Coalition calls Gov. Wilson’s veto of religious-protection act misinformed

Friday, October 2, 1998

Despite endorsements from a large coalition of organized religions and civil rights groups, California Gov. Pete Wilson vetoed a religious-liberty protection bill, condemning it as a threat to law enforcement.

The Religious Freedom Protection Act, introduced by Assemblyman Joe Baca in January, won overwhelming approval in both the Assembly and Senate. The act was written by the Coalition for the Free Exercise of Religion and intended to codify a strict legal standard for state judges to use when deciding if a law infringes on a person's First Amendment right to the free exercise of religion.

The act would have required state courts to use the “compelling interest/least restrictive means” test when deciding if laws or government actions applicable to everyone happen to impinge upon some people's religious beliefs or practices. That means laws intended to apply to everyone must not infringe on religious liberty unless government has a compelling interest in doing so, and uses the least-restrictive means of regulating religious practices.

Congress codified the same test in the Religious Freedom Restoration Act of 1993. That act, however, was invalidated last year by the U.S. Supreme Court. The high court concluded that it was not within Congress' power to rewrite religious-liberty jurisprudence. The coalition had created RFRA of 1993 in response to the Supreme Court's 1990 Employment Div., v. Smith decision. The high court in Smith, concluded that laws of “general applicability” that incidentally infringe on a person's religious practices do not amount to a violation of the free exercise of religion. The court, however, left state legislatures the option of codifying the test.

The coalition's calls for codifying the test in California were met with complaints from the state's corrections department. In June, Michael Neal, assistant director of the corrections department, sent a letter to the California Senate and governor opposing the bill as a hindrance to prisoner control.

“Enactment of this bill would create a major administrative burden for the CDC [corrections department],” Neal wrote. “Proving that CDC 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.”

Wilson was swayed by the corrections department's concerns.

In his veto message, Wilson said the act would lead to lawsuits “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.”

Wilson continued that the bill “would weaken prison regulations and law enforcement with costly lawsuits seeking to subordinate our criminal laws to criminal defendants' supposed religious beliefs.”

Steve McFarland, director of the Christian Legal Society's Center for Law and Justice, said that Wilson was misinformed about the act's implications for state prisons and was simply trying to “look tough on criminals” because of political aspirations.

Although McFarland conceded that the bill “would have raised protection for inmates,” he insisted it was nonetheless needed. The free exercise of religion “is an inalienable right, needed by the sincere to rebuild their lives, proven more effective than anything else in reducing recidivism,” he said.

Forest Montgomery, counsel for the office of governmental affairs at the National Association for Evangelicals, which is also a member of the coalition in favor of the act, called the corrections department's objections “bogus.”

Montgomery said that the state's “wardens want all the power and they don't want to hear that prisoners have constitutional rights.” The irony, Montgomery said, was that “men and women are in prison for making the wrong moral decisions and that the only way to keep them from going back is if they get a spiritual dimension in their lives and start making right moral decisions, instead of wrong ones.”

But Wilson's veto message noted that “few rights are as important in America, or epitomize America's values, as the right to freedom of religion.” He said that “both the U.S. and California Constitutions guarantee that right,” and that the act went “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.”

McFarland responded to Wilson's statement, saying “the nation's second largest prison system – the Federal Bureau of Prisons – has found it [the compelling interest/least restrictive means test] quite workable.”

“The way to deal with frivolous litigation by any class of persons is to penalize frivolous litigation, not strip the few meritorious claims of protection – along with every other Californian's free exercise as well,” McFarland said.

McFarland and Montgomery conceded that the act's defeat was a setback for the coalition.

“This is a very painful loss for the cause of religious freedom,” Montgomery said. “However, you don't abandon the field because some governor has made a political decision.”

McFarland said, “Governor Wilson was misinformed and 30 million Californians are the losers.” He said the coalition would convene soon to discuss the ramifications of the loss.

“There is no possibility of an override,” he said, because the legislative session has ended. “So we will have to go back to the drawing board. We won't give up on California.”

California Religious Protection Act
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