putting the
proper standard in place is where the legislature should be. He
does not want to decide particular cases but wants to decide the
standard and make sure that the standard stays in place no matter
what happens.
REPRESENTATIVE CROFT reminded the committee that when people ask
him "what if" he answers he does not know. If HB 387 is written
correctly, it embodies what is currently in the law and protects
it. He recognized that if people are worried about dramatic
consequences to HB 387, he asks "in what way have I not
accurately reflected the law as it is" because if he has
accurately reflected the law, what dire consequences could there
be. He advised the committee that people will ask the committee
to consider either specific examples or dire consequences and
when that happens, he asked the committee to encourage the
questioner to identify in what way HB 387 has not accurately
reflected the current constitutional protection. He observed
that his goal in writing HB 387 was to reflect the current
constitutional protection and he is willing at each stage to more
accurately reflect the state of protections as they exist now.
Nonetheless, he stated he is not willing to carve out specific
areas just because he could pretend to know how it should always
turn out.
Number 1203
REPRESENTATIVE GREEN said he had understood Representative Croft
to say that the federal Supreme Court had rescinded [religious
exemptions] and then Congress came back and said it was
unacceptable. Representative Green asked if HB 387 was a
preemptive strike that the Alaska Supreme Court might do what the
federal Supreme Court did and the legislature is ahead of the
game.
REPRESENTATIVE CROFT answered in the affirmative; however, he
does not have any indication that the Alaska Supreme Court is
heading in that direction. He noted that the major court in the
land retreated and other state courts are following suit. He
hoped and thought that the Alaska Supreme Court would stay with
the higher level of protection, but there has been a movement
ever since the federal RFRA was declared unconstitutional to
have all 50 states buttress their RFRA. He explained that one of
the justifications that the U.S. Supreme Court used is the
standard that they adopted in the Smith case in 1990 which was an
opinion by Justice Scalia. He commented that the Smith case is a
very clean and easy one, but it is messy if trying to provide
religious exemptions. With the Smith decision the answer is
always no, and no one has to worry about troublesome little
rights. He indicated that with the Smith decision the federal
government now has a much more predictable standard, and he
acknowledged that it does have that advantage. He agreed that
case-by-case law determination of whether someone's religious
practice has been impinged and whether the government has shown
enough justification is a time-consuming process.
Number 1323
REPRESENTATIVE KERTTULA asked if the U.S. Supreme Court case in
Texas right now is going to play into Alaska Supreme Court
decisions.
REPRESENTATIVE CROFT replied that he has not read the Texas case
even though he saw it in the paper so he does not know the
details. He said that there has been much turmoil in the circuit
courts after the Smith decision, and he thinks that many circuit
court judges just could not quite believe that they were supposed
to retreat that far. Circuit court judges have tried various
ways to find the religious protections that were there before the
Smith decision. He noted that he thinks the Smith decision will
be reviewed, and Justice O'Connor continues to dissent in cases
that apply the Smith decision. He explained that she continues
to complain about the direction in which the U.S. Supreme Court
moved. Nevertheless, it seems as if there are still at least
five votes to keep the Smith decision. He commented that the
Texas case is probably another opportunity even though it seems
as if the federal court is standing by its decision.
Number 1404
REPRESENTATIVE KERTTULA asked if Alaska's Supreme Court has used
the old rule under Alaska State Constitution and Alaska rules
notwithstanding what the U.S. Supreme Court does.
REPRESENTATIVE CROFT replied in the affirmative. He mentioned
that Alaska does not get as many precedent-setting cases as
California or New York, consequently Alaska courts are often on
their own. He indicated that he knew of one case post Smith on
this issue, and it has purported to keep the same standard [as
the old rule].
REPRESENTATIVE KERTTULA asked if Representative Croft had any
indication that the Alaska Supreme Court is going to take any
action that will lead Alaska down a different direction.
Number 1473
REPRESENTATIVE CROFT answered that he did not know if the Alaska
Supreme Court is going to stay forever or reverse tomorrow.
REPRESENTATIVE KERTTULA asked if Representative Croft had any
indication if there is any reversal coming or any case that is
going to radically change this right now.
REPRESENTATIVE CROFT replied that he had no secret communication
from the judiciary that they are about to do this. He said he
did not know whether they would keep it forever or reverse
tomorrow.
REPRESENTATIVE OGAN said that there are a number of redundant
sentences throughout HB 387 and one of them is in Sec. 6(a), page
3, line 5 which states: "A municipality may not place a
substantial burden on a person's free exercise of religion
unless" and line 7 which states: "the burden is in the form of a
rule of general applicability...". He asked Representative Croft
to discuss what those passages mean.
Number 1515
REPRESENTATIVE CROFT answered that there are two levels of
protection. He noted that one level is that religious practice
cannot be targeted at all and the other is that even a generally
applicable law cannot place a substantial burden on someone's
religion without justification. Therefore, Section 6 is meant to
encompass both of those protections. He explained that if there
is a law without general applicability that specifically targets
a religious practice, it would be unconstitutional, and he did
not want to imply that he was changing that rule by HB 387. He
commented that the first test is that a law must have general
applicability and does not intentionally discriminate against
religion. Even if that test is met, the law has to meet the
compelling state interest and least restrictive means test.
REPRESENTATIVE OGAN said that Sec. 6(2), page 3, line 9 states as
follows: "application of the burden to the person is essential
to further a compelling governmental interest..." and that is a
little troublesome to him because one person's compelling
government interest is another person's violation of his/her
religious rights. For example, he has a constituent who believes
very strongly that a social security number is a precursor to the
mark of the beast and that person does not have or want a social
security number, yet he/she cannot get a job without a social
security number. Representative Ogan inquired as to how Sec.
6(2) is going to affect his constituent.
