To the Members of the California Assembly:

   I am returning Assembly Bill No. 1617 without my signature.

   This bill enacts the "Religious Freedom protection Act," which would prohibit any state or local government from enacting or applying a facially neutral law, ordinance, or regulation which substantially burdens a person's exercise of religion unless the government can demonstrate that the law, ordinance, or regulation (1) furthers a compelling governmental interest and (2) uses the least restrictive means of furthering that compelling governmental interest. This test would apply to all state or local laws, "whether adopted before or after the effective date of this chapter," and could be asserted as a claim or defense in any judicial proceeding. it bears emphasis that the bill's focusis on laws which regulate conduct claimed to be motivated by religious belief, not religious belief -- which are fully protected by the First Amendment.

   This country has been a beacon for religious freedom. Many of the earliest settlers came to America to escape religious persecution. Few principles epitomize America's unique national character as does the First Amendment's right to freedom of religion. But this bill goes beyond the guarantees under the First Amendment or the California Constitution. Poorly drafted, it sets standards for assessing the validity of laws which would have untold consequences not contemplated by its supporters: It would engender litigation by prisoners and criminal defendants alike, who claimthat the laws which protect and preserve order burden their religious beliefs. It would open up the prospect of invalidating laws ranging fromthe payment of taxes to compulsory vaccination laws, to drug laws, to land use laws, to laws against racial discrimination. Indeed, so broad is this bill that the federal version of this Act -- before the U.S. Supreme Court stuck it down as unconstitutional -- was used in the Proposition 187 litigation to argue that Proposition 187 was invalid because it burdened religious tenets.

   Ironically, this law is not only unnecessary in light of the existing California constitutional guarantee of the free exercise of religion (Cal. Const., Art I §4), but more importantly, it threatens law enforcement, is unworkable; and is of doubtful constitutionality.

   I   Background

   The bill is largely a response to two U.S. Supreme Court decisions. In 1990, in Employment Division v. Smith, 494 U.S. (1990), the U.S. Supreme Court, in a decision delivered by Justice Scalia, upheld an Oregon criminal law which prohibited the possession of controlled substances, including peyote, against a challenge under the Free Exercise Clause of the First Amendment, and therefore ruled that Oregon could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired used of an illegal drug, peyote. The Court declined to require that a facially neutral criminal law that burdened a religious practice -- ingesting peyote for sacramental purposes --had to be justified by a compelling governmental interest. Instead,it ruled that "(t)o make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except wherethe State's interest is 'compelling' ... contradicts both constitutional tradition and common sense." 494 U.S. at 885.

   The Court observed that "(a)ny society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs." It concluded that "we cannot afford the luxury of deeping presumptively invalid, as applied to the religious objector, any regulation of conduct that does not protect an interest of the highest order." 494 U.S. at 888.

   The Congress enacted the Religious Freedom Restoration Act of 1993 in response to the Supreme Court's decision in Employment Division v. Smith. That Act -- like the bill here -- seeks to prohibit government from substantially burdening a person's exercise of religion unless the application of the burden furthers a compelling governmental interest by the least restrictive means.

   In June, 1997, the U.S. Supreme Court struck down the Religious Freedom Restoration Act in City of Boerne v. Flores on the grounds that Congress did not have authority under Section 5 ofd the Fourteenth Amendment to enact such a law. The California Legislature has now passed this bill to enact the federal Religious Freedom Restoration Act at the state level and to establish the compelling interest test rejected in Employment Division v. Smith.

   II   The Act is Unnecessary

   This bill, to the extent it seeks to restore the compelling interest test rejected in Employment Divison v. Smith, is unnecessary.

   The protections guaranteed under the California Constitution's free exercise clause in Article I, section 4 are independent of those safeguarded under the First Amendment. See Cal. Const., Article I, section 24.

   And the California Supreme Court confirmed two years ago thatthe California courts have construed the California Constitution's free exercise clause "to afford the same protection for religious exercise as the Federal Constitution before Employment Division v. Smith, supra, 494 U.S. 872." (Emphasis added.) See Smith v. Fair Employment and Housing Commission, 12 Cal. 4th 1143, 1177 (1996).) Accordingly, the primary concern of proponents of this bill -- the abandonment of a compelling interest test -- is unwarranted.

   Unfortunately, this bill would go further than the compelling interest test utilized by the courts before Employment Division v. Smith and would create a means to challenge facially neutral laws by prisoners, criminal defendants,and others.

   III   The Bill Creates An Unworkable Standard That Would Engender Litigation by Prisoners, Criminal Defendants and Others

   Under the bill, any facially neutral law, regulation, ordinance, or other governmental action could not be applied to substantially burden a person's exercise of religion unless the government demonstrates that the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that interest. However, the test is uncertain and will result in the invalidation of laws preserving public safety and welfare:

• First, judicial decisions do not offer a generally applicable definition of "substantial burden," see, e.g., Smith v. Fair Employment and Housing Commission, 12 Cal. 4th 1150, 1169 (1996). Application of this test will be uncertain.

