Pamela's testimony: Existing law does not protect

Pamela Kelley, attorney and UAA Justice Center Professor, prepared the following testimony on AO-64, which was first posted here. Her actual testimony varied from these notes to address a case that was applied incorrectly by an opponent. Kelley's explanation of that case (Oncale) is also worth reading and is posted HERE.

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Thank you – Madame Chairman, members of the assembly, Mr. Mayor. My name is Pamela Kelley. I am a member of the Alaska bar, no longer practicing but now teaching undergraduates about the law. I live in Anchorage. I signed up, belatedly, to testify because I think the state of the existing law has been obscured during the public comment already taken.

Federal, state and local laws overlap in the area of equal rights in employment, public accommodations and commerce. The first inaccuracy I hear repeated in these chambers is the idea that existing law already provides the protections that the proposed ordinance would cover. It does not.

The Constitution's equal protection clauses, at the Fifth and Fourteenth Amendments, limit actions by the government – not private acts of discrimination. Nor are federal statutes helpful.

In Title 42 of the United States Code, the Civil Rights Act of 1964 as amended reaches the area. Federal law here identifies those classes of persons against whom discrimination is illegal to include: race, color, religion, sex, national origin, age, or disability. None of those terms – including "sex" as defined – reach lesbians, gays, bisexual and trans-gendered individuals. But that only sets the minimums. The state of Alaska law may reach additional classes. Upon examination, however, it's apparent that the Alaska Human Rights Act does not expand the classifications to cover this.

AS 18.80.220. protects against discrimination based on: race, religion, color, national origin, age, disability, sex, marital status, changes in marital status, pregnancy, or parenthood. Sexual orientation and gender identity are not identified as protected classes by state law, either.

The second category of comments that is legally inaccurate suggests the proposed ordinance confers special rights. One of two things might be going on here. Either some might be confusing the concept of non-discrimination with affirmative action. Or, some erroneously consider equal protection a kind of zero-sum game.

First: Discrimination occurs when one possessed of differences from another is rejected by that other, solely based on that difference. Only certain forms of discrimination are illegal under state, federal and local law. Same treatment as everyone else – despite differences – is the foundation of equal rights law.

Different, in fact preferential, treatment is what is at the basis of affirmative action. Affirmative action is a term used to describe programs and policies that provide preferences in benefits or contracting to a protected class to make up for historically discriminatory practices directed at that class. Obviously not the ordinance.

That leaves me with the "zero sum game" fallacy. There is no finite pool of rights to which equal protection applies. Our religious neighbors, in the free exercise of their religion, as a constitutional right, are not released from their obligations to comply with the law. The right of free exercise of religion does not prevent the law's application when the doctrine of a freely chosen religion suggests members violate public laws. The simple example is the prohibition against illegal drug use that continues to apply to a person even if her selected religion views such use as sacramental.

Equal protection laws are aspirational, in a way. I hope my home town aspires to accept all of its people for exactly who they are and will apply the law to them equally.

Thank you.