Legislature(1995 - 1996)
03/25/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 308 PROHIBIT SAME SEX MARRIAGES SENATOR LEMAN presented SB 308 for the Senate HES Committee. SB 308 has three main provisions. Section 1 clarifies that a marriage is between one man and one woman. According to the Department of Law, existing statute is enforced that way, however 22 years ago some of the words were changed in a revisor's bill; with the possibility the change could be substantive. The second provision, in Section 2, prevents Alaska from acknowledging same sex marriages acknowledged by other states. The third provision prevents a same sex relationship, not consummated by marriage, from being recognized by the state as being entitled to the benefits of marriage. The impetus for the legislation is a court case in the State of Hawaii. A number of states are concerned that public policy should be determined by the states and their legislatures, not by a handful of judges. SENATOR ADAMS asked for a legal analysis of SB 308. SENATOR LEMAN responded his analysis is that the bill is legal. SENATOR TAYLOR questioned the amendment added to Representative Kelly's bill. SENATOR LEMAN explained a bill passed the House that deals with benefits at the University of Alaska and State of Alaska. A second bill in the House contains parts of SB 308, specifically the definition of marriage. Number 386 SENATOR ELLIS asked if the State of Alaska has ever recognized a marriage between two people of the same gender. SENATOR LEMAN replied it has not. SENATOR ELLIS asked if that is existing law. SENATOR LEMAN answered it is, and DOL enforces it that way. JOANNE JENCKES testified from Kenai in support of SB 308 as it will help to preserve the family. DAN DAVIS testified from Delta in strong support of SB 308 as it addresses a serious social problem. He commended the Senate for taking action on this issue and believes the state must do everything in its power to promote the standard heterosexual husband-wife family. Elevating the dangerous practices of homosexuality with legally protected status is devoid of reason and morality. Statistics show the average life expectancy of a homosexual male and lesbian female is 43 and 45 years respectively. MICHAEL JOHNSTON, the state director of the National Campaign to Protect Marriage, testified from Anchorage in support of SB 308. SB 308 is a common sense approach to deal with two primary issues: ambiguity and the Alaska marriage statute. The issue of ambiguity revolves around gender neutral language. Marriage has never been neutral and statutory changes to gender neutral language were not intended by the legislature to legalize same sex marriages. The statutory issue deals with potential controversy in other jurisdictions. Several states have passed legislation similar to SB 308, and 22 states are currently considering similar legislation. SB 308 provides for a strong public policy against same sex marriages necessary to support an extension from the requirement for the state to give full faith and credit to public acts, records and judicial proceedings of every other state as described in the U.S. Constitution. Opponents argue SB 308 is unnecessary, warrants extensive litigation, and is discriminatory. The threat of costly litigation is a moot point because if Alaska does not take action now and establish a clear policy, it will be a matter of time before same sex marital contracts from other states will be contested in Alaska courts. KATE WATTUM testified from Fairbanks in opposition of SB 308 as it fuels the fires of intolerance and hatred and sends the message that discrimination is acceptable. It is a nonsense law that will mobilize, not stop, activists. SB 308 puts discriminatory views into law by not acknowledging equal rights for all citizens. Number 490 BOB KNIGHT, representing the Family Research Council in Washington, D.C. stated an overwhelming number of studies show communities with the most intact families are healthier, and children in intact families experience higher academic achievement, are more secure psychologically and economically, commit fewer crimes, and are far less likely to fall into social pathologies such as unwed pregnancies, drug abuse, venereal disease and deviancies of all types. Marriage and the family are the key organizing principle behind all civilizations, and exist for procreative purposes. In a same sex relationship, one gender is radically excluded. The U.S. Supreme Court declared in 1885 that the law protecting marriage was so important that any state wanting to become part of the union must protect it. Same sex couples can have marriage ceremonies, but legally sanctioning those marriages would have serious consequences for others. Schools would have to teach that homosexual sex is the equivalent of marital love between husband and wife; businesses