The Ketchikan Gateway Borough Assembly on Tuesday overturned a vetoed resolution calling on state legislators to prohibit discrimination on the basis of sexual orientation or gender identity.
Borough Mayor Rodney Dial had vetoed the resolution the day after the Assembly’s Aug. 18 meeting because he said it violated the First Amendment guarantee of free religious expression and would allow businesses to be targeted by citizen lawsuits. He said at that meeting that he felt that he had to veto the measure because of his own religious beliefs as a Christian.
The resolution calls upon the state Legislature to act to have the state Commission for Human Rights prohibit discrimination statewide based on sexual orientation, gender identity or gender expression. The statute already includes protections on the basis of sex, race, ethnicity, religion, and other factors.
Members of the public spoke for about two hours at Tuesday’s meeting to share their thoughts about the override motion. While all of those who spoke before the Assembly at its Aug. 18 meeting supported the anti-discrimination resolution, Tuesday’s audience of speakers included a more even mix of advocates and critics of the override motion. All five members of the public who submitted written comments to the meeting expressed support for the veto override. Nine more spoke at the meeting in favor of the override, with seven opposing it.
The arguments for and against the override covered all manner of topics, with both supporters and critics invoking the Bible; the U.S. Constitution; protection from injustice; cultural precedence; and state, district and U.S. Supreme Court rulings.
Those opposed to the override mostly focused their criticism on the constitutionality of the resolution, arguing that it would be wrong to force members of the community to express or convey opinions at odds with those members’ beliefs.
Supporters who spoke, including Ketchikan Pride Alliance President Sheen Davis, drew from a wider pool of arguments. Many drew historical and contemporary parallels with other regions and communities in the country and state.
A number of other communities in Alaska have implemented similar protections locally, including the City of Ketchikan, the City and Borough of Juneau and the Municipality of Anchorage. More than 20 states in the U.S. have some level of anti-discrimination protection statewide for sexual orientation, gender identity, or gender expression.
Grace Freeman wrote that the resolution would help to reassure queer residents that they’re valued in the community.
“As a member of Ketchikan’s LGBTQ+ community and as someone who was born and raised in Ketchikan, I can assure you that our LGBTQ+ youth here are watching how the beliefs of our town are playing out on this official level right now,” Freeman said. “When I was growing up, I know my friends and I were very aware that some members of our community had negative attitudes toward differences in sexual orientation, gender identity and gender expression. It’s part of what has made some young people determined to get out of Ketchikan as soon as they possibly can. They don’t feel that they can be themselves here, and don’t see a future for themselves in our community. By supporting anti-discrimination legislation, it sends a message that Ketchikan is a place that defends the rights of its citizens to live their lives fully, and doesn’t allow their opportunities to be restricted because someone deems them to be inconvenient.”
After public comment, the Assembly took a five-minute recess before returning, moving the veto override to its next order of business in the interest of time.
Dial began the discussion with a 15-minute, 28-slide presentation to the Assembly in which he attempted to clarify his reasons for vetoing the resolution.
Beginning his presentation with a slew of legal cases in which state and district courts had ruled in favor of businesses that had been sued for discriminating based on sexual orientation, Dial argued that individuals had been maliciously seeking out allegedly discriminatory businesses to force them to close.
“Businesses across the country are winning these type of suits so the tactic is changing to try and ruin them with legal costs before they can win their cases. It will 100% happen here in Ketchikan with the City (of Ketchikan) ordinance and with what you are asking for in your resolution,” Dial said.
Responding to that claim in a Thursday phone interview with the Daily News, Borough Attorney Glenn Brown said it’s hard to measure in general whether anti-discrimination laws have a measurable, negative impact on businesses. In the past, some businesses that were sued for violating anti-discrimination measures have been targeted after winning their cases.
Additionally, one factor in the creation of the resolution was the U.S. Supreme Court’s decision earlier this year in Bostock v. Clayton County, in which the court decided 5-4 that employers could not discriminate on the basis of sexual orientation or gender identity without also discriminating on the basis of sex, which is unconstitutional under Title VII of the Civil Rights Act 1964.
