BILL ANALYSIS Ó
AJR 45
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AJR 45
(Chiu) - As Introduced June 9, 2016
SUBJECT: Civil rights: the Equality Act
KEY ISSUE: Should the legislature urge the united states
congress to enact the 2015 equality act?
SYNOPSIS
Although the historic Civil Rights Act of 1964 prohibits
discrimination on the basis of race, color, sex, religion, or
national origin, it does not yet expressly guarantee the equal
rights of lesbian, gay, bisexual, and transgender (LGBT)
Americans. In order to make federal law more inclusive, the
2015 Equality Act would extend the reach of the Civil Rights Act
to protect members of the LGBT community from discrimination in
employment, housing, public accommodations, public education,
access to federal funding, and access to credit. To further
ensure equal treatment of all individuals, the 2015 Equality Act
would ensure that religion will not be used as a justification
to refuse service. While many states have yet to enact laws
that protect all of their citizens, including members of the
LGBT community, California has been a leader for the LGBT rights
and the 2015 Equality Act is consistent with California law and
our state's values. This resolution urges Congress to enact the
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2015 Equality Act in order to end discriminatory practices
across the country.
SUMMARY: Urges Congress to enact the 2015 Equality Act.
Specifically, this measure:
1)Makes various findings and declarations relating to the Civil
Rights Act of 1964.
2)Declares the necessity to amend the Civil Rights Act of 1964
by detailing the lack of enumerated discrimination protections
for LGBT Americans.
3)Declares the 2015 Equality Act's comprehensive approach will:
a) Protect LGBT Americans' from employment, housing, public
accommodations, public education, access to federal
funding, and access to credit discrimination.
b) Give women equal access to public accommodation and
public funds while not using federal funds to encourage
discrimination.
c) Update the definition of public accommodations to allow
all individuals, including people of color, full access and
utilization of social and public places.
d) Ensure religion cannot be used as a justification for
refusing service based on race, color, religion, sex,
nation original, sexual orientation, or gender identity.
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4)Resolves that the Assembly and the Senate of the State of
California, jointly, call upon the United States Congress to
pass the 2015 Equality Act.
5)Resolves that the Chief Clerk of the Assembly transmit copies
of this resolution to the author for appropriate distribution.
EXISTING LAW:
1) Federal law guarantees equal protection of the laws and
prohibits discrimination based on race, color, religion, sex,
or national origin. (Public Law 88-352; 78 Stat. 241.)
2) Provides that no person in the State of California shall, on
the basis of race, national origin, ethnic group
identification, religion, age, sex, sexual orientation,
color, genetic information, or disability, be unlawfully
denied full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any program or
activity that is conducted, operated, or administered by the
state or by any state agency, is funded directly by the
state, or receives any financial assistance from the state.
(California Government Code 11135.)
3) Provides, under the Unruh Civil Rights Act, that all persons
within this state are free and equal, and no matter what
their sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status, are entitled to the full and equal
accommodations, advantages, facilities, or services of all
business establishments of every kind whatsoever. Defines
"sex" to include gender identity and gender expression.
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(California Civil Code Section 51.)
4) Provides, under the California Fair Employment and Housing
Act, that it is unlawful to discriminate against or harass
any person because of the race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, familial status,
source of income, disability, or genetic information of that
person. (California Government Code 12955.)
FISCAL EFFECT: As currently in print this measure is keyed
non-fiscal.
COMMENTS: On July 2, 1964, President Lyndon Baines Johnson
signed the Civil Rights Act of 1964, legislation initially
proposed by President John F. Kennedy and the most sweeping
civil rights legislation since Reconstruction. The Civil Rights
Act of 1964 bans segregation on the basis of race, color,
religion, gender, or national origin at all places of public
accommodation and prohibits discrimination by employers and
labor unions and the use of federal funds for any discriminatory
program. The Civil Rights Act of 1964 was a monumental step for
advancing the equal treatment of Americans. After fifty-two
years, however, the author believes that the law should be
amended in order to become truly inclusive and to specifically
encompass LGBT Americans. According to the author, The 2015
Equality Act, introduced as H.R. 3185 by U.S. Representative
David Cicilline of Rhode Island, will provide a much-needed
update to the Civil Rights Act of 1964.
Federal Anti-Discrimination Laws: While the United States
Supreme Court gave all 50 states marriage equality in Obergefell
v. Hodges (2015) 135 S.Ct. 2071, LGBT Americans are still faced
with discrimination in employment, housing, public
accommodation, education, access to federal funds, access to
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credit, and the right to serve on a jury. Under current federal
law, there are no specific equal employment protections for LGBT
Americans; instead states are given the responsibly to pass
anti-discrimination laws and mostly fail to do so. According to
the National Conference of State Legislators, only 17 states
have passed comprehensive legislation to incorporate sexual
orientation and gender identity into employment protection laws,
while 17 other states have some type of prohibition on
discrimination based upon gender identity or sexual orientation.