Number 1635
REPRESENTATIVE CROFT replied that he has received concerns from
both ends of the spectrum and he really feels that in some cases
HB 387 puts him in the middle in that there are many people who
believe that HB 387 is not enough. He observed that some people
think that Sec. 6(a) should read "may never place a substantial
burden on a person's...religion" and he had some heated
discussions with a group from Tok during hearings. He stated
that generally applicable laws have many unintended consequences.
In his view, some ability is needed to say that anti-
discrimination laws have been passed; if someone has religious
reasons for not renting to black people then maybe it can be
assumed that the religious reason is valid. He noted that a way
is needed to balance between religious practices and governmental
interests. Again in answer to Representative Ogan's observation,
Representative Croft agreed that there are redundant sentences in
HB 387 because it talks about the same thing in three different
areas; school districts, municipalities, and state agencies. He
explained that when people say they are worried that HB 387 does
not provide enough religious protection, he answers that the
alternative is no protection just as federal courts have already
done and is the current state of federal law. He commented that
the Smith decision says "no exception." An exception that at
least provides a balance is preferable to no exception at all.
Number 1753
REPRESENTATIVE OGAN asked if people have some kind of latitude
regarding a person's life style which flies in the face of a
property owner's religious belief and wondered if Representative
Croft recalled that case.
Number 1818
REPRESENTATIVE CROFT replied that yes he did remember the case.
He noted that there have been a number of different cases and one
of those is the Swanner case in Alaska. He explained that the
Swanner decision held that there was a compelling state interest
in enforcing civil rights laws that protected unmarried couples.
He commented that there have been cases that have disagreed with
the Swanner decision in other states. He mentioned that these
are examples of what he was talking about in the beginning
wherein his answer is that he does not know what will happen in
those particular cases. He does know that the Alaska Supreme
Court found that civil rights is a compelling state interest in
the Swanner case which dealt with unmarried people who wanted to
rent a home. He and the Alaska Civil Liberties Union (ACLU)
think that the closer a situation gets to actually impeding a
religious practice, the more it makes a difference in a legal
decision. For example, renting out a room in the owner's home,
as opposed to renting a separate apartment unit, exerts a
completely different impact on the owner's religious practice.
He emphasized that there are differences in degree of impingement
on religious practice even within that specific application, and
that is the very reason he will not predict how it should come
out because he has not heard all of the facts. He wants the
standard to be there, and the Alaska Supreme Court has said that
civil rights is a compelling interest.
Number 1935
REPRESENTATIVE OGAN said that the First Amendment to the U.S.
Constitution says that Congress shall make no law respecting the
establishment of religion, prohibiting the free exercise thereof,
or abridging the freedom of speech. He explained that he
personally believes that the U.S. Supreme Court has somewhat
perverted the intention of the First Amendment by violating his
constitutional right to go to a school and express his religious
beliefs. He commented that he believes that the intent of the
First Amendment was to prohibit the government from establishing
an official religion in the United States which would result in
persecution of people who did not conform. He had done some
reading of the original Constitution at the time of the original
constitutional convention and had read that after the Ten
Amendments were ratified, the Anglican Church was abolished. The
result was a period of darkness that came over the country and
some of the framers of the Constitution such as Patrick Henry
became concerned. Representative Ogan indicated that the country
kind of slipped into a period of debauchery more or less because
all of a sudden the state-supported ministers from the Anglican
Church were no longer getting a salary, and the whole system of
established religion disintegrated. He acknowledged that it took
a while for other religions to take hold and get the country back
on a moral course. He remarked that he is offended that he
cannot talk about his religious beliefs in a school even though
freedom of speech is guaranteed by constitutional amendments. He
asked if he could go into a public school classroom and talk
about Christianity under HB 387 and not be violating someone's
civil rights.
Number 1976
REPRESENTATIVE CROFT replied that he did not know. He said he
does not know how any particular factual situation is going to
work out. He noted that he does know the clearest case was the
Wisconsin v. Yoder, 406 U.S. 205 (1972), which he cited in his
sponsor statement. He explained that the Yoder case was about
children wanting to home school at some level because of their
religious beliefs; this was before home schooling was as
established as it is today. He commented that the case involved
Old Order Amish religious members in Wisconsin who believed that
a basic eighth grade education was sufficient (reading, writing,
and arithmetic) and after that went for a life of agriculture,
prayer, and life consistent with the Old Order Amish beliefs.
Old Order Amish members wanted their children to get out of
school after the eighth grade and take a different path than what
public school dictated.
REPRESENTATIVE CROFT indicated that Pennsylvania had much
experience with Old Order Amish and accommodated the Old Order
Amish belief by allowing Old Order Amish children to go to school
until eighth grade and then established a special vocational-
technical school for the children. He informed the committee
that the Pennsylvania accommodation was as a result of 200 years'
experience with the Amish whereas Wisconsin did not accommodate
them and insisted on the children staying in school until the
12th grade. The Yoder case was the defining case in this area
when the U.S. Supreme Court decided that under this compelling
interest, Wisconsin had to respect Old Order Amish beliefs. He
acknowledged that compelling state interest has been used in
school context, but he does not know how the particular context
of Representative Ogan going into a classroom would play out. He
does know that the Yoder case established a general recognition
of the religious rights of children and in some cases their
opportunity to opt out of school generally, or of the Halloween
pageant with its ghosts and goblins contradictory to their
religious beliefs. He recognized that it does many things that
to this day are incorporated into the best practice. Back then
there were cases that forced people to respect religious rights,
but now it is routinely done as a matter of respect for those
rights. There was a time when religious rights had to be forced,
but now he thinks they are done fairly voluntarily.
Number 2234
REPRESENTATIVE WHITAKER said he is a little bit confused. He
explained that he thought he understood the intent of HB 387 and
now after listening for a few minutes he is not sure that he does
understand. He asked Representative Croft to very pointedly tell
the committee what Representative Croft is trying to do in
sponsoring HB 387 and where does it take the committee.
