SENATE JOINT RESOLUTION NO. 42 Proposing an amendment to the Constitution of the State of Alaska relating to marriage. CS FOR SENATE JOINT RESOLUTION NO. 42(JUD) Proposing an amendment to the Constitution of the State of Alaska relating to marriage. CO-CHAIR SHARP: SJR 42. We have gone through hours and hours of public hearing with this committee on this bill. SENATOR PHILLIPS: SJR 42. Do we have any committee substitute? CO-CHAIR SHARP: No. A judiciary... SENATOR PHILLIPS: I would move the judiciary version of SJR 42 with the accompanying one fiscal note. SENATOR ADAMS: Objection. CO-CHAIR SHARP: There has been objection. SENATOR ADAMS: I am looking for the judiciary committee substitute. Is that in the packet? SENATOR PHILLIPS: Yeah, it is, Mr. Chairman. CO-CHAIR SHARP: Beg your pardon? SENATOR PHILLIPS: Yeah, it should be. CO-CHAIR SHARP: Judiciary is in here on mine. SENATOR PHILLIPS: Want to know what the changes are? (pause on record) CO-CHAIR SHARP: Is it in your folder? SENATOR ADAMS: Mr. Chairman, could we go over just the changes real quick? CO-CHAIR SHARP: I think every member has the two bills in front of them. SENATOR PHILLIPS: Did you want an answer? SENATOR ADAMS: Yeah, go over the changes, would you? SENATOR PHILLPS: Oh, O.K. That's what I though you said. O.K., Mr. Chairman, obviously I'm not an expert on this, but I can at least try. If you look at the original version it had article 12, Judiciary put it in article 1. And Judiciary deleted the original language up to the second sentence. "The Legislature may, by law, enact judicial requirements relating to marriage" and inserted "No provisions of this Constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex. Additional requirements related to marriage may be established to the extent permitted by the Constitution of the United States and the Constitution of the State of Alaska." Now, Mr. Chairman, those are the main changes. CO-CHAIR SHARP: Senator Donley? SENATOR DONLEY: As much as I am reluctant...it seems to me the initial sentence covers pretty much everything that the entire paragraph covers. I mean it defines what a marriage is. The constitutional construction clearly, from the recent State Supreme Court cases, (unintelligible) clearly indicates that a subsequent amendment cannot be invalidated by a prior section of the Constitution. So that with just the first sentence nobody could interpret the Constitution, any other clause of the State's Constitution overriding that first sentence which defines a marriage as existing between one man and one woman. And I don't understand the necessity of the third sentence, "additional requirements may be established". Typically the Constitution, where it says, "additional requirements" it specifies that it be done by statute or by the Legislature. But this doesn't say. It just says "additional requirements may be established". It begs the question by "who" to me. Every other sections of the Constitution specify "who" shall establish subsequent provisions. (Tape SFC-109, Side B changed to SFC-110, Side A at approximately 10:40 a.m.) CO-CHAIR SHARP: Senator Leman, could you explain the nature of the changes between the original bill and the judiciary version and some of the...did you hear some of Senator Donley's...? SENATOR LEMAN: I just stepped in and didn't hear that... SENATOR DONLEY: Do you want me to...I could CO-CHAIR SHARP: O.K. SENATOR LEMAN: I just heard the comments that...I know what the differences are, but I did not hear his questions. CO-CHAIR SHARP: Did you hear, Senator Donley? SENATOR DONLEY: I liked the original version better than the judiciary version, my first impression. So, why the changes and why did the judiciary committee think this version was better? SENATOR LEMAN: The overall reason is to remove ambiguity in the future and future challenges. Wanted to make sure that it's very clear and that's the reason for it. And I'll let Mr. Polley go through and explain each one in detail. MR. POLLEY: Thank-you. For the record, my name is Mike Polley, staff aide to Senator Leman. First, just some background comments on the genesis of both these proposals. The first version, here, draft "A", is actually identical to a version that Legal Services drafted back in 1996, when the Legislature initially addressed this subject. And, at that time, one of the proposals being considered was that it should be in the structure of an amendment to the Constitution rather than a statute. At that time it was decided that a statute was sufficient, since there had been no Court ruling on the subject, saying that any constitutional rights were implicated. And, so, the decision was made to abandon that and go with the statute. So, when we initially introduced the bill, we simply took the language that had been prepared back in 1996 and introduced it. Subsequent to that, we consulted with attorneys who have been involved in the litigation on same sex marriage in both the State of Hawaii and also the State of Vermont, which are the only two other states, aside from Alaska, which are dealing with this issue in their Courts. Those attorneys reviewed the language of our 1996 draft and felt that it was inadequate and it could potentially create some ambiguity. So, if I could turn to the new draft, just very quickly...the first line, to be valid or recognized in the State, a marriage may exist only between one man and one woman. Basically, the term "valid" applies to marriages that are entered in to in our State, the term "recognized" would deal with the matter of the potentiality in the future if another state or foreign jurisdiction were to legalize a same sex union would Alaska then have to recognize that marriage. And so, the two verbs there, "valid" and "recognized" apply to the in-state and out-of-state questions. And then, "only" is