California RFRA and discrimination exemption

[Eugene Volokh]

    The trouble with legislating religious freedom exemptions
wholesale is that the only tools we're familiar with -- essentially
the strict scrutiny standard and its substantial burden threshhold --
are extremely vague.  They're vague on their face, and the caselaw
hasn't much clarified them.

    One possible response is the one I'd advocate:  Consider
proposed religious freedom exemptions one by one, and decide for each
whether indeed the competing interests justify the exemption.

    But if one rejects my approach, then the legislature must face
the fact that courts might well reach what the legislature thinks is
the wrong result:  They might overprotect -- compared to what the
legislature thinks is right -- some religious claims, because they
undervalue (relative to what the legislature thinks) the interest
behind the law.  Or they might underprotect -- again compared to
what the legislature thinks is right -- other religious claims,
because they overvalue (relative to what the legislature thinks) the
interest.

    Given this, it seems to me that the only responsible thing for
the legislature to do is to anticipate the problems, and to set forth
the right rule.  The legislature may anticipate that courts could
undervalue the interest behind antidiscrimination laws (could it be
relevant that the state legislature right now is mostly Democrat and
the California judiciary is mostly Republican?).  Likewise, Congress
reacted when it decided that the courts overvalued the interest behind
headgear regulations in the military (if I recall correctly) when
it decided that the courts undervalued the burden imposed by logging
roads across Indian land.  Likewise, if I'm not mistaken, for
exemptions for peyote users from some drug laws.

    Sticking language in the legislative history or passing a joint
resolution strikes me as a very weak second-best.  (I take it we
wouldn't praise this as an alternative to additional *grants* of
religious exemptions, would we?)  If the legislature does think that
the courts did get something wrong or are likely to get something
wrong, the right thing for the legislature to do is act, not talk.

    Finally, I'm still not sure why this amendment is "non-neutral"
in a relevant sense.  Sure, it will end up allowing some exemptions
but not others, but that's true under any religious freedom regime,
including across-the-board strict scrutiny:  It's just that under
strict scrutiny, *courts* decide what's in and what's out, whereas
here the *legislature* has decided this.

    I agree that exemptions should be neutral between different
groups that raise the same claim, and that laws should not treat the
same conduct worse if done for religious reasons than if done for
secular reasons, the situation in Lukumi Babalu.  (I'd actually go
further and ask for the converse -- that laws should be actually
neutral as to religious motivation, and should treat conscientious
secular objectors the same way as religious ones -- but that's a
debate for another day.)  But I think that's the most neutrality that
we can properly ask, given that different *practices* must in fact be
treated differently because of the different burdens that they impose
on others and on society as a whole.

Brad Jacob writes:

> 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
> ***************************************************************************
>
>
> 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
> >
>

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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010