California senate committee set to consider religious-protection act

Monday, June 29, 1998

The California Senate Judiciary Committee is set to vote this week on a religious- protection act opposed by the state’s corrections department, child-advocate groups and constitutional scholars.

California’s lower statehouse, the Assembly, unanimously passed the Religious Freedom Protection Act early this year. Since that time the bill has been tied up in the Senate, where debate has centered, largely, on the act’s effect on the state’s numerous anti-discrimination laws and penal system. The act would require state courts to use a strict legal standard when deciding infringements on a person’s First Amendment right to the free exercise of religion.

That standard would require courts to use the “compelling interest/least restrictive means” test when deciding if laws that apply to everyone happen to impinge upon some religious practices. The test was codified by Congress in the Religious Freedom Restoration Act of 1993. The U.S. Supreme Court, however, voided the law last year noting Congress did not have the constitutional authority to determine religious-liberty jurisprudence.

Since the federal act’s demise, the Coalition for the Free Exercise of Religion, an unusual coalition of organized religions and civil rights groups, has pressured state lawmakers nationwide to implement their own versions.

The California Assembly, however, included a provision exempting the state’s numerous anti-discrimination laws from the act. The coalition applied great pressure on senators to dump the exemption.

The Senate Judiciary Committee removed the provision but added a couple of clauses, stating: “Nothing in this act shall be construed to alter the existing balance between religious liberty claims and other civil and constitutional rights,” and: “Nothing in this chapter shall be construed to require that religious liberty claims always prevail over, or always be subordinate to, other civil or constitutional rights.”

Tomorrow the Judiciary Committee will consider the act for a full Senate vote.

Supporters of the bill maintain that federal court rulings, especially the 1990 U.S. Supreme Court decision in Employment Div., v. Smith, have undercut religious liberty and therefore legislative action is needed.

However, some state officials and constitutional scholars have raised concerns to the committee regarding the act’s range, constitutionality and need.

Michael Neal, assistant director of the state’s corrections department, told the California Senate Judiciary Committee that the act would undercut its efforts to control prisoners.

Neal pointed out in a letter to the committee that in 1987 the U.S. Supreme Court ruled that state prison officials do not have to overcome the “compelling interest/least restrictive means” test when confronted by claims of religious-liberty violations by prisoners.

“Certainly litigation will increase as many religious requests presently are not accommodated for legitimate penological interests of security, such as religious paraphernalia which could be converted into a weapon or religious garb of colors related to gangs,” Neal said. “Under the “least restrictive” burden of the act, inmates may litigate this decision and the [California Department of Corrections] may be directed to allow these colors to be worn in designated areas the inmates request based on their religion.”

Supporters, such as Steve McFarland, director of the Christian Legal Society and member of the coalition, argue that courts will not necessarily use the higher standard when faced with claims from prisoners.

Professor Marci Hamilton, a constitutional law scholar at Yeshiva University in New York and the attorney who successfully argued against the congressional RFRA before the U.S. Supreme Court, told the committee it should dump the act because of serious constitutional flaws.

“Any honest scholar will tell you that the ‘compelling interest/least restrictive means’ test introduced by AB 1617 (the California act) was not the test employed by the courts in free exercise cases before 1990,” Hamilton said in letter to the committee.

The act “is likely to hurt victims of discrimination,” Hamilton said. “The ‘least restrictive means’ test introduced in AB 1617 will alter the existing balance between religious liberty claims and other civil and constitutional rights, because it introduces a test not in use before the bill was enacted. When religious claimants ask to trump anti-discrimination laws, they will have a potent legal weapon previously unavailable to them.”

Related stories:

  • California lawmakers weigh religious freedom vs. discrimination 2.26.98
  • California Assembly passes religious freedom act 1.23.98
  • Advocacy group urges California lawmakers to replace RFRA 10.8.97