Web Posted: June 25, 1998

June 9, 1998
Senate Judiciary Committee
State Capitol, Room 2205
Sacramento, California 95814
RE: Opposition to Religious Freedom Restoration Act (AB 1617)

To the Senate Judiciary Committee:

n 1990, in Oregon Employment Division v. Smith, the U.S. Supreme Court ruled that religious belief does not constitute an exemption from a neutral law of general applicability. This ruling was consistent with previous Supreme Court rulings, including the very first free-exercise case, which involved polygamy. In spite of this fact, many religious groups and other organizations claimed that the Smith ruling threatened the protection of religious liberty in the United States. As a result, a coalition was formed, the Coalition for the Free Exercise of Religion. Due largely to the efforts of this coalition, the federal Religious Freedom Restoration Act (RFRA) was enacted in 1993. The RFRA, by combining a compelling interest test with a least restrictive means test, crafted a standard of review that compelled exemptions from generally applicable laws.¹ The United States Supreme Court ruled the RFPA invalid in 1997, on the basis that Congress overstepped its authority in enacting the RFRA (Boerne v. Flores). In response to that ruling and invalidation of the RFRA on the federal level, the Coalition for the Free Exercise of Religion began sponsoring legislation on the state level that essentially mimics the RFRA in both wording and intent, including California's AB 1617, the Religious Freedom Protection Act (RFPA). American Atheists was the only national organization to oppose the RFRA on the basis that it created "special rights" for persons and organizations motivated by religious belief.

   American Atheists continues to oppose the various state versions now being promoted, including the California RFPA. This letter is intended to set forth American Atheists' position regarding the Religious Freedom Protection Act.

1)    The Religious Freedom Protection Act is unnecessary. Marcie A. Hamilton, the attorney who successfully litigated Boerne on behalf of the City of Boerne, wrote "The RFRA was an ill-conceived measure to cure an unidentified problem."² Other than anecdotal testimony, Congress failed to conduct a thorough and meaningful examination of the issue of religious persecution in the United States, and if that persecution existed, whether or not it was widespread.

   Similarly, the State of California has failed to conduct such a study, and makes an assumption that religious conduct is under attack, and therefore the RFPA is necessary and justified. There is no specific evidence that religious freedom is under attack in the United States or in California, and no burden on religious exercise has been identified. In fact, in the few examples repeatedly cited by the Coalition, such as the issue of wearing yarmulkes to school or in the military, the current system of judicial review has upheld religious expression under the appropriate circumstances. AB 1617 is therefore unnecessary.

American Atheists California State Director Dave Kong (above) challenges the state's proposed Religious Freedom Protection Act. "This has nothing to do with protecting legitimate religious exercise. It's all about creating 'special rights' for churches and other faith groups, and discriminating against millions of Atheists and other nonbelievers..."

2)    AB 1617 is the equivalent of "special rights" for religion. In Boerne vs. Flores, it is significant that none of the Supreme Court justices came out in favor of the substance of the RFRA (i.e., compelled exemptions). The courts seem to be generally in agreement regarding the amount of liberty necessary to maintain a balance of power between church and state, but differ merely over the means of achieving that balance.³ None of the opinions of the Supreme Court justices appear to join the argument for automatic exemptions from generally applicable laws.

Only Justice John Paul Stevens directly addressed the substance of the RFRA in his concurring decision in Boerne:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution.

If the historic landmark on a hill in Boerne, Texas happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinance that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. The government preference for religion, as opposed to irreligion, is forbidden by the First Amendment...

The same can be said of the RFPA on the state level. The RFPA essentially fosters a system of "dual justice," and exempts religious groups and practices from the civil laws that apply to everyone else-private individuals, businesses, and even civic institutions. It encourages "special rights" for believers, and in the process of doing so, discriminates against millions of Americans who profess no religious beliefs.

3)    The bill gives religion much more power than it previously had, and upsets the balance between the powers of church and state. The standard set forth in the RFRA is significantly more protective of religion and is significantly more of a burden on government than previously recognized by the Supreme Court. Eugene Volokh, professor of law at UCLA, says the RFPA "goes much further than the free-exercise clause has ever been read to go..." The effect would be to "give religious freedom even more protection than speech, the right the Supreme Court has generally protected most strongly of all."

   According to Marci Hamilton, prior to Smith, free exercise cases were determined on a case-by-case basis, with varying levels of scrutiny based upon each situation and with the government's interests given serious consideration. The 1990 Smith decision changed the standard to apply strict scrutiny to nonneutral, discriminatory laws and hybrid situations, but permits and expects legislative accommodation when the religious cannot prevail under the Constitution. Both standards lead the courts to essentially the same conclusions: Neither test gives either government or religion an automatic trump card when the two come to conflict. Rather, both tests aim at a pragmatic balance of power between church and state that furthers the public's interest and invites the parties to resolve their differences amicably, rather than in court. This cannot be said of the standard enacted in the Religious Freedom Restoration Act, which invites religion to take unreasonable positions and therefore invites litigation.⁴

It was made clear during RFRA hearings that RFRA did not merely give religion what it had before Smith, but much more.⁵ It shifted the balance of power between church and state in favor of religion to an unprecedented extent. The Religious Freedom Restoration Act was not a restoration, it was a recalculation of church-state power.⁶ The First Amendment's free-exercise clause has never been a blank check to religion to do whatever it pleases in defiance of the common good. Indeed, its [the U.S. Supreme Court] first free-exercise decision, which ruled on a case involving polygamy, said explicitly that religious people, like all other members of society, cannot expect exemptions from general laws when those laws burden religious conduct. Religious belief is absolutely protected. Religious conduct never has been. Religious conduct has received relatively more and less protection in our history, but it has never been the case that governments must tailor every law-from fire regulations to zoning laws to prison rules-to the needs of every religious believer, which is what the RFRA required. This statement made by Ms. Hamilton⁷ is clearly germane when considering the validity and appropriateness of the California RFPA.

