BILL ANALYSIS Ó
AB 1887
Page 1
Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1887
(Low) - As Amended March 30, 2016
As Proposed to be Amended
SUBJECT: State government: discrimination: travel
KEY ISSUES:
1)Should state agencies, subject to certain exceptions, be
prohibited from requiring, or funding, state employee travel
to states with laws discriminate, as specified, on the basis
of sexual orientation, gender identity, or gender expression?
2)Should the California Attorney GEneral create, maintain, and
update a list of states that discriminate on the basis of
sexual orientation, gender identity, or gender expression, so
that state agencies may consult that list in order to comply
with the requirements of this bill?
SYNOPSIS
Since the United States Supreme Court's 2015 ruling upholding
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marriage equality, a number of states, at least partly in
reaction to that decision, have passed laws with the intent or
effect, or both, of rolling back laws that protect same-sex
couples and LGBT persons more generally from discrimination.
Last year the Governor of Indiana signed a law that would have
permitted businesses, in the name of religious freedom, to deny
services to same-sex couples or other LGBT persons. Most
recently, North Carolina adopted a law that effectively
overturned local ordinances prohibiting discrimination on the
basis of gender identity and gender expression. These laws have
faced stiff and immediate opposition, not only from the LBGT
community, but also from substantial sectors of the business and
corporate community. Indiana amended its law in response to
such business pressure; Georgia's Governor vetoed an anti-LGBT
law; and most recently, although the North Carolina Governor
signed anti-LGBT legislation, the North Carolina Attorney
General announced that his office would not defend the
legislation if challenged. Several major businesses and
professional sports associations have condemned these laws for
discriminating against their LGBT managers and employees.
Whether these state laws represent a future trend or the last
gasp of a decrepit worldview remains to be seen. The author and
co-sponsors of this bill believe that California, a leader in
preventing discrimination against the LGBT community, should
register its opposition to these laws by effectively imposing a
ban on state-funded travel to states that have recently enacted
discriminatory laws, or undid anti-discrimination laws. When
this bill was initially presented to the Committee, some members
expressed concern that the bill did not clearly identify the
states to which the bill would apply, and that it would be
unrealistic for an individual state agency to make a
determination each time that it had to make a travel decision.
As proposed to be amended today in Committee, the bill will
require the Attorney General to create and update a list of
states to which the measure will apply. The bill is
co-sponsored by Equality California and the National Center for
Lesbian Rights. There is no registered opposition.
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SUMMARY: Prohibits state agencies from requiring state
employees to travel to states that discriminate on the basis of
sexual orientation, gender identity, or gender expressions, 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 any of its employees, officers, or members to
travel to a state that, after June 26, 2015, has enacted a
law that voids or repeals, or has the effect of voiding or
repealing, existing state or local protections against
discrimination on the basis of sexual orientation, gender
identity, or gender expression or has enacted a law that
authorizes or requires discrimination against same-sex
couples or their families or on the basis of sexual
orientation, gender identity, or gender expression,
including any law that creates an exemption to
antidiscrimination laws in order to permit discrimination
against same-sex couples or their families or 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 that, after June 26, 2015, has enacted a
law that voids or repeals, or has the effect of voiding or
repealing, existing state or local protections against
discrimination on the basis of sexual orientation, gender
identity, or gender expression, or has enacted a law that
authorizes or requires discrimination against same-sex
couples or their families or on the basis of sexual
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orientation, gender identity, or gender expression,
including any law that creates an exemption to
antidiscrimination laws in order to permit discrimination
against same-sex couples or their families or on the basis
of sexual orientation, gender identity, or gender
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.
3)Requires the California Attorney General to develop, and keep
current, a list of states that, after June 26, 2015, enacts a
law that voids or repeals, or has the effect of voiding or
repealing, an existing state or local protection against
discrimination on the basis of sexual orientation, gender
identity, or gender expression, or enacts a law that
authorizes or requires discrimination on the basis of sexual
orientation, gender identity, or gender expression, including
any law that creates an exemption to anti-discrimination laws
in order to permit discrimination against same-sex couples or
their families or on the basis of sexual orientation, gender
identity, or gender expression. It shall be the
responsibility of an agency, department, board, authority, or
commission as described, to consult this list on the Attorney
General's website in order to comply with the travel and
funding restrictions imposed by this bill.
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 an employee,
officer, or member to travel to a state with discriminatory
laws, or from approving any state funding for travel to such
states. The purpose of the bill is apparently twofold: (1) to
prevent a state agency from 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. 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. However, the author has
indicated to the Committee that he is willing to extend these
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travel restrictions to legislators and legislative staff as
well.
