BILL ANALYSIS
AB1617
Page 1
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,
AB1617
Page 2
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
AB1617
Page 3
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.)
AB1617
Page 4
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
AB1617
Page 5
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.)
AB1617
Page 6
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
AB1617
Page 7
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
AB1617
Page 8
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)
AB1617
Page 9
"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
AB1617
Page 10
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
AB1617
Page 11
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
AB1617
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