BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AJR 45 (Chiu)
Version: June 23, 2016
Hearing Date: August 9, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Civil rights: the Equality Act
DESCRIPTION
This measure would call upon Congress to pass the Equality Act
of 2015, which would amend the Civil Rights Act of 1964 to
include protections on the basis of sexual orientation, gender
identity, and sex in the areas of employment, housing, public
accommodations, public education, federal funding, credit, and
the jury system.
BACKGROUND
The Civil Rights Act of 1964, a landmark piece of federal civil
rights legislation, outlawed major forms of discrimination on
the basis of race, color, religion, sex, or national origin.
The act sought to put an end to the unequal application of voter
registration requirements, racial segregation in schools, and
discrimination at the workplace or by facilities that served the
public (i.e., in public accommodations). Other civil rights
movements have resulted in federal legislation which offer
protections against discrimination as well, including the Age
Discrimination in Employment Act, the Equal Credit Opportunity
Act, and the Fair Housing Act, among others. These federal laws
represent the minimum level of protection that state governments
must provide for individuals within that state.
Introduced in the U.S. House of Representatives as H.R. 3185 and
in the U.S. Senate as S. 1858, the Equality Act of 2015 would
enact express anti-discrimination protections for lesbian, gay,
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bisexual and transgender (LGBT) individuals across key areas of
life, including employment, housing, credit, education, public
spaces and services, federally funded programs, and jury
service. More specifically, the Equality Act proposes to
include sexual orientation and gender identity among those
characteristics that are protected under existing federal civil
rights laws - including the Civil Rights Act of 1964, the Fair
Housing Act, the Equal Credit Opportunity Act, the Jury
Selection and Services Act, and several laws regarding
employment with the federal government. The Act also seeks to
amend the Civil Rights Act of 1964 to prohibit discrimination in
public spaces and services and federally funded programs on the
basis of sex, as well, in specific titles of the Act where that
trait is currently not included among the protected
characteristics. Additionally, the Act would update the public
spaces and services covered in current law to include any
establishment that provides a good, service, or program (such as
retail stores, shopping centers, banks, and health care,
accounting, or legal service establishments), as well as places
or establishments that provide transportation services (such as
any train, bus, car, or taxi service, or any station, or depot).
Notably, the Act also clearly states that the federal Religious
Freedom Restoration Act of 1993 shall not provide a claim
concerning, or a defense to a claim under, the Civil Rights Act,
or provide a basis for challenging the application or
enforcement of the Civil Rights Act. (See Comment 3 for more.)
This measure seeks to call upon Congress to pass the Equality
Act of 2015.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides that no
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws. (U.S.
Const., 14th Amend., Sec. 1.)
Existing federal law , the Civil Rights Act of 1964, enforces the
constitutional right to vote, confers jurisdiction upon the
district courts of the United States to provide injunctive
relief against discrimination in public accommodations,
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authorizes the U.S. Attorney General to institute suits to
protect constitutional rights in public facilities and public
education, extends the Commission on Civil Rights, prevents
discrimination in federally assisted programs, and establishes a
Commission on Equal Employment Opportunity, among other things.
(Pub. Law 88-352, 78 Stat. 241.) For example:
Title I of the Act pertains to voting rights (barring unequal
application of voter registration requirements);
Title II to injunctive relief against discrimination in places
of public accommodation (prohibiting discrimination based on
race, color, religion, or national origin in hotels, motels,
restaurants, theaters, and all other public accommodations
engaged in interstate commerce; exempting "private" clubs);
Title III to desegregation of public facilities (prohibiting
state and municipal governments from denying access to public
facilities on grounds of race, color, religion, or national
origin);
Title IV to desegregation of public education (authorizing the
U.S. Attorney General to file suits to desegregate public
schools);
Title VI to nondiscrimination in federally assisted programs
(preventing discrimination on the basis of race, color, or
national origin by government agencies that receive federal
funding, subject to loss of that federal funding); and
Title VII to equal employment opportunity (generally
prohibiting discrimination by covered employers on the basis
of race, color, religion, sex, or national origin).
This measure would declare, among other things that:
while the Fourteenth Amendment of the U.S. Constitution
guarantees all citizens equal protection under the law and the
Civil Rights Act of 1964 outlaws discrimination based on race,
color, religion, sex, or national origin, no federal law
enumerates discrimination protections for LGBT Americans.
