BILL ANALYSIS Ó
AB 1887
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Date of Hearing: March 15, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1887
(Low) - As Amended March 10, 2016
SUBJECT: State government: discrimination: travel
KEY ISSUES:
1)Should state agencies be prohibited, except as provided, from
requiring employees to travel to states that discriminate or
permit discrimination on the basis of sexual orientation,
gender identity, or gender expression?
2)Should state agencies be prohibited, except as provided, from
approving requestS for state-funded or state-sponsored travel
to states that discriminate or permit discrimination on the
basis of sexual orientation, gender identity, or gender
expression?
SYNOPSIS
Last year Indiana Governor Mike Pence signed a Religious Freedom
Restoration Act (RFRA), which would potentially allow businesses
to refuse service to persons on the basis of sexual orientation,
if to do so would offend the religious scruples of the
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individual or business. To use a much cited example, a wedding
photographer who objected to same-sex marriage could under
Indiana Law refuse to provide photographic services for a
same-sex wedding. According to the National Conference of State
Legislatures, 21 states have enacted some form of RFRA
legislation, with Indiana and Arkansas being the most recent.
Although there is some debate over how widely these laws are
actually invoked, some legal commentators contend that the U.S.
Supreme Court decision in Burwell v. Hobby Lobby (2014), which
permitted a for-profit business to deny contraception coverage
on religious grounds, could lead to more laws and more people
invoking them. Yet, however extensive or effective such laws
may be, the author and sponsors contend that California, a
leader in preventing discrimination against the LGBT community,
should not support such states. California's Unruh Civil Rights
Act prohibits all business establishments "of any kind
whatsoever" from discriminating on the basis of sexual
orientation, gender identity, and gender expression. Given the
values expressed in California law, the author and sponsors
believe it would be inappropriate to allow state funds to
support states with discriminatory laws that are contrary to
those codified values. As a step in this direction, this bill
would prohibit state agencies from requiring employees to travel
to states that discriminate against the LGBT community, or that
permit such discrimination by private entities. In addition,
the bill would prohibit state agencies from approving requests
for travel funds to such states, meaning that if employees, or
commission or board members, voluntarily travel to such states
on professional or work-related matters, they could not receive
reimbursement for that travel. The bill is co-sponsored by
Equality California and the National Center for Lesbian Rights.
There is no registered opposition. As noted in the analysis,
however, there a number of practical questions that still need
to be addressed, and the author may wish to consider further
amendments should the bill pass out of this Committee.
SUMMARY: Prohibits state agencies from requiring state
employees to travel to states that discriminate, as specified,
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and prohibits state agencies from approving state-funded travel
to such states, except as provided. Specifically, this bill:
1)Prohibits any state agency, department, board, authority, or
commission, including an agency, department, board, authority,
or commission of the University of California or the
California State University, from doing either of the
following:
a) Require its employees, officers, or members to travel to
any state having laws that sanction or require
discrimination on the basis of sexual orientation, gender
identity, or gender expression.
b) Approve a request for state-funded or state-sponsored
travel to a state having laws that sanction or require
discrimination on the basis of sexual orientation, gender
identity, or gender expression.
2)Specifies that the prohibition created by this bill does not
apply to travel that is necessary for the enforcement of
California law, to meet prior contractual obligations, or for
the protection of public health, welfare, or safety.
EXISTING LAW:
1)Provides that any state officer or employee of any state
agency may confer with other persons, associations, or
organizations outside of the state wherever it may be of
assistance in the conduct of state business. Permits, to the
extent that funds are authorized and available, reimbursement
for actual and necessary expenses for travel outside of the
state as authorized. Specifies that this section does not
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apply to legislators or their staff. (Government Code Section
11032.)
2)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.
(Civil Code Section 51.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the National Conference of State
Legislatures (NCLS) website, as of late 2015, twenty-one states
had enacted some form of Religious Freedom Restoration Act
(RFRA), with Indiana and Arkansas being the most recent. Some
legal commentators contend that the U.S. Supreme Court decision
in Burwell v. Hobby Lobby (2014), which permitted a for-profit
business to deny contraception coverage on religious grounds,
may have paved the way for such laws. These laws, some of which
were modeled on the 1993 federal RFRA - which was held not to
apply to the states in 1997 - vary in many respects. While some
appear to implicitly authorize businesses to discriminate on
religious grounds, others simply declare that any law that
infringes upon a person's religious liberty must be held to a
"strict scrutiny" standard of review.