would be forced to subsidize homosexual relationships or face the full power of the law wielded against them; churches believe that homosexuality is a sin and would find themselves outside the law and it could affect tax-exempt status; and groups like the Boy Scouts of America, already under severe attack in the courts, would be under increasing pressure to have homosexual leaders. Opening the door to same sex marriages would prevent the denial of multiple partner unions. Number 562 KIMBERLY MACK testified from Barrow in opposition to SB 308. Gay marriages do not threaten anyone. The presumption that gay people are strange is not justified or fair. In long term homosexual relationships, partners need the same benefits and protections as married couples. Gay people contribute to society and deserve to be acknowledged and receive the same protections as everyone else. MARK TUMIO testified from Texas in opposition to SB 308. He appreciated the fact that SB 308 has not been veiled in vague terms and promoted through excuses of financial or economic concerns, like HB 226. Ten percent of our society is denied the basic right of equal protection under the law, granted to opposite sex couples. Opposite sex couples get this right regardless of whether they are in good marriages or whether they are good and moral people: it is a right associated solely with their sexuality. Many churches, throughout history, have sanctioned same sex or multiple partner marriages. Gays and lesbians are not trying to change the law: that is being done by the sponsor of SB 308. Gays and lesbians are only asking to be treated fairly: this is not a gay agenda, it is a human agenda. The Hawaii court case will not be settled for several years and invalidating marriages from other states will not pass constitutional muster. TAPE 96-27, SIDE B Number 572 STEVE FITCHER, Director of the National Legal Foundation, stated if Hawaii recognizes same sex marriages, homosexual couples from all over America will travel to Hawaii to marry and return to their native states and seek to have those marriages recognized, according to two Law Review articles. Both authors believe that a state's best defense, if opposed to recognizing same sex marriages, is a choice of law issue which should be shown with a strong public policy against such marriages. SB 308 is well drafted for that purpose. Two reasons to enforce SB 308 are morality and the impact to the state. The framers of the Constitution left the police power to the states which includes public safety and public morality. Additionally, the U.S. Supreme Court has already ruled, in Powers v. Hardwick, that the majority sentiments about homosexuality can be grounds for legislation. Regarding the impact of recognition to the state, in the Hawaii case itself, the Hawaii Supreme Court recognized 14 broad areas of their state code which would be impacted, and that list was not exhaustive. He believes the bill is constitutional as there is no fundamental right either to homosexual sodomy or to homosexual marriage arriving from the privacy right or anywhere else. The key difference between Hawaii and Alaska is that in Hawaii the Supreme Court remanded the case instructing the trial court to use a strict scrutiny standard. In Alaska a rational basis test is used. Number 529 SENATOR TAYLOR noted he had a full copy of the lawsuit and appeal filed against the University of Alaska; the points made to the court in that case are available to the committee. MILDRED BOESSER, representing the City and Borough of Juneau Human Rights Commission on SB 308 and HB 226, stated the commission voted unanimously at its March 1996 meeting to go on record as opposing SB 308 as a violation of human rights. She read a statement from the committee in opposition to HB 226 (available in committee packets). She noted she is a lifelong committed Christian and disagreed with the statement that all major churches define homosexuality as a sin. The Episcopal church does not do so. She believes it is more important to enlarge the concept of marriage rather than redefine or undermine traditional marriage. SENATOR TAYLOR asked Ms. Boesser about the heresy trial in the Episcopal church. MS. BOESSER replied a small group of bishops, mostly retired, have brought a heresy trial against a fellow bishop who ordained a gay man living in a committed homosexual relationship. The case is not about the fact that a gay man was ordained, it is about the fact that this bishop is living in an open relationship. She believed that policy to be hypocritical. SENATOR TAYLOR commented that is similar to the President's position on the military. MARSHA BUCK, representing Parents, Families, and Friends of Lesbians and Gays (PFLAG) Juneau, testified in opposition to SB 308 and HB 226 because both bills are based on erroneous information and are discriminatory