While the U.S. Supreme Court's ruling in Obergefell v. Hodges
(2015) brought marriage equality to all 50 states, LGBT
Americans still face discrimination in their daily lives and
remain at risk of being fired or denied services on the basis
of who they are or who they love because the majority of
states still lack explicit, comprehensive nondiscrimination
protections;
the Equality Act of 2015 amends the Civil Rights Act of 1964
to include sex, sexual orientation, and gender identity among
the prohibited categories of discrimination, effectively
protecting LGBT Americans in the areas of employment, housing,
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public accommodations, public education, access to federal
funding, access to credit, and the opportunity to serve on a
jury. The Equality Act's comprehensive approach to updating
the Civil Rights Act of 1964 would include protections for
many Americans beyond the LGBT community;
despite the 1964 Civil Rights Act's prohibition against gender
discrimination in certain areas, such as employment and
housing, women still face discrimination in public facilities
and in receiving federal financial assistance. The Equality
Act would ensure that women have equal access to public
accommodations and funds, and that federal funding could not
be spent in a way that encourages discrimination based on sex;
while many public accommodations are considered protected
places under current law, people of color still face
discrimination in places that include stores, banks,
transportation services, and health care services. The
Equality Act updates the federal definition of public
accommodations to ensure all individuals are able to fully
access and utilize social and public places regardless of who
they are; and
in a growing number of states, Religious Freedom Restoration
Acts and similar laws are being invoked in an attempt to
justify discrimination against the LGBT community. The
Equality Act retains exemptions that religious organizations
and schools already enjoy, but would ensure that religion
could not be used as a justification for refusing service on
the basis of race, color, religion, sex, national origin,
sexual orientation, or gender identity.
This measure would set forth that the Legislature calls upon the
U.S. Congress to pass the Equality Act of 2015, which would
amend the Civil Rights Act of 1964 to include protections on the
basis of sexual orientation, gender identity, and sex in the
areas of employment, housing, public accommodations, public
education, federal funding, credit, and the jury system.
COMMENT
1. Stated need for the bill
According to the author:
California has a long and proud history of continually
supporting its lesbian, gay, bisexual, and transgender (LGBT)
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communities. The state has well codified prohibitions on
discrimination against individuals on the basis of actual or
perceived sex, sexual orientation, gender identity, and
gender-related appearance and behavior. However, this is not
true across the nation as the majority of states currently
lack explicit and comprehensive nondiscrimination protections
for LGBT Americans. Notwithstanding the United States Supreme
Court's ruling in Obergefell v. Hodges (2015) which
established marriage equality to all 50 states, no federal law
enumerates discrimination protections for LGBT people. This
lack of clear legal protections leaves many LGBT Americans to
face daily discrimination and remain at risk of being fired or
denied services because of who they love. In addition,
disadvantaged groups including women and people of color
continue to face discrimination in areas of public
accommodation.
Today, someone who identifies as gay could be rejected from
being hired at a corporation, a lesbian teacher could be fired
once her principal finds out she's planning to have a child
with her partner, a transgender individual could be turned
away from a hospital and a same-sex couple could face the
possibility of not finding service from a bakery for their
wedding cake. These stories are all too common across the
nation.
The Equality Act provides essential updates to 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. These updates
also address discrimination still facing women and people of
color. By adding "sex" and updating the federal definition of
public accommodations of the list of protections under the
1964 Civil Rights Act, women would have equal access to public
places and people of color would be protected in stores,
salons, or when hailing a cab. Consistent with California's
legacy as a leader in LGBT civil rights, this Assembly Joint
Resolution calls upon Congress to pass The Equality Act.
2. Obergefell et al. v. Hodges
The U.S. Supreme Court has interpreted the Fourteenth
Amendment's due process clause as "a promise of the Constitution
that there is a realm of personal liberty which the government
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may not enter," such as, for example, the right of parents to
direct the upbringing of their children. (Planned Parenthood v.
Casey (1992) 505 U.S. 833, 847; see also Truxel v. Granville
(2000) 530 U.S. 57, 65 (internal citations omitted): "We have
long recognized that [the clause]. . . 'guarantees more than
fair process.' The Clause also includes a substantive component
that 'provides heightened protection against government
interference with certain fundamental rights and liberty
interests.'")
On June 26, 2015, in the case of Obergefell et al. v. Hodges
(2015) 135 S.Ct. 2584, the Court confirmed that the due process
clause, as well as the equal protection clause, also protects
yet another fundamental right: the fundamental right to marry a
person of the same sex. Once again, the Court emphasized that
the fundamental liberties protected by this clause extend to
certain personal choices central to individual dignity and
autonomy, including intimate choices that define personal
identity and beliefs. (Id. at 2597-8, citing Eisenstadt v.