( http://www.ncsl.org/research/civil-and-criminal-justice/state-rf
ra-statutes.aspx ; see also "How Hobby Lobby Paved the Way for
Indiana's 'Religious Freedom' Bill," Washington Post March 27,
2015; "Reading Hobby Lobby in Context, New York Times July 19,
2104.) However, whatever variations may exist in the several
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state RFRA laws, they would all seem to be at odds with
California's strong anti-discrimination laws. The
anti-discrimination measures are not only set forth in the Unruh
Civil Rights Acts; a number of other statutes prohibit various
forms of discrimination based on any of the classifications set
forth in the Unruh Civil Rights. The author and sponsors
believe that California's commitment to anti-discrimination laws
should extend to its relationship with other states.
Recent Historical Background: As noted, the state laws to which
this bill responds were originally modeled after the federal
Religious Freedom Restoration Act (RFRA) in 1993. The federal
RFRA was itself 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 would need to accommodate
the rights of religious observant persons, unless there was a
"compelling state interest" for not accommodating religious
concerns. Most of the cases that came before the Court
considered questions like the following: Could a state agency
require an employee to take work on his or her Sabbath as a
condition of obtaining unemployment benefits. Could a state,
under its compulsory education law, require the Amish to send
their children to school beyond the eighth grade when their
religion enjoined against it? Could a military dress code
prevent a Jewish soldier from wearing a yarmulke? Although the
Court did not always rule in favor of religious freedom, it only
upheld restrictions on religious freedom where it found a
"compelling state interest." (Sherbert v. Verner (1963) 374 U.S.
398; Wisconsin v. Yoder (1972) 406 U.S. 205; Goldman v. Weinberg
(1986) 475 U.S. 503.) 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 denying
unemployment benefits to two drug counselors who were fired for
ingesting peyote as part of a religious ritual. Justice Scalia
held that the religiously observant must comply with all "laws
of general applicability" and, seemingly at odds with prior case
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law, held that the government did not need to show a compelling
state interest so long as the law applied generally and was not
animated by hostility to religion. (Justice O'Connor wrote a
concurring opinion. She would have continued to require a
compelling state interest, but found that in this case enforcing
state drug laws was indeed a compelling state interest.)
Congress responded to the Smith decision with the federal RFRA.
The "restoration" in its title referred to restoration of
"strict scrutiny" in Free Exercise cases - that is, a state must
show a compelling state interest in order to infringe upon a
religious practice, even if that practice would otherwise
violate a law of general applicability or disqualify the
religiously observant from a state benefit.
City of Boerne and the Evolution of State RFRA laws: In 1997,
the U.S. Supreme Court held, among other things, that the
federal RFRA did not apply to actions of the several states.
(City of Boerne v. Flores (1997) 521 U.S. 507.) Several states
responded by enacting their own versions of RFRA. While the
Smith ruling may have held that the Free Exercise clause of the
First Amendment does not require a compelling state interest to
compel compliance with laws of general applicability, the state
RFRA laws go beyond the First Amendment, offering more
protection for religious freedom, as they are entitled to do,
than the First Amendment requires. Specifically, these laws
provide that no state law, ordinance, or rule shall
"substantially burden" a person's exercise of religion - even if
the burden results from a rule of general applicability - unless
the government can demonstrate that the law, ordinance, or rule
is "in furtherance of a compelling government interest" and "is
the least restrictive means of furthering that compelling
government interest." (See e.g. Indiana SB 101, enacting
Section 1.IC 34-13-9 of the Indiana Code.) However, the recent
statutes enacted in Indiana and Arkansas go beyond past laws by
defining the "person" protected to include, not only an
individual or a non-profit religious organization, but to also
include "a partnership, a limited liability company, a
corporation, a company, a firm, a society, a joint-stock
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company, or an unincorporated association." (Id., Section 7,
paragraph 3.)
One implication of laws like those in Indiana, therefore, is
that a private business could invoke religious reasons in order
to refuse service to any person, notwithstanding laws of general
applicability that prohibit business establishments from
discriminating against people on the basis of certain protected
characteristics, including race, gender, disability, or sexual
orientation, among others. The genesis of the recent spate of
state RFRA legislation has apparently been in response to recent
rulings, including most notably by the U.S. Supreme Court, that
prohibit states from banning same-sex marriage. Supporters of
the state RFRA laws contend that even though the state may not
ban same-sex marriage, private businesses should not be required
to participate in ways that they find religiously objectionable.