REPRESENTATIVE CROFT replied (jokingly) that if Representative
Whitaker had been on time Representative Whitaker would have
heard the sponsor statement (everybody laughed). In all
seriousness, he added, HB 387 tries to reassert a standard of
review for questions of religious rights that has long been in
both the state and federal courts. The standard of review is the
compelling state interest test that says that an exception may be
made to a general law if the general law places a substantial
burden upon a religious practice, as long as the government
cannot show that it has a compelling state interest in not
granting an exception. The compelling state interest test has
long been the law in both state and federal courts, but in 1990,
the federal court retreated from that standard. Now the federal
court said no court is under obligation to provide any exception
at all if it is a generally applicable law and not targeted at a
specific religion. He indicated that the "no exception stance"
was a shock to many people in this country and raised much effort
to try and cure it. There are some states that do not have the
benefit of both a good supreme court and a well-written state
constitution. The 1990 federal court retreat was the end of the
ball game for some states since those states had no greater state
protection, so when the federal court retreated, those states
were stuck with a lower standard. He reiterated that the federal
Supreme Court retreated from a standard of providing an exception
for substantial burdens on religious practice unless the
government could show compelling state interest to a standard
that allowed no exception at all.
Number 2364
REPRESENTATIVE WHITAKER said he understood that HB 387 provides
for common sense exceptions as determined by the court to a
generally applicable law relating to a religious matter.
CHAIR JAMES noted that in her lifetime she has seen a great
erosion of all of the Bill of Rights. She understood that the
purpose of HB 387 is to maintain the status quo, which she
believes is a reasonable way to address these issues. She
commented that while legislators are making legislative decisions
about laws and all things they do, legislators are constantly
being barraged with hypotheticals. She asked Representative
Croft if he believes that hypotheticals can become misleading and
distracting.
REPRESENTATIVE CROFT replied that he thinks that hypotheticals
can be used either to illuminate the possible consequences or to
confuse the issue depending upon the probability of the
hypothetical. He mentioned that he thinks that a far-fetched
hypothetical can be confusing, but a presenting a probable
hypothetical is just the legislator doing his/her job in
examining the possible consequences of legislation.
Number 2520
REPRESENTATIVE HUDSON indicated that hypotheticals or any
testimony that is given in committee becomes part of the record
which can become a defining element of the application of
whatever law is being passed. Therefore, legislators do need to
be careful with hypotheticals.
CHAIR JAMES agreed with Representative Hudson. She recognized
that hypotheticals serve a purpose, but many times they are
emotional and leading. Hypotheticals can be void of facts,
especially when based on bits and pieces of a larger picture.
She is disappointed in judicial decisions much of the time and
has even stated that she has little faith because of the way they
are done, but it is the best system available at this time. She
understands that people have concerns regarding HB 387, but she
believes that it is on target because basic rights have been
eroded over the years.
Number 2623
REPRESENTATIVE CROFT recognized that people can disagree
regarding to what degree rights have been eroded, but he agrees
with Chair James. There is no question that rights have been
eroded in this area in the Smith case, and even Justice Scalia
would agree that it was a major change from protecting religion.
He stated that whether or not a person agrees that there has been
erosion in other areas of the Bill of Rights, there certainly has
been erosion in the federal courts in this area, and he is just
trying to prevent erosion from happening.
REPRESENTATIVE KERTTULA asked if HB 387 changes the Alaska State
Constitution. She said that no matter what HB 387 says, the
state court can make a decision based on the Alaska State
Constitution. She asked Representative Croft if he liked the law
as it is interpreted by the state court now.
REPRESENTATIVE CROFT replied in the affirmative.
REPRESENTATIVE KERTTULA reminded the committee that any time a
piece of legislation is presented, using possibly a different
word here or there, legislators run the risk of seeing the court
come in and make a new interpretation.
Number 2731
REPRESENTATIVE CROFT replied that he cannot change how the Alaska
Supreme Court or the federal Supreme Court is going to interpret
their respective constitutions and he cannot tell them to do
that. Further, he added, it turns out that the federal court
does not have the power to tell states how to protect religious
freedom. He said that the only body that can provide some surety
here is the state legislature because it is not a government of
limited powers and it has the ability to set this policy. He
noted that the legislature has the constitutional authority to
protect religious practice.
REPRESENTATIVE KERTTULA asked Representative Croft if he was
running a risk with HB 387 that somewhere along the line a word
or two gets out of place or a hypothetical comes up that someone
feels very strongly about and puts it on the record.
Number 2769
REPRESENTATIVE CROFT replied that there is always a risk in any
legislation that it could either be misinterpreted or drafted
incorrectly so he loves Representative Kerttula's help in making
sure that HB 137 accurately reflects the state of the law that
most agree is appropriate.
REPRESENTATIVE KERTTULA said thank you, but she likes the state
of the law as it is.
REPRESENTATIVE OGAN commented that there is a move afoot to
restore the Ten Commandments to schools and display them in
schools. He mentioned that many people might say that part of
the problem with the school system is because any religious
expression has been litigated out of schools. He asked if HB 387
would impede display of the Ten Commandments in schools if it
becomes constitutionally correct to display them.
Number 2807
REPRESENTATIVE CROFT answered that he did not think that HB 387
would impede display of the Ten Commandments. He said that the
answer to all the hypotheticals is going to be "I do not know."
He noted that he is talking about describing the legal standard
correctly and allowing the judiciary to make determination of
what happens under certain facts and that legal standard.
JOSEPH STORY, Government Relations Representative, Northwest
Religious Liberty Association, read his testimony as follows:
We strongly support House Bill 387 for several reasons
but I wish to express my appreciation to the sponsor
and cosponsors of this bill. First, we support this
bill and 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, the sponsors efforts to restore the "compelling
state interest" and "least restrictive means" tests as
established in Sherbert v. Verner 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 their religious
convictions at the state level, and prevent the
unnecessary discrimination that occurs on a daily basis
in the public sector, particularly in the workplace.
