BILL ANALYSIS
AB 1617
Page 1
GOVERNOR'S VETO
AB 1617 (Baca)
As Amended August 3, 1998
2/3 vote
ASSEMBLY: 76-0 (January 22, 1998)SENATE: 25-3(August 12, 1998)
ASSEMBLY: 61-5 (August 20, 1998)
Original Committee Reference: JUD.
SUMMARY : Enacts the Religious Freedom Protection Act (RFPA), with
the goal of strengthening the free exercise of religion in
California. Specifically, this bill , among other things:
1) Prohibits the 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 b) the burden caused
by the enactment is the least restrictive means of furthering
that compelling governmental interest.
2) 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.
The Senate amendments :
1) Delete language which was adopted in the Assembly on January
15, 1998, which provided that nothing in RFPA shall be
construed to alter existing protections against discrimination,
and replace it with the following and other language:
a) Nothing in this section shall be construed to require that
religious liberty claims always prevail over or always be
subordinate to other civil or constitutional rights;
b) The removal of the Assembly language should not be
construed to infer that the Legislature intends to further
discrimination;
c) The bill should not be construed to alter the existing
balance between religious liberty claims and other civil
and constitutional rights; and
d) In certain circumstances, courts have found health,
safety, antidiscrimination, and other concerns to
constitute compelling governmental interests.
2) Clarify the definition of "exercise of religion" by requiring
that the person's act or failure to act must be substantially
motivated by a sincerely held religious belief.
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3) Make a number of legislative findings and declarations,
including, but not limited to:
a) The Legislature stresses the importance of protecting the
health, welfare, and safety of children, and recognizes
that RFPA is consistent with Welfare and Institutions Code
Sections 300 and following (i.e., detailing California's
long history of protecting children), and laws relating to
child abuse and neglect, and the reporting thereof; and
b) RFPA does not require correctional officers to place any
person's life or safety at risk or to jeopardize
correctional security. It also declares that an inmate's
free exercise rights may be subjected to reasonable
restrictions, but not based on mere speculation alone.
c) In circumstances where a person's religious exercise
conflicts with a criminal statute, it should be accomodated
unless it conflicts with any third person's rights or poses
a threat to the public safety or welfare. It also provides
a statement of faith in the ability of the courts to
determine legitimate issues of religious freedom from bogus
claims asserted as defenses under RFPA.
EXISTING LAW provides under:
1) 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."
2) The United States Supreme Court's decision last year in Boerne
v. Flores , that Congress exceeded its Fourteenth Amendment powers
when it adopted the federal RFRA of 1993.
AS PASSED BY THE ASSEMBLY , this bill:
1) Prohibited the 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 b) the burden caused
by the enactment is the least restrictive means of furthering
that compelling governmental interest.
2) Expressly stated, in section 6404(d), that nothing in its
provisions was intended to alter existing protections against
discrimination.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, this bill is a direct response
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to the controversial Boerne decision, which struck down the
federal statutory RFRA. From the late 1960s until 1990, the
United States (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 accommodate the religiously motivated conduct by exempting it
from the law. This "compelling interest" test was abandoned by
the U.S. Supreme Court in 1990. Congress reacted in 1993 by
enacting RFRA to restore the compelling interest test and to
provide a claim or defense to persons whose religious exercise is
substantially burdened by government. On June 25, 1997, the U.S.
Supreme Court struck down the federal RFRA in the Boerne case,
finding that the federal law exceeded Congress' authority. The
Boerne Court's decision did not prevent states from enacting their
own legislation in this area.
A number of amendments were taken in the Senate to clarify the
Legislature's intent regarding the impact of RFPA on existing
statutory and case law regarding discrimination protections, child
health and welfare, law enforcement and prison safety. The Senate
amendments pertaining to the discrimination issue do not appear to
alter the effect and intent of the Assembly's language in section
6404(d), which stated that "Nothing in this chapter shall be
construed to alter existing protections against discrimination",
or to nullify the holdings of court decisions such as People v.
Woody , Sherbert v. Verner , Wisconsin v. Yoder or Smith v. Fair
Employment and Housing Commission .
GOVERNOR'S VETO MESSAGE
This bill enacts the "Religious Freedom Protection Act," which
would prohibit any state or local government from enacting or
applying a facially neutral law, ordinance, or regulation which
substantially burdens a person's exercise of religion unless
the government can demonstrate that the law, ordinance, or
regulation (1) furthers a compelling governmental interest and
(2) uses the least restrictive means of furthering that
compelling governmental interest. This test would apply to all
state or local laws, "whether adopted before or after the
effective date of this chapter," and could be asserted as a
claim or defense in any judicial proceeding. It bears emphasis
that the bill's focus is on laws that regulate conduct claimed
to be motivated by religious beliefs, not religious beliefs -
which are fully protected by the First Amendment.
