Latest draft of California Religious Freedom Protection Act

[Eugene Volokh]

     The 3/19/98 version of the Act eliminates the categorical
exemption from antidiscrimination laws, but throws in some
interesting -- and for my view, way too mushy -- language as a
substitute.  I excerpt the relevant parts below; material deleted
in this version is marked with "{- . . . -}" and material added is
marked with "{+ . . . +}".  Check out in particular the last
paragraph that I quote, 6404(d).



     6400.  (a) The Legislature hereby finds the following:

     . . .

     {+ (7) In certain circumstances, courts have found health,
safety, antidiscrimination, and other concerns to constitute
compelling governmental interests. +}

     . . .

     6402.  (a) Free exercise of religion is a substantive right
that applies in this state even in instances where laws,
regulations, or other governmental actions are facially neutral.

     (b) Government shall not substantially burden a person's
exercise of religion even if the burden results from a rule of
general applicability, except as provided in subdivision (c).

     (c) Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to
the person is both of the following:

     (1) In furtherance of a compelling governmental interest.

     (2) The least restrictive means of furthering that compelling
governmental interest.

     (d) A person whose religious exercise has been burdened in
violation of this section may assert that violation as a claim or
defense in a judicial proceeding and obtain appropriate relief
against a government.

     6403.  As used in this chapter:

     (a) "Demonstrates" means meets the burdens of going forward
with the evidence and of persuasion.

     (b) "Exercise of religion" means an act or refusal to act that
is substantially motivated by {+ sincerely held +} religious
belief, whether or not the religious exercise is compulsory or
central to a larger system of religious belief.

     . . .

     6404.  (a) This chapter applies to all state law, and the
implementation of that law, whether statutory or otherwise, and to
all laws, ordinances, regulations, and governmental actions in this
state, whether adopted before or after the effective date of this
chapter.

     (b) This chapter applies to all cities, including charter
cities.  The Legislature finds and declares that free exercise of
religion is a matter of statewide concern and is not merely a
municipal affair or a matter of local interest.

     (c) Nothing in this chapter shall be construed to authorize
any government to burden any religious belief.

     {- (d) Nothing in this chapter shall be construed to alter
existing protections against discrimination. -}

     {+ (d) 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.  Nothing in
this chapter shall be construed to codify or reject any judicial
decision construing the federal Religious Freedom Restoration Act
(42 U.S.C. Sec. 2000bb et seq.). +}

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095