As Justice Sandra Day O'Connor stated in the Supreme
Court's decision in Employment Division of Oregon v.
Smith, the court made a critical mistake when they
failed to offer "convincing evidence to depart from the
settled First Amendment jurisprudence." This
fundamental departure allows states to 1) "make
criminal an individual's religiously motivated conduct"
in a way that burdens [an] individual's free exercise
of religion; 2) puts at a clear disadvantage minority
religions and religious practices when leaving
accommodation to the political process; and 3) 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).
TAPE 00-25, SIDE B
Number 2988
Third, 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 "inalienable."
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" (493 U.S. 872 at 902). We believe that
HB 387 will restore this historical intent at the state
level.
MR. STORY said he would like to mention something about
exemptions. He read the following testimony:
Smith left the Free Exercise Clause virtually toothless
in all but the rarest of cases. Yet the ACLU would
rather leave religious believers statutorily
defenseless than enact a Religious Freedom Restoration
Act (like the Alaska's Religious Freedom Protection
Act) that would apply to all claims and all Americans.
Specifically, we have learned that the ACLU wants the
Alaska Religious Freedom Protection Act amended so it
could not be invoked by many believers against an anti-
discrimination law. Call it by any other name but this
would be a carve out, a repudiation of the bedrock of
"inalienable rights" and equal protection of the laws.
For the following reasons, the Northwest Religious
Liberty Association, a member of the National Coalition
for the Free Exercise of Religion, would have to
vigorously oppose the Alaska Religious Freedom
Protection Act if it were amended to exclude a class of
religious practices or claims from its protection.
The free exercise of religion should not always be
subordinated to other civil rights. As a matter of
principle, should the first freedom always prevail over
anti-discrimination law? No. Society's interest in
eradicating racial discrimination will continue to
trump claims that one's religion compels racist
practices.
But neither should the opposite extreme be legislated:
that certain civil rights always outweigh the
believer's interest in religious exercise. A
principled Religious Freedom Protection Act would apply
the same test to all religious practices substantially
burdened by government, and leave the courts a case-by-
case application of that uniform test. The explicit
and prominent constitutional regard for free exercise
of religion admits of no exceptions, qualifiers or
disclaimers.
The first freedom protected by the framers in our Bill
of Rights is religious freedom including protection
from government prohibition on "the free exercise" of
religion. Religious freedom is a "civil right,"
arguably the foundational and preeminent one upon which
all others depend. If a government will not
accommodate a citizen's fulfillment of his or her
obligation to God, then no other human right is safe
from government.
This first freedom includes practices inside houses of
worship. But it also encompasses the living out of
one's beliefs in the marketplace of ideas, of jobs, of
housing. Those who support a civil rights carve out
amendment to the free exercise of the Alaska Religious
Freedom Protection Act either do not understand the
comprehensive nature of most religious devotion or else
they dangerously overweight the government's
constitutional authority to burden it.
The ACLU's proposed civil rights carve out presupposes
that the First Amendment's religion clauses protect
little more than religious beliefs, and only if such
beliefs do not infect the policies and practices of its
adherents outside their houses of worship. But, as
millions of religious Americans know, they do not leave
their religion at the door to their office, at the
factory punch clock, or at the schoolhouse gate. And
among religious Americans are landlords whose
consciences do not allow them to rent their private
property for what they deem to be sinful purposes.
They also include employers who want to work with
people who share their most important values and
priorities, including religious ones. Religious "free
exercise" is not confined to one's Sabbath, home, or
house of worship.
Consequently, free exercise of religion will conflict
with the interests of third parties who want employment
at the believer's private workplace or want to rent the
believer's private property.
The Coalition For The Free Exercise of Religion, an
extraordinary coalition of some 80 organizations that
drafted the model state RFRA supports a "clean" bill, a
Religious Freedom Protection Act free of any kind of
carve outs, exceptions or second class treatment for
particular religious claims or claimants.
But the RFRA Coalition also resists any carve outs for
a very practical reason: 80 groups could never agree
on what to carve out. The Coalition is held together
by one magnetic commitment: we all agree that every
sincere religious practice will be entitled to the
protection of strict scrutiny.
If the Alaska Religious Freedom Protection Act is
amended so that it could not be raised as a defense to,
e.g., discrimination law, then the Coalition's
magnetism will have been lost. Coalition members would
spin off what religions, religious practices, and
government interests should be winners and losers. At
the end of this political power play, the Alaska
Religious Freedom Protection Act would only protect the
politically correct and politically powerful religious
practices. Minority faiths would be left in the carve
out pile. And religious freedom as a universal right
in America would be a thing of the past.
A final example of why carve out exemptions are
detrimental. In June of last year the Texas
legislature enacted a RFRA with a civil rights carve
out. The Senate, having breached the principle of
"protection for all without exceptions," the House
could hardly object to the Senate's version, which
contained carve outs for incarcerated persons and a
special provision on regulation of land use by
religious groups. One carve out begat another. And
thus shall it be if Alaska opens the Pandora's box of
stripping the Religious Freedom Protection Act's
protection from disfavored religious practices and
believers.
Please oppose any carve out amendments to House Bill
387. On the basis of this reasoning, we strongly urge
you to support House Bill 387 without any exemptions.
Number 2621
REPRESENTATIVE OGAN said he assumed that Mr. Story had seen model
legislation that other states have done. Representative Ogan
asked if HB 387 was identical to other states' legislation and
was Mr. Story comfortable with the language in HB 387.