and unconstitutional. Gay and lesbian people have a God-given sexual orientation. Lying about one's opponent is effective political weaponry, however gays and lesbians are not anyone's opponents, they are constituents. She emphasized PFLAG-Juneau is opposed specifically to SB 308 because if passed, it is only a matter of time before an expensive court case will ensue, and the law will be found to be unconstitutional based on the state reciprocity provision in the U.S. Constitution. Number 410 CAROL ANDERSON testified in opposition to SB 308 as it is an attempt to deny the basic human right of marriage to lesbians and gays. Gays and lesbians have been around since the beginning of time making their quiet contributions to society. Many gays and lesbians are afraid to publically object to bills such as these because there are no city, state, or federal laws to protect them from discrimination. They could be fired from jobs, evicted from homes, and lose custody of children. SB 308 will codify the discriminatory practice of allowing people to marry a person only of the opposite sex. Gay people want the status of legal families, to provide for their children, to be allowed hospital visitation, and to be entitled as surviving spouses to social security benefits, and to avoid inheritance problems. SENATOR TAYLOR clarified that no one in Alaska pays inheritance taxes to the State of Alaska unless they pay federal inheritance taxes. For a couple, the net estate must be worth $1.2 million; for an individual the net estate must be $600,000. He wondered if Ms. Anderson was referring to the transfer of property without the requirement of probate. A husband and wife owning property jointly in an estate called "tenants by the entirety with right of survivorship" provides that when one spouse dies, the property automatically transfers to the other spouse on the filing of the death certificate with the recorder's office. Same sex partners would not have that opportunity under Alaska real estate law, because the property is not owned by a married couple with right of survivorship. PHIL REEMTSMA, a member of Cavalry Baptist Church in Kenai, testified in support of SB 308. The issue of same sex marriages is not one of discrimination, it is an issue about the erosion of society. Scripturally speaking, the Bible declares homosexuality to be a sin. Homosexuals are not born as homosexuals, otherwise many homosexuals would not change to heterosexual lifestyles. Opponents of same sex marriages are not hate mongers. SUSAN MOELLER, a nurse from Anchorage, stated she often works with families in their homes in stressful situations and often sees people in same sex relationships caring for their partner's relatives. She supports all families, regardless of sexual orientation, and believes recognizing same sex marriages will strengthen relationships and not be harmful to anyone. MARY BISHOP, President of Fairbanks PFLAG, testified on her own behalf. PFLAG is a gay/straight reliance with the mission of continuing relationships between gay children and their families. In a school in Utah all extracurricular organizations were terminated rather than allow an organization named the Gay/Straight Alliance to meet. In a neighboring school, an organization named Students Against Faggots Everywhere (SAFE) was meeting at the school and was not questioned. She asked which high school committee members would want their children to attend. She supported Ms. Boesser's testimony. Number 263 SUSAN HARGESS, Chair of the Southeast Alaska Gay and Lesbian Alliance, testified in opposition to SB 308. This legislation is discriminatory and will not help preserve families, since relationships will be strengthened by more people living in committed relationships. She considers herself an honest hardworking person, deserving of the same benefits as other people, including the right to choose who to marry. SARA BOESSER, speaking for the Committee for Equality, opposed SB 308. It discriminates on the basis of gender in that it forces a person to only select for marriage a person of the opposite gender. As far as breaking other states' contracts, this bill is the most blatantly anti-gay/lesbian bill to date in the legislature. Press reports nationwide show that hate crimes increase when lesbian and gay citizens are subjected to hearing anti-gay bills that are being debated by legislatures. Not long ago, legislative bodies prevented slaves from marrying one another, fortunately time and reason have caused those laws to end and that practice changed. More recently, mixed race marriages were also made illegal by legislative bodies. Finally some states crossed that norm and declared those marriages legal. Around the country, bills like SB 308 sprung up, however the Constitution's full faith and credit clause, which requires states to uphold one another's judicial