BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB1617  
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Date of Hearing:  January 13, 1998

                  ASSEMBLY COMMITTEE ON JUDICIARY
                       Martha Escutia, Chair

           AB 1617 (Baca) - As Amended:  January 5, 1998


  SUBJECT  :  FREE EXERCISE OF RELIGION

  KEY ISSUES  :  

1) SHOULD THE RELIGIOUS FREEDOM PROTECTION ACT BE ENACTED TO  
   PROHIBIT THE STATE OR ITS POLITICAL SUBDIVISIONS FROM BURDENING  
   A PERSON'S EXERCISE OF RELIGION, EVEN IF THE BURDEN RESULTS  
   FROM A "RULE OF GENERAL APPLICABILITY," UNLESS:

    A)  THE STATE OR POLITICAL SUBDIVISION DEMONSTRATES THAT  
       APPLICATION OF THE BURDEN IS IN FURTHERANCE OF A COMPELLING  
       GOVERNMENTAL INTEREST; AND, 

    B)  THE BURDEN CAUSED BY THE ENACTMENT IS THE "LEAST  
       RESTRICTIVE MEANS" OF FURTHERING THAT COMPELLING  
       GOVERNMENTAL INTEREST?

2) IS THE RELIGIOUS FREEDOM PROTECTION ACT PREMATURE GIVEN THE  
   POSSIBILITY OF MORE FEDERAL LEGISLATION IN THIS AREA?

3) SHOULD THE BILL BE AMENDED TO EXEMPT PRISONERS AND WARDS FROM  
   ITS COVERAGE?

4) SHOULD THE BILL BE AMENDED TO EXEMPT ZONING AND OTHER LOCAL  
   GOVERNMENTAL LEGISLATION REGARDING LAND USE AND HEALTH AND  
   SAFETY MATTERS FROM ITS COVERAGE?

5) SHOULD THE BILL BE AMENDED TO CLARIFY THAT ITS PROVISIONS  
   SHOULD NOT BE INTERPRETED TO IN ANY WAY UNDERMINE EXISTING CASE  
   LAW AND STATUTORY PROTECTIONS AGAINST DISCRIMINATION?

  SUMMARY  :  Proposes the Religious Freedom Protection Act (RFPA),  
with the goal of strengthening the free exercise of religion in  
California.  Specifically,  this bill  :  

1) Provides that free exercise of religion is a substantive right  
   that applies in this state even in instances where laws,  
   regulations, or other governmental actions are facially  
   neutral.

2) Prohibits government from substantially burdening a person's  
   exercise of religion, even if the burden results from a "rule  
   of general applicability," unless:

    a)  the government demonstrates that application of the burden  
       is in furtherance of a compelling governmental interest;  
       and, 








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    b)  the burden caused by the enactment is the least  
       restrictive means of furthering that compelling  
       governmental interest.

3) Provides that a person whose religious exercise has been  
   burdened in violation of RFPA may assert that violation as a  
   claim or defense in a judicial proceeding and obtain  
   appropriate relief against a government.

4) Defines "exercise of religion" to mean "an act or refusal to  
   act that is substantially motivated by religious belief,  
   whether or not the religious exercise is compulsory or central  
   to a larger system of religious belief."

5) Defines "government" to include "a branch, department, agency,  
   instrumentality, and official (or other person acting under  
   color of law) of the state or a political subdivision of the  
   state."

6) Defines "political subdivision of the state" to mean "a county,  
   city, whether general law or chartered, city and county, school  
   district, municipal corporation, or district, or any board,  
   commission, or agency thereof, or any local public agency."

7) Provides that RFPA applies to:

    a)  all state law, and the implementation of that law, whether  
       statutory or otherwise, and all laws, ordinances,  
       regulations, and governmental actions in this state,  
       whether adopted before or after the effective date of this  
       legislation; and, 

    b)  all cities, including charter cities.

8) Provides that nothing in RFPA shall be construed to authorize  
   any government to burden any religious belief.

9) Makes a number of legislative findings about the breadth of  
   religious protections in the state of California and states  
   that the purpose of this legislation is to prohibit the  
   government from substantially burdening religious exercise  
   without compelling justification. 
                                                                
  EXISTING LAW  :  

1)  Provides, under Article I, section 4 of the California  
   Constitution
    (hereafter "the California Free Exercise Clause") that:  "The  
   free
    exercise and enjoyment of religion without discrimination or  
   preference
    are guaranteed.  This liberty of conscience does not excuse  
   acts that are
    licentious or inconsistent with the peace or safety of the  
   State.  The
    Legislature shall make no law respecting an establishment of  







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   religion." 
 
