Social conservative advocacy group Alaska Family Council president Jim Minnery took to the internet on Monday calling for “Religious Freedom Restoration Act” (RFRA) legislation to be brought forward in Juneau. Minnery pointed out that Alaska is not one of the 19 states with a version of RFRA on the books. “Because Alaska is one of a handful of states without a RFRA in place,” Minnery wrote, “we’re following this national dialogue closely as we anticipate getting our legislature to pass a similar bill.”
Indiana became the 19th state to pass an RFRA law when Gov. Mike Pence (R-Indiana) signed the bill into law last Thursday. The measure prohibits state laws that place a substantial burden on the religious beliefs or expression of citizens, religious institutions, or businesses. To many, that reads as state sanctioned discrimination, especially against LGBT Indianans.
The fallout in the days since has been palpable. On Friday, San Francisco banned publicly funded travel to Indiana. Seattle promptly did the same. Saturday, Indiana-based Angie’s List announced cancellation of a $40 million headquarters. Salesforce, a cloud computing and enterprise technology company that employs 2,000 to 3,000 Indiana workers, said it was scratching events. The NCAA, NBA, and the Indiana Pacers issued press releases emphasizing both the league and the team’s commitment to inclusion. Chief executive officers from nine companies sent a letter to Gov. Pence urging him to swiftly act to pass accompanying legislation clarifying that “neither the Religious Freedom Restoration Act nor any other Indiana law can be used to justify discrimination based upon sexual orientation or gender identity.”
Back in Alaska, Minnery called the blow back “hoopla” and said the law was being “grossly distorted by Hollyweird and the mainstream media.” He pointed readers to an article penned by Gabriel Malor for the conservative site The Federalist. Malor opined:
This past week, journalistic abuse has exploded into controversy over an innocuous religious freedom law in Indiana. This law, known as a Religious Freedom Restoration Act or RFRA (pronounced “riff-ra”), tracks the language of the 1993 federal RFRA signed into law by President Clinton after a 97-3 vote in the Senate. But you would not necessarily know how innocuous it is from news media coverage.
Writing for the Weekly Standard, John McCormack leveled similar sentiment: ““Is there any difference between Indiana’s law and the federal law? Nothing significant.”
As noted, RFRA laws are in effect in 19 states and there is federal legislation. However, there’s a difference in each state between what the law does and what it is called. The Atlantic’s Garrett Epps noted Monday that the Indiana law was distinctly different in two very-much-not-innocuous ways:
[T]he Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches…. Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.
Indiana, like Alaska, has no statewide law barring discrimination based on residents’ sexual orientation or gender identity. Both states also have recently seen their constitutional bans on marriage equality struck down, meaning residents can legally marry and legally be fired and evicted the next day. Alaska, additionally, has one court decision establishing RFRA-like protections.
RFRA in Alaska
In Frank v State of Alaska (1979), the Alaska Supreme Court reviewed the case of Carlos Frank, an Athabascan man. In October of 1975, a Minto man died. The community organized a funeral potlach, described in the court opinion as “a ceremony of several days’ duration culminating in a feast, eaten after burial of the deceased, which is shared by members of the village and others who come from sometimes distant locations.”
Frank joined a hunting party to attain the necessary food for the final feast. The meat came by way of a single cow moose, which was out of season. State officials charged Frank for “unlawful transportation of game illegally taken.”
The district court judge found that while the potlach was indeed part of “cultural religious belief of the central Alaska Athabascan Indian,” the moose meat was not specifically required. Thus the charges were upheld. But the Alaska Supreme Court, in a 5-2 decision, disagreed.
“We have concluded that the free exercise clauses of the first amendment to the United States Constitution… protect Frank’s conduct and that the state has not demonstrated reasons which justify prohibiting it,” Chief Justice Rabinowitz wrote in the court ruling.
Rabinowitz recognized that there were limits on the free exercise clause, noting that “such protection may be overcome by compelling state interests.” This was found to be true in Swanner v Anchorage Equal Rights Commission (1994). In that case, Tom Swanner was a landlord who refused to rent to unmarried couples, citing it violated his doctrinal beliefs as a Christian. But his refusal to rent to unwed couples also violated the state law barring discrimination based on marital status. Thus, the courts sided against him.
Just this past Friday, another example of the limit on religious expression was exhibited in Phillip v State of Alaska. As Craig Tuten described yesterday: “The Alaska Department of Fish and Game (ADF&G) instituted emergency closures on the Kuskokwim River based on extremely low Chinook (king) salmon numbers in early June of 2012.”
The closure created a lot of tension between the state and Yup’ik fishermen, who believe that Ellam Yua, the spirit of the universe, “provides the Yup’ik with the resources they need to survive, and the Yup’ik are expected to work hard to harvest those resources. If the Yup’ik stop fishing for salmon, Ellam Yua will take offense, and the salmon will cease to make themselves available.”