Later in his presentation, Dial also said law enforcement officers face the highest levels of persecution of any group in the U.S, citing his experiences as an Alaska State Trooper being turned away at restaurants and other businesses. His presentation slide added that “having food adulterated” and “being persecuted by many groups, including local government” were other ways law enforcement officers faced discrimination. Dial then asserted that Christians are the second-most persecuted group in the U.S., bringing forth 11 anecdotal news and opinion articles from the past three months to support his claim.
Dial’s statement is difficult to verify beyond anecdotes, however, due to a lack of independently recorded centralized information about persecution in the U.S. based on occupation or majority faith. A 2016 study by the Brookings Institute and by the Public Religion Research Institute found that “Christians are considerably more likely than non-Christians to perceive significant discrimination against Christians in the U.S.,” noting in particular that 77% of white evangelical Protestants said that “discrimination against Christians now rivals that of other groups” while 54% of white mainline Protestants and 53% of white Catholics responded in the same way to that question.
Dial suggested that if Assembly members supported the veto override, they should add provisions to the resolution for sexual orientation and gender identity to state statute, they should consider adding provisions to the statute to cover law enforcement and Christian discrimination, as well.
Assembly Member Susan Pickrell, who cast the lone vote of opposition to the original resolution and who also voted against the override motion, moved to amend the resolution to include those provisions. Borough Clerk Kacie Paxton explained that because the motion was to override a veto, Pickrell would need to wait until the resolution had been approved to amend its text.
Alaska’s statutes describing the rights protected by the Human Rights Commission already encompasses protections for all religions. Brown said Thursday that he wasn’t aware of any laws or statutes preventing discrimination due to occupation or political belief in a similar manner to existing anti-discrimination laws in state statute.
Pickrell said this week that she intends to introduce a motion to amend the resolution to implement language protecting police officers and Christians.
Assembly Member David Landis said that while he appreciated the effort Dial had put into the presentation, he hadn’t included such a report in the agenda packet for Assembly members to deliberate upon prior to the meeting, and therefore would focus his comments on Dial’s original veto statement, not his presentation on Tuesday. He signaled early in his comments that he intended to support the override.
“I have a great amount of respect for you, Mayor Dial. I know you thought long and hard about this veto and all the aspects of what it means,” Landis said. “I know you prayed about it. So have I. And the fact that you and I have come to a different conclusion, really, shouldn’t be surprising.”
Landis said that after conferring with the borough attorney prior to the meeting, he wasn’t convinced that the resolution was inherently unconstitutional — quoting Brown to illustrate his point.
“‘The potentially unconstitutional impact requires the development of a scenario well away from the four corners of the resolution,’” Landis read aloud from email correspondence with Brown. “‘There is nothing … inherently unconstitutional in the substance of the resolution, nor, in my opinion, in adding the requested language to the Alaska Human Rights Law should the Legislature ultimately act on the Assembly’s request.’”
Landis also quoted the U.S. Supreme Court’s 2018 majority opinion Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the court ruled 7-2 in favor of the cake store on narrow grounds because the Civil Rights Commission had "elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated (the store owner's) objection," though it avoided a direct decision on the issue of balancing equal protections with the free exercise of religion.
“While those religious and philosophical objections are protected," Chief Justice Anthony Kennedy wrote in the majority opinion for that case, "it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."
Assembly Member Alan Bailey, who voted to adopt the resolution at the previous Assembly meeting, was critical of the override motion at Tuesday’s meeting. He voted against the override on Tuesday.
“I call this, frankly, emotional spending, and it’s simply divisive,” Bailey said. “There is this divisiveness that is cutting through our country, and in part, it’s cutting through our community, as well. This coronavirus sure doesn’t help anything. It has exaggerated a lot of things that have happened — or haven’t happened. There is no middle ground with this issue. From the day that this started, that we all sat and we voted on this, there seemed to be zero middle ground whatsoever. I attempted to simply seek some middle ground by changing the word ‘expression.’ Well, that went out the door, because then I got a current Webster’s definition, which frankly didn’t exist when the constitution was drafted, but I in return got a Webster’s definition of what expression means or doesn’t mean.
“So it’s clear to me that there is no middle ground with this,” Bailey continued. “Either you’re for or you’re against. But it’s not that simple, is it? It’s not that simple.”