BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1887 (Low)
Version: June 20, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
State government: discrimination: travel
DESCRIPTION
This bill would prohibit a state agency, department, board,
authority, or commission, as specified, from requiring or
approving a request for its employees, officers, or members to
travel to a state that, after June 26, 2015, has enacted a law
that: (1) 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 (2) authorizes or requires
discrimination against same-sex couples or their families or on
the basis of sexual orientation, gender identity, or gender
expression. This bill would specify that such laws include 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.
This bill would require the Attorney General (AG) to develop,
maintain, and post on the AG's Web site a current list of states
that, after June 26, 2015, have enacted such laws, and would
require state agencies, departments, boards, authorities, and
commissions to consult with this list in order to comply with
this bill. This bill would also codify various legislative
findings and declarations relating to the California's
anti-discrimination laws and religious freedom, more generally.
BACKGROUND
AB 1887 (Low)
PageB of?
According to the National Conference of State Legislatures, as
of September 3, 2015, 21 states have religious freedom laws
known as "Religious Freedom Restoration Acts" (RFRA laws). (See
Comment 3 for more on RFRA.) In that one year alone, 17 states
reportedly introduced legislation regarding the creation of, or
alteration to, a state RFRA law. According to NCSL, "[t]hese
laws are intended to echo the federal RFRA, but are not
necessarily identical to the federal law. Arkansas and Indiana
are the most recent states to enact a RFRA, doing so this year
[in April 2015]." One of the most noted of these bills was
enacted in North Carolina in March of this year. That
controversial bill, House Bill 2, the Public Facilities Privacy
& Security Act, reportedly blocked cities from allowing
transgender individuals to use public bathrooms that match their
gender identity, and also restricted cities from passing
nondiscrimination laws more broadly. (See Kopan and Scott,
North Carolina Governor Signs Controversial Transgender Bill,
CNN (Mar. 24, 2015) <
http://www.cnn.com/2016/03/23/politics/north-carolina-gender-bath
rooms-bill/> [as of Jun. 13, 2016].) As reported by a major news
outlet, CNN, in April of this year, there appears to be an
"onslaught" of religious freedom bills throughout the United
States, citing legislation in other states, such as Mississippi
(which already had enacted a RFRA law in 2014<1>) and Georgia:
It's the season of so-called religious freedom bills:
statewide proposals that, depending on the point of view,
ensure that individuals and businesses may operate in keeping
with their faith or fling the door open to discrimination in
the name of religion.
In Mississippi, Gov. Phil Bryant signed a bill [HB 1523, the
"Protecting Freedom of Conscience from Government
Discrimination Act"] this week that protects businesses and
religious groups from punishment if they deny services such as
counseling, wedding planning and adoption support to lesbian,
gay, bisexual and transgender people when it's based on
--------------------------
<1> That prior bill was SB 2681; see Wilson, Mississippi Passes
Arizona-Style Religious Freedom Bill, Washington Post (Apr. 1,
2014)
[as of Jun.
13, 2016].)
AB 1887 (Low)
PageC of?
"sincerely held religious beliefs or convictions."
In Georgia last month, HB 757 gave faith-based organizations
the option to deny services to gays and lesbians [though
Republican Gov. Nathan Deal cited vetoed the bill in response
to opposition]. (Sanchez, Why the Onslaught of Religious
Freedom Laws, CNN (Apr. 7, 2016)
[as of Jun. 13, 2016].)
While recognizing that such religious freedom laws have
"actually been growing since the U.S. Religious Freedom
Restoration Act became [federal] law in 1993," the article
specifically pointed to the United State Supreme Court's
landmark decision in upholding the marriage rights of same-sex
couples Obergefell et al. v. Hodges (2015) 135 S. Ct. 2584 under
the Due Process and Equal Protection clauses of the Fourteenth
Amendment. (See Comment 3 for a discussion of Obergefell.) "The
Obergefell ruling energized a growing movement to expand the
coverage of laws prohibiting discrimination based on sexual
orientation or gender identity, according to Ira Lupu, a
constitutional law expert at George Washington University School
of Law. But it also invigorated religious resistance against
that movement. 'Rise of LGBT rights in general, and especially
the court's same-sex marriage decision, are the only explanation
for their resurgence in political salience,' he said, referring
to religious freedom laws." (Id.) As further noted in that CNN
article, real world examples following the Obergefell decision
only fuel the debate over the right of individuals and
businesses to object to general applicable laws on the basis of
their religious beliefs: from the county clerk who refused to
issue marriage licenses to same-sex couples, to the bakery
owners who refuse to make wedding cakes for same-sex couples, to
the U.S. Supreme Court's ruling allowing some family-owned
businesses to opt out of a federal requirement to pay for
contraceptives in health care coverage for their workers in
Burwell v. Hobby Lobby in July, 2015. (Id.; see Comment 3 for
more on Hobby Lobby).