proceedings, overturned those unconstitutional laws, because legal comity is required across state lines for state contracts. She questioned why heterosexual couples are not required to promise to procreate when applying for marriage licenses if that is the premise for marriage. Would elderly people, or sterile people be denied licenses? A major battle cry against the women's vote was that it would destroy the family. The Hawaiian court case will not be reheard in lower court until midsummer, with a decision at the end of 1996. Since either side promises a Supreme Court appeal, Hawaii's court will not have Supreme Court resolution until 1997 or 1998. This same bill has been proposed, almost verbatim, to over 20 states. In the majority of those states the bill has been rejected. This issue needs legal research and there is ample time to follow the Hawaii case. Religious groups do not have to approve or religiously bless same gender marriages, but to pressure the state to break gender nondiscrimination and contract law across state lines is unconscionable. The decision about who can receive a state marriage license with all the benefits it provides should be left to the courts. KRISTIANE HOOPER testified in opposition to SB 308 and HB 226 based on the fact it violates her civil rights and discriminates by determining who can marry based on gender. DANIEL COLLISON, board member of the Southeast Alaska Gay and Lesbian Alliance, read testimony to committee members from a paper on themes from, "The Significance of the Frontier in American History" by Frederick Jackson Turner. He submitted written testimony to be included in committee members' packets. TAPE 96-28, SIDE A Number 000 MARY GRAHAM, testified in opposition to SB 308, and thinks it is best to leave the law as is and let the issue be decided by the U.S. Supreme Court. State resources need to be used for more pressing issues. Regarding religion, the Universalist Church does not believe gay and lesbian people are living in sin, and supports the union of such relationships. MARK MOLINHAUER testified in support of SB 308 and HB 226 and urged committee members to not let the threat of a lawsuit influence their votes. This issue is a matter of state's rights and sovereignty, and is not about hate but about the institution of marriage. He discussed historical examples of the disintegration of societies based on moral values. He argued that the concept of enlarging the institution of marriage could lead to marriages between pedophiles and minors. CONNIE FAIPEAS testified in opposition to SB 308 from Fairbanks. The state is obligated to provide an impartial licensing system for many things, marriage being one. Religious interpretation is not the job of the state; it is the job of individual churches and their members. The state subsidizes marriage in the form of tax and inheritance laws, and denying those benefits to some is blatant discrimination. She asked Senator Taylor if he was implying that because inheritance laws only affect estates over $600,000, those laws are non-discriminatory because they only affect a small number of people. SENATOR TAYLOR clarified he was trying to explain the difference between the inheritance laws and the opportunity to avoid probate in the conveyance of real property. He agreed that law is discriminatory in that there is a distinction and a difference within the federal tax code between single individuals and married couples, but that discrimination has been sanctioned by both the Constitution and federal government, because it has been challenged and upheld in court several times. JANINE WILLIAMSON, testifying via teleconference from Fairbanks, believed both SB 308 and HB 226 to be hypocritical as they deny people in committed relationships benefits solely because their partners are the same gender. Married couples can partake in all kinds of immoral behavior and still receive benefits. Both bills deny her not only the ability to marry, but benefits also. LYNN STIMLER, representing the Alaska Civil Liberties Union, expressed concern that SB 308 will not meet constitutional muster. She made the following points. Marriage has traditionally been defined as a union between people of different sexes. As recently as 1967, state governments were able to deny interracial couples the right to marry. Marriage requirements differ from state to state, in terms of parental consent for certain ages, and blood tests, therefore denying full faith and credit for marriages recognized in one state and not another will create a climate of uncertainty. Any marriage recognized in any state could be denied the recognition of other states unless it was performed in the exact same way which leads directly to the full faith and credit analysis. The U.S. Constitution and Alaska Constitution provide that judgments of one state be recognized as