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On June 30, the California Assembly Judiciary Committee passed SB 1146 by a margin of 7-2. The vote, taken along party lines, with the abstention of one Republican, means that the bill, which has already passed the California Senate, will now be passed on to the Assembly Appropriations Committee.

The Judiciary was originally slated to hear the bill on June 28, but the bill was modified on June 29, and the hearing was moved to June 30.Under the latest version of the bill, universities and colleges that receive financial assistance from the state or enroll students who receive state financial assistance, aka Cal Grants, may continue to enforce "rules of moral conduct" concerning sexuality, but only "if the rules are uniformly applicable to all students regardless of the student's sexual orientation or gender identity." "Married" student housing must be made available "both married opposite-sex and married same-sex couples."

Under the latest version of the bill, universities and colleges that receive, or enroll students who receive, financial assistance from the state may continue to enforce "rules of moral conduct" concerning sexuality, but only "if the rules are uniformly applicable to all students regardless of the student's sexual orientation or gender identity." "Married" student housing must be made available "both married opposite-sex and married same-sex couples."

The new version also says that the institutions may enforce "religious practices if these practices are uniformly applicable to all students regardless of the student's sexual orientation or gender identity." The bill would not require religious schools to conduct same-sex marriages in campus chapels.

Under the latest version, SB 1146 would give courts the right to force religious institutions to modify their activities to conform with the requirements of non-discrimination. Although the previous versions of the bill allowed for monetary awards for litigants who successfully sued non-conforming religious institutions, the latest version provides for "equitable relief." In the words of the Judiciary Committee analysis "a plaintiff would not be entitled to damages, but only an injunction ordering the school to take some corrective action, whether it be to undo whatever action was taken against the person who brings the action, or to end the policy that gave rise to the action."

The degree of state control over the personnel and internal actions of religious educational institutions has been an issue of particular concern to the California Assembly Judiciary Committee. Last July, the Assembly Judiciary held an informational hearing on "Workers' Rights and Religious Employers after Hosanna-Tabor" in San Francisco. In the hearing background paper, the same attorney who has been analyzing SB 1466 for the Judiciary lamented that the Supreme Court decision had impeded the state's "compelling interest" in protecting employees of religious institutions from"unlawful forms of employment discrimination." Although the case was over a year old at the time, the hearing was held in response to the San Francisco Archdiocese's announcement that it would be revising teacher contracts to include a new "morality clause" and to respond to fears that the clause would permit the Church to fire teachers whose private conduct in matters related to "gender identity, sexuality, abortion, and same-sex marriage" did not conform the Church teachings. Apparently, the state was trying to find a way to interfere with the Archdiocese's decision but could not find a constitutional way to do so.

The authors of the bill are attempting draft the legislation in a manner that would pass muster under Employment Division v. Smith. The bill designed to be "facially neutral" and not to interfere with a religious right or to single out a religious group, but rather is a "law of general applicability" that would apply to all alike and that no exemption for a religious institution is necessary. However, a review of the legislative history will show that the bill is intended to interfere with the "free exercise" rights of religious colleges and universities.

The bill's selective exemptions may invalidate the whole by violating equal protection rights of religious institutions.  The bill allows for exemptions that place certain religious institutions on uneven ground with other religious institutions for arbitrary reasons. For instance, religious vocational training (i.e. a seminary) is exempt from the law, but schools that teach religion as a curriculum requirement for non-religion majors are not exempt. Certain classes, such a religion, are allowed to be discriminated against under the law, but not LGBTQ classifications.

The bill analysis indicates that a religious institution can decide only to allow members of a particular religion to enroll, but demonstrates that this ability to discriminate must be an "all or nothing" approach – in other words, a Catholic university could only enroll Catholic students, but a Catholic university could not enroll non-Catholic students and at the same time maintain its Catholic morality policies.

That the law does not prohibit discrimination based on religion but only on sexual orientation, shows that the bill is targeted at non-conforming religious institutions because of their beliefs. There is no pretense of neutrality.