2) Provides that the meaning of the California Free Exercise  
   Clause is not determined by the federal constitution, and that  
   California courts must independently determine the scope of  
   this state constitutional provision.  (Calif. Const., art. I,  
   sec. 24;  Smith v. Fair Employment and Housing   Commission  (1996)  
   12 Cal.4th 1143, 1177.) 
 
3)  Prohibits, under the California Free Exercise Clause,  
government from giving any preference or advantage to religion.   
(See e.g., Fox v. City of    Los Angeles  (1978) 22 Cal.3d 792, 796;  
  Sands v. Morongo Unified School   District  (1991) 53 Cal.3d 863;  
  Lucas Valley Homeowners Association, Inc.   v. County of Marin   
(1991) 233 Cal.App.3d 130.) 
 
4)  Provides, under the United States Supreme Court's decision  
last year in  City of Boerne v. P.F. Flores, Archbishop of San  
Antonio  (June 25, 1997) 
117 S. Ct. 2157; 1997 U.S. Lexis 4035; 138 L. Ed. 2d 624  
(hereafter "Boerne") that Congress exceeded its Fourteenth  
Amendment powers when it adopted the federal Religious Freedom  
Restoration Act of 1993 (RFRA).

5) Prohibits discrimination on the basis of religion in: state  
   government funded programs (Gov. Code section 11135(a));  
   employment and housing (Gov. Code sections 12920, 12940); state  
   licensing and regulation (Bus. & Prof. Code sections 7071.14,  
   16721); and, public accomodations (Civ. Code section 51  et   
    seq  .).

6) Provides a number of special statutory exemptions or  
   accomodations for religious practices (beyond  
   non-discrimination), including:

    a)  Exempting religious organizations from the employment  
       provisions of the Fair Employment and Housing Act (Gov.  
       Code section 12926(d)(1)), and from labor laws that  
       prohibit discrimination on the basis of sexual orientation  
       (Labor Code section 1102.1.)

    b)  Requiring employers to try to accomodate the religious  
       needs of employees (Gov. Code section 12926(j).)

    c)  Requiring employees whose religion forbids conventional  
       medical treatment to be treated the same as others for  
       purposes of disability benefits (Unemployment Ins. Code  
       section 2709.)

    d)  Exempting public employees from paying their "fair share"  
       of union dues if it offends their religious beliefs (Gov.  
       Code section 3515.7.)

    e)  Requiring accomodations for all state university students'  
       religious needs in the timing of exams (Educ. Code section  
       92640.)







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    f)  Exempting decedents from autopsies if the person, while  
       alive, completed a certificate stating that an autopsy  
       would be contrary to his or her religious beliefs (Gov.  
       Code section 27491.43.)

  FISCAL EFFECT  :  Unknown.

  COMMENTS  :  AB 1617 is sponsored by the California Coalition for  
the Free Exercise of Religion, a broad coalition of civil  
liberties and religious organizations including the ACLU, People  
for the American Way, California Council of Churches, Lutheran  
Office of Public Policy, American Jewish Congress, and the  
Traditional Values Coalition.  AB 1617 is one of several  
religious freedom measures authored by Assemblyman Baca,  
including AJRs 34 and 40, resolutions critical of the U.S.  
Supreme Court's recent decision in  Boerne  (discussed in detail  
below) which urge the President and Congress to enact new federal  
legislation to protect freedom of religion. 

According to the author, AB 1617 is a direct response to the  
controversial  Boerne  decision, which struck down the federal  
statutory Relgious Freedom Restoration Act of 1993.  The author  
states that "[t]he [  Boerne  ] decision left the door open to the  
states to offer similar protections.  Although the California  
Constitution is fundamentally sound, the state's courts have not  
ruled decisively," and the author and the sponsors believe that  
"the best way to adequately ensure protection for religious  
freedom is through a statute that will clarify these rights for  
Californians."

The author contends that the bill "would also make it easier for  
practitioners to protect such rights in court.  Instead of being  
told by a 
judge to 'tell it to the Supreme Court,' a practitioner can point  
to a statute that clearly enumerates these substantive  
provisions.  Codifying substantive rights in statute will be  
complementary to protections offered by the California and United  
States Constitutions.  In no case will this bill reduce  
protections currently enjoyed under the United States and  
California Constitutions."  To underscore the author's intent to  
codify existing rights, "the bill has been renamed 'the Religious  
Freedom  Protection  Act,' instead of 'the Religious Freedom  
Restoration Act.'"  The author also believes that this bill will  
protect civil liberties and the rights of religious minorities.    
 

