BILL NUMBER: AB 1617
VETOED DATE: 09/28/1998
To the Members of the California Assembly:
I am returning Assembly Bill No. 1617 without my signature.
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 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, 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
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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 t he 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.
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
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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 requirement that laws be the
"least restrictive means" of furthering a compelling interest adds
"a requirement that was not 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
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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 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 cost ly lawsuits seeking
to subordinate our criminal laws to criminal defendants' supposed
religious beliefs. Those literally doing the Lord's work through
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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 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 sig n this bill.
Cordially,
PETE WILSON
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