Accordingly, this bill seeks to respond to these and other
states' actions over the last year to enact RFRA laws, by
enacting travel and funding restrictions for state employees, as
specified.
AB 1887 (Low)
PageD of?
This bill was heard in the Senate Governmental Organization
Committee on June 13, 2016, and passed out on a vote of 9-0.
CHANGES TO EXISTING LAW
Existing law authorizes any state officer or employee of any
state agency to confer with other persons, associations, or
organizations outside of the state whenever it may be of
assistance in the conduct of state business. Actual and
necessary expenses for travel outside of the state as authorized
by this section shall be allowed when approved by the Governor.
This section shall not apply to employees of any legislative
committee or to the Legislative Counsel or his or her employees.
(Gov. Code Sec. 11032.)
Existing law , Section 11135 of the Government Code, prohibits
any person in this state from being unlawfully denied, on the
basis of race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic
information, or disability, full and equal access to the
benefits of, or the unlawful discrimination under, any program
or activity that is conducted, operated, or administered by the
state or by any state agency, is funded directly by the state,
or receives any financial assistance from the state. (Gov. Code
Sec. 11135(a).)
Existing law , Section 11135, imports various definitions from
FEHA and the Unruh Civil Rights Act for certain protected bases,
including "disability," "sex or sexual orientation," and
"genetic information." (Gov. Code Sec. 11135(c)(1), (e), (g).)
Existing law provides, for these purposes, that "race, national
origin, ethnic group identification, religion, age, sex, sexual
orientation, color, or disability" includes a perception that a
person has any of those characteristics or that the person is
associated with a person who has, or is perceived to have, any
of those characteristics. (Gov. Code Sec. 11135(f).)
Existing law , the Unruh Civil Rights Act, provides that all
persons in California are free and equal, and regardless of a
person's sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments. (Civ. Code Sec. 51.) Existing
AB 1887 (Low)
PageE of?
law defines "sex" to include, but not be limited to, a person's
gender, which, in turn, includes a person's gender identity and
gender expression, as specified. (Civ. Code Sec. 51(e)(5).)
Existing law , the Unruh Civil Rights Act, provides definitions
for various protected bases and imports certain definitions from
FEHA. (Civ. Code Sec. 51(e).) The Unruh Civil Rights Act,
further provides that "sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, sexual orientation, citizenship,
primary language, or immigration status" includes a perception
that the person has any particular characteristic or
characteristics within the listed categories or that the person
is associated with a person who has, or is perceived to have,
any particular characteristic or characteristics within the
listed categories. (Civ. Code Sec. 51(e)(6).)
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment on the basis
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status. (Gov. Code Sec. 12920 et seq.)
Existing law , FEHA, provides specific definitions for various
protected bases (Gov. Code Sec. 12926) and further provides that
"race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, age, sexual
orientation, or military and veteran status" includes a
perception that the person has any of those characteristics or
that the person is associated with a person who has, or is
perceived to have, any of those characteristics. (Gov. Code
Sec. 12926(o).)
This bill would prohibit a state agency, department, board,
authority, or commission, including an agency, department,
board, authority, or commission of the University of California,
the Board of Regents of the University of California, or the
California State University, and the Legislature from doing
either of the following:
requiring any of its employees, officers, or members to travel
to a state that, after June 26, 2015, has enacted a law that
AB 1887 (Low)
PageF of?
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; or
approving 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 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.
This bill would exempt, from the prohibitions above, any travel
that is necessary for the enforcement of California law, to meet
contractual obligations incurred before January 1, 2017, or for
the protection of public health, welfare, or safety as
determined by the affected agency, department, board, authority,
or commission described above.
This bill would provide that the prohibition on state-funded
travel described in this section shall continue while any law
described in the provisions above remains in effect.