valid in another state. This clause has only been addressed by the Supreme Court; it has never ruled on whether marriages must be accorded full faith and credit. She discussed the legal analysis of both sides of the argument and warned that if SB 308 passes, Alaska faces a very expensive court challenge. She also believed the right to interstate travel might also be implicated. The ACLU recommends Alaska not pass SB 308 at this time, and wait for other states to bear the cost of this challenge. Number 229 RUSSELL BOWDRE, a farmer from Delta Junction, testified in opposition to SB 308. He discussed his belief that homosexuality is not biologically based, because he has never seen same gender sexual relationships among animals, and believes that does not occur because the species could not procreate. MARY ELIZABETH RIDER testified on HB 226 from Anchorage. In the last few years she has worked to decrease the state's cost of health care through the medicaid program by encouraging people to take personal responsibility for themselves and family members. HB 226 places one more barrier in front of people who are trying to take responsibility for people for whom they are morally, if not legally, responsible. She discussed a personal situation in which she cared for a foster child but was not legally able to provide the child with health insurance coverage. The child became very ill and died; she was forced to pay $24,000 in medical bills out of pocket. She likened the situation to gay couples who are unable to provide coverage for partners, forcing many to use medicaid, which can be degrading, and expensive to the state. DEBBIE MARTINEZ, testifying from Fairbanks, urged committee members to throw out SB 308 and HB 226 as they are motivated by fear and bigotry. A state marriage is a legal document and should not be denied to any two adults who choose to enter into it. Hospitals can deny visitation to same sex partners, families can contest wills, and although gays and lesbians must pay taxes, they do not reap benefits. Number 354 SENATOR TAYLOR commented families cannot contest wills if the deceased disinherited family members, and encouraged Ms. Martinez to seek legal advice. If a person disinherits family members, he/she can leave his/her estate to a chicken if desired. CINDY BOESSER, a Juneau resident, stated she has many friends and family members who are gay and lesbian. She believes it is wrong that those friends cannot have the same benefits she does as a spouse. Gay couples are perfectly capable of raising children and are not horrible people. SENATOR ELLIS asked about the basis for some of the criticism of the bill in regard to constitutional problems, specifically the immunities clause, full faith and credit clause, and the privacy clause of the Alaska Constitution. He believed it is the Judiciary Committee's responsibility to make recommendations to the full legislature on those questions. SENATOR TAYLOR noted he was relying on the materials provided at this point, and had not done any separate research on those questions. He referred to a legal opinion in committee packets from Assistant Attorney General John Gaguine who believes the bill is constitutional. SENATOR MILLER added the Department of Law wrote an additional analysis on its fiscal note which states SB 308 reinforces existing law. Number 407 SENATOR TAYLOR believed the fundamental question to be whether a society has a right to discriminate between various groups. The Supreme Court has routinely allowed discrimination based on various subjects and purposes, if those purposes are well founded. There is a lengthy listing of existing Alaska statutes that discriminate in that fashion, listed in the brief filed against the University of Alaska. He believed to discriminate in that fashion to be constitutional. SENATOR ELLIS questioned which part of the U.S. Constitution speaks to comity of contracts. SENATOR TAYLOR replied that is the full faith and credit provision; each state should give due deference and respect to each other state. He added the Uniform Probate Code and Uniform Child Protection Act were passed because different states have different laws. SENATOR ELLIS noted uniform laws are passed to make it easy for people, not because it is required. SENATOR TAYLOR agreed the purpose is to make people's lives better. SENATOR ELLIS repeated his question about whether Senator Taylor believes SB 308 is constitutional under the state and federal constitutions. SENATOR TAYLOR answered that is the Attorney General's opinion, and he believed that opinion to be well founded in the cases cited and in the discussion in the memorandum. SENATOR MILLER moved SB 308 out of committee with individual recommendations. SENATOR ELLIS objected. The motion carried with Senators Green, Miller and Taylor voting "yea," and Senators Adams and Ellis voting "nay."