This country has been a beacon for religious freedom. Many of
the earliest settlers came to America to escape religious
persecution. Few principles epitomize America's unique
national character as does the First Amendment's right to
freedom of religion. But this bill goes beyond the guarantees
under the First Amendment or the California Constitution.
Poorly drafted, it sets standards for assessing the validity of
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laws which would have untold consequences not contemplated by
its supporters: It would engender litigation by prisoners and
criminal defendants alike, who claim that the laws which
protect and preserve order burden their religious beliefs. It
would open up the prospect of invalidating laws ranging from
the payment of taxes to compulsory vaccination laws, to drug
laws, to land use laws, to laws against racial discrimination.
Indeed, so broad is this bill that the federal version of this
Act - before the U.S. Supreme Court struck it down as
unconstitutional - was used in the Proposition 187 litigation
to argue that Proposition 187 was invalid because it burdened
religious tenets.
Ironically, this law is not only unnecessary in light of the
existing California constitutional guarantee of the free
exercise of religion (Cal. Const., Art I, Sec. 4), but more
importantly, it threatens law enforcement, is unworkable, and
is of doubtful constitutionality.
I. Background
The bill is largely a response to two U.S. Supreme Court
decisions. In 1990, in Employment Division v. Smith , 494 U.S.
872 (1990), the U.S. Supreme Court, in a decision delivered by
Justice Scalia, upheld an Oregon criminal law which prohibited
the possession of controlled substances, including peyote,
against a challenge under the Free Exercise Clause of the First
Amendment, and therefore ruled that Oregon could deny
unemployment benefits to persons dismissed from their jobs
because of their religiously inspired use of an illegal drug,
peyote. The Court declined to require that a facially neutral
criminal law that burdened a religious practice - ingesting
peyote for sacramental purposes - had to be justified by a
compelling governmental interest. Instead, it ruled that "[t]o
make an individual's obligation to obey such a law contingent
upon the law's coincidence with his religious beliefs, except
where the State's interest is 'compelling' ... contradicts both
constitutional tradition and common sense." 494 U.S. at 885.
The Court observed that "[a]ny society adopting such a system
would be courting anarchy, but that danger increases in direct
proportion to the society's diversity of religious beliefs."
It concluded that "we cannot afford the luxury of deeming
presumptively invalid , as applied to the religious objector,
any regulation of conduct that does not protect an interest of
the highest order." 494 U.S. at 888.
The Congress enacted the Religious Freedom Restoration Act of
1993 in response to the Supreme Court's decision in Employment
Division v. Smith . That Act - like the bill here - seeks to
prohibit government from substantially burdening a person's
exercise of religion unless the application of the burden
furthers a compelling governmental interest by the least
restrictive means.
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In June, 1997, the U.S. Supreme Court struck down the Religious
Freedom Restoration Act in City of Boerne v. Flores on the
grounds that Congress did not have authority under Section 5 of
the Fourteenth Amendment to enact such a law. The California
Legislature has now passed this bill to enact the federal
Religious Freedom Restoration Act at the state level and to
establish the compelling interest test rejected in Employment
Division v. Smith .
II. The Act is Unnecessary
This bill, to the extent it seeks to restore the compelling
interest test rejected in Employment Division v. Smith , is
unnecessary.
The protections guaranteed under the California Constitution's
free exercise clause in Article I, section 4 are independent of
those safeguarded under the First Amendment. See Cal. Const.,
Article I, section 24.
And the California Supreme Court confirmed two years ago that
the California courts have construed the California
Constitution's free exercise clause "to afford the same
protection for religious exercise as the Federal Constitution
before Employment Division v. Smith , supra , 494 U.S. 872."
[Emphasis added.] (See Smith v. Fair Employment and Housing
Commission , 12 Cal. 4th 1143, 1177 (1996).) Accordingly, the
primary concern of proponents of this bill - the abandonment of
a compelling interest test - is unwarranted.
Unfortunately, this bill would go further than the compelling
interest test utilized by the courts before Employment Division
v. Smith and would create a means to challenge facially neutral
laws by prisoners, criminal defendants, and others.
III. The Bill Creates An Unworkable Standard That Would
Engender Litigation by Prisoners, Criminal Defendants and
Others
Under the bill, any facially neutral law, regulation,
ordinance, or other governmental action could not be applied to
substantially burden a person's exercise of religion unless the
government demonstrates that the burden (1) furthers a
compelling governmental interest and (2) is the least
restrictive means of furthering that interest. However, the
test is uncertain and will result in the invalidation of laws
preserving public safety and welfare:
First, judicial decisions do not offer a generally
applicable definition of "substantial burden," see, e.g.,
Smith v. Fair Employment and Housing Commission , 12 Cal.
4th 1150, 1169 (1996). Application of this test will be
uncertain.
Second, the U.S. Supreme Court has warned that the bill's
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requirement that laws be the "least restrictive means" of
furthering a compelling interest adds "a requirement that
was no used in the pre-[ Employment Division v. ] Smith
jurisprudence" that this bill purports to codify. See City
of Boerne v. Flores , 117 S.Ct. 2157, 138 L.Ed.2nd 624, 648
(1997). Thus, this bill goes beyond the constitutional
protections for religion that its supporters believed they
are restoring.