  Procedural history.   A similarly drafted proposed constitutional  
amendment by the author, ACA 24, was originally scheduled to be  
heard by the Committee on August 26, 1997.  However, at the time  
of the hearing Assemblyman Baca, at the urging of the Committee,  
agreed to make ACA 24 a two-year bill to allow the Committee to  
more fully explore the important constitutional issues raised by  
the legislation at an interim hearing.  Assemblyman Baca  
subsequently introduced this bill, which is a statutory version  
of the federal RFRA.  On October 8, 1997, the Committee held an  







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interim hearing on this subject.  Committee staff prepared an  
extensive background paper for the interim hearing which  
discussed in detail the law regarding religious freedom under  
both the U.S. and California Constitutions.  In light of the  
in-depth analysis prepared for Committee members for  
consideration of ACA 24, as well as the extensive background  
paper prepared for the Committee's interim hearing on this topic,  
the following is an abbreviated analysis of the issues raised by  
AB 1617.    

  Overview of federal law.   The Free Exercise Clause of the First  
Amendment of the United States Constitution, which has been made  
applicable to the states by incorporation into the Fourteenth  
Amendment (see  Cantwell v. Connecticut  (1940) 310 U.S. 398),  
provides that "Congress shall make no law respecting an  
establishment of religion, or prohibiting the free exercise  
thereof... ."  (U.S. Const., Amendment 1.)  The bulk of recent  
case law involving the free exercise clause, including the high  
court's latest decision in  Boerne  , involve challenges to  
so-called "neutral laws of general applicability," i.e., laws,  
such as zoning ordinances, whose principal purpose is unrelated  
to religion, but which, allegedly, incidentally impinge upon the  
free exercise of religion.

From the late 1960's until 1990, the U.S. Supreme Court utilized  
the "compelling interest" test in evaluating religious freedom  
challenges to laws of general applicability.  Under this test,  
the Court weighed the law's burden on religious exercise against  
the government's interest in applying the law.  If the burden was  
substantial and outweighed the government's interest, the  
government was required to accomodate the religiously motivated  
conduct by exempting it from the law.  (E.g.,  Sherbert v. Vernier   
(1963) 374 U.S. 398;  Wisconsin v. Yoder  (1972) 406 U.S. 205.)   
If, on the other hand, the government's interest was of  
sufficient importance to outweigh the burden on religious  
exercise and could not be achieved by less restrictive means, no  
accomodation was required.  An accomodation was also not required  
if the burden on religious exercise was not considered  
substantial.

The "compelling interest" test was abandoned by the U.S. Supreme  
Court in 1990 in the case of  Employment Division, Oregon Dept. of  
Human Resources v.   Smith  , 494 U.S. 872 (hereafter "Smith-U.S.").   
The  Smith-U.S.  case was brought by employees of a private drug  
rehabilitation program in Oregon who were fired from their jobs  
and denied unemploment insurance benefits because they had used  
the drug peyote for sacramental purposes at a ceremony of the  
Native American Church.  The employees challenged the denial of  
benefits as a 
violation of the free exercise clause of the United States  
Constitution.  Justice Scalia authored the Supreme Court's  
controversial 5-4 decision, which stated: "We have never held  
that an individual's religious beliefs excuse him from compliance  
with an otherwise valid law prohibiting conduct that the State is  
free to regulate."  (494 U.S. at 878-879.)








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Congress reacted in 1993 by enacting the Religious Freedom  
Restoration Act (RFRA)(42 U.S.C. section 2000bb  et   seq .) in  
direct response to the Supreme Court's decison in  Smith-U.S.    
RFRA's stated purposes were: (1) to restore the compelling  
interest test as set forth in  Sherbert  and  Yoder  ; and, (2) to  
provide a claim or defense to persons whose religious exercise is  
substantially burdened by government.  (42 U.S.C. section  
2000bb(b).)  Prior to its invalidation, RFRA prohibited  
government from substantially burdening a person's exercise of  
religion, even if the burden results from a rule of general  
applicability, unless government can demonstrate that the burden  
is in furtherance of a compelling governmental interest, and is  
the least restrictive means of furthering that compelling  
governmental interest. (42 U.S.C. section 2000bb1.)

