BILL ANALYSIS Ó
HR 38
Page 1
Date of Hearing: August 28, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
HR 38 (Hagman) - As Introduced: August 16, 2012
SUBJECT : First Amendment to the United States Constitution
KEY ISSUES :
1)Should the assembly adopt THIS resolution expressing its
opposition to religious intolerance and its STRONG support of
the first amendment'S CHERISHED FREEDOMS?
2)Should the resolution be amended to clarify its intent and
more accurately reflect positions taken by California's local
elected officials in THE recent controversy SURROUNDING
STATEMENTS MADE BY THE CEO OF THE CHICK-FIL-A RESTAURANT
CHAIN?
SYNOPSIS
This resolution seeks to declare that the California Assembly
condemns all forms of intolerance of religious beliefs and
recognizes that the First Amendment protects freedoms of speech
and religion from government persecution. Although not
expressly referenced, it is reasonable to deduce by the timing
and provisions of the resolution that it is offered in response
to the recent national controversy surrounding the public
remarks by the CEO of the "Chick-Fil-A" restaurant chain
expressing opposition to same-sex marriage. In response to the
CEO's religious-based comments, a handful of local officials
around the country reportedly criticized his comments and
suggested that their cities might not welcome any further
Chick-Fil-A restaurants, with one Chicago alderman suggesting
that he might use his position to block the opening of a
Chick-Fil-A restaurant in his ward. The reactions of these few
elected officials have been widely criticized (by many of those
who support same-sex marriage as well) on the grounds that any
such official action would be a clear violation of the First
Amendment; nor have any public officials taken any actual such
action. Nevertheless the author introduced this resolution
apparently to underscore that such government action in response
to the right of individuals to express their views would violate
cherished rights of expression. This analysis concurs that any
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such official government action would indeed be a clear example
of "viewpoint discrimination" and would almost certainly be
found unconstitutional. However, while the resolution no doubt
accurately reflects the Assembly's strong support for the First
Amendment, certain provisions of the resolution appear to
misrepresent the reactions of local elected officials in
California. In addition, some of the resolution's provisions
are awkwardly worded and ambiguous. Thus, the analysis
recommends for the Committee's consideration a number of
suggested drafting amendments to clarify the law and the
resolution's reference to it.
SUMMARY : Seeks to recognize the rights of the First Amendment
to the Constitution while promoting and protecting the freedoms
of speech and religion without government persecution.
Specifically, this measure :
1)Makes, amongst many, the following findings:
a) The First Amendment to the United States Constitution
provides, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble,
and to petition the government for a redress of
grievances";
b) The free exercise of religion and freedom of speech are
guaranteed for all Americans by the First Amendment to the
United States Constitution;
c) Recently, local elected officials throughout the state
and country have unjustly called for the exclusion of
certain businesses within their cities due only to business
owners exercising their rights under the First Amendment to
the United States Constitution;
d) Tolerance by the government toward people of faith is
constitutionally guaranteed and necessary to allow an
unimpeded flow of tolerance and ideas that positively
impact and transform lives;
e) Firmly upholding the right of conscience and cherishing
the exercise of religious independence and expression of
religious belief as American foundations animate the
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freedom that belongs to all, that we may live in liberty
and happiness.
2)Resolves by the Assembly of the State of California, that the
Assembly unequivocally condemns all forms of intolerance of
religious beliefs and expressing those beliefs; that the
Assembly recognizes the rights of the First Amendment to the
Constitution while promoting and protecting the freedoms of
speech and religion without government persecution; and that
these rights preclude exclusion from commerce based upon the
freedom of beliefs.
EXISTING LAW prohibits any government body from making any law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances." (U.S.
Constitution, Amendment I, as made applicable to the states by
Amendment XIV.)
