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