 Providing exemptions unevenly to the detriment of religious institutions may violate the equal protection clause.

So far it appears that the bill is going to pass the Assembly and end up on the governor's desk before the end of the year, but even then, there are serious constitutional issues that will likely take this legislation into litigation for years. 

The Judiciary Committee's June 29, 2016, report notes that SB 1146 was opposed by the California Catholic Conference, Inc., California Family Alliance, Church State Council, John Paul the Great Catholic University, Loma Linda Universtiy, National Center for Law and Policy, Pacific Justice Institute, Pacific Union College, and "numerous individuals."

Equality California, the City of Los Angeles, Los Angeles LGBT Center, Transgender Law Center, and Secular Coalition for California had written in support of the bill.

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Photo: Front of California State Capitol, by David Fulmer, CC BY 2.0

 

 

 

 

 
 

8 Comments

  1. Wes Flory says:

    Does anyone find irony in organizations that are in favor of laws that limit other's freedom of action, and then fuss when laws that limit their actions are proposed? SB 1146 doesn't even seem to prevent church teachings or actions, just using tax money to pay for actions based on religious belief. Churches taking tax money by rationalization that it is to benefit the individual, is the problem. Either freedom within the law includes individual choice to marry, drink, smoke, read, etc without regard to other people's religion, or we spend the rest of whatever litigating who's religion is right.

    • Robert Hanna says:

      This odious bill is an attempt to force all people to cheerlead the gay lifestyle, and to limit choices in higher education to enforce "progressive" conformity of thought. The grants are for individual students to chose to attend an institution of higher learning that suits them, and that means some will want a place where their learning is integrated with a faith that does not include the LGBTQ dogma. The tax money, when used as it is, funds the most important kind of diversity, diversity of thought.

      We need to recognize what this pernicious bill is: a push of the anti-Christian bigots in the LGBTQ community to eliminate all resistance to any opposition, or even less-than-full approval of, their chosen lifestyle.

      • Laura Smith says:

        You just said it perfectly! I have family and friends that are gay. We love them even though we don't agree with their lifestyle. My daughter goes to a Christian college and we receive a Cal grant. Without this grant we couldn't afford to go. She loves her school,Vanguard and they should be able to continue to teach the Christian world view. Non Christians are allowed to go,it's their choice just don't force these Colleges what they can and can't teach! Christians should have the same rights!

  2. John Burke says:

    I went to a Jesuit university (Fordham)w here there is no discrimination against gay men or women. There are gay professors and a gay students' union and no anti-gay speakers are invited on campus. Non-Catholics and atheists feel welcome. Anti-Catholicism is deeply rooted in American culture and Catholic priests have been viciously stereotyped. Ignorance abounds regarding so-called Catholic intolerance. It's unbelievable how so many Americans actually believe that Catholics do not teach evolution!:And a good number do not consider Catholics, Eastern Orthodox and Mormons to be true Christians!

  3. […] As the Christian Science Monitor summarizes it, the bill “would allow lesbian, gay, bisexual, and transgender (LGBT) students to sue religious educational institutions if they were denied married student housing, dorms, or bathrooms consistent with their gender identities, or otherwise subject to rules of conduct that singled out their sexuality or identity.” It also includes myriad reporting requirements. The latest amended version of the bill would not allow students to collect damages, but it would allow the courts to impose an injunction on these schools, according to news reports. […]

  4. […] For further analysis of the June 29, 2016, version of SB 1146, see: "Analysis: Amended version of SB 1146 passes CA Assembly Judiciary" […]

  5. […] But this model is being attacked both in Utah and California. SB 1146 was recently amended to eliminate financial awards as a result of anti-discrimination lawsuits, but retaining court orders to change […]

  6. Bridgett Hollowell says:

    This is simple; if you believe in your religious beliefs then you should have no problem making it without government assistance correct? The lord will make a way right?

    If you choose to discriminate against other Americans and Californians under the guise of religious freedom then this decision should be easy.

    We are a nation that resoundingly believes in the separation of church and state given religious discriminatory history.

 
 
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