The Alaska Court of Appeals held that the Alaska Department of Fish and Game can regulate salmon fishing, even though it is a religious act for Yup’ik subsistence fishermen.
Alaska law, since Frank, has determined the flexibility of religious freedom by applying a two-prong test. As Tuten noted yesterday, “The conduct involved must be a reflection of sincerely held religious belief, and the State must show a compelling interest for curtailing the religious activity.”
What many fear RFRA laws can create is an atmosphere where even these compelling interests are trumped by religious expression. Many proponents of the Indiana law, and in other RFRA states, are focused on using it as a vehicle to slow or reverse the expansion of equal rights and jurisprudence for LGBT Americans. (An example of how this can happen, as it relates to Arkansas’ RFRA law, can be read here.) Other proponents are upset about the politicization that centers on the debate over equal rights and nondiscrimination laws.
“RFRAs are really trying to do real work for religious minorities,” University of Illinois law professor Robin Fretwell Wilson told the Indiana Star’s Stephanie Wang. Wilson supports the Indiana law and believes RFRA laws are meant to serve as a tool for underrepresented religious minorities (which makes sense, when compared to the Frank and Phillip in Alaska). Wilson continued: “But they’ve been glommed onto by religious believers who are freaked out by same-sex marriage right now. They’re latching onto a vehicle that is just not designed to do what they want it to do, at a time of great social change.”
A New, National Trend
In California, last week, Huntington Beach attorney Matt McLaughlin advanced a ballot initiative entitled the “Sodomite Suppression Act.” The proposal prescribes that any person who participates in sodomy is to be killed with “bullets to the head,” and anyone distributing “sodomistic [sic] propaganda” will be be fined and imprisoned.
As marriage equality becomes more and more accepted by the general public, these — let’s call them robust — measures pushing back on LGBT Americans’ rights being acknowledged are losing efficacy. RFRAs can, if the explanation is finessed, seem more palatable and, as Wilson noted, in some cases are of legitimate value. But the inclination to use RFRAs as a tool to support discrimination is becoming pervasive.
David Badash highlighted this trend for The New Civil Rights Movement:
Conservative Republican lawmakers across the country recently have been raiding the anti-gay tool chest, borrowing animus-inspired legislation designed to attack the LGBT community under the cloak of “religious freedom.” From state laws nullifying city and town non-discrimination ordinances to religious freedom restoration acts, these bills all accomplish the same goal: telling the LGBT community, other minorities, and their families and allies that they are all unwelcome and unworthy.
The Alaska State Legislature is currently sitting on two bills aimed at extending basic workplace and housing protections to LGBT Alaskans. Representatives Andy Josephson (D-Anchorage) and Cathy Muñoz (R-Juneau) have introduced, respectively, HB19 and HB42. Last week, the Fairbanks City Council passed a resolution supporting the latter.
Neither have received a single hearing.
“There is certainly a cultural war going on regarding sexuality in our society but the State of Alaska should not be taking sides,” Minnery said of the two legislative proposals in January.
Two months later, he decided that, never mind, Alaska should totally take sides. March 17, Minnery sent a mailer explaining Alaska Family Council’s endorsement of Amy Demboski in this April’s Anchorage mayoral race. Minnery referenced 2012’s Proposition 5, a failed attempt to codify basic anti-discrimination laws for LGBT residents of the municipality. Demboski has said she would veto any anti-discrimination law if elected mayor.
Amy Demboski clearly supports the will of Anchorage voters, by opposing extremist legislation like Proposition 5 that would take away the freedom of citizens to run their businesses, schools, and churches in a manner consistent with their values and their conscience.
Minnery led the “Protect Your Rights” group that opposed the 2012 measure. He cited examples of what he considers religious liberty being infringed upon, including a Christian bakery being forced to bake cakes for same-sex couples and churches being forced to provide facilities for same-sex marriages.
It should be noted that Prop 5 included broad religious exemptions — churches would not be affected.
As far as the plight of Christian wedding cake bakers, Jesus Christ spent his life bathing the feet of the poor and dining with prostitutes and thieves. He was rewarded with being hung on a cross. Rather than claim persecution, business owners engaging in commerce — benefiting from the same emergency services and infrastructure that is paid for by all municipal property owners, including LGBT residents — should probably buck up and bake the cake. Jesus likely won’t mind.
Otherwise, we should probably offer LGBT property owners in the municipality some degree of property tax exemption or reduction. If their tax dollars are going to support establishments that are being encouraged to deny them service in the name of religious expression, it doesn’t seem fair that they shoulder an equal share of the tab.
Quite to the points of Badash and Wilson, in Alaska the tenor of RFRA laws is much less about the legitimate concern that religious minorities are being subjected to undue regulation by the state and much more about a backdoor way to promote measures that promulgate anti-gay discrimination. Otherwise, mailings from advocacy groups, campaign pledges from candidates, and inaction from lawmakers would come in the form of objections to last week’s decision in Phillips, not vows to fight equal rights for LGBT Alaskans.