Baird (1972) 405 U.S. 438, 453; Griswold v. Connecticut (1965)
381 U.S. 479, 484-486.) "The nature of injustice," the Court
wrote, "is that one may not always see it in one's own time. The
generations that wrote and ratified the Bill of Rights and the
Fourteenth Amendment did not presume to know the extent of
freedom in all of its dimensions, and so they entrusted to
future generations a charter protecting the right of all persons
to enjoy liberty as they learn its meaning." It is by these
established tenets that the Court has long held that the right
to marry is protected by the Constitution, and that the Court
has reiterated time and again, in different contexts, that the
right to marry is fundamental under the due process clause.
(Id. at 2598-9, citing Loving v. Virginia (1967) 388 U.S. 1, 12,
Zablocki v. Redhail (1978) 434 U.S. 374, 384.) Applying the
same principles and traditions demonstrating that marriage is
fundamental under the Constitution, the Court found that they
"apply with equal force to same-sex couples." (Id.)
Moreover, as stated by the Court:
The right of same-sex couples to marry that is part of the
liberty promised by the Fourteenth Amendment is derived, too,
from that Amendment's guarantee of the equal protection of the
laws. The Due Process Clause and the Equal Protection Clause
are connected in a profound way, though they set forth
independent principles. [ . . . ] This interrelation of the
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two principles furthers our understanding of what freedom is
and must become. [ . . . ]
It is now clear that the challenged laws burden the liberty of
same-sex couples, and it must be further acknowledged that
they abridge central precepts of equality. Here the marriage
laws enforced by the respondents are in essence unequal:
same-sex couples are denied all the benefits afforded to
opposite-sex couples and are barred from exercising a
fundamental right. Especially against a long history of
disapproval of their relationships, this denial to same-sex
couples of the right to marry works a grave and continuing
harm. The imposition of this disability on gays and lesbians
serves to disrespect and subordinate them. And the Equal
Protection Clause, like the Due Process Clause, prohibits this
unjustified infringement of the fundamental right to marry.
(Id. at 2602-4 (internal citations omitted).)
Accordingly, the Court held, "the right to marry is a
fundamental right inherent in the liberty of the person, and
under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, couples of the same-sex may not be
deprived of that right and that liberty. The Court now holds
that same-sex couples may exercise the fundamental right to
marry. No longer may this liberty be denied to them. Baker v.
Nelson [(1972) 409 U.S. 810] must be and now is overruled, and
the State laws challenged [ . . . ] are now held invalid to the
extent they exclude same-sex couples from civil marriage on the
same terms and conditions as opposite-sex couples." (Id. at
2604-5.)
In calling for the U.S. Congress to pass the Equality Act of
2015, this measure sets forth that while Obergefell "brought
marriage equality to all 50 states, LGBT Americans still face
discrimination in their daily lives and remain at risk of being
fired or denied services on the basis of who they are or who
they love because the majority of states still lack explicit,
comprehensive nondiscrimination protections."
3. Federal Religious Freedom Restoration Act of 1993 and state
counterparts
Prior to 1990, Supreme Court jurisprudence on the First
Amendment's free exercise clause reflected a general rule that
government actions burdening religions would only be upheld if
they were necessary to achieve a compelling governmental
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purpose. Then, in 1990, the Court expressly changed the law in
Employment Division v. Smith (1990) 474 U.S. 772, holding that
the free exercise clause cannot be used to challenge neutral
laws of general applicability. As interpreted in more recent
Supreme Court cases, Smith "largely repudiated the method of
analysis used in prior free exercise cases like Wisconsin v.
Yoder [(1972) 406 U.S. 205] and Sherbert v. Verner [(1963) 374
U.S. 398]" where the Court previously "employed a balancing test
that considered whether a challenged government action that
substantially burdened the exercise of religion was necessary to
further a compelling state interest." (Holt v. Hobbs (2015) 135
S. Ct. 853, 859; see also Burwell v. Hobby Lobby Inc. (2014) 134
S.Ct. 2751, 2760.)
In 1993, Congress enacted the Religious Freedom Restoration Act
(RFRA) in an attempt to negate the Smith decision and ensure
that strict scrutiny is applied when the law substantially
burdens religion. Specifically, under RFRA, federal law
provides that "Government shall not substantially burden a
person's exercise of religion even if the burden results from a
rule of general applicability." (42 U.S.C. Sec. 2000bb-1(a).)
If it does, the person is entitled to an exemption from the rule
unless the government "demonstrates that the application of the
burden to the person - (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." (42 U.S.C.
Sec. 2000bb-1(b).)