MR. STORY replied that HB 387 was very similar to other states if
the language is based very strongly on the old U.S. Supreme Court
test of compelling interest and using least restrictive means
when there is a compelling interest. He said that HB 387 is
perhaps more redundant than most state statutes addressing this
issue, but otherwise the language is very similar, and it looks
like a good bill to maintain the status quo as he believes it is
in Alaska.
REPRESENTATIVE OGAN noted that probably the most compelling state
interest that comes to his mind in which the state might
interject itself [between religious practice and state law] is
with people who hold Christian Science beliefs in which
practitioners do faith healing or another religion that does not
accept blood transfusions. He explained that maybe the state at
some point is going to feel that they have a compelling interest
to go in and preempt someone's religious belief. He asked how HB
387 would affect those religions [who are at odds with
traditional practices].
Number 2507
MR. STORY answered that he does not know. However, HB 387 is not
aimed at those kinds of religious practices any more than current
practice is aimed at those religious practices. He envisioned
that the rule would have to be to say "where are we at on that
issue now" and "what has been our practice in the past." If no
prior practice exists regarding something, then courts may have
to rule on a practice in the future, and it might be something
that the legislature may want to address in the future. He
cannot answer beyond that, but he emphasized that HB 387 is not,
as he understands it, aimed at establishing a religion or a
religious practice, and it is certainly requiring that there be a
compelling interest on the part of the state before they can
burden someone's religious practice. He does not see that HB 387
establishes or disestablishes anything.
Number 2449
CHAIR JAMES acknowledged that it is hard to believe that the
committee is passing legislation (if HB 387 passes) that really
does nothing for any of these cases, but what HB 387 does is
establish for the future the test that the state currently uses
so that the state knows what those tests are.
ROBERT NICHOLSON, Presbyterian Church, said that his church all
across the U.S.A. is concerned that there be such a bill as HB
387 and urges it passage. He noted that he is going to talk
about a moose, Presbyterians, Orthodox Jews, and parties, none of
which is hypothetical but each of which is very concrete. He
explained that Athabaskans for two or three thousand years have
had their heritage and religious tradition of taking a moose at
the time of a potlatch when someone dies. He commented that if
the moose is taken out of season that violates state fish and
game law and the question becomes is there a compelling state
interest to prosecute. He mentioned that is one concrete example
of no compelling state interest according to his belief.
MR. NICHOLSON indicated secondly that a Presbyterian colleague of
his is a pastor in Oregon of a church about the size of Chapel By
the Lake. He remarked that it outgrew a small facility and built
a facility much like the one at Auke Lake. He said that the
municipality in Oregon approved the building use permit, but the
municipality declared that the church could not have any weddings
or funerals in the new building. He said that the church example
is concrete, and he asks "what is the compelling state interest."
He stated that the Oregon church had ten acres, plenty of
parking, met all the building codes, did everything by the book,
no public health hazards, but that is a specific example [of
compelling state interest overriding religious practice]. His
examples deal with groups whereas Joe's examples are dealing with
individual rights.
MR. NICHOLSON said his third example is dealing with Orthodox
Jews. He noted that Orthodox Jews do not believe in driving
their automobiles on Sunday or the Sabbath. Therefore, they
agree that they are going to walk to the nearest Orthodox Jewish
home, read the Torah, pray, thank God for their life together and
then walk home. He explained that there is no traffic, no
parking, no impact on the environment, and no pollution whereas
at Joe's house on the same night, there is a knock-down, drag-out
party with booze and loud music that tears up the neighborhood.
Joe does not have a license to be a tavern either, yet the
Orthodox Jew meeting is against the law, but Joe's party is okay.
Mr. Nicholson mentioned that the Orthodox Jew meeting is a
concrete example of what can happen and where in some
municipalities Orthodox Jews meeting in homes [is considered
illegal]. These are just three examples of the kind of things
that HB 387 would help the courts understand as they look at
these issues.
Number 2218
REPRESENTATIVE OGAN acknowledged that he does believe that the
state has a compelling interest because regarding the moose
issue, the state has a constitutional mandate to sustain and
manage [wildlife]. If someone is going to shoot the last two
moose, then the state constitutionally [has to take action].
MR. NICHOLSON agreed that Representative Ogan is absolutely
right, and Mr. Nicholson would not want to go [against the
constitution].
REPRESENTATIVE OGAN noted that there is an exemption in state law
that allows for potlatches so native people can go out an get a
moose for potlatches.
REPRESENTATIVE KERTTULA wondered where Mr. Nicholson's Orthodox
Jew example came from and where did that happen.
Number 2152
MR. NICHOLSON replied that his [Presbyterian] Office of General
Assembly had sent that undocumented anecdote to him.
REPRESENTATIVE KERTTULA asked if the Orthodox Jew example
happened in Alaska.
MR. NICHOLSON answered no, none of his examples are in Alaska,
but he wanted to give concrete examples of how, without
legislation in place, these kinds of things would be decided.
KATHERINE HARRIS testified via teleconference from Tok and said
that her understanding of the history of HB 387 is that the
impetus for its creation was the U.S. Supreme Court ruling which
took the U.S. Constitution and interpreted it in a way so as to
remove protection of religious freedom. She assumed that if the
true intention of HB 387 is to protect religious freedom then the
legislature should want to write a bill which cannot be
interpreted by the courts in such a way as to remove protection
of religious freedom. She noted that HB 387 does not do this,
and many legislative debates rest on the assumption that
religious freedom is protected. During a recent debate in the
Senate State Affairs Committee on SB 292 relating to
vaccinations, members of that committee repeatedly stated that
people who have a religious objection to vaccinations are exempt
from having their children vaccinated but are they? She asked
where is it codified in law in a way that cannot be interpreted
in a such a way as to violate religious freedom. She asked what
if the government feels it has a compelling government interest
to vaccinate all children and the least restrictive means to do
so is to vaccinate them.