Unfortunately, the "least restrictive means" requirement would
open the door for constitutional challenges by prisoners to
laws and regulations, which challenges are currently denied
under the Supreme Court's decision in Turner v. Safley , 482
U.S. 78, 90 (1987). that decision specifically ruled that a
prison regulation that impinges on inmates' constitutional
rights "is valid if it is reasonably related to legitimate
penological interests." Id . at 89. The Court emphasized that
this is "not a 'least restrictive alternative' test: prison
officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the claimant's
constitutional complaint." Id . at 90-91.
By invalidating any facially neutral law or regulation which
substantially burdens a person's exercise of religion unless
the government demonstrates that the law or regulation is the
least restrictive means of furthering a compelling governmental
interest, correction officials can and will be sued over a
variety of facially neutral laws and regulations by prisoners
who claim that alcohol, a specific diet, sacred knives,
conjugal visits, and satanic bibles are all part of their free
exercise of religion.
Likewise, under the bill, criminal defendants could raise
religious objections to drug laws, seek to justify domestic
violence based on a purported religious belief that wives
should be submissive to their husbands, and could seek to
resurrect the diminished capacity defense for defendants who
are under the influence of drugs when they commit crimes. In
each case, the State would have to show that these criminal
laws are the "least restrictive means" of furthering its
compelling interests in these laws. While no one can predict
the outcome of these challenges, we can predict that law
enforcement will be thwarted, delayed, and consumed in
litigation.
For these reasons, the bill has been strongly opposed by
sheriffs, police chiefs, peace officers, corrections officials,
and prosecutors.
IV. The Bill Transfers Legislative Responsibilities to the
Judiciary And Is Constitutionally Suspect
Although it is not a constitutional amendment, this bill would
establish a statutory test of invalidity, which the courts
could use to restrict or invalidate laws enacted by the
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Legislature, "whether adopted before or after the effective
date of this chapter." In essence, instead of each Legislature
addressing the issue of religious accommodation on a
bill-by-bill basis, the bill would transfer from the
Legislature to the judiciary the determination of whether a law
- which meets the test for protecting religious freedom under
the U.S. and California Constitutions - should be restricted
further, or invalidated, because it fails to meet the
"compelling interest/least restrictive means" test established
by this proposed statute.
In short, one statute will restrict - depending upon the
judgment of a court - the scope of a subsequent statute passed
by a majority of the people's representatives and signed by the
Governor. This places in the court the power to amend
statutes, and therefore raises serious separation of powers
concerns under Article III, section 3 of the California
Constitution since the judiciary may not amend statutes.
V. Conclusion
Few rights are as important in America, or epitomize America's
values, as the right to freedom of religion. Both the U.S. and
California Constitutions guarantee that right. But this bill,
as it is drafted, goes beyond those guarantees and sets a test
many laws would fail, engendering litigation by prisoners and
criminal defendants who would claim that the laws which protect
us and preserve order burden their religious beliefs. It would
weaken prison regulations and law enforcement with costly
lawsuits seeking to subordinate our criminal laws to criminal
defendants' supposed religious beliefs. Those literally doing
the Lord's work through prison ministries have urged that I
sign the bill and seek subsequent enactment of a state analogue
to the federal Prison Litigation Reform Act. They have
generously offered to help move such a bill through the
Legislature. I value their offer of assistance (and totally
agree with the need for prison litigation reform), just as I
value and endorse the work prison ministries do in our prisons
where it is so critically needed. Prison officials should be
strongly encouraged to welcome their efforts. But the concerns
occasioned by AB 1617 argue that the restraints of such a
prisoner litigation reform act should first be in place to
protect against the abuses by California's activist prisoner
rights bar that this bill might otherwise invite.
And prisoner litigation reform, were it in place, does not
address the problem of criminal defendants not yet in prison
who assert a religious basis for criminal conduct as a defense
in order to stay out.
Moreover, the bill raises a serious constitutional objection
that it invites the Legislature to violate the Separation of
Powers Doctrine by abandoning its responsibility to consider
accommodations for religious freedom on a bill-by-bill basis.
Instead, through this bill, the Legislature would put in the
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hands of private litigants and the courts the decision whether
to restrict or invalidate perfectly valid laws - laws which
comply with the constitutional right to freedom of religion -
on the grounds that they nonetheless impinge on conduct which
is claimed to be substantially motivated by religious beliefs.
Rather than establishing a test which risks the unintended and
wholesale invalidation of perfectly valid laws that protect our
safety and welfare, the Legislature should decide on a
bill-by-bill basis whether and how to accommodate conduct
motivated by religious concerns. As much as I treasure the
religious freedom that is our nation's heritage, I cannot in
good conscience sign this bill.
Analysis prepared by : Dan Pone / ajud / (916) 319-2334
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