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However, the Alaska Family Council does not think that confers enough protection. In their essay entitled "Ten Reasons to Vote NO on Proposition 5", their objections are listed as Reason #6; their primary objection is that the language is too vague:
Supporters of Prop. 5 claim that it won‟t apply to religious institutions, by pointing to the so-called “religious exemption” in existing law (AMC 5.20.090). However, this provision is poorly written and vague. It states as follows:
“It shall be lawful for a bona fide religious or denominational institution, organization, corporation, association, educational institution, or society, to limit, select, or give preferential treatment in employment, admissions, accommodations, advantages, facilities, benefits, or services, to persons of the same religion or denomination, that is reasonably calculated to promote the religious principles for which it is established or maintained. Such organizations otherwise remain subject to the other provisions in this title with regard to race, color, sex, religion, national origin, marital status, age, or physical or mental disability.”
There are at least 3 major problems with this language:
-- (a) Who determines what is a "bona fide‟ religious institution? The answer: unelected government bureaucrats and judges will decide. Certainly most people will agree that the house of worship down the street qualifies – but what about religiously affiliated corporations (such as Providence Hospital) that serve people of all different religions, or no religion at all? Do they qualify for an exemption? What about organizations that have religious beliefs as part of their “code”, but which are not connected in any way to a specific religion or church? For example, the Boy Scouts of America teach that scouts should be “reverent toward God” and “morally straight.” Do they qualify for an exemption, or will Prop. 5 force the Boy Scouts to accept homosexual scoutmasters?
-- (b) The exemption says: “…to limit, select, or give preferential treatment… to persons of the same religion or denomination.” So in other words, a Catholic church can choose to hire only Catholics to work in the church office, and a Baptist church can choose to hire only Baptists, etc. However, this language does not address the reality that a person can claim to be a Catholic, or a Baptist, and also self-identify as a homosexual, a bisexual, “transgendered,” etc. The existing “religious exemption” language does not explicitly state that religious organizations may make a distinction among persons based on their sexual behavior, it merely states they can differentiate based on their religious affiliation.
-- (c) Finally, the existing law says that “bona fide” religious institutions may discriminate only when it is “…reasonably calculated to promote the religious principles for which it is established or maintained.” Who will determine what “reasonably calculated” means? The answer is: unelected bureaucrats and judges. This clause puts the government in the position of second-guessing whether a church‟s practices are “reasonable” for advancing its own beliefs – an astonishing intrusion of government on the free exercise of religion. Perhaps it would be considered “reasonable” for a church that is opposed to homosexual behavior to refuse to hire a pastor who is a practicing homosexual. But what about the janitor or groundskeeper at the church? What about the receptionist in the church office? Or more importantly, what about church-affiliated entities that are not primarily engaged in teaching religious doctrine, such as a homeless shelter or a hospital?
The Alaska Family Council correctly senses that the language is ambiguous enough so that gay rights lobbies such as Human Rights Campaign may be tempted to erode the religious exemption through repeated litigation. Thus a gay person who gets fired from a job over performance issues might claim that he was fired because of sexual orientation. Even if the employer wins such a case, the employer would still be out the time and money defending against the false allegation. And the case of Anchorage landlord Tom Swanner, who was found guilty of violating the anti-discrimination law because he had a policy of not renting to any unmarried couple that intended to live together on his property, illustrates how the Anchorage Equal Rights Commission will apply the anti-discrimination law to religious believers if it is amended to include the categories of sexual orientation and transgender identity.
Perhaps these concerns may prove to be pessimistic in the long run. However, these concerns have been justified in other locations; in Albuquerque, NM, a lesbian activist filed a complaint after Elaine Huguenin refused to photograph her same-sex commitment ceremony. Huguenin was eventually fined $6,000 by the local civil rights Talibans. But there's evidence that the lesbian activist was merely trolling, or "testing", for so-called "civil rights" violations; she could have easily found another proprietor for the service since Albuquerque's not exactly a small town.
Just another reason to vote No on Proposition 5 on April 3rd, 2012.