MS. HARRIS asked what if the government decides secular education
or the teaching of evolution is a compelling interest and thus
bans religious education as the least restrictive means for doing
so. She explained that the writing of HB 387 places the
interpretation once again in the hands of the court and even the
sponsor of HB 387 first talks about the danger of depending upon
the interpretation of the courts to protect religious freedom and
then relies upon their judgment in determining substantial
burden, compelling governmental interest, least restrictive
means, not to mention very unclear assets of HB 387, which
relates to a third party. She commented that if there are
specific religious freedoms which are always ensured, state them.
Freedom of religious expression is always protected, including
but not limited to, the right for parents to educate their
children in the manner they see fit and the right for every
individual to choose their medicine for themselves and their
children. She mentioned that the debate over religious
expression gets convoluted and truthfully stupid. She said that
people are seeking a right to express their religion in
spirituality.
MS. HARRIS asked why the debate always turns to running stop
signs and serving filet mignon to prisoners. She has the right
to express her spirituality for herself and with her children; it
is inherent in her existence as a human being. She emphasized
that the committee's job as legislators is to codify law which
ensures that no government policy, no prejudiced neighbor or no
court of law ever violates [the right to express spirituality].
Number 1917
LAURIE CUMMINGS testified via teleconference from Sitka in favor
of HB 387.
RANDY MEYER testified via teleconference from Fairbanks in
support of HB 387. He said he is a member of the North Pole
Seventh Day Adventist Church and he would like to testify in
relation to his own experience regarding freedom of religion. He
noted that his family has lived in America since the early 1800s
and came to America because of the issue of freedom. He
explained that freedom of religion is one of the most important
things that exists in this country, and it is why he lives here,
and why his family has lived here for almost two hundred years.
He commented that he lives in Alaska now because he sees
religious freedom in Alaska being protected more than he has seen
in other parts of the Lower 48. He mentioned that he believes
and continues to support HB 387 because of the fact that it does
put forth the precedent of least restrictive means.
Number 1886
SYLVIA HERNANDEZ testified via teleconference from Tok. She
noted that repeatedly over the course of this debate
Representative Croft has said that he does not see repercussions
of HB 387, and she thinks it is a responsibility on the part of
legislators to have the vision to see repercussions that a bill
will have on constituents. She explained that the sponsor could
write a clearer bill that does not leave room for interpretation.
The sponsor leaves no room and no definition about what a really
good reason for government [intervention] would be. She
mentioned that no standard [has been established regarding when
the government will intervene], and the sponsor wants to keep the
status quo. She asked why Alaska could not have a bill that
really represents religious freedom.
REPRESENTATIVE CROFT replied that it would be irresponsible when
purporting to change the law to not talk about how the change
would affect [constituents]. He is trying to keep the law
exactly the way it is so that is why he believes it is
appropriate to say that he wants the same sort of standards that
exist now to continue. He is not an expert in how every single
factual situation will turn out now. He has tried to clarify
definitions in HB 387, particularly "substantial burden" instead
of "burden," but fundamental problems that some people have
cannot be avoided since they simply do not trust the judiciary to
enforce HB 387 correctly. At some level people must trust the
judiciary to correctly apply the right standard when the
judiciary is given that standard. He agreed that the federal
court at least has switched to an improper standard and believes
that it is applying the wrong law. He emphasized that in
particular instances people are going to have to trust somebody
to [make a decision]. He remarked that Alaska has three
branches of government: the legislative branch tries to put in
proper standards, the executive branch has another job, and the
judiciary branch interprets the laws. He recognized Ms.
Hernandez's point, but he does not think there is any way to
avoid some discretion in this matter regarding different factual
situations.
Number 1622
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (ACLU), testified via teleconference from Anchorage. She
said she had sent many materials to committee members and wanted
them be distributed to every person on the committee. She noted
there is one page of amendments that the ACLU is suggesting for
HB 387 and an 11-page position paper that the ACLU has drafted
outlining the current state of the law that she thinks will
answer some questions that have been asked in terms of how are
cases coming down around the country. She explained that there
are a couple of two-page letters written by the National
Association for the Advancement of Colored People (NAACP) in
opposition to the federal Religious Liberty Protection Act (RLPA)
unless some civil rights amendments are added.
MS. RUDINGER commented that there is a two-page testimony by
Texas Representative Scott Hochberg regarding the civil rights
amendment to the Texas Religious Freedom Restoration Act (RFRA)
which was signed into law last year by Governor George W. Bush.
She mentioned that there is also a two-page letter from the
National Fair Housing Alliance and several letters form religious
organizations including the Coalition for the Free Exercise of
Religion, the Episcopal Church, the United Church of Christ, the
Friends Committee, United Synagogues of Conservative Judaism, the
Evangelical Lutheran Church in America, and the Union of American
Hebrew Congregations. The committee will be receiving a four-
page article from the Jewish Telegraphic Agency citing their
withdrawal, as well as the withdrawal of Baptists, from support
of the federal RLPA. She indicated it is a little difficult to
talk in too much depth until the committee has had a chance to
see those materials because she would like the opportunity to
answer questions about the materials. She asked Chair James if
she could come back and testify after the committee has had a
chance to review the materials.
Number 1428
CHAIR JAMES replied that the materials that Ms. Rudinger had
provided were received just before the committee meeting began
and they are being copied. She said that the committee will have
time before HB 387 is up before the committee again to review
those documents that Ms. Rudinger is presenting.
MS. RUDINGER stated that she would be happy to come back another
day since HB 387 is going to be held over and she is available
any time.
Number 1342
CHAIR JAMES answered that even though she wants to get through
all the public testimony and close public testimony today she
could allow Ms. Rudinger to provide her testimony at the next
hearing without opening public testimony again.
MS. RUDINGER said that is fine and it will be helpful for folks
who may have questions after they read her material.
