For those who lived through the battles over equal rights for LGBT residents of Anchorage beginning in 1975 and resurfacing in 1992, 2009, and 2012, there is a certain hope and dread clearly visible on the horizon. Next Tuesday, September 15, the issue will return once more — this time, like the first three times, as an ordinance under consideration of the Anchorage Assembly.
In each of the the three other occasions in which the Assembly entertained such an ordinance, the body passed the measure.
In 1976, it fell victim to the veto pen of Mayor George Sullivan. 33 years later, his son, Mayor Dan Sullivan, would follow in his father’s footsteps. In the time in between, Mayor Tom Fink vetoed a watered down proposal in 1992 that would have protected lesbian and gay municipal employees along with people working for municipal contractors hiring 35 people or more. The Assembly managed to override that veto, but the backlash in the next municipal election ushered in a conservative majority — including current Alaska Senate President Kevin Meyer (R-Anchorage) — who repealed the law.
The landscape this year is remarkably different.
First, there’s that whole marriage equality being the law of the land business. Second, Mayor Ethan Berkowitz is the first sitting mayor to not only support a non-discrimination ordinance, but he also campaigned on the issue and pledged to make it happen within six months into his term. And he has a record. In his first year serving in the Alaska State Legislature, he voted against the now-defunct constitutional amendment defining marriage as between one man and one woman. He also did pro bono work, as a member of Strategies 360, during the 2012 Prop 5 ballot initiative aimed at codifying anti-discrimination laws.
Back in March, I asked him if he supported a municipal anti-discrimination law. He told me that he not only supported it, but he would introduce it. On the issue of marriage equality, he added: “I would like to be the first [Anchorage] mayor to officiate a gay wedding.”
“This is our Anchorage,” Berkowitz said on election night, atop a table at Flattop Pizza in downtown Anchorage, after results began to pour in showing him the overwhelming victor. “It doesn’t matter if you’re straight, or gay, or lesbian, or bisexual, or transgender — this is our Anchorage.”
The last bit was drowned out by the cheers in the overcrowded room. It was the biggest applause line of the night, and it wasn’t even close.
Enter Bill Evans
On August 13, Assembly member Bill Evans introduced an anti-discrimination ordinance. A conservative member of the eleven-member body — and close ally of Berkowitz’s mayoral opponent, anti-gay Eagle River Assembly member Amy Demboski — Evans answered a March 23, 2014 Alaska Family Council candidate questionnaire stating his opposition to adding sexual orientation and gender identity to the city’s anti-discrimination code. The introduced ordinance came as a surprise and drew criticism from both sides of the aisle.
On the left, Evans has been accused of using his ordinance as a trojan horse to codify a Religious Freedom Restoration Act-esque bill that would sanction discrimination against Anchorage’s LGBT community under the guise of a measure billed to protect them. On the right, Alaska Family Council (AFC) President Jim Minnery has complained that Evans hadn’t asked AFC to vet the bill before introduction.
“Evans [sic] recent introduction of the ordinance he said he would oppose if elected raises many concerns and even more questions by those of us who already view Anchorage as a tolerant city and see no reason to open up this hornet’s nest again,” Minnery said in an email to supporters entitled “Will The Real Bill Evans Please Stand Up ? [sic]”
Over a cup of coffee at Kaladi Brothers downtown, I asked Evans if he felt that his past opposition to such an ordinance felt in conflict with where he now stood, and what his response to Minnery’s email was. He told me he met with the AFC president the day before, but did not feel like what he was doing was contradictory.
No. It’s not at odds with my personal philosophy. It’s probably at odds with — I don’t doubt it’s at odds with Jim’s group’s philosophy. You know, a lot of people — I don’t think all conservatives are cut out of the same cloth or believe exactly the same things, although some demand that they do. No, I fully support what I’m doing. I think it’s the right approach to this. And, you know, I’m certainly willing to explain myself, as I tried to do yesterday to a couple of different groups. Jim was part of one of them. Some people will buy it and some people won’t. That’s just the nature of politics.
He acknowledged that he didn’t support previous attempts to enact anti-discrimination protections at the municipal level, and said that he still would prefer not to do so. Evans told me he’d rather see the federal government deal with the issue or, if they refused, the state legislature. But, he conceded that, for nearly 40 years now, the Assembly has been the sole governmental entity willing to stomach the issue — albeit poorly (that last part was my editorial note, not Evans’).
“I still think, you know, doing this at the municipal level is fraught with problems,” he told me. “It’s much better to solve this problem at the state level, mostly because of the Equal Rights Commission versus the state Human Rights Commission. Our Equal Rights Commission is small, underfunded, and not particularly cutting edge.”
Evans said his main motivation for authoring and introducing the ordinance was because he saw a shift in momentum, and he wanted to get in front of it and try to devise a proposal he could support.
“I think it was an issue that was inevitably going to be brought this year,” he said. “So my motivation was simply to try to do it as — if we have to do it at the municipal level — do it as well as we can and try to, you know, as silly as it may sound, use the issue to bring people together instead of dividing them, which tends to happen with this kind of issue.”
He does recognize that discrimination occurs.
“I’m 55 years old. I grew up in an era where people couldn’t even admit to being gay because of the absence [of anti-discrimination laws], and I don’t think that that has gone away. Discrimination is often times very hard to show, but I think people’s attitudes towards gays, lesbians — and it’s particularly against transgender people — is certainly problematic. And so I do not doubt that discrimination occurs.”
