Bill Would Implement State Version of Federal Religious Freedom Act

Should a Seventh-day Adventist be barred from the high school band because her faith won’t allow her to play at Friday night concerts? Should a coroner be allowed to perform an autopsy on the body of an Orthodox Jew? Should a fundamentalist Christian landlord be forced to accept an unmarried couple as tenants?

Such disputes pose tough questions of religious freedom versus government authority--disputes that some religious leaders say were at least a little easier to resolve before the U.S. Supreme Court struck down the federal Religious Freedom Restoration Act in June.

The law granted broad religious protection on top of constitutional guarantees, basically requiring that the federal government look carefully at each case and come down on the side of religious belief, if at all possible. The Supreme Court found that Congress overstepped its authority in passing the law.

Since then, religious leaders and others in California have been pushing for the Legislature to put a state version of the religious freedom act on the books.

Under a bill introduced by Assemblyman Joe Baca (D-San Bernardino), the state would apply what is known as the “compelling interest” test when religious beliefs conflict with state and local laws.

The test--the same one embodied in the federal legislation--would require that government show there is a compelling interest in overriding religious expression before enforcing a law that conflicts with someone’s beliefs.

At a hearing Wednesday in Los Angeles, members of the state Assembly Judiciary Committee were clearly divided on the proposal.

Some worried that enacting the bill might backfire by unintentionally limiting religious expression. Others wondered if there was a need. The committee chairwoman, Assemblywoman Martha M. Escutia (D-Bell), said she remained unconvinced after the hearing.

Escutia said she knows the proposal is fraught with emotion and voter appeal and has the makings of an election issue.

Indeed, in testimony before the committee, the Rev. Oliver Thomas, a Southern Baptist speaking for the National Council of Churches, delivered a veritable sermon to lawmakers. He noted that in another case, the U.S. Supreme Court has narrowed the idea of free exercise of religion to equal protection with other laws.

“I come to say today that religion is different. A yarmulke is not a baseball cap,” Thomas said, in apparent reference to school dress codes limiting attire to prevent gang identification. “A church is not a dry goods store. And if you treat religion like you treat everything else, religious liberty will be the loser.

“A person who cannot work on Saturday because it is her Sabbath is in a different position from a person who can’t accept Saturday work because he likes to go fishing. One has a claim of conscience. The other does not.”

Marc Stern, national legal director of the American Jewish Congress, said a religious freedom law would make bureaucrats think twice before impinging on someone’s beliefs in carrying out their duties.

Stern cited the case of an Orthodox Jew who died in a New Jersey train accident. The county coroner wanted to perform a routine autopsy to determine the cause of death.

The problem, Stern said, is that autopsies are contrary to Orthodox belief. Because the federal Religious Freedom Restoration Act was still in effect, Stern said, he was able to persuade the coroner to seek a less intrusive way of determining the cause of death--or face a lawsuit under the act. The coroner took Stern’s advice and did a magnetic resonance imaging scan on the body and concluded that death was caused by a severed spinal cord. In that case, Stern said both the legal requirement for pinpointing the cause of death and Orthodox belief were respected.

“The major difficulties for religious liberty today are not evil-hearted, anti-religious bigots of one particular stripe or another. It is the regulatory state,” Stern told the committee. “The question is, is religious practice a sufficiently important value that we’re going to say that we have to think about whether we want to apply this regulation that would impede that religious practice?”

The California bill is backed by a wide range of groups, including the American Civil Liberties Union, Americans United for Separation of Church and State, and the Orange County-based Traditional Values Coalition headed by the Rev. Louis P. Sheldon. Major Christian, Jewish, Buddhist and Muslim organizations also support it.

But not everyone is convinced that such a bill is needed, among them Marci Hamilton, the attorney who successfully challenged the federal law before the U.S. Supreme Court. Hamilton, a professor at Cardozo School of Law and counsel for the the city of Boerne, Texas, said no one has shown the need for such a law. She said supporters have nothing but hypothetical examples to make their point.

In addition, Assemblywoman Diane Martinez (D-Monterey Park) said the U.S. Constitution clearly states that Congress “shall make no law” abridging freedom of religion. The California Constitution, she said, goes even further by saying that religious rights “are guaranteed.”

Martinez and Assemblywoman Sheila Kuehl (D-Santa Monica) cautioned that supporters of the legislation may unintentionally limit religious liberties by seeking to define such liberties.

Loyola Law School professor Jennifer Friesen urged lawmakers to adopt a cautious approach.

“There’s a huge variety of government programs that would be affected by a state religious freedom restoration act,” she told the committee. “I don’t think we need a state [act].”

She was backed by James L. Markman, a Brea attorney representing the League of California Cities.

The bill (AB 1617) will be heard again by the Judiciary Committee in January. Escutia said she has no idea which way the committee will vote. But looking to next year’s elections, she said, “I hope we can depoliticize this.” Asked if that was realistic, she replied, “No.”