PAUL BERAN, Pastor, Resurrection Lutheran Church, representing
the Evangelical Lutheran Church of America (ELCA), said that at
first the ELCA was a supporter of RFRA movements but now has
withdrawn its support. He explained that he wanted to speak
against HB 387 for two reasons. First of all, HB 387 is a very
broad-ranging bill that has broad powers. He commented that the
danger is elevating freedom of religion, which is very important,
at the expense of other freedoms as outlined in the Bill of
Rights. The second problem is closely tied to that; if HB 387
becomes almost an elevation of one area, it then falls prey to
the danger of abuse. If abuse happens then the whole area that
is being protected falls into disarray and the illustration of
history that comes most to his mind is the nation of Russia where
government and the church have shared the same bedroom to the
detriment of both. Therefore, he would like to encourage that HB
387 be thought through carefully, and he leans toward voting no
or encouraging a no vote on HB 387.
Number 1204
CHAIR JAMES said she is having a hard time sorting Mr. Beran's
statements in regard to the purpose of HB 387. She noted she is
guided by history, circumstance and the change in society today.
First of all, [religious] freedom enjoyed in this nation is one
of the reasons why this nation exists and folks who wanted
freedom of religion came here for that reason. She has read many
stories about [people seeking freedom of religion] and some of
her relatives came from Sweden. In the book Immigrants, it tells
how the immigrants were seeking the ability to meet in people's
homes and worship in a way that happened to be in violation of
their country's religion. She understood from Mr. Beran's
testimony that he is fearful of putting freedom of religion at
the top of the heap because it might interfere with other
religions or other freedoms. She suspected that what he is
talking about is civil rights because it seems to her that civil
rights are strongly based in freedom of religion. She asked if
that was in fact Mr. Beran's concern or where does his concern on
that issue lie in particular.
Number 1069
MR. BERAN replied that civil rights are one area of concern but
not the only one because religion is such a personal commitment
that a person can abuse society on the basis of freedom of
religion. For instance, unemployment, education, family
responsibility and health [were other areas of concern].
CHAIR JAMES agreed that religion is very personal and asked him
if he is saying that the legislature should define whose
religions are okay and whose are not.
MR. BERAN answered no, he is not saying that.
CHAIR JAMES acknowledged that in the case of employment the
committee had heard from the Seventh Day Adventist Church about
an issue where someone lost their position at work because it
required working on Saturday. The person would not work on a
Saturday and was not entitled to unemployment. She said that in
that particular case it was determined that the person did not
have to work on Saturday. She noted that even though that might
be her basic belief, she has the belief that if she wants to have
a job, she has to do what the employer requires of her. However,
that depends upon whether or not a state can make a law like that
because she thinks a private employer could probably present
terms of the working agreement and say "either you work or not,"
and the prospective employee can go find another job compatible
with his/her religion. She asked Mr. Beran if it was the
language in HB 387 that causes him to not particularly support
it, or is it the theory in the main that this determination of
the compelling state interest as opposed to religious freedom is
the standard against which disputes should be measured.
Number 0923
MR. BERAN replied that he believes there needs to be a balance
between religion and state. He said that he believed that if one
gets out of balance the integrity of both sides is impinged.
CHAIR JAMES asked if Mr. Beran would agree that the only place
wherein balance in this conflict can truly be found is in the
judicial system. She asked whether a law can be written that
establishes the balance. She asked if the judicial system
continues to measure this issue of religious freedom and the
compelling state interest, does Mr. Beran think that is a good
measure of how that should be determined.
MR. BERAN answered yes. He added that he guesses he got the
feeling from HB 387 that the state is like the apex of the
pyramid, and he thinks the state needs to be almost like a
parallel bar similar to a teeter-totter.
CHAIR JAMES said she did not necessarily read that into the law.
She explained that her interest in asking him all these questions
is to find out if she is missing something in HB 387 because she
always wants to know if there is something not visible to her.
Number 0785
MR. BERAN replied that his primary concern in this is that if it
be abused then there would be a negative reaction to the abuse
that would hurt all religious exercise.
CHAIR JAMES stated that she does not believe that HB 387 changes
anything from the way things are currently being done, and she
does believe that there will continue to be abuses because this
is not a perfect world. The legislature has to do what it can to
try to fix things so that they are at least as fair and equitable
as possible.
JIMMIE STORY testified via teleconference from Sitka in support
of HB 387 and wishes to see a clean bill passed.
Number 0688
KAREN POWER testified via teleconference from Tok in opposition
to HB 387 because while Representative Croft will not deal with
hypotheticals, he has not taken into consideration the spirit of
the law versus the letter of the law. She said that in a few
years the intent of HB 387 will disappear and be forgotten or
worse, it will be warped. She feared this is the legacy left to
her children, the legacy being that of a warped HB 387 that maybe
one day in 20 to 50 years may actually be used to prosecute and
discriminate against different religions. She noted that the
United States Constitution bears out her point of warping thinks
beyond recognition and she thinks that is a very accurate
possibility which could happen to HB 387.
MS. HERNANDEZ stated that she realized that Representative Croft
cannot foresee everything, but she said he could draft a bill
that is clear and leaves no room for misinterpretation. She said
that the judicial system has not done a very good job of
interpreting things the way that they were intended to be and
that is very clear with what has happened to the U.S.
Constitution. She reiterated that Representative Croft has not
defined what "substantial burden" or "compelling interest" or
"third party" means, and she thinks it is his responsibility to
do so in order for people to know what people are supporting or
not supporting. For the moment, she added, she is completely
opposed to HB 387.
Number 0605
SHIRLEY DOWNING testified via teleconference from Sitka in
support of HB 387. She noted that earlier this morning
Representative Croft had used the word "buttress," and she likes
that term because she feels that religious freedom does need to
be buttressed at the state level. She strongly urged rejection
of any "carve outs" or amendments.