• Second, the U.S. Supreme Court has warned thatthe bill's requirement that laws be the "least restrictive means" of furthering a compelling interest adds "a requirement that was not used in the pre-(Employment Division v.) Smith jurisprudence" that this bill purports to codify. See City of Boerne v. Flores, 117 S.Ct. 2157, 138 L.Ed.2nd 624, 648 (1997). Thus, the bill goes beyond the constitutional protections for religion that its supporters believe they are restoring.

   Unfortunately, the "least restrictive means" requirement would open the door for constitutional challenges by prisoners to laws and regulations, which challenges are currently denied under the Supreme Court's decision in Turner v. Safley, 482 U.S. 78, 90 (1987). That decision specifically ruled that a prison regulation that impinges on inmates' constitutional rights "is valid if it is reasonably related to legitimate penological interests." Id. at 89. The Couret emphasized that this is "not a 'least restrictive alternative' test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Id. at 90-91.

   By invalidating any facially neutral law or regulation which substantially burdens a person's exercise of religion unless the government demonstrates that the law or regulation is the least restrictivemeans of furthering a compelling governmental interest, correction officials can and will be sued over a variety of facially netural laws and regulations by prisoners who claim that alcohol, a specific diet, sacred knives, conjugal visits, and satanic bibles are all part of their free exercise of religion.

   Likewise, under the bill, criminal defendants could raise religious objections to drug laws, seek to justify domestic violaence based on a purported religious belief that wives should be submissive to their husbands, and could seek to resurrect the diminished capacity defense for defendants who are underthe influence of drugs when they commit crimes. In each case, the State would have to showthatthese criminal laws are the "least restrictive means" of furthering its compelling in these laws. While no one can predict the outcome of these challenges, we cn predictthat law enforcement will be thwarted, delayed, and consumed in litigation.

   For these reasons, the bill has been strongly opposed by sheriffs, policechiefs, peace officers, corrections officials, and prosecutors.

   IV   The Bill Transfers Legislative Responsibilities to the Judiciary And Is Constitutionally Suspect

   Although it is not a constitutional amendment, this bill would establish a statutory test of invalidity, which the courts could use to restrict or invalidate laws enacted by the Legislature, "whether adopted before or after the effective date of this chapter." In essence, instead of each Legislature addressing the issue of religious accommodation on a bill-by-bill basis, the bill would transfer from the Legislature to the judiciary the determination of whether a law -- which meets the test for protecting religious freedom under the U.S. and CaliforniaConstitutions -- should be restricted further,or invalidated, because it fails to meet the "compelling interest/least restrictive means" test established by this proposed statute.

   In short, one statute will restrict -- depending upon the judgment of a court -- the scope of a subsequent statute passed by a majority of the people's representatives and signed by the Governor. This places in the court the power to amend statutes, and therefore raises serious separation of powers concerns under Article III, section 3 of the California Constitution since the judiciary may not amend statutes.

   V   Conclusion

   Few rights are as important in America, or epitomize America's values, asthe right to freedom of religion. Both the U.S. and California Constitutions guarantee that right. Butthis bill,as it is drafted, goes beyond those guarantees and sets a test many laws would fail, engenering litigation by prisoners and criminal defendants who would claimthat the laws which protect us and preserve order burden their religious beliefs. It would weaken prison regulations and law enforcement with costly lawsuits seeking to subordinate our criminal laws to criminal defendants' supposed religious beliefs. Those literally doingthe Lord's work through prison ministries have urged that I sign the bill and seek subsequent enactment of a state analogue to the federal Prison Litigation Reform Act. They have generously offered to help move such a bill through the legislature. I value their offer of assistance(and totally agree with the need for prison litigation reform), just as I value and endorse the work prison ministries do in our prisons where it is so critically needed. Prison officials should be strongly encouraged to welcome their efforts. But the concern occasioned by AB 1617 argue that the restraints of such a prisoner litigation reform act should first be in place to protect against the abuses by California's activist prisoner rights bar that this bill might otherwise invite.

   And prisoner litigation reform, were it in place, does not address the problem of criminal defendants not yet in prison who assert a religious basis for criminal conduct as a defense in order to stay out.

   Moreover, the bill raises a serious constitutional objection that it invites the Legislature to violate the Separation of Powers Doctrine by abandoning its responsibility to consider accommodations for religious freedom on a bill-by-bill basis. Instead, through this bill, the Legislature would put in the hands of private litigants and the courts the decision whether to restrict or invalidate perfectly valid laws -- laws which comply with the constitutional right to freedom of religion -- on the grounds that they nonetheless impinge on conduct which is claimed to be substantially motivated by religious beliefs. Rather than establishing a test which risks the unintended and wholesale invalidation of perfectly valid laws that protect our safety and welfare, the Legislature should decide on a bill-by-bill basis whether and how to accommodate conduct motivated by religious concerns. As much as I treasure the religious freedom that is our nation's heritage, I cannot in good conscience sign this bill.

   Cordially,

PETE WILSON

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