Proposed Amendments Address Committee's Prior Concerns: The
Committee originally heard a presentation of this bill on March
15. At that time, several Committee members raised questions
about how the bill would work in practice, especially as to how
an agency would determine which states would be subject to the
ban. As a result of this discussion, a vote and any further
discussion on the matter was postponed. Although the intended
targets of this bill seem fairly straightforward when one has
the luxury of watching media reports on legislation as it is
unfolding, the author and sponsors agree that not all state laws
are the same and their intent is not always immediately apparent
from the text. In other words, determining the states to which
the bill applies will require at least some consideration of
context and legislative history. The Committee believes that it
would be highly impractical to expect state agencies to conduct
this kind of research and analysis each time they must make a
decision on whether to send an employee out-of-state or approve
an employee's request for out-of-state travel funding.
Moreover, it is quite possible that different state agencies
could come to different conclusions as to which states
discriminated in a manner described by the bill. North
Carolina, which preempts local ordinances that prohibit LGBT
discrimination with a state law that fails to prohibit LGBT
discrimination, would seem a likely candidate. But would the
amendments made to the Indiana law be sufficient to take it off
the list? In other words, attorneys employed by the different
state agencies might reasonably come to different legal
conclusions, as attorneys are wont to do.
Therefore, as proposed to be amended, this bill will require the
California Attorney General to use its expertise to develop, and
update, a list of states to which the bill reasonably applies.
Not only will assigning this task to a single agency create
uniformity across state agencies, a single agency with
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considerable legal expertise will be able to examine both the
text and, if necessary, the legislative history. The Attorney
General will be required to post this list on its website, and
state agencies shall be responsible for consulting this list in
establishing policies concerning state-funded travel.
A Bigger Question: 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 to other states as part of their
prescribed duties. According to a preliminary response from the
Department of General Services (DGS), however, many agencies,
especially in the executive branch, occasionally send employees
to other states. For example, according to DGS, there were over
10,000 "out-of-state person trips" in 2015. This does not mean
that 10,000 employees traveled out of state on official state
business last year. Rather, each day that an employee spends
out-of-state is one "person trip," so a group of employees
traveling on a single trip for several days would be recorded as
multiple person-trips. Because the DGS database does not
indicate the reason for each trip, it is impossible to say how
many of these trips would have been covered by the exemptions in
this bill - that is, how many of the trips were necessary for
the enforcement of California law, to meet prior contractual
agreements, or for the protection of public health, welfare, or
safety. Many of the executive orders issued by mayors and
governors have called for a ban on "non-essential" travel. Such
bans might not prohibit any travel at all if the mere fact of
the government's willingness to subsidize the travel with
taxpayer dollars is an indication that the travel is somehow
"essential."
But whatever the exact number, and however many of the trips
would be covered by exemptions, travel expenses would seem to
constitute a small portion of the total amount of money that
California spends or invests in other states - thereby greatly
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limiting the impact of the bill. For example, the Committee
learned that employees of the Department of Transportation visit
other states, including Indiana, where certain goods purchased
by California are manufactured, including buses. Employees
apparently travel in order to inspect production sites and meet
with manufacturers in developing manufacturing specifications.
Some of this travel is apparently funded by the federal
government when the state purchases are linked to a federal
program. Yet, however funded, this bill would prohibit the
Department of Transportation from requiring employees to travel
to the covered states, unless the travel is deemed an obligation
of the contract that the state has with the manufacturer.
The above example, however, raises a more fundamental question.
If the premise of this bill is that state funds should not be
spent in states that discriminate against LGBT persons, why
would California ban state-funded travel but still spend a
presumably much greater amount on procuring goods from that same
state? If the purpose of the bill is truly to have a meaningful
economic compact, why not prohibit CalPERS and CalSTRS from
investing in those states? One of the co-sponsors has indicated
to the Committee that prohibiting these larger investments would
mostly harm business enterprises operating within the state, not
the governments of those states. And the co-sponsors contend
that those businesses are often their allies in bringing
pressure to bear upon the government to change its policies.
However, the same could be said of restrictions on state-funded
travel. State-funded travel benefits hotels, restaurants,
taxicab companies, and airlines more than it benefits the state,
with the state reaping only the tax revenues associated with
those activities. So both large and small expenditures affect
the businesses operating within those states, and only
secondarily affect the state governments by the tax revenue that
the business activities create. But by any reckoning, the bill
seems designed to have the least, not the most, economic impact
on the targeted states.
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The Committee certainly recognizes political reality, and that
more substantial measures, like prohibiting CalPERS investments,
would create more controversy and opposition that could likely
lead to the bill's defeat. However, the author and co-sponsors,
and indeed the Legislature, may at some point need to evaluate
how much it is worth to take a principled stand. Prohibiting
travel, with exemptions for essential functions, is easier than
a more comprehensive economic boycott. But a principled stand
with negligible sacrifice is not much of a principled stand.
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.
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The Consumer Attorneys of California (CAOC) argue that recent
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)
ACLU
BAYMEC
Consumer Attorneys of California
Rainbow Chamber
Opposition
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None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334