BILL ANALYSIS                                                                                                                                                                                                    





                             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)

                                   **************