California lawmakers weigh religious freedom vs. discrimination

Thursday, February 26, 1998

Should discrimination, supposedly justified by religious beliefs, be permitted when discriminatory actions spurred by deeply held philosophical or secular beliefs are not?

The relationship between state laws—which apply to all citizens regardless of possible conflicts with religious beliefs—and First Amendment rights protecting religious liberty is at the center of a debate in the California Legislature.

For example, if a San Francisco landlord refuses to rent to gay men he would violate an ordinance banning discrimination based on sexual orientation. The landlord, however, argues he should be exempted from the law because renting to the gay men will substantially hinder his practice of fundamental Christianity.

Lawmakers in California argue that recent interpretations of the religious-liberty rights of the First Amendment make it likely the state would not have to grant the landlord an exemption even if the law subverts his right to freely exercise his religious beliefs.

In January, the California Assembly, at the behest of the Coalition for the Free Exercise of Religion, passed a bill supporters say is intended to grant greater protection for citizens' religious beliefs than provided for under the First Amendment.

The Religious Freedom Protection Act was supposed to mimic the federal Religious Freedom Restoration Act of 1993 in imposing a high hurdle that government must leap in order to enact regulatory schemes and health and safety initiatives designed to serve purely secular objectives.

If enacted, the measure would force the state to grant exemptions to religious people who claim their beliefs conflict with the state's generally applicable laws—like anti-discrimination regulations—unless the state is able to prove the law serves a “compelling government” interest and is the least restrictive means to serve the interest.

Before the Assembly voted overwhelmingly to send the act to the Senate, it amended the bill to keep the state's anti-discrimination laws from being easily trumped by frivolous or serious claims to violations of religious freedom.

The exemption has not pleased the members of the Coalition for the Free Exercise of Religion who are now trying to persuade state senators to drop it from the bill. Steve McFarland, director of the Christian Legal Society, a member of the coalition, said that the exemption renders the act toothless because religious people in California need “a statutory exemption from the state's anti-discrimination laws.”

The coalition drafted and lobbied for the federal Religious Freedom Restoration Act of 1993. It later helped defend the law before the U.S. Supreme Court.

The coalition, Congress and President Clinton clearly intended for the federal act to overturn the 1990 Supreme Court decision, Employment Div., v. Smith, which concluded the free-exercise clause does not require the government to grant exemptions from secular laws that happen to infringe upon religious beliefs.

The coalition lobbied for the congressional act claiming Smith gutted First Amendment protections for religious conduct and Clinton embraced the law because he said it “reverses the Supreme Court's decision [in] Employment Division [v.] Smith.”

The Supreme Court, however, invalidated the federal religious freedom bill last year noting that it was not within Congress' authority to create a law that in essence re-wrote judicial interpretation of the free-exercise clause. The decision, however, left open the possibility that states could create their own religious freedom laws.

In Boerne v. Flores, the case in which the Supreme Court struck down the federal act, Justice Anthony Kennedy concluded: “Our national experience teaches that the Constitution is preserved best when each part of the government respect both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.”

Since the demise of the federal religious freedom act, the Coalition for the Free Exercise of Religion has helped lawmakers in various states in efforts to enact similar laws. At the moment, California's bill is the only one that differs greatly from the federal version in that it seeks to uphold laws banning discrimination, even discrimination rooted in religious beliefs.

The coalition decries the exemption claiming the state has placed greater emphasis on quelling discrimination than on protecting religious liberty. It also argues that many Californians' religious-liberty rights are hampered by anti-discrimination laws.

California lawmakers should not, however, be swayed by the coalition's misunderstanding of the free-exercise clause and exaggerated claims that the exemption would hinder their practice of religious beliefs. By passing the exemption for anti-discrimination laws, the Assembly decided that the state's efforts to fight discrimination, whether caused by secular or religious beliefs, should not be watered down to satisfy a powerful constituency.

Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law, warned California lawmakers of the bill's inherent constitutional problems. Hamilton argued against the congressional religious freedom restoration act before the Supreme Court.

Hamilton said the proposed California bill would violate the separation of church and state because it elevates all religious concerns above all other social concerns thus placing in jeopardy the myriad of community and societal concerns, from environmental laws to zoning laws and matrimonial and statutory rape laws.

Eugene Volokh, a UCLA law professor and First Amendment scholar, said it is wrong to “give a massive accommodation applicable in all walks of life, and potentially touching any conflict between conscience and law—only to those Californians who are religiously motivated, and to deny it to others.”

The California Senate now has the bill and is under pressure from the coalition to dump the exemption.

Ideally the Senate should table the bill and take a few years to investigate the coalition's claims of religious burdens from state laws. Barring such action, the Senate should make a stand for the state's efforts to curb discrimination and pass the act with the Assembly's amendment.

Much more likely, however, the Senate will side with organized religion.