the limiting word and obviously one man and one woman simply restating what has always been the law in Alaska. The second line, "no provision of this Constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex" is in the amendment to basically deal with the scenario that if a Court found a contradiction between the first sentence and the overall values or vision of the document and shows the latter. In other words, what we are trying to do is preempt a situation, such as what occurred in Colorado, where the voters there actually passed a constitutional amendment saying that no special preferences could be granted to people based upon their sexual preference. That was an amendment to the constitution. The Colorado Supreme Court actually struck down an amendment to their own constitution because they found it to be inconsistent with other parts of the constitution. I realize that legally, that's a hard concept to digest, that the...we've always thought that any amendment to the constitution is going to trump other parts of the constitution. But, at least in the case of Colorado, an amendment to the constitution did not suffice. So, the second line, here, we believe is necessary, so that it states very specifically "no provision of this Constitution may be interpreted to require that the State recognize or permit marriages between individuals of the same sex". In other words, what we're trying to do is prevent a situation where the Court might find that the first sentence in the amendment conflicts with due process, equal protection or some other part of the Constitution that they would say would override that. The third sentence, "additional requirements related to marriage may be established" is basically just to...set in to address other scenarios because we believe that Judge Michalski's opinion implicates our statutes far beyond the narrow question of whether people of the same sex should be allowed to marry. I mean, what he has found, is a fundamental constitutional right to choose one's life partner without setting any parameters on that. And so, in our mind, that could potentially be invoked to strike on other parts of our marriage statutes, such as limitations on consanguinity and also restrictions based on age. So, the third sentence is just an overall statement that it's appropriate for the Legislature to act in the area of our marriage statutes. Anyway, I apologize for the long winded explanation. CO-CHAIR SHARP: Senator Donley? SENATOR DONLEY: But it doesn't say the Legislature and I think it is pretty consistent throughout the Alaska State Constitution...if you find the language that appears in the original resolution, "...the Legislature by law may enact..." and this one just says, "Additional requirements may be established...". But it doesn't give the power to that to anybody specifically. MR. POLLEY: Through the Chair, Senator Donley, I don't believe it would do any injury to the amendment if the committee wanted to insert, after the word "established", "established by the Legislature to the extent permitted"... SENATOR DONLEY: Or etcetera. SENATOR LEMAN: Or worded as we have elsewhere. I believe we have, Mr. Chairman and Senator Donley, we could say, "The Legislature may establish additional requirements to the extent permitted by the Constitution of the United States and the Constitution of the State of Alaska" or something to that effect. Too many things we are trying to get to that I believe are in existing statute are age and blood quantum, you know, those are things that are in existing statute and those are legitimate. We don't want to see claims brought against those types of restrictions that we have in existing law. SENATOR DONLEY: Why did the judiciary committee want to add the caveat, "...may be established to the extent permitted by the Constitution of the United States and the Constitution of the State of Alaska". I mean it just seems like that's a given. All through the Constitution we see the Legislature given the power to, as in the original proposal, make statutes, all of which are tempered by the fact that they have to be consistent with the U.S. Constitution and the State Constitution. Now, occasionally, you may want to specify the standards of the U.S. Constitution and not the Alaska Constitution and that would be appropriate but it doesn't mean that the State shouldn't, but, as long as you are covering both, here, that's the default. I mean, that's what would be the default factor, anyhow. MR. POLLEY: Through the Chair, Senator Donley, the thought behind adding the term "Constitution of the United States and Constitution of the State of Alaska" is to address the concerns some people have expressed that yeah, there have been some fears, we believe they're unfounded, that this could lead to other unwarranted restrictions on marriage, as in the case brought to this committee's attention most often, you know, that interracial marriage used to not be allowed, you know, and is this opening the door to setting a restriction like that. Well, of course, the Supreme Court has struck down bans on interracial marriage as being unconstitutional. And so the purpose in having that language is just to clarify for people, and admittedly it is...there is a slight redundancy to it, because obviously the primacy of Federal law exists here, but basically what this language is trying to do is clarify for people that, you know, the Legislature is obviously not going to be getting into areas of reexamining laws interracial marriage. I mean, that's not the scope of this amendment. SENATOR PHILLIPS: Mr. Chair? CO-CHAIR SHARP: Senator Phillips? SENATOR PHILLIPS: At the hearing on Tuesday night, there were a few that expressed that concern. It was brought up at the hearing. CO-CHAIR SHARP: Senator Parnell? SENATOR PARNELL: And