California Senate committee approves religious-protection law

Thursday, July 2, 1998

The California Senate Judiciary Committee yesterday unanimously approved a religious-protection law.

The bill, titled the Religious Freedom Protection Act, is now set for a full vote by the Senate. California's lower statehouse, the Assembly, passed the act earlier this year. The bill is modeled after the Religious Freedom Restoration Act of 1993, which the U.S. Supreme Court invalidated last summer. It differs slightly, however, in that it includes language stating the law should not be construed to automatically trump the state's various anti-discrimination laws.

If enacted, the bill would require state courts to use the “compelling interest/least restrictive means” test when deciding if laws that apply to everyone happen to hamper, unlawfully, some religious practices. Congress attempted to codify the strict legal test with RFRA of 1993. The Supreme Court, however, ruled Congress did not have constitutional authority to force state courts to use the test. Since the act's demise, the Coalition for the Free Exercise of Religion, an alliance of organized religions and a few civil rights groups, has urged states to pass their own acts.

Assemblyman Joe Baca, one of the bill's co-authors, suggested yesterday's Senate panel action was in part a result of divine intervention.

“Over time, we have overcome obstacles and built a broad coalition to sponsor this legislation,” Baca said. “I believe we have an angel looking out for this bill.”

Constitutional scholars and some state officials oppose the bill as an impediment to governing and a special benefit for religious people.

Marci Hamilton, a constitutional-law scholar at Yeshiva University in New York, told California lawmakers that the act runs afoul of constitutional jurisprudence.

“The bill proposes a standard for religious conduct that is more favorable to religion and more detrimental to governmental interests than the standard courts have employed,” said Hamilton, the attorney who successfully argued against the congressional RFRA before the Supreme Court.

Michael Neal, assistant director in the state's prison system, also told the committee the bill would make it much more difficult to control inmates.

“Enactment of this bill would create a major administrative burden for the Department of Corrections,” Neal told the Senate Judiciary Committee. “Proving that the Department of Corrections is choosing the least-restrictive means possible in any case where it substantially burdens an inmate's exercise of religion will create an extremely high legal standard for the state to meet.”

Marc Stern, an attorney with the American Jewish Congress and a member of the coalition, said that he is pleased the bill moved out of committee.

“The bill is both respectful of religious liberty and is carefully worded to avoid unintended and unwanted consequences,” he said.