For RFRA purposes, as amended by the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), "exercise of
religion" means "any exercise of religion, whether or not
compelled by, or central to a system of religious belief." That
term, according to the Supreme Court in Burwell v. Hobby Lobby,
Inc. (2014) 134 S.Ct. 2751, 2767 was "designed to provide very
broad protection for religious liberty. By enacting RFRA,
Congress went far beyond what the U.S. Supreme Court has held is
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constitutionally required." (Id.)<1> As interpreted in Hobby
Lobby, RFRA protects the right of "men and women who wish to run
their businesses as for-profit corporations in the manner
required by their religious beliefs," ultimately holding that
federal regulations to the Affordable Care Act violate RFRA by
imposing on companies the obligation to provide health insurance
coverage for these four contraception methods, despite their
religious objections. (Id. at 2759.) While the Court clarified
that it does "not hold or suggest that 'RFRA demands
accommodation of a for-profit corporation's religious beliefs no
matter the impact that accommodation may have on . . . thousands
of women employed by Hobby Lobby,'" the Court held that a less
restrictive means was available by which the government could
achieve the same compelling interest (providing access to all
contraceptives), without infringing upon Hobby Lobby's "free
exercise of religion." (Id at 2560.)
Notably, despite the congressional effort to make strict
scrutiny the test for all free exercise clause claims with the
passage of RFRA, in City of Boerne v. Flores (1997) 521 U.S.
507, the Supreme Court invalidated the federal RFRA as applied
to state and local governments. Thus, ultimately, as a matter
of state law, unless a state enacts a RFRA-counterpart, Smith
remains the controlling precedent and the free exercise clause
cannot be used to challenge neutral state laws of general
applicability.<2> To that end, numerous states have begun to
enact RFRA-like laws, essentially allowing businesses to
discriminate against LGBT individuals in accordance with
---------------------------
<1>Indeed, the Hobby Lobby dissent argued further that the
company would not have even had a valid free exercise claim
under the pre-Smith First Amendment jurisprudence, which had
previously made it clear that accommodations for religious
beliefs or observances must not significantly impinge upon the
interests of third parties. (Id. at 2790 (J. Ginsberg,
dissenting).)
<2> There is an exception to this rule-namely, three years later
after City of Boerne, Congress enacted RLUIPA, requiring states,
pursuant to Congress's commerce power and spending power as a
condition on federal funds, to meet strict scrutiny when they
significantly burden religion in two areas: land use decisions
and institutionalized persons. (See 42 U.S.C. Sec. 2000cc,
2000cc-1.)
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religious beliefs. Such laws do not necessarily authorize or
require discrimination against same-sex couples or their
families or on the basis of sexual orientation, gender identity,
or gender expression, but they may grant individuals exemptions
from otherwise generally applicable anti-discrimination laws,
thus having the same effect as voiding or repealing those
protections for LGBT individuals. California-a state with
strong anti-discrimination statutes protecting individuals from
discrimination on protected bases such as race, sex, sexual
orientation, and gender in every context from business, to
employment, to schools, and state-funded programs and
activities-has no such RFRA-counterpart.
As noted in the Background, the Equality Act of 2015 has been
introduced in Congress, to not only add protections to federal
civil rights laws for LGBT individuals, but to also amend Title
XI of the Civil Rights Act of 1964, to provide that the federal
RFRA law does not provide a claim concerning, or a defense to a
claim under, the Civil Rights Act, or provide a basis for
challenging the application or enforcement of the Civil Rights
Act. As stated by the sponsor of this bill, Equality
California:
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 would maintain
exemptions that religious organizations and schools currently
enjoy, but would make clear that religion cannot be used to
justify refusal of service based on a person's race, color,
religion, sex, national origin, sexual orientation, or gender
identity. This resolution calls upon Congress to pass The
Equality Act, exemplifying California's dedication to strong
nondiscrimination protections for the LGBT community, and
urging Congress to take action in support of equality."
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Support : AIDS Project Los Angeles; American Civil Liberties
Union; Anti-Defamation League; Asian Americans Advancing
Justice, California; API Equality - LA; Asian & Pacific Islander
Wellness Center; Bakersfield LGBTQ; Bienestar Human Services;
California National Organization for Women; California Voices
for Progress; California Young Democrats; Courage Campaign; Los
Angeles LGBT Center; LGBTQ Center of Long Beach; Mexican
American Legal Defense and Educational Fund; Our Family
Coalition; Planned Parenthood Affiliates of California;
Sacramento LGBT Center; Transgender Law Center; The Trevor
Project; The Wall Las Memorias Project
Opposition : None Known
HISTORY
Source : Equality California
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 52, Noes 11)
Assembly Judiciary Committee (Ayes 7, Noes 2)
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