I agree with Senator Donley to the extent that it is a little ambiguous unless we insert something about the "Legislature enacting". And I would propose an amendment on page one, line nine, before the word "additional", insert "The Legislature may enact..." and then strike the words, beginning at line nine, "...may be established..." so the sentence would read, "The Legislature may enact additional requirements related to marriage to the extent permitted by the Constitution of the United States and the Constitution of the State of Alaska." CO-CHAIR SHARP: Senator Parnell has proposed an amendment, which would be amendment number one, on line nine, preceeding...adding to the beginning of the sentence, "the Legislature may enact additional requirements related to marriage...", delelting the words "may be established" so that it would read, "The Legislature may enact additional requirements r elated to marriage to the extent permitted by the Constitution..." and so on. Is that correct? SENATOR PARNELL: Yes. CO-CHAIR SHARP: That is the amendment and it will be amendment number one. Any discussion on amendment number one? Any objection to amendment number one? Amendment number one has been adopted. SENATOR ADAMS: Mr. Chairman? Point of order. CO-CHAIR SHARP: Senator Adams? SENATOR ADAMS: Wasn't there a motion before that particular amendment to move out the bill. We're not doing this particularly properly. There's a motion to move out the bill. We should have removed that before we went to amendment number one, Mr. Chairman. SENATOR PHILLIPS: That's correct. CO-CHAIR SHARP: Had you moved that? O.K. Senator Phillips? SENATOR PHILLIPS: I will just withdraw the motion... CO-CHAIR SHARP: Senator Phillips has asked to be able to withdraw his motion to move the bill out of committee. Any objection? Hearing no objection...Senator Parnell? The bill has got... SENATOR PARNELL: O.K., the bill is back before us and...what became of it? Was my motion ruled out of order? CO-CHAIR SHARP: Yes. SENATOR PARNELL: O.K. I'll start over again. My motion is page one, line nine, before the word "additional" insert the words, "The Legislature may enact..." and then delete the words at line nine, page one...beginning at page nine...or page one, line nine, "may be established"...those three words should be deleted. CO-CHAIR SHARP: O.K. Does the Secretary have that amendment? MADAME SECRETARY: Yes. CO-CHAIR SHARP: Which will be amendment number one. Any objection to that amendment? Amendment number one has been adopted. SENATOR PHILLIPS: All right, Mr. Chairman, I'll move the...I guess it will be the Finance Committee substitute? CO-CHAIR SHARP: Yes. SENATOR PHILLIPS: Number SJR 42... SENATOR ADAMS: Object. CO-CHAIR SHARP: There has been objection. Senator Adams? SENATOR ADAMS: May I speak to my... SENATOR PHILLIPS: (unintelligible) SENATOR ADAMS: I yield to my collegue. SENATOR PHILLIPS: With the accompanying three thousand dollar fiscal note. CO-CHAIR SHARP: O.K. It has been moved that CSSJR 42(FIN) be moved out of committee with individual recommendations and accompanying fiscal note. Senator Adams? SENATOR ADAMS: Just briefly, Mr. Chairman, CSSJR 42, what it lacks, I believe, it lacks respect and compassion for people in the State of Alaska. I am a married man, six kids and a Quaker. And I listened to the testimony from some of the religious groups. But I believe that before we pass something like this is that we should wait for the Courts to take it. I think that many Alaskans, no matter where you live in rural or urban areas, have been government infringing on individual rights. And that's basically what this does. I thought we took a sworn oath of office that we would protect the Constitution. That every Alaskan should have equal protection, equal treatment. But we're not doing it with this piece of legislation. One of the things that we try to do, is we Legislators...to do, is try to push morality, I think, on people. None of us...none of the sixty Legislators are perfect. How many, like myself, can stand up and say, "Should I push the morality of what I do on the people of the State of Alaska?" 'Cause I love to gamble. I play poker once a week. I play cribbage. I go to the horse races. So, I love to gamble. After one hundred and twenty-one days I like to drink. But I do not pass that on to the people. And, as a normal human being, also, is I do lust for certain things. A new car, and perhaps something beautiful of the opposite sex. So, there is nobody that is perfect in the Legislature. Any why are we trying to pass on morality? I think morality should not be a Legislative matter and we're trying to do this. And I think that is wrong. We could beg, also, in different sections of the statutes, the invasion of privacy. And I think that's basically what we're trying to do. And I would ask members, that we should at least wait for a Court decision on this piece of legislation. I know I might be the lone wolf in this particular argument but I think it is the only decent thing to do, is not to pass this. CO-CHAIR SHARP: Any other committee comments? There has been objection, please call the roll. MADAME SECRETARY: Senator Torgerson? SENATOR TORGERSON: Yes. MADAME SECRETARY: Senator Parnell? SENATOR PARNELL: Yes. MADAME SECRETARY: Senator Donley? SENATOR DONLEY: Yes. MADAME SECRETARY: Senator Adams? SENATOR ADAMS: No. MADAME SECRETARY: Senator Phillips? SENATOR PHILLIPS: Yes. MADAME SECRETARY: Senator Pearce? SENATOR PEARCE: Yes. MADAME SECRETARY: Senator Sharp? CO-CHAIR SHARP: Yes. MADAME SECRETARY: Six yeas, one nay. CO-CHAIR SHARP: SJR 42(FIN) with accompanying fiscal notes moves out of committee on a vote of six yeas and one nay. End of verbatim transcript, SJR 42. ADJOURNMENT Co-chair Sharp adjourned the meeting until 9:00 a.m. tomorrow. SFC-98 -1- 4/02/98 SJR 42