Although the favorite example cited by supporters of such laws
is the wedding photographer, the language of the Indiana statute
is potentially much broader than that, depending upon how a
court construes a "substantial burden." Requiring a
photographer to not only attend, but play a significant role in,
a wedding that he or she finds objectionable might constitute
such a burden. Some supporters of the Indiana law contend that
other examples, such as a restaurant refusing to serve a gay
couple, would not likely satisfy "substantial burden"
requirement. However, the exact reach and limits of recent
state RFRA laws is necessarily speculative, given that the
Indiana law, for example, has only been in effect for about one
year.
California Anti-Discrimination Laws: Whatever the scope of
state RFRA laws, the most recent of them appear contrary to
values expressed in California law. California's two most
significant anti-discrimination laws - the Unruh Civil Rights
Act (Civil Code Section 51) and the California Fair Employment
and Housing Act (Government Code Sections 12900-12996) -
prohibit discrimination on a number of grounds, including most
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significantly for purposes of this bill, sexual orientation,
gender identity, and gender expression. According to the author
and sponsors, California has been a leader in protecting the
civil rights of, and preventing discrimination against, the LGBT
community. California's Unruh Civil Rights Act, for example,
prohibits all business establishments "of any kind whatsoever"
from discriminating on the basis of sexual orientation, gender
identity, and gender expression.
The author and sponsors believe it would be inappropriate, given
the values expressed in our laws, to allow state funds to
support states with discriminatory laws. As a step in this
direction, therefore, this bill would prohibit state agencies
from requiring employees to travel to states that discriminate
against the LGBT community, or to any state that permits such
discrimination by private entities. Specifically, this bill
does two things. First, this bill would prevent any state
agency, department, board, or commission - including those of
the University of California and the California State University
- from requiring any employee to travel to any state "with a law
in effect that sanctions or requires discrimination on the basis
of sexual orientation, gender identity, or gender expression."
Second, this bill would also prohibit any state agency from
approving a request for travel to any such state. While the
first provision aims to prevent a state agency from requiring a
state employee to travel to an objectionable state, the second
provision would prevent a state agency from funding travel where
an employee may have voluntarily traveled to an objectionable
state for a work-related, but not necessarily required,
activity. The latter example would affect, for example,
academics that voluntarily travel to another state to present a
paper at a conference but are not actually required to attend a
conference, let alone attend a conference in that particular
state. The academic could, of course, attend this conference;
but he or she would not be reimbursed for it.
In sum, the purpose of the bill is apparently twofold: (1) to
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prevent compelling an employee to travel to an environment in
which he or she may feel uncomfortable; and (2) to prevent the
use of state funds to benefit a state that does not adequately
protect the civil rights of certain classes of people. The bill
exempts from the above restrictions any travel that is necessary
for the enforcement of California law, to meet prior contractual
obligations, or for the protection of public health, welfare, or
safety. Presumably, the last exemption would permit the state,
for example, to send first responders in the event of some
natural or manmade disaster. Finally, due to the bill's
placement in Government Code, the "state agencies" subject to
this bill would not include the Legislature, Legislative
members, or legislative staff, who presumably could travel to
objectionable states at public expense.
Other State and Local Actions: Although the Committee is not
aware of legislation in other states that has bans on
state-funded travel, a number of states and localities have, by
executive order, taken such steps. For example, shortly after
Governor Pence signed the Indiana law, the Governors of
Connecticut, New York, and Washington banned state-funding for
travel to Indiana by executive order. Similarly, at about the
same time, the mayors of San Francisco and Seattle banned
city-funded travel to Indiana.
Potential Problems of Scope and Implementation: While the
Committee supports the author's intent to prevent the use of
state funds to enrich states that tolerate discrimination
against the LGBT community, the bill raises considerable
questions about its potential scope and practical
implementation.
Why Limit to Travel? It is not clear to the Committee how often
state agencies require state employees to travel to other states
as a condition of their employment, or how often boards or
commissions require their appointed or elected members to travel
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to other states as part of their prescribed duties. For
example, the Committee learned that employees of the Department
of Transportation visit other states, including Indiana, that
build certain goods that are purchased by the state, including
vehicles and material used to build the state's transportation
infrastructure. It is not entirely clear whether federal,
state, or private money is used to fund these trips. Yet,
however funded, this bill would prohibit the Department of
Transportation from requiring employees to travel to Indiana and
other states with RFRA laws. Presumably the employee could
voluntarily to travel to that state, but that employee would not
be entitled to reimbursement for travel expenses from the state.
This example, however, raises a more fundamental question. If
the premise of this bill is that state funds should not be spent
in states that deny civil rights, why would the state ban
state-funded travel but still spend a presumably much greater
amount spent on procuring goods from that same state?