4)    The RFPA has the effect of encouraging religious belief. The RFPA, by granting religiously motivated individuals and organizations an exemption from facially neutral laws of general applicability, entices and encourages citizens to express religious belief to receive an exemption under the RFPA. For example, medicinal marijuana smokers, frustrated by the courts' invalidation of Proposition 215, could be enticed to convert to the Rastafarian religion, which requires the smoking or ingesting of marijuana as part of its religious ritual. The state would then have the burden of proving a compelling state interest to restrict such conduct.

   Indeed, some supporters of AB 1617 have suggested that Atheists could claim that their position is a religiously held belief, and therefore entitled to protection under the RFPA. While Atheists certainly hold opinions on religious belief, Atheism is by no means a religion, and to suggest so would be disingenuous and unethical.

5)    AB 1617 makes the sincerity of religious convictions subject to judicial determination. Section 1, Item (c) of the bill states "The definition of 'exercise of religion' contained in the Religious Freedom Protection Act is intended to reject discussions of centrality in determining whether a practice constitutes an 'exercise of religion.' ...Discussion of 'centrality' improperly involves state intrusion into questions of individual faith. The relevant inquiry is whether a practice is substantially motivated by a sincerely held religious belief." This is reiterated in the proposed Chapter 4.5, Section 6403, Item (b). While AB 1617 avoids the question of centrality, it puts the courts in a position of determining whether an individual's or group's religious belief is sincere. The courts must decide whether a religious belief, or possibly a religious conversion leading to a particular religious belief, is genuine. Religious interpretation is subjective, and religious revelation is a highly personal, intangible, and unverifiable experience. To insist that the courts determine the validity of such interpretations and/or experiences is very much a state intrusion into questions of individual faith.

6)    AB 1617 is a ploy to permit the government funding of faith-based programs. The proposed Chapter 4.5, Section 6405, states "...Granting government funding, benefits, or exemptions to the extent permissible under the United States and California Constitutions shall not constitute a violation of this chapter. As used in this section, 'granting' used with respect to government funding, benefits, or exemptions does not include the denial of government funding, benefits, or exemptions."

   It is American Atheists' position that this clause would lead to the government funding of "faith-based" groups and programs. Churches already receive tax breaks and other perks, and religious groups have already moved into the lucrative field of administering social-welfare programs. As a result, much "religious charity" is often funded by public monies. Currently, however, there are restrictions on how religious groups may use this money; public funds cannot at present be used to promote religious beliefs or proselytize. The proposed RFPA threatens those restrictions, and would compel millions of Atheists and others to subsidize religious outreaches.

7)    The bill is overly broad, and invites a variety of litigation. As stated earlier, the RFPA invites religious individuals and organizations to take unreasonable positions, and therefore invites litigation. Similar legislation in the Maryland Legislature was withdrawn from consideration due to concerns that local governments would face millions of dollars a year in lawsuits from challenges to laws affecting jails, school curriculums and land use. Concerns were also raised that the bill was overly broad, and could lead to churches suing government entities over zoning laws or inmates claiming their religious beliefs give them special privileges.

8)    AB 1617 oversteps the powers of the State Legislature. The proposed Chapter 4.5, Section 6404, Item (a), states "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." This is expressly intended to include laws made not only by the State of California, but also all cities, counties, and other public agencies therein.

   Any act as broad in scope as the RFPA, which affects all other laws at all levels of state government that regulate government and private conduct, is more appropriate as a constitutional amendment. Amendment to the State Constitution is, of course, an arduous process requiring public debate and a lengthy ratification process. The Legislature alone does not have the power to affect such a sweeping change to state laws. In summary, AB 1617 has been proposed in response to a nonexistent attack on religious liberty. In light of the fact that, on a case-by-case basis, freedom of religious expression and conduct has been upheld, such legislation is unnecessary. The bill essentially amounts to special rights for people and groups who are religiously motivated, and discriminates against those who profess no religious belief. It is essentially a "power grab" by the religious, and upsets the delicate balance between government and religion. It has the effect of encouraging religious beliefs, and also puts the courts in the tenuous position of determining the sincerity of such beliefs. The proposed bill is overly broad, and permits the unconstitutional funding of faith-based programs and invites litigation against all levels of state government. Finally, the far-reaching nature of the act is more appropriate in the form of a constitutional amendment.

   If you have any questions on American Atheists' position regarding the Religious Freedom Protection Act, or need clarification on any of the above points, please feel free to contact me at (415) 771-9872.

Respectfully,

Dave Kong
State Director
American Atheists

1Marcie A. Hamilton, "The Constitution's Pragmatic Balance of Power Between Church and State," Nexus.
2Ibid.
3Ibid.
4Ibid.
5Comments made by Henry Hyde during congressional hearings regarding the RFRA.
6Marcie A. Hamilton, "The Constitution's Pragmatic Balance of Power Between Church and State," Nexus.
7Marcie A. Hamilton, "Debating RFRA: Religion's Reach," Christian Century, July 1997. Senate Judiciary Committee (AB 1617) June 9, 1998

[text only]