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
COMMENTS : This resolution is apparently in response to the
highly-reported national controversy that ensued when Dan
Cathay, CEO of the fast-food chain Chick-Fil-A, reiterated his
opposition to same-sex marriage and his support for the
"biblical definition of the family." Mr. Cathay, along with
WinShape, the company that operates Chick-Fil-A, have reportedly
made substantial donations to several conservative Christian
causes; indeed, Mr. Cathay's position on same-sex marriage was a
source of controversy long before his most recent public
comments. (See e.g. New York Times, January 29, 2011.) Mr.
Cathay's statements might have passed unnoticed but for the
arguably ill-considered rhetorical reactions of a few high
profile elected officials. For example, Chicago Mayor Rahm
Emanuel stated that Chick-Fil-A was "not welcome" in Chicago and
even hinted, along with a Chicago alderman, that the city might
block a Chick-Fil-A application to open a new franchise in
Chicago (though such formal government action has not occurred).
Boston Mayor Thomas Menino had a similar rhetorical flourish.
The idea that a city in the United States would actually deny a
permit to a business solely because of the political or
religious views of its CEO understandably drew sharp
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condemnation from across the entire political spectrum,
including from the editorial pages of each city's major
newspaper. Not surprisingly, perhaps, both Emanuel and Menino
quickly issued statements clarifying their positions: that is,
while they still strongly opposed Mr. Cathay's views, they
assured everyone that a person's mere expression of religious or
political views would never be actual grounds for denying that
person a license or permit to operate a business. (New York
Times, August 3, 2012; Boston Herald, July 26, 2012; Chicago
Sun-Times, July 30, 2012.)
Thus this resolution does not address actual government action
to deny a business permit solely due to the expressed political
or religious views of its leader. However it seeks to
underscore the State Assembly's commitment to protect the First
Amendment's rights of free expression and religious freedom.
"Viewpoint Discrimination is Censorship in its Purest Form :" As
this Committee well knows, First Amendment analysis of any
regulation of speech, whether it involves a direct ban or an
indirect burden, begins by considering whether the regulation is
"content-based" or "content-neutral." If the regulation is
content-neutral, it may survive a lesser level of judiciary
scrutiny as a regulation only affecting the "time, place, and
manner" of the speech. When the regulation is content-based,
the regulation will only survive if it meets a "strict scrutiny"
standard: that is, the state must have a "compelling interest"
in prohibiting the speech and the means used must be "narrowly
tailored" to serve that compelling interest and only that
interest. (See e.g. Ward v. Rock Against Racism (1981) 491 U.S.
781.)
When considering "content-based" restrictions the courts often
distinguish between "subject-matter discrimination" and
"viewpoint discrimination." For example, a regulation
prohibiting discussion of abortion would be "subject-matter
discrimination;" whereas a regulation prohibiting someone from
speaking out against abortion, for example, would be "viewpoint
discrimination." While both forms of discrimination are
content-based, and thus subject to strict scrutiny, the courts
have held that "viewpoint discrimination" is an especially
suspect and "egregious form of content discrimination Ýand] . .
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. the government must abstain from regulating speech when the
specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the restriction." (Rosenberger
v. Rector & Visitors of the Univ. of Va. (1995) 515 U.S. 819,
829.) As former Supreme Court Justice William Brennan put it:
"ÝV]iewpoint discrimination is censorship in its purest form."
Perry Educ. Ass'n. v. Perry Local Educators' Ass'n. (1983) 460
U.S. 37, 62 (Brennan, J., dissenting).
Viewpoint Discrimination and Government Benefits and Privileges :
While viewpoint discrimination is almost always prohibited, the
courts have recognized a very narrow, and controversial, range
of exceptions. For example, in Rust v. Sullivan (1991) 500 U.S.
173 (Opinion by Chief Justice Rehnquist), the U.S. Supreme Court
upheld a federal regulation that limited the ability of doctors
to discuss abortion options with their patients if the doctors
or their facilities received federal funds and the funds were
provided in order to carry out a specific government policy.
