California RFRA and discrimination exemption

[Bradley P. Jacob]

The anti-murder/suicide should trump Cal-RFRA because there is a
compelling governmental interest in preserving life.  If the plight of
unmarried couples is such a massive societal wrong that it also
constitutes a compelling interest (obviously, I strongly disagree with
that premise!), then the non-discrimination statute should also trump
Cal-RFRA.  The problem is the statutory exemption -- saying, in effect,
that non-discrimination laws do not *need* to serve a compelling
interest -- that even if the governmental interest is trivial or silly,
it wins over religious freedom.  If the CA legislature really believes
that non-discrimination is a compelling interest, why not leave the RFRA
standard alone and either include language in the legislative history or
pass a joint resolution stating that conclusion as a matter of state
public policy?  Then the co-habitators could win without the statutory
amendment which, as Rick points out, is religiously non-neutral.

Brad

***************************************************************************
Bradley P. Jacob, Associate Dean
Geneva School of Law                     (412) 847-5228 (voice)
3200 College Avenue                      (412) 847-6588 (fax)
Beaver Falls, PA 15010                   bpjacob at geneva.edu
                                             or lawschool at geneva.edu
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On Wed, 14 Jan 1998, Mark Graber wrote:

> I'm a little confused by Rick's reply to Eugene.  Suppose instead of
> claiming that a state RFRA would not trump state anti-discrimination
> laws, California states that a state RFRA does not trump state
> anti-murder/suicide laws.  Might practitioners of suttee claim that
> this law burdens their religious practices in ways that the law does
> not burden religions that do not require widows to throw themselves
> on funeral pyres (and even if California did not make the exception
> explicit, would any of us interpret the state RFRA as authorizing
> suttee).  Put different, any exception to an RFRA would burden some
> religions more than others.
>
> Rick disputes that claim of the California legislature that no
> discrimination for reasons of sexual orientation is a very important
> purpose.  Fine, though if this is special interest legislation, I can
> assure Rick that I will be able to justify all the judicial
> intervention I want by similar notions of special interest.  But the
> disagreement if over how important antidiscrimination is in this
> context, not over whether some religions are being favored over
> others.
>
> Mark A. Graber
> mgraber at bss2.umd.edu
>