( http://www.ncsl.org/blog/2015/07/01/what-is-the-status-of-employ
ment-protections-for-lgbt-people.aspx )
In addition to its lack of employment protections for the LGBT
community, federal law does not provide protection from
discrimination in housing based upon sexual orientation or
gender identity. Similarly to employment, states must pass
their own laws to protect citizens against housing
discrimination. According to the Human Rights Campaign, only 17
states provide housing discrimination protection based on sexual
orientation and gender identity. Four other states prohibit
housing discrimination on the basis of sexual orientation only.
( http://www.hrc.org/resources/housing-for-lgbt-people-what-you-ne
ed-to-know-about-property-ownership-and ) Not surprisingly, a
study published by the U.S. Department of Housing and Urban
Development concluded that, "Same-sex couples experience
discrimination in the online rental housing market, relative to
heterosexual couples." ( https://www.huduser.gov /portal/
Publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf )
Religious Freedom Restoration Act: The federal Religious
Freedom Restoration Act (RFRA) was passed in 1993 a response to
the U.S. Supreme Court's decision in Employment Division v.
Smith (1990) 494 U.S. 872. Prior to the Smith decision, the
Supreme Court had issued a number of decisions holding that,
under the Free Exercise clause of the First Amendment,
government policies need to accommodate the rights of
religiously observant persons, unless there was a "compelling
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state interest" for not accommodating religious concerns.
However, the Smith decision, written by the late Justice Scalia,
reversed this trend, holding that the state did not need to show
a compelling interest in order to discriminate on the basis of
religion. As a response, Congress passed RFRA. In essence,
RFRA provides that a state must show a compelling state interest
in order to infringe upon a religious practice. Following the
passage of RFRA, the U.S. Supreme Court said RFRA did not apply
to some actions of several states. (City of Boerne v. Flores
(1997) 521 U.S. 507.) Subsequently, states began passing their
own RFRA laws. Essentially, state RFRA laws go beyond the
federal RFRA law by offering more protection for religious
freedom, as they are entitled to do under the City of Boerne
decision, than the First Amendment requires. In order to better
balance religious rights and the right to be free of
discrimination, the 2015 Equality Act would stop organizations
from using state RFRAs or similar laws as a reason to
discriminate or refuse service on the basis of race, color,
religion, sex, national origin, sexual orientation, or gender
identity.
California Anti-Discrimination Laws: While recently some states
have been moving backwards in terms of protecting rights for the
LGBT community, California has been a consistent leader in
enacting legislation to ensure equal rights over the years.
California law is consistent with the 2015 Equality Act and
protects against discrimination in employment, housing, public
accommodations, funds, and services. Most notably, California's
most important anti-discrimination laws, the Unruh Civil Rights
Act and the Fair Employment and Housing Act, have been amended
to include sexual orientation and gender identity as protected
classes. In light of California's historic commitments in this
area, it would seem entirely appropriate for California to urge
Congress to similarly update the federal Civil Rights Act of
1964.
ARGUMENTS IN SUPPORT: This resolution urges Congress to enact
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similar laws to California to protect all Americans, not just
those who live in the few states with all-inclusive laws.
According to the sponsor:
The majority of states currently lack explicit and
comprehensive nondiscrimination protections for lesbian,
gay, bisexual, and transgender (LGBT) Americans. Because no
federal law enumerates discrimination protections for LGBT
people, many LGBT Americans still face daily discrimination
and remain at risk of being fired or denied services
because of who they are. To make matters worse, a growing
number of states are invoking Religious Freedom Restoration
Acts or similar legislation to justify discrimination
against the LGBT community. In addition, disadvantaged
groups including women and people of color continue to face
discrimination in areas of public accommodation.
The Equality Act updates the Civil Rights Act of 1964 to
include protections based on sexual orientation, gender
identity, and sex in the areas of employment, housing,
public accommodations, public education, federal funding,
credit, and the jury system. To cite one of example of the
importance of these protections, updating the federal
definition of public accommodations would ensure that all
individuals will be able to access and use social and
public places.
REGISTERED SUPPORT / OPPOSITION:
Support
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Equality California (sponsor)
Opposition
None on file
Analysis Prepared by:Alexandria Smith-Davis and Thomas Clark /
JUD. / (916) 319-2334