My main objections to Evans’ proposal, which is shared by others who favor anti-discrimination policies, center on sections 9 and 10 of his proposed ordinance.
The proposal closely resembles past attempts, but also departs from them in one key area: provisions that would expand the municipality’s definition of religious exemptions. While 2009’s Ordinance 64 and 2012’s Prop 5 ballot initiative also contained exemptions allowing religious groups to continue discriminatory policies to the tune of doctrinal interpretations (why, I have no idea), Evans’ bill would expand those exemptions to include a “religious conscience exemption,” which holds that no individual would be “compelled to make any communication in support of, or be compelled to appear at any ceremony, ritual, or observance that is in conflict with a sincerely held and demonstrable religious belief[.]”
“During 2009, we heard a lot about people who were discriminated against for having their partner show up [at their place of work],” I mentioned during our conversation. “You know, give them a hug or a kiss goodbye, or not feeling comfortable enough to have a picture of their partner with them. My concern is, couldn’t that be seen as, you know, being compelled to observe?”
“I certainly didn’t consider that aspect of it,” Evans responded, seeming a bit surprised by the question. “The intent of that particular exemption was basically just to prevent those cases that we’ve heard about recently, of people — you know, bakers, photographers being the most — being compelled by their job to attend same sex weddings.”
Over the last few years, social conservatives have become enamored with the plight of anti-gay bakers and photographers, especially the Alaska Family Council. In this year’s mayoral campaign, Minnery lamented how “Christian wedding photographers, bakers, and other vendors [were] forced to participate in same-sex weddings.”
The wedding photography trope tracks back to Elane Photography, based in Albuquerque, New Mexico. Co-owner Elaine Huguenin argued that photographing a lesbian couple’s wedding violated her religious beliefs and her “right of artistic expression under the First Amendment[.]” The New Mexico Supreme Court, in Elane Photography, LLC v Willock, disagreed, replying that there “is no exemption from antidiscrimination laws for creative or expressive professions,” and that the claim did not constitute a First Amendment issue because “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
The U.S. Supreme Court tossed the case. Huguenin was ordered to pay $7,000, but the plaintiff waved the fees.
The affected bakers hail from Colorado, where Lakewood-based Masterpiece Cakeshop owner Jack Phillips turned away David Mullins and Charlie Craig, who tried to place an order for a wedding cake. A gay-wedding, wedding cake. Phillips said on multiple occasions that he would rather go to jail than bake a wedding cake for gay couples. On August 13 (the same day Evans filed his ordinance), the Colorado Court of Appeals unanimously affirmed the state’s Civil Rights Commission, which found the cakeshop violated Colorado’s anti-discrimination act.
“This won’t address the Colorado baker. He would still have to sell his cake under this ordinance,” Evans explained. “Observance was meant to be just sort of another word for ceremony and ritual in that case. That kind of observance.”
He said that instances where that observance came in the form of an employee having a picture of his or her partner on a work desk, or greeting them at his or her place of employment, was not intended to be permitted under that provision of the ordinance. “That is not what I would support.”
Evans said he expected a lively exchange during the public hearing process, and that he was given analyses of the bill’s language both by groups wishing to beef up the religious exemptions and groups wishing to dial them back.
“I tell them both, you know, I can’t go with your changes without destroying the whole concept of trying to get everybody to kind of come together at something that is not mutually the best for them, but mutually the best for the community. So, I’m going to go down fighting with that premise and we’ll just see what happens.”
He said that downtown Assembly member Patrick Flynn had alerted him to a substitute version of the bill he was working on.
“Basically, the Standing Together for Equality group has done an analysis of my ordinance and put forward their own suggestions for changes. I think Patrick will adopt many if not all of those, so I think that will be sort of the alternative that’s put forward, and I think that stands a better chance of passing.”
“You know, to me, my ordinance is more of an opportunity,” Evans added. “I’m more wed to it as an opportunity than I am as to the specific words in it.”
Enter Patrick Flynn.
I emailed Flynn to check up on whether or not the substitute version was a thing. It is. He submitted it last week and said he plans to meet with Evans to go over his edits.
“Not sure we can span that gap, but he’s been very straightforward to work with,” he told me.
The new version makes several significant changes, which we’ve compiled into a sectional analysis available for our lovely wonkish audience to digest. It strengthens language protecting transgender Alaskans, ensuring that they can dress and use the restroom in a way which matches their gender identity, while maintaining Evans’ original intent to appease concerns over swapping gender overnight or legalizing predators in our public school stalls — one of Minnery’s favorite and erroneous go-to concerns (Minnery either does not understand or refuses to acknowledge the difference between transvestites — which are not covered by anti-discrimination laws — and transgender residents of the municipality — who are).
Flynn’s substitute ordinance also amends the religious conscience objection, doing away with the “ceremony, ritual, or observance” clause and replacing it with: “Nothing in this chapter shall be construed to violate any rights to free speech or religious exercise guaranteed by the Constitution of the State of Alaska or the Constitution of the United States.”
The change broadens the exemption while diminishing its legal ambiguity and is, overall — in my personal opinion — a strong ordinance. I plan on speaking in support of it. And that chance is rapidly approaching.
“The hearing will start on [September] 15th and will combine both Evans and Flynn’s ordinance into one testimony,” Assembly Chair Dick Traini told me on Friday, via email. “People will have 3 minutes, the plan is to hand out numbers which will allow people to testify when their number comes up to testify, we will continue until the last [A]nchorage resident gives testimony. The plan is to get this done in a polite manner.”