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.