The doctors who challenged this policy argued that it was
impermissible viewpoint discrimination because it prohibited
them from discussing abortion as a lawful option. The Court's
majority opinion, however, reasoned that the policy did not
discriminate on the basis of viewpoint but simply reflected the
government's right to fund one form of activity over another -
i.e. favoring childbirth over abortion, and allocating funds
accordingly.
However, Rust v. Sullivan has been widely criticized, and it
prompted a strong dissent which observed that up to that point
"the Court Ýhad] never upheld viewpoint-based suppression of
speech simply because that suppression was a condition upon the
acceptance of public funds." (Rust at 207, Blackmun J.,
dissenting.) Many commentators suggest that the Rust case was
indeed a departure from the traditional line of cases - directly
relevant to this resolution's findings -- affirming the
so-called "unconstitutional conditions" doctrine - that is, the
idea that government may not use its power to confer, or
withhold, benefits or privileges in order to prohibit
constitutionally protected activity, if it could not have
otherwise prohibited that activity. (On the doctrine's relation
to free speech, see Cass R. Sunstein, Democracy and the Problem
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of Free Speech (1993); on the doctrine generally, see Kathleen
Sullivan, "Unconstitutional Conditions."102 Harvard Law Review
1423 (1989)).
By 1972, the U.S. Supreme Court could already cite a long line
of cases making it clear that:
even though a person has no 'right' to a valuable
government benefit and even though the government may deny
him the benefit for any number of reasons, there are some
reasons upon which the government many not rely Ýto deny a
government benefit]. It may not deny a benefit to a
person on a basis that infringes his constitutionally
protected interests -- especially, his interest in freedom
of speech. For if the government could deny a benefit to a
person because of his constitutionally protected speech or
associations, his exercise of those freedoms would in
effect be penalized and inhibited. This would allow the
government to "produce a result which Ýit] could not
command directly." ÝQuoting Speiser v. Randall, 357 U.S.
513 at 526]. Such interference with constitutional rights
is impermissible. (Perry v. Sindermann, 408 U.S. 593 at
597.)
Thus, if the above-noted local government officials in other
states who expressed their opposition to the statements of the
Chick-Fil-A CEO had actually carried out any of their implied
threats to deny business permits or licenses because of those
statements, Perry v. Sindermann and its progeny (with the
possible though unlikely exception of Rust v. Sullivan) appear
to make it clear that such actions would ultimately be found to
violate the First Amendment. Government may not use the carrot
or stick of a benefit to "produce a result which Ýit] could not
command directly." (Id.) To deny a zoning permit or business
license to Chick-Fil-A because of its CEO's statements about
same-sex marriage would be a clear instance of "viewpoint
discrimination" - as noted found to be the worst kind of
content-based regulation - and under the "unconstitutional
conditions" doctrine, such an action could not be justified on
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the grounds that a permit or license is a privilege and not a
right. It is true that one does not have a constitutional
"right" to a business license; but one does have a right not to
be denied a privilege merely for having exercised one's right of
free speech. That is why there was such broad-based
condemnation of the few local officials who initially made those
rhetorical threats.
In Point of Fact, No Elected Officials in California Have
Similarly Threatened to Exclude Chick-Fil-A Restaurants Because
of Its CEO's Political or Religious Beliefs : In its present
form, HR 38 asserts, without any documentation, that "local
elected officials throughout the state and country have unjustly
called for the exclusion of certain businesses within their
cities due only to business owners exercising their rights under
the First Amendment to the United States Constitution." While
it is true that local elected officials in other states have
reportedly made such statements (though they, as noted above,
subsequently retracted them), the reaction in California has
been more tempered, and it appears to be inaccurate to assert,
as this resolution currently does, that "local elected officials
throughout the state" have called for excluding Chick-Fil-A
based on Mr. Cathay's comments or beliefs.
