Legal experts predict challenges if voters pass Proposition 5

Nine-member panel will hear accusations of discrimination.

Anchorage Daily NewsMarch 25, 2012 

On April 3, Anchorage residents will vote on a proposed ordinance to add "sexual orientation or transgender identity" to the city's anti-discrimination code.

Supporters say the ordinance, and the equal protection under law it would guarantee, is overdue.

Opponents say Proposition 5 would interfere with freedom of religion.

If it passes, legal experts say, expect to see court challenges -- part of a larger, nationwide struggle playing out in courts to balance equal protection and religious freedom.

Anti-discrimination laws like the Anchorage Equal Rights Ordinance bring up legal gray areas still being shaped by court decisions, said veteran Anchorage employment attorney Thomas Daniel, who is not affiliated with either side of the debate.

WHAT IT IS, HOW IT WORKS

If the Anchorage Equal Rights Ordinance passes after an April 3 public vote, it will be enforced by the city's Equal Rights Commission. It was established with the city's original charter in 1975.

Since then, it has been charged with ensuring compliance with city and federal anti- discrimination codes, which currently bar employers, educational institutions, landlords, public accommodations, businesses and other groups from discriminating on the basis of race, color, sex, religion, national origin, marital status, age or disability. It's all in Title 5 of the city's charter.

What happens if the ballot measure passes?

If a person believed they'd been discriminated against solely on the basis of their sexual orientation or transgender identity, they could complain to the Equal Rights Commission. It's made up of a nine-member, all-volunteer board that hears cases alongside four paid investigators, an executive director who also acts as staff attorney and a clerk.

Board members serve three-year terms. Right now, they are Herb Turner, Shirley Tuzroyluke, Arthur Yang, Dawnyale Bundy-Hale, Eric Bailey, Darrel Hess, Yronelly Sanchez, Robert Churchill and Cassie Atwell, according to the municipality.

Executive director Pamela Basler said that last year the commission received 476 inquiries.

Out of those, 75 formal complaints were filed.

Basler said 80 percent of the inquiries are employment related. The remaining 20 percent includes public accommodation issues and a few school-related and financial services complaints.

Of the complaints that do go forward, Basler estimated 25 percent are resolved with a "resolution that provides for the elimination of discriminatory practice."

The other 75 percent end in other scenarios, including the complaining party changing its mind, administrative dismissals and cases when the commission finds no evidence of discrimination, she said.

One 2009 example of a resolved case involved a student at an Anchorage school who complained that a class sign-in sheet identified her race, and hers alone, according to an annual report.

That turned out to be the result of a computer error and the school promised to resolve the problem and not publicly identify students by race on sign-in forms in the future.

Other remedies include changes in employment reference, payment of lost wages or rent money, respondent training and business policy changes.

The commission has no power to charge anyone with a crime, Basler says.

The penalties of fines and 30 days of jail time are possible only if either party involved in the case engages in criminal behavior such as withholding documents from investigators.

Basler says she knows of no case where someone has served jail time based on a commission complaint.

"It's never happened," Basler said.

Most cases, she said, are resolved in a "conciliatory" process.

'FRONTIER OF THE LAW'

Proposition 5 would put Anchorage squarely in the middle of a legal issue being played out in court challenges nationwide, Daniel said.

"There's an unsettled issue about how far the state can go in telling a religious institution who they can and cannot hire because it may interfere with their free exercise of religion rights," he said.

One of the stickier portions of the law is the religious exemption.

"The religious exemption is really difficult," Daniel said. "It comes up in all anti-discrimination ordinances."

In reading the proposed Anchorage Equal Rights Ordinance, David says, "it looks like the intent was not to apply the law to religious institutions."

Opponents, though, say it doesn't go far enough in protecting those institutions.

The exemption says a bona fide religious or denominational institution, organization, corporation, association, educational institution, or society can act preferentially to people of the same religion or denomination.

Churches are clearly exempted, Daniel said.

Religious institutions such as schools could make an argument that they are also exempted, with support from a 2000 U.S. Supreme Court ruling that found that the Boy Scouts of America, as a private organization, had a right to exclude a gay scoutmaster because of the group's stated policy against homosexuality. The court found that the constitutional right to freedom of association trumped state anti-discrimination laws.

"It's questionable that a court could force a church school to hire a gay employee if they have clearly stated religious principles," Daniel said.

In a commercial paid for by Proposition 5 opponents currently airing on Anchorage TV and radio stations, a cartoon Christian bookstore owner "prefers to hire straights," while a gay bar owner "prefers to hire gays."

That's different, Daniel said.

A business owned privately and not by a religious group that flatly prefers to hire straight or gay workers simply because of their sexual orientation would be discriminatory under the law.

According to Daniel, the court has essentially said, "if you're a business, you have to comply with all the laws that are on the books. If you have a religious or moral belief that opposes the law, then you should probably go into another business, and it's not a basis for an exemption."

Also, Daniel said, no one is compelled to hire anyone simply because they are gay just to comply with the law.

To make a claim that illegal discrimination occurred, a person would have to show they weren't hired solely because of their sexual orientation or transgender identity, and not for another reason, like not being the most qualified candidate for the job.

This issue has already been argued before Alaska courts.

In 1994, an Anchorage landlord who said his religious faith prohibited him from renting to an unmarried couple challenged the city's equal rights ordinance.

The case, Swanner vs. Anchorage Equal Rights Commission, went to the Alaska Supreme Court, which ruled the landlord could not break fair housing laws by refusing to rent to unmarried couples because it conflicted with his Christian beliefs.

The U.S. Supreme Court refused to hear an appeal.

More recently, anti-discrimination codes in other states have faced court challenges.

In one high-profile case, two New Jersey women sued the Ocean Grove Camp Meeting Association, a Christian ministry, for refusing to allow them to conduct their civil union on a church-owned oceanfront pavilion.

That case was initially decided in favor of the women, with the court saying the religious organization had opened the pavilion to -- and solicited business from -- the general public and thus couldn't discriminate against the women from using it because they were gay. A judge in the case said the ministry could "rearrange operations" to qualify under a religious exemption and avoid clashing with the state's anti-discrimination law.

"It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners," the judge said.

Attorneys for the Ocean Grove Camp Meeting association are considering appealing the decision.

Reach Michelle Theriault Boots at mtheriault@adn.com or 257-4344.


April 3 ballotHere’s the question as it will read on the April 3 ballot:

PROPOSITION 5Anchorage Equal Rights InitiativeShall the current Municipal Code sections providing legal protections against discrimination on the basis of race, color, sex, religion, national origin, marital status, age, physical disability, and mental disability be amended to include protections on the basis of sexual orientation or transgender identity?

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