This bill would require the Attorney General to develop,
maintain, and post on his or her Internet Web site a current
list of states that, after June 26, 2015, have enacted 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 have 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
AB 1887 (Low)
PageG of?
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.
This bill would provide that it shall be the responsibility of
an agency, department, board, authority, or commission described
above to consult the list on the Internet Web site of the
Attorney General in order to comply with the travel and funding
restrictions imposed by this bill.
This bill would codify the following findings and declarations:
California is a leader in protecting civil rights and
preventing discrimination;
California's robust nondiscrimination laws include protections
on the basis of sexual orientation, gender identity, and
gender expression, among other characteristics;
religious freedom is a cornerstone of law and public policy in
the United States, and the Legislature strongly supports and
affirms this important freedom;
the exercise of religious freedom should not be a
justification for discrimination;
California must take action to avoid supporting or financing
discrimination against lesbian, gay, bisexual, and transgender
people; and
it is the policy of the State of California to promote
fairness and equality and to combat discrimination.
COMMENT
1. Stated need for the bill
According to the author:
Since the Supreme Court's decision in Obergefell v. Hodges
last summer, legislation has been introduced in multiple
states that were designed to allow discrimination against LGBT
people in virtually all aspects of their lives. Earlier this
year, in North Carolina, their legislature convened in a
special session solely to prevent the city of Charlotte's LGBT
non-discrimination ordinance from taking effect. Mississippi's
Governor has also signed legislation that would expressly
permit discrimination against LGBT people. Similar bills were
vetoed by the Governors of Georgia, South Dakota, and
AB 1887 (Low)
PageH of?
Virginia.
AB 1887 would prohibit state agencies from approving state
funded or sponsored travel to a state that, after June 26,
2015, has enacted a law that voids or repeals 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 on these bases.
In support, the Log Cabin Republicans of California write:
Religious freedom is an important value in our state and
across the nation, but religious protections should not be
used as a justification for discrimination. In direct
response to the Supreme Court's decision in Obergefell v.
Hodges, states across the country have introduced legislation
that are designed to allow discrimination against LGBT people
in virtually all aspects of their lives. North Carolina and
Mississippi each enacted laws that essentially provide a
license to discriminate against LGBT[ individuals],
particularly toward transgender individuals by prohibiting
them from using bathrooms that align with their gender
identity.
California has one of the strongest civil protection laws in
the country. Our laws do not allow government entities or
organizations that offer services to the public to
discriminate or treat people differently.
AB 1887 will send a strong message to states with laws that
discriminate on the basis of sexual orientation, gender
identity, or gender expression that such laws are not
acceptable to the State of California. By banning
state-funded travel to such states, it sends a signal that we
do not tolerate discrimination.
Also in support, Attorney General Kamala Harris writes that,
unfortunately, "institutionalized inequality continues to be a
way of life for LGBTQ citizens living in other parts of the
country. Some state legislatures have recently sought to pass
legislation that would discriminate against residents based on
their sexual orientation, gender identity, or gender expression,
or condone such discrimination on the local level. If
California hopes to remain a national leader on behalf of LGBTQ
AB 1887 (Low)
PageI of?
communities, action must be taken to recognize that
discriminatory laws are unacceptable anywhere in the nation. By
banning state-funded travel to such states, AB 1887 will clearly
and coherently convey that message."
2. Obergefell et al. v. Hodges
The Supreme Court has interpreted the due process clause as "a
promise of the Constitution that there is a realm of personal
liberty which the government 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: "We
have long recognized that the Amendment's Due Process Clause . .
. 'guarantees more than fair process.' [Citation omitted.] 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, the Supreme Court rendered its decision in the
case of Obergefell et al. v. Hodges (2015) 135 S.Ct. 2584,
confirming that the Due Process, as well as the Equal Protection
Clause of the Fourteenth Amendment also protects yet another
fundamental right: the fundamental right to marry a person of
the same sex. Once again, the Court emphasized that under the
Due Process Clause of the Fourteenth Amendment, no State shall
deprive any person of life, liberty, or property, without due
process of law. The fundamental liberties protected by this
Clause include most of the rights enumerated in the Bill of
Rights, but also extend to certain personal choices central to
individual dignity and autonomy, including intimate choices that
define personal identity and beliefs. (Obergefell, 135 S.Ct. 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,
AB 1887 (Low)
PageJ of?