On June 25, 1997, the U.S. Supreme Court, in a 6-3 decision,  
struck down RFRA in the case of  City of Boerne v. Flores  ,  supra  ,  
finding that the Act exceeded Congress' authority under Section 5  
of the Fourteenth Amendment.  The case involved a challenge to a  
decison by local zoning authorities in a Texas municipality to  
deny a church a building permit.  The main focus of the  Boerne   
Court's decision was on the scope of Congress' authority to enact  
RFRA, and it did not preclude states from enacting their own  
legislation in this area.

  Overview of California law  .  California's Free Exercise Clause,  
which is found at Article I, section 4, of the California  
Constitution, provides in pertinent part:

   "Free exercise and enjoyment of religion without  
   discrimination or preference are guaranteed.  This liberty of  
   conscience does not excuse acts that are licentious or  
   inconsistent with the peace and safety of the State.  The  
   Legislature shall make no law respecting an establishment of  
   religion."  (Cal. Const., art. I, section 4.)

The California Supreme Court recently commented on the  
independence of the state's Constitution, and the right of our  
courts to separately determine the scope of the state's distinct  
Free Exercise Clause.  (  American Academy of   Pediatrics v. Lungren   
(1997) 16 Cal.4th 307.)  However, this is not an easy task since  
the California courts have relied heavily on federal  
jurisprudence in interpreting California's religion clauses.  As  
the state high court noted in its most recent Free Exercise  
Clause decision, many of the pre-  Smith-U.S.  cases in California  
adopted the compelling interest test articulated in  Sherbert  and  
  Yoder  .  See  Smith v. Fair Employment and Housing Commission   
(1996) 12 Cal.4th 1143, 1177-1178 (hereafter "Smith-Calif.").

The  Smith-Calif.  case involved a landlord who had refused to rent  
an apartment to an unmarried couple on the basis of her religious  
belief that having a sexual relationship outside of marriage was  
sinful.  After concluding that Mrs. Smith had violated provisions  
of the Fair Employment and Housing Act (FEHA) which bars  
discrimination in housing on the basis of marital status, the  
California Supreme Court had to determine whether the state is  







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required to exempt her from that law to avoid burdening her  
exercise of religious freedom.  The Court began by holding that  
the First Amendment does not support Smith's claim, relying on  
the U.S. Supreme Court's decision 
in  Smith-U.S.   After determining that Smith's claim to an  
exemption from FEHA was barred under the  federal  constitution,  
the  Smith-Calif.  Court turned to an evaluation of her claim under  
RFRA.  The Court concluded that the particular set of facts in  
this case "does not, under the relevant case law, support Smith's  
argument that requiring her to comply with FEHA's  
anti-discrimination provisions substantially burdens her  
religious exercise.  Accordingly, we have no occasion to  
determine whether application of the statute to her furthers a  
compelling state interest or is the least restrictive means to  
further such an interest."  (12 Cal.4th at 1176.)

Since analysis of this case under California law would also  
appear to require Mrs. Smith to demonstrate a substantial burden  
on her exercise of religion, the facts in this case did not  
require the Court to evaluate Mrs. Smith's claim under the  
state's Free Exercise Clause:

   "Because Smith's claim fails even under [the RFRA] test...,  we  
   need not   address the scope and proper interpretation of  
   California['s Free   Exercise Clause].  These important  
   questions should await a case in which   their resolution  
   affects the outcome  ."  (  Id  ., at 1179, emphasis added.)

Thus, the California Supreme Court left open the question of the  
current test to be used when evaluating religious freedom claims  
under the state's Free Exercise Clause.  In other words, it is  
unclear whether state courts will continue applying the strict  
compelling interest test, or whether they will follow the less  
protective  Smith-U.S.  rule now that the federal RFRA has been  
invalidated.

  ARGUMENTS IN SUPPORT  :  As noted above, AB 1617 is supported by  
the California Coalition for the Free Exercise of Religion, a  
broad and unique coalition made up of the major civil liberties  
and religious organizations in this state, many of which  
participated in the national coalition that sponsored the passage  
of the federal RFRA legislation. A sampling of statements from  
the California Coalition, its members and other supporters of AB  
1617 follows:

   "[The California Coalition for the Free Exercise of Religion]  
   ... strongly believe[s] that the free exercise of religion is  
   among the most basic of all fundamental rights guaranteed to  
   Americans, and we thus strongly support AB 1617[.]  ... In the  
   wake of  Boerne v. Flores  , we believe the task falls to the  
   states to ensure the best possible protection for the  
   religious liberties of their people. ... AB 1617 will codify  
   the principle that government should not substantially burden  
   religious exercise without compelling justification, and then  
   only by the least restrictive means consistent with that  
   justification.  The use of the term 'substantial burden' in  