Only in Santa Barbara and Mountain View has the question of
Chick-Fil-A permits arisen, and in neither case have "elected
officials" reportedly actually sought to exclude Chick-Fil-A
because of the political and religious views of its CEO. In
Mountain View, opposition to the opening of a new Chick-Fil-A
restaurant actually preceded the recent controversy and centered
on a drive-thru window that opponents claimed was inconsistent
with the city's plan to make the neighborhood more bicycle and
pedestrian friendly. Despite these concerns, the City Council
approved Chick-Fil-A's application on July 11 of this year. Two
groups then petitioned the City Council to reconsider and repeal
the approval. Both groups seeking the repeal based its petition
on traffic-related issues and consistency with city plans to
foster bike and foot traffic, although one of the groups posted
an online petition that also made reference to Mr. Cathay's
statements on same-sex marriage. However, the City Council has
made it clear that when it makes its decision on the petition
for appeal (which cannot be taken up until September 11 at the
earliest), Mr. Cathay's religious and political views will
simply not be a factor. Thus, while one of the community groups
opposing the permit in Mountain View alluded to Mr. Cathay's
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beliefs as one of several reasons to deny the permit, the
Committee is not aware of any elected official that has actually
called for denying a business permit to Chick-Fil-A because of
Mr. Cathay's statements. (Contra Costa Times, August 2, 2012.)
In Santa Barbara, the city's appointed Architectural Review
Board (ARB) approved a plan for a new Chick-Fil-A restaurant
about a year ago. However, when Chick-Fil-A recently submitted
some minor amendments of the plan to the ARB for approval, five
of the ARB members abstained from voting on those amendments,
thereby stalling efforts to move forward. At least one of the
abstaining members cited Mr. Cathay's comments, one cited the
company's "discriminatory" policies without offering any
specifics, and three other abstainers gave no reason at all.
However, the appointed ARB members are not "elected officials,"
and indeed the elected city officials have unequivocally
condemned the ARB members who abstained. The Mayor wrote a
letter affirming the city's support for same-sex marriage while
at the same time condemning the action (or inaction) of the ARB.
Three other elected officials, members of the City Council,
have promised an investigation to see whether ARB members had
violated their official duties and should be removed if they
did. More significant, perhaps, the City Manager informed the
ARB that, despite their abstention, city staff issued an
administrative approval for the proposed amendments, thereby
nevertheless allowing the project to proceed. (Santa Barbara
Independent, August 8, 2012).
In sum, as in Mountain View, no local elected official has
called for denying any licenses or permits to a Chick-Fil-A
restaurant because of Mr. Cathay's statements, and it would be
misleading for the resolution, if approved by this Committee, to
suggest otherwise.
Proposed Committee Amendments : It seems reasonable to assume
that most if not all members of this Committee (as well as of
the entire Assembly) wholeheartedly agree with the general
thrust of this resolution - which essentially affirms the
revered place of freedom of speech and religious tolerance in
our constitutional democracy. Some of the provisions of this
resolution, however, are either awkwardly worded or, as noted
above, potentially misstate certain facts. Therefore, the
Committee may wish to make the following amendments, unless the
author chooses to accept the following amendments as Author's
Amendments:
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Suggested Amendment 1 : As noted above, the provision at lines
1-2 on page 2 of the resolution erroneously asserts that "local
elected officials throughout the state" have called for the
exclusion of certain business within their jurisdiction due only
to the business owners exercising their First Amendment rights.
However, the background material provided to the Committee does
not provide any actual examples supporting that any local
elected officials in this state have actually made such calls.