Number 0480
GEORGE ELIASON testified via teleconference from Sitka in support
of HB 387. He explained that religious freedom rights of the
citizens of Alaska are very important and fundamental, and
religious liberty should not be denied to any class of citizen.
He commented that HB 387 is well written in protecting his
religious practices, yet it does not interfere with the rights of
other persons. He urged the committee to support HB 387 as
written and oppose any amendments that would create "carve outs"
for any group of people.
ALTHEA BUCKINGHAM testified via teleconference from Sitka in
support of HB 387. She informed the committee that she thinks it
is a shame that people must fight to get religious freedom and is
in favor of HB 387 as written. She indicated she does not want
to see any changes make to HB 387.
PETER PORRINO testified via teleconference from Tok in opposition
to HB 387. He agreed with Sylvia Hernandez and does not support
HB 387 in its current form for reasons based on the words like
"substantial burden" and "compelling governmental interest." He
does not know why the wording was changed from "restricting a
person's free exercise of religion" to "substantial burden" being
placed on a religion. He is concerned that the courts may not
understand the minority religions, and what may not appear to be
a substantial burden to a judge, may in fact be a great burden to
an individual. He commented that HB 387 allows the court to
judge the worth of a religious practice, which is really wrong.
He agreed with Chair James that HB 387 does nothing. Every
possible hypothetical situation, such as the one about faith
healing, has been answered with "I don't know." It is important
for people to know what HB 387 will protect in order to make a
proper decision on how this will go through.
Number 0213
HEATHER ALEXANDER testified via teleconference from Tok in
opposition to HB 387. She stated that she is speaking against HB
387 because freedom of religious expression is an innate right of
all people and unless she is breaking a law, whether it be
running stop signs or killing someone, her religious right must
be protected. She noted that it is Representative Croft's job to
ensure that protection. She reiterated that people keep asking
Representative Croft about how this bill will affect particular
examples of religious examples, and his answer is he does not
know, but then he gives hypothetical examples that would never
happen. She commented that this is really confusing, and as
Chair James mentioned, hypotheticals can sway and mislead people
into misinterpreting the reason for HB 387. There should not
ever be a compelling government interest that keeps someone from
having religious freedom. The wording in HB 387 is broad in
general to allow for case-by-case evaluation by the courts. She
favored leaving the decision up to the people because the time
has come in this new millennium when people should trust that
people will make common sense decisions with mutual respect for
each other's rights.
TAPE 00-26, SIDE A
Number 0036
JEAN HATEM testified via teleconference from Tok in opposition to
HB 387. She asked Representative Croft again, who is the third
party that he refers to in HB 387, and how can he reassure her
that her child would not be considered the third party? She
noted that HB 387 reads as follows in Section 4(c), line 30, page
2: "This section may not be construed to create an establishment
of religion or to authorize the infringement of the individual
rights of a third party." She asked what happens if the
government decides that they have a compelling interest that she
as a parent is infringing on the rights of her child if that is
what someone chooses the third party to refer to. This section
needs to be made clear before she can decide at all about how she
feels about HB 387; for this reason right now she cannot support
HB 387. She commented that it is irresponsible to write a bill
about which the sponsor has no idea how it can be implemented or
applied. She asked if Representative Croft would answer the
question "who is the third party?"
Number 0143
REPRESENTATIVE CROFT replied that the third party is infringing
the rights of another, and it can be a child or anyone else. He
said that the intent of HB 387 was to use this right as a shield
to protect the government from infringing on religious freedom.
He noted that it was not directly intended to be a sword for
someone to use to infringe upon other people's rights. He has
had discussions with various people about that issue, and he is
not trying to avoid any specific hypotheticals. He commented
that hypotheticals can be talked about, and he can talk about how
he thinks they might turn out. If he were proposing to change
the law, he thinks that would be even mandatory, but he is
proposing to keep the law the way it is, so the question becomes
what is the current state of the law. In some cases he just does
not know, and his opinion about what he thinks a judge would rule
right now can be talked about, but that is all it would be, just
an opinion.
REPRESENTATIVE CROFT referred to the cases where Christian
Scientists resist immunizing their children. He does not know
the current state of the law, but he thought it was mandatory for
children to be vaccinated for school admittance. He thinks there
is a compelling state interest in keeping people who are in
school immunized so that other kids do not catch diseases. He
said that they can home school if they do not want to immunize,
but if they want to go to public school, they immunize; that is
nothing more than his belief about that hypothetical now. The
point is, he does not intend to change the current standard, and
if he is wrong about the case and it goes another way, that is
the way it was intended to be. He is not afraid of any of the
hypotheticals, but he just wants it understood that it is not
relevant discussion to guess at what is going on now in terms of
interpretation of the standard. He reminded the committee that
hypotheticals can be discussed if someone wants to discuss them,
but the real question should be what is the current law now and
how is it applied. He added that in some instances he does not
know what is current law.
Number 0364
CHAIR JAMES agreed that Alaska has a very fast growing population
and various types of religions and needs. One of the things that
she feels very proud about living in this country is that
citizens do have freedom and when people come from other
countries, they appreciate the freedom much more than American
citizens do because Americans take it for granted. She has
always said is that her guaranteed American freedom only runs
until it runs into someone else's freedom, and then freedom has
to be measured as to who is most impaired by that collision. She
explained that she thinks that this country works [on that
premise] and does not see it working any other way, so in
religion it is the same issue. She commented that religion is
number one on the Bill of Rights in the federal Constitution, and
she thinks this whole country was founded on religious freedom
because most of the folks who came here early on were coming to
get away from some kind of religious oppression. She mentioned
that religious freedom is one of the most important rights;
however, she does believe that people must live alongside of
other people ,and some religions even make their own communities
(the Amish is a good example) so they do not have infractions or
problems with people around them. She acknowledged that HB 387
is a tough issue to decide. [HB 387 was heard and held.]
ADJOURNMENT
Number 0609
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:52
a.m.
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