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   the [bill] is intended solely to insure that it is not  
   triggered by trivial, technical or de minimus infractions.   
   ... We believe that the 'compelling state interest'  
   requirement ensures a fundamental freedom, and ought  
   therefore, to apply to all Californians.  Thus, the members of  
   the coalition are firmly committed to working for the passage  
   of this measure -- without exceptions to the protection it  
   would provide." (California Coalition for the Free Exercise of  
   Religion)

   "While the California Constitution does provide for the free  
   exercise of religion in broad, general terms, current  
   California case law does not clearly specify the obligation of  
   public agencies to protect the free exercise of religion.   
   This lack of clarity forces law suits because presently,  
   absent a bill such as AB 1617, California agencies require a  
   court injunction to prevent them from abrogating an  
   individual's free 
exercise guarantees.  Individuals generally do not have the  
financial resources to obtain a court injunction.  AB 1617 would  
prevent law suits as it will clearly define all public agencies'  
obligation to protect individuals' free exercise of religion  
rather than cause the agency to spend money defending its  
inappropriate action. ...  Under AB 1617, the   interests of others  
can be important to the question of whether a   government interest  
exists  .  For example, AB 1617 does not favor religious free  
exercise protection over sexual orientation.  The bill requires a  
  substantive  burden on religious exercise to invoke the protection  
of the law.  On the other hand, a person who claims sexual  
orientation discrimination does not have to show a substantive  
burden on  his or her rights.  Thus, AB 1617 does not favor  
religion over sexual preference. ... [Furthermore,] legitimate  
public safety, zoning and other concerns would not have to take a  
back seat to religion in all circumstances.  Religion would only  
prevail where the governmental purpose could be realized by a  
reasonable and available method that was less intrusive on  
religion."  (Legislative Research Incorporated) 
 
   "Without RFRA, State and local legislatures are in a position  
   to pick and choose among those religious groups and/or  
   practices they feel should be afforded protection.  ...  
   Minority religions in particular are left vulnerable to  
   legislators and government officials who may sometimes be  
   oblivious to the impact of their actions on religious  
   observance. ... California needs to adopt AB 1617 ...  
   [because] [t]here can be no guarantee that Congress will enact  
   -- or that, if enacted, the Supreme Court will uphold -- a new  
   Federal RFRA.  Moreover, any new Federal RFRA will necessarily  
   be narrower in its application to the states than the original  
   law.  The Supreme Court's decision striking down a Federal  
   RFRA was largely grounded in the concern that Congress had  
   intruded into areas ordinarily left to the States.  Rhode  
   Island and Connecticut have already enacted State RFRAs and  
   several other state legislatures are considering similar  
   measures."  (American Jewish Committee, Los Angeles Chapter)








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   "When the Supreme Court overturned the [federal] RFRA, it was  
   critical that the California State Legislature act in an  
   appropriate manner to put legislation in place that protects  
   basic religious liberties."  (Traditional Values Coalition)
   
   "The California Correctional Peace Officers Association  
   (CCPOA) recognizes the value of religious programs within our  
   institutions for inmate and ward populations.  It has been our  
   understanding from reports that those inmates who regularly  
   participate in religious programs are the least likely to  
   recidivate upon release.  Therefore, any measure contemplated  
   by the legislature which would allow, guarantee or otherwise  
   enhance religious programs to our populations would be efforts  
   that we could support. ... Since the federal RFRA was on the  
   books, we have not had major complaints from the officers  
   concerning religious programs that are ongoing.  Our security  
   concerns seem to be adequately accomodated and we are pleased  
   to support AB 1617 to guarantee the free exercise of  
   religion."  (CCPOA) 

  ARGUMENTS IN OPPOSITION  :  The League of California Cities is  
opposed to AB 1617.  The League states that "[a]s with any such  
issue that turns on a U.S. Constitutional issue, the fix proposed  
in [AB 1617] may be worse than current law.  It may have the  
unintended consequence of people using the exception given to  
religion in [the bill] to justify acts never intended to be  
covered."  The League also contends that the bill "offers the  
possibility of causing more litigation with none of the intended  
impacts on or 
protections of religion being realized, just as what occurred  
under the federal [RFRA] law."  The League concludes by  
suggesting that "the author heed the cautionary statements of  
constitutional lawyers who testified at the interim hearing on  
this subject and refrain from enacting legislation that will  
likely do little beyond wasting more of the taxpayers'  
resources."