Although not expressly identified in the resolution or the
author's background material, the timing and content of the
resolution reasonably suggests that the author appears to be
responding to the Chick-Fil-A controversy. As discussed above,
however, the Committee is only aware of two instances in which
local elected officials suggested that Chick-Fil-A might be
denied the right to open new businesses, specifically in Chicago
and Boston. And notably, in both instances the elected
officials issued later statements denying that they would ever
actually use the power of government to deny a business license
based solely on the business owner's political expressions or
religious beliefs. Therefore, following an inquiry with the
author as to his openness to do so as an Author's Amendment, the
Committee may wish to amend the resolution as follows if the
author prefers not to:
- On page 2 delete lines 1 through 5.
Suggested Amendment 2 : On page 2 lines 33-35 the resolution
currently states that the Assembly "unequivocally condemns all
forms of intolerance of religious beliefs and Ýall forms of]
expressing those beliefs." ÝEmphasis added.] As structured,
the intended meaning is not entirely clear. Indeed, depending
on whether "condemns" is meant to apply only before the "and" or
after it as well, the statement could inadvertently be read to
say that the Assembly "condemns" expressing religious beliefs,
which is clearly not the author's intent. In addition, the
current drafting of this provision could be inadvertently read
to suggest that the Assembly condemns "all forms" of
intolerance. However, "intolerance" may sometimes of course be
justified. For example, both citizens and the government have a
right to condemn the violent expression for or against religious
belief. Moreover, if the expression of belief takes the form of
violating a law, through, for example, violent acts against
others, then government need not tolerate it and indeed should
not tolerate it. For example, to use the Chick-Fil-A example,
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few would dispute the right of Mr. Cathay to express his belief
in the "biblical definition of marriage" or his belief that
homosexuality is a sin. However, if these religious beliefs
caused Mr. Cathay to discriminate against gay or lesbian
employees or customers in violation of state or federal
anti-discriminations laws, then government need not tolerate it.
Indeed, government has a duty to stop it. Therefore,
following an inquiry with the author as to his openness to do so
as an Author's Amendment, the Committee may wish to make the
following clarifying amendment:
- On page 3 delete lines 34-35 and insert:
ÝThe] Assembly unequivocally condemns religious
intolerance, supports the rights of all persons to express
their religious beliefs without fear of government
persecution, and acknowledges the right of all private
citizens to exercise their First Amendment freedom to
refuse to patronize any business whose views they find
offensive.
Suggested Amendment 3 : The provision on page 2 lines 1-2 reads
"Resolved, That these rights preclude exclusion from commerce
based upon the freedom of beliefs." This provision is awkwardly
constructed in a number of ways, such that the meaning is not
entirely clear. To begin with, it would be helpful to identify
"these rights" as First Amendment rights. Second, the meaning
of "exclusion from commerce" is not entirely clear, in part,
because it lacks a subject - i.e. who is it that may not be
excluded? Presumably, given the overall context of the
resolution, it means that government should not deny a business
the right to operate based on the owner's religious beliefs.
Finally, "the exclusion" would not be "based on freedom of
beliefs;" rather, the exclusion would presumably be based upon
the business owner having "exercised" or "expressed" certain
religious beliefs. In short, the provision apparently seeks to
state that the First Amendment prevent a government from denying
a business the right to operate solely because the business
owner had exercised his or her First Amendment rights.
Therefore, following an inquiry with the author as to his
openness to do so as an Author's Amendment, the Committee may
wish to consider the following amendment to the resolution:
- On page 3 delete lines 1-2 and insert:
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Resolved, That the rights guaranteed by the First Amendment
prevent our government from denying any person the right to
engage in or operate a business solely because that person has
expressed his or her political or religious beliefs.
Note : It is critical to include the word "solely" in this
proposed amendment since the government could conceivably deny a
business permit or license if a person, in addition to merely
expressing political or religious beliefs, took some action on
the basis of those beliefs that violated a generally applicable
law, such as a law prohibiting discrimination.
Similar Related Resolution : SCR 87 (Anderson), which
unanimously passed this Committee by a vote of 9-0, resolved
that the Legislature similarly affirms, among other things, that
tolerance by the government toward people of faith is
constitutionally guaranteed.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334