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.) The Court applied the four principles and
traditions that demonstrate the reasons marriage is fundamental
under the Constitution and 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
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 by Petitioners in these cases are now
held invalid to the extent they exclude same-sex couples from
civil marriage on the same terms and conditions as opposite-sex
AB 1887 (Low)
PageK of?
couples." (Id. at 2604-5.)
3. Religious Freedom Restoration Act 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
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.)
Three years after Smith, Congress enacted the Religious Freedom
Restoration Act (RFRA) in an attempt to negate that 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"- which
the Supreme Court, in Burwell v. Hobby Lobby, Inc. (2014) 134
S.Ct. 2751, 2767 interpreted to give the term a distinct meaning
for RFRA-purposes, "designed to provide very broad protection
for religious liberty. By enacting RFRA, Congress went far
AB 1887 (Low)
PageL of?
beyond what the U.S. Supreme Court has held is constitutionally
required." Indeed, as argued by the Hobby Lobby dissent, the
company would not have 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).) As
interpreted by the majority, however, 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 majority 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,'" it
essentially felt 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, in City
of Boerne v. Flores (1997) 521 U.S. 507, the Supreme Court
invalidated RFRA as applied to state and local governments.<2>
Thus, ultimately, for state and local governments that do not
have a RFRA-counterpart as a matter of state law, Smith remains
the controlling precedent and the free exercise clause cannot be
used to challenge neutral laws of general applicability, except
that decisions burdening religion concerning land use and
institutionalized persons have to meet strict scrutiny (pursuant
to RLUIPA). Of import to this bill, however, and as reflected in
the Background, numerous states have begun to enact RFRA-like
laws, essentially allowing businesses to discriminate against
---------------------------
<2> Still, three years later after City of Boerne, Congress
enacted the Religious Land Use and Institutionalized Persons Act
of 2000 (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.)
AB 1887 (Low)
PageM of?
LGBT individuals in accordance with 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.
Staff notes that California-a state with strong
anti-discrimination statutes protecting individuals from
discrimination on protected bases such as race, sex, sexual
orientation, religion, and nationality, in every context from
business, to employment, to schools, and government funded
programs and activities-has no such RFRA-counterpart. This bill
seeks to generally ensure that State of California neither
supports, nor requires its employees, to travel to states that
have enacted such laws, which have seemingly increased since the
Supreme Court's rendered the Obergefell decision.
4. State-funded travel to states that allow for discrimination
against them on otherwise protected bases would appear
contrary to this state's strong public policy against
discrimination
As noted in the Background, at least 21 states as of 2015 have
enacted state counterparts to the federal RFRA law discussed in
Comment 3 above. While many of those laws were enacted in the
1990s after the enactment of RFRA or after the City of Boerne
decision invaliding the application of RFRA to the states, of
particular relevance to this bill are those laws enacted
following the Supreme Court rendered its decision in Obergefell,
confirming that the fundamental right of marriage also applies
to same sex individuals. (See Comment 2 for more on
Obergefell.) Of the current states, only, a small number appear
to have been enacted after June 26, 2015 and thus subject to
this bill. As stated by co-sponsors Equality California and the
National Center for Lesbian Rights:
In direct response to the Supreme Court's decision in
Obergefell v. Hodges, there are bills pending in state
legislatures across the country that are designed to allow
discrimination against LGBT people in virtually all aspects of
their lives. For example, the North Carolina legislature
convened in special session solely to prevent Charlotte's LGBT
non-discrimination ordinance from taking effect. The sweeping
AB 1887 (Low)
PageN of?
piece of legislation passed as a result of that session
targeted transgender people in particular, voided Charlotte's
city ordinance, and would prevent any similar ordinance form
being enacted in the future. The Governor of North Carolina
signed the bill on March 23, 2016. A similar bill that would
expressly permit discrimination against transgender people is
pending in Mississippi [which has since been signed] and yet
another bill was recently vetoed in Virginia.
As states like North Carolina and Mississippi seek to target
and jeopardize the lives of their LGBT citizens, others have
just as forcefully opposed these efforts. Businesses, cities,
and other states are taking a firm stand against this
dangerous scapegoating of and backlash against LGBT people and
their families. AB 1887 would ensure that California is part
of that nationwide effort.