Professor Marci Hamilton of the Cardozo School of Law and counsel  
for the City of Boerne in  Boerne v. Flores  , strongly opposes AB  
1617, stating that the bill is "a dangerous and expensive social  
experiment that would privilege religious interests more than  
they have ever been privileged before."  Professor Hamilton  
argues that the bill violates the U.S. Constitution's  
Establishment Clause, because it prefers religion to all other  
interests in society.  She also argues that AB 1617 will be  
costly to every governmental entity in California, and therefore  
constitutes an indirect tax on the people of California.   
Hamilton contends that the bill will result in a legislative  
quagmire since before enacting any law, government officials will  
                                                                 be inclined to investigate every religion within their  
jurisdiction to determine the impact of the law on that religion.  
 If government does not do its homework, it will find itself in  
court litigating the law. Professor Hamilton further argues that  
the bill has an almost unimaginable scope that will visit  
mischief in circumstances never contemplated by the Committee.   
According to Hamilton, the bill applies to every law or  







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regulation in California, and provides a leg up for every  
religious believer and every religion, whether established or  
new.  The bill is also not limited to conduct resting on  
religious beliefs which are central to a religion, but explicitly  
reaches every burden on religion "whether or not the religious  
exercise is compulsory or central to a larger system of religious  
belief."  Finally, Hamilton argues that the Committee should  
investigate with care whether the Assembly will violate the  
California state doctrine of separation of powers if it  
institutes an across the board standard of review to be applied  
in every case implicating religion exercise.  Hamilton notes that  
this is a task normally left to the courts.

Professor Eugene Volokh, UCLA School of Law, also opposes AB  
1617.  Professor Volokh opposes the bill for three reasons:  1)  
it would make it harder for government to control its employees,  
its public school students, its property, and its prisons; 2) it  
would be an immense transfer of power from the voters and the  
legislators to judges; and, 3) it would discriminate against  
millions of Californians by accomodating only those who are  
religiously motivated while denying accomodations to others whose  
behavior is motivated by deeply held secular beliefs.

  ISSUE #1:  IS THE RELIGIOUS FREEDOM PROTECTION ACT NECESSARY  ?   
Some have argued that RFPA is unneccessary in California based on  
the state courts' consistent use of the "compelling interest"  
test in evaluating religious freedom claims.  However, despite  
the obligation of the state courts to independently determine the  
scope of California's Free Exercise Clause, most of the decisions  
which adopted the compelling interest test did so with reliance  
primarily on federal case law.  (See e.g.,  People v. Woody  (1964)  
47 Cal.3d 716, 722;  Walker v. Superior Court  (1988) 47 Cal.3d  
112, 139;  Molko v.   Holy Spirit Assn.  (1988) 46 Cal.3d 1029,  
1112-1119.)

While there are examples of California courts independently  
interpreting the scope of the state's religion clauses (e.g.,  Fox  
v. City of Los Angeles  (1978) 22 Cal.3d 792;  Mandel v. Hodges   
(1976) 54 Cal.App.3d 596), supporters of AB 1617 correctly point  
to the fact that the California Supreme Court's most recent Free  
Exercise Clause decision did not reach the issue of which  
constitutional test applies.  (See  Smith-Calif.  ,  supra  , 12  
Cal.4th at 1179.)  
As Professor Erwin Chemerinsky noted in his testimony at the  
Committee's October 8, 1997 interim hearing on the subject, "the  
meaning of the California Constitution with regard to free  
exercise is uncertain.  At worst, a California RFRA would ensure  
that strict scrutiny will be the test."      

  ISSUE #2:  IS THE RELIGIOUS FREEDOM PROTECTION ACT PREMATURE  
GIVEN THE   POSSIBILITY OF MORE FEDERAL LEGISLATION IN THIS AREA  ?   
In determining the desirability of enacting AB 1617, the  
Committee may wish to consider the fact that representatives of  
the federal RFRA coalition have been working with several members  
of United States Senate and House Judiciary Committees to  
identify and develop the most effective statutory response to the  







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  Boerne  decision that would reassert Congressional authority and  
restore protections for the religious practices of all Americans.  
 Some opponents of state legislation have taken the position that  
states should not be stampeded into any rapid response to the  
high court's decision in  Boerne  , and that each of the states  
should allow additional time and consideration before passing  
legislation to enact statutory or constitutional amendments for a  
state RFRA.  However, Reverend Lou Sheldon indicated in his  
testimony before the Committee on August 26, 1997, that some  
members of Congress have informed him that they are supportive of  
states enacting their own RFRA legislation. In this vein,  
Connecticut and Rhode Island have already enacted state RFRA  
bills, and similar legislation is pending in Michigan, New  
Jersey, and New York.  RFRA bills have also been introduced in  
Florida, Illinois, Maryland, Ohio and Virginia. 