How Will a State Agency Determine which States are covered?
Although the author's background materials make it clear that
the bill is intended to target states with RFRA laws - and NCSL
has identified 21 such states - the language of the bill is less
precise. The bill instead prohibits state-funded travel to any
state "with a law in effect that sanctions or requires
discrimination on the basis of sexual orientation, or gender
identity, or gender expression." Will the enactment of a RFRA
statute be sufficient evidence that the state sanctions or
requires discrimination against LGBT persons? Is it possible
that a state could lack a RFRA statute but still have other laws
(or a lack of laws) that tolerate discrimination? Will the
state agency be required to investigate a state's policies
beyond the existence or non-existence of a RFRA statute, or will
some state authority, such as the Attorney General, be required
to maintain an up-to-date list that state agencies, boards, and
commissions would consult? Oddly, a literal reading of this
bill would allow a state agency to approve travel funds to a
state that discriminates on some other basis, such as race,
religion, disability, language, marital status, or immigration
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status - all of which are nonetheless protected categories under
California law.
Must the Objectionable State be the Final Destination? The
Committee received an inquiry from a state entity as to whether
an employee could fly to an objectionable state even though that
state was not the final destination. Specifically, how would
this bill affect an employee who must travel to Washington D.C.
but who flies to Washington Dulles International Airport, which
is in Virginia - a state with a RFRA statute? Would this flight
be reimbursable? Would the employee be reimbursed for money
spent at the airport, at a Virginia gas station, or at any
establishment in Virginia on the way to the District of
Columbia? (Incidentally, the District of Columbia, as a federal
entity, is subject to the federal RFRA; but since it is not a
state, it would not be subject to this bill.) To be sure, these
specific issues could be easily resolved, but they illustrate
how a seemingly simple restriction might create many practical,
and unanticipated, problems of implementation.
Is Restricting Travel the Best Way to Facilitate Change? This
bill is apparently premised on the assumption that allowing
state-funded travel to states with discriminatory laws is
somehow a reflection of our state's support for those laws. But
is this necessarily the case? For example, suppose a law
professor at the University of California presented a paper at
the Indiana University Law School, and assume further that the
paper advocated for the expansion of LGBT rights. Under this
bill that professor could not be reimbursed for his or her
travel. One could argue that this is as it should be, as there
is no reason to extend to professors funds that are not
available to other state employees. And it would be
inappropriate, and quite possibly unconstitutional, to condition
travel funds on the content of a presentation. But this example
illustrates a larger question: Is preventing travel to other
states, and the accompanying interactions with the residents of
those states, the best way to encourage those states to change
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their laws? Is it possible that creating more opportunities for
interaction and the exchange of ideas will be a more effective
means of bringing about change than prohibiting those
interactions and exchanges?
Should this bill pass out of this Committee, the author may wish
to consider these issues as the bill moves forward.
ARGUMENTS IN SUPPORT: While the author concedes that religious
freedom "is a very important value in our state and across the
nation," protection of religious freedom should not be a
justification for allowing discrimination. Specifically, the
author notes the passing and signing of Indiana's Religious
Freedom Restoration Act (RFRA). The author notes that the act
"received national backlash from LBGTQ and civil liberties
groups because the bill allowed individuals or businesses to
discriminate based on sexual orientation, gender identity and
gender expression." The author writes that:
California has one of the strongest civil protection laws
in the country, the Fair Employment and Housing Act and
the Unruh Civil Rights Act. Our laws do not allow
government entities or organizations that offer services
to the public to discriminate or treat people differently.
As a leader in protecting civil rights and preventing
discrimination, California should not be funding states
with discriminatory state laws. States with RFRA
equivalent laws put LGBTQ individuals at great risk. AB
1887 will ban state-funded travel to states with laws that
discriminate on the basis of sexual orientation, gender
identity, or gender expression, sending a strong message
that such laws are not acceptable to the State of
California.
The Consumer Attorneys of California (CAOC) argue that recent
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RFRA laws in states like Indiana allow "individuals and
businesses to discriminate based on sexual orientation, gender
identity, and gender expression." Such laws, CAOC contends,
"put LGBTQ individuals at risk." CAOC believes that AB 1887
will send a message that laws such as those enacted in Indiana
and elsewhere "are not acceptable to California."
REGISTERED SUPPORT / OPPOSITION:
Support
Equality California (co-sponsor)
National Center for Lesbian Rights (co-sponsor)
Consumer Attorneys of California
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334
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