Staff notes that not only is California a state that does not
have a RFRA counterpart, but California law, in actuality,
reflects a strong public policy protecting individuals against
discrimination under numerous statutes, covering a variety of
contexts. The Fair Employment and Housing Act (FEHA) and the
Unruh Civil Rights Act, for example, prohibit discrimination in
employment, housing, public accommodation, and services provided
by business establishments on the basis of specified personal
characteristics, such as sex, race, color, religion, ancestry,
national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation. (See Gov.
Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh
Civil Rights Act). Separately, Section 11135 of the Government
Code specifically prohibits discrimination on the basis of many
of these same characteristics in the conduct, operation, or
administration of any program or activity that is by the state
or by any state agency, funded directly by the state, or
receives any financial assistance from the state. Indeed,
California has in many respects led the nation in laws that seek
to protect the LGBT community from discrimination. As such, to
allow, if not require, individuals to travel to other states
with RFRA laws allowing for discrimination against LGBT
individuals not only sends a contradictory message, but it
potentially subjects public employees to the very types of
discriminatory acts that California law seeks to prevent.
Moreover, the act of funding such travel with taxpayer money
would seem further contrary to state public policy against
AB 1887 (Low)
PageO of?
discrimination. (See Gov. Code Sec. 11135, in particular.)
In support, the American Civil Liberties Union of California
(ACLU) similarly notes while California law does not allow
government entities or organizations to offer services to the
public to treat people differently, providing services to some
and turning others away, "supporting this unequal treatment is
out of step with California's values and should not be
undertaken inadvertently. Currently, however, California funds
could be benefitting states that discriminate because there is
no review of requests for state-funded travel to determine
whether the law of the state in question runs counter to
California public policy and allows discrimination." ACLU
emphasizes that "[r]eligious freedom is a very important value,
but religious protections should not be used as a justification
for unlawful discrimination that goes against California public
policy and should not be supported with California funds."
Accordingly, this bill seeks to generally prohibit any state
agency, department, board, authority, or commission of the
University of California, the Board of Regents of the University
of California, or the California State University, and the
Legislature from approving a request for state-funded or
state-sponsored travel or otherwise requiring its employees,
officers, or members to travel to a state that, after June 26,
2015, has enacted a law that: (1) 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 (2)
authorizes or requires discrimination against same-sex couples
or their families or on the basis of sexual orientation, gender
identity, or gender expression. Such laws would include 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. At the same time, however, the bill
provides for a reasonable exception to these travel prohibitions
for any travel that is necessary for the enforcement of
California law, to meet contractual obligations incurred before
January 1, 2017, or for the protection of public health,
welfare, or safety as determined by the affected agency,
department, board, authority, or commission.
Notably, in response to concerns by the Assembly Judiciary
AB 1887 (Low)
PageP of?
Committee regarding the research and analysis that a state
entity would have to undergo each time they make a decision on
whether to send an employee out-of-state or to approve an
employee's request for out-of-state travel funding, and the
possibility that different entities could come to different
conclusions about whether a state law discriminates in the
manner described by this bill, this bill was amended to require
that the Attorney General create and maintain a list of states
that, after June 26, 2015, have enacted such laws so that state
agencies, departments, boards, authorities, and commissions can
consult with this list in order to comply with this bill. As a
practical matter, such a list should not only greatly assist
entities in ensuring compliance with this bill, but it will
ensure that these entities apply the law uniformly throughout
the state and its various agencies, departments, boards,
authorities, and commissions.
Support : American Civil Liberties Union of California; Attorney
General Kamala Harris; Bay Area Municipal Elections Committee;
Berkeley City Council; California Teachers Association; City of
West Hollywood; Consumer Attorneys of California; Log Cabin
Republicans of California; Los Angeles County Board of
Supervisors; Los Angeles LGBT Center; Porterville Democratic
Club; Rainbow Chamber Silicon Valley; Santa Clara County Board
of Supervisors; Santa Cruz County Board of Supervisors;
Secretary of State, Alex Padilla; State Board of Equalization
Member, Second District- Fiona Ma; Stonewall Democrats of Tulare
County
Opposition : None Known
HISTORY
Source : Equality California; National Center for Lesbian Rights
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
AB 1887 (Low)
PageQ of?
Assembly Floor (Ayes 54, Noes 21)
Assembly Appropriations Committee (Ayes 15, Noes 5)
Assembly Accountability and Administrative Review Committee
(Ayes 6, Noes 3)
Assembly Judiciary Committee (Ayes 8, Noes 2)
**************