  ISSUE #3:  SHOULD THE BILL BE AMENDED TO EXEMPT FROM ITS COVERAGE  
STATE   PRISONERS AND WARDS  ?   The issue of exempting prisoners was  
the subject of debate when the federal RFRA Act was being  
considered, and it was also raised during the Assembly Judiciary  
Committee's interim hearing on religious freedom last October.   
The author, sponsor and supporters of AB 1617 are all strongly  
opposed to any exemptions and have indicated their intent to halt  
the bill should prisoners or any other group be excluded from the  
bill's protections.  Connecticut and Rhode Island have enacted  
"RFRA-type" legislation without any exemptions.  The RFRA bills  
which have been introduced in Florida, Illinois and Virginia also  
contain no exemptions, while proposed legislation in Ohio  
specifically excludes prisoners from its coverage.

The Ohio legislation was apparently drafted by the Ohio Attorney  
General, who earlier filed an  amicus  brief in  Boerne  on behalf of  
the State of Ohio and 15 other states and territories, arguing  
that the federal RFRA was unconstitutional as applied to the  
states.  [Although California did not join in this  amicus  effort,  
this state previously challenged the validity of the federal RFRA  
in a separate action.  (See  Rouser v. White  (E.D. Calif. 1996)  
1996 U.S. Dist. LEXIS 16172.)]  Ohio and the other states'  
opposition to the federal RFRA was primarily based on their  
position that RFRA substantially impeded the states' efforts to  
run their prison systems.  According to the states'  amicus  brief,  
RFRA "spawned a remarkable wave of inmate litigation in the years  
since it was passed."  (Ohio  amicus  brief at p.3.)  A recent  
study of RFRA litigation by Professor Ira Lupu at the George  
Washington University Law School concluded that the Act's most  
widespread effects have been in state prisons.  (I. Lupu, "Why  
the Congress Was Wrong and the Court was Right -- Reflections on  
  City of Boerne v. Archbishop Flores  ," forthcoming, Wm. & Mary  
L.Rev., 1997-98, at p.8.)  According to Professor Lupu, "more  
than half of the reported cases under RFRA involve prison  
inmates."  (  Id  .)

Ohio and the other  amici  states further contend that in addition  
to the costs to the states in defending this litigation, RFRA  
exacerbates the challenges 
of running prisons by creating new security and administrative  







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                                                         Page 12

threats.  It does so by allowing violent inmate gangs, racist  
organizations, and drug distributors and like-minded groups to  
shroud illicit activity under the cover of "religious" belief.  
(Ohio  amicus  brief at p.4.)  These states also argue that "RFRA  
undermined the very goal it was designed to advance because the  
increase in lawsuit filings and demands for accomodation diverts  
chaplains and other religious service personnel from their core  
mission of delivering religious services to prisoners." (Ohio  
  amicus  brief at pp.5-6.) 

It is important to note, however, that neither the Attorney  
General nor the California Department of Corrections have taken a  
position on this bill.  Moreover, the California Correctional  
Peace Officers Association (CCPOA)  supports  AB 1617.  CCPOA  
states that the types of security concerns raised by Ohio and the  
other states have  not  been reported by California correctional  
officers.  Additionally, CCPOA and the Associated Chaplains in  
California State Service (ACCSS) both have noted the value of  
religious programs in prison and their importance in reducing  
inmate recidivism. 

  ISSUE #4:  SHOULD THE BILL BE AMENDED TO EXEMPT FROM ITS COVERAGE  
ZONING AND   OTHER LOCAL GOVERNMENTAL LEGISLATION REGARDING LAND  
USE AND HEALTH AND SAFETY   MATTERS  ?  The League of California  
Cities, as noted above, is opposed to AB 1617.  At the  
Committee's interim hearing on the subject, the League's  
representative testified that RFRA significantly hampered the  
ability of cities to enforce zoning and other government  
legislation regarding land use and health and safety matters.   
The bill will chill the certainty, they argue, that is necessary  
for long-term planning and zoning control.  For example, even  
though a city may zone a particular new neighborhood as strictly  
residential in character, it cannot be certain whether it will be  
required to go to court to defend some claim that it has violated  
some religion's desire to build a church or synagogue in that  
area.  Uncertainty in the area of property rights translates into  
higher litigation and planning costs for local governments, the  
League argues.

