Legislature(1995 - 1996)

03/25/1996 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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           
 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           
 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                 
 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            
 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."                                                       

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