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  









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          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].)  








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            "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. 









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          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  








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          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  








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            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  








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          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  








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            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  








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          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,  








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          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  








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          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  








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          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.)  









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          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  








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            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  








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          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  








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          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)
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          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)

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