Supporters of AB 1617 counter the League's position by arguing  
that adverse zoning decisions have fallen disproportionately on  
minority religious communities.  They also argue that the bill  
will not unfavorably impact on legitimate public interests  
because where compelling governmental interests cannot be  
accomplished by any other means than by imposing on religious  
practices, the governmental needs will prevail.

  ISSUE #5:  SHOULD THE BILL BE AMENDED TO CLARIFY THAT ITS  
PROVISIONS SHOULD   NOT BE INTERPRETED TO IN ANY WAY UNDERMINE  
EXISTING CASE LAW AND STATUTORY   PROTECTIONS AGAINST  
DISCRIMINATION  ?  Although the sponsors of this legislation state  
that they do not intend this bill to threaten existing case law  
and statutory protections against discrimination, such as the  
Fair Employment and Housing Act and the Unruh Civil Rights Act,  
the Committee may wish to add a provision in the bill explicitly  
stating this directive to ensure that courts do not later  







                                                          AB1617  
                                                         Page 13

misinterpret the Legislature's intent behind this legislation.   
For example, the new provision might read:

On page 5, between lines 21 and 22, insert the following:

   "(d) Nothing in this chapter shall be construed in any way as  
   to undermine or weaken existing case law and statutory  
   protections against discrimination, including, but not limited  
   to, protections provided under the Fair Employment and Housing  
   Act (Government Code Section 12900  et   seq  .), and the Unruh  
   Civil Rights Act (Civil Code Section 51  et   seq  .)." 
  
  Related Legislation  :

ACA 24 (Baca), a proposed constitutional amendment modeled after  
the federal RFRA legislation, which was originally scheduled to  
be heard by the Committee on August 26, 1997; the author agreed  
with the Committee to cancel the hearing and instead have the  
subject matter of the bill be considered at an Interim Hearing,  
which was held on October 8, 1997.

AJR 34 (Baca), a resolution strongly condemning the U.S. Supreme  
Court's   Boerne  decision and urging the President and Congress to  
enact new federal legislation protecting religious freedom, which  
passed the Assembly on July 14, 1997 (79-0), but died on the  
Senate floor on September 9, 1977.

AJR 40 (Baca), a resolution similar to AJR 34, which is awaiting  
assignment.

  REGISTERED SUPPORT / OPPOSITION  :

  Support                              Opposition 

California Coalition for the       League of California Cities
 Free Exercise of Religion (Sponsor):Professor Marci Hamilton
  -Agudath Israel of California    Professor Eugene Volokh
  -ACLU of Northern California
  -ACLU of Southern California
  -American Jewish Committee 
  -American Jewish Congress
  -Americans United for Separation of Church and State 
  -Anti-Defamation League          
  -Baptist Joint Committee on Public Affairs 
  -Buddhist Sangha Council of Southern California
  -California Church Impact
  -Church of Jesus Christ of Latter Day Saints
  -Capitol Resource Institute
  -Church-State Council of Seventh Day Adventists
  -Christian Science Committee on Publication
  -Episcopal Diocese of Los Angeles
  -Friends Committee on Legislation
  -Interfaith Religious Liberty Foundation
  -Jewish Community Relations Committee of the Los Angeles Jewish  
Federation
  -Jewish Public Affairs Committee of California







                                                          AB1617  
                                                         Page 14

  -Justice Fellowship
  -Lutheran Office of Public Policy
  -Muslim Public Affairs Council
  -People for the American Way
  -Sikh Media Action Resource Task Force
  -Traditional Values Coalition
  -Unitarian Universalist Project Freedom of Religion
Associated Chaplains in California State Service (ACCSS)
California Correctional Peace Officers Association (CCPOA)
Campbell Seventh-Day Adventist Church
Committee on Moral Concerns
Jewish Community Relations Council of San Francisco, 
  the Peninsula, Marin and Sonoma Counties
Legislative Research Incorporated
Religious Action Center of Reform Judaism
Various individuals


  Analysis prepared by  :  Daniel Pone and Drew Liebert / ajud / (916)  
445-4560