November 3, 2009
Pursuant to Elections Code Section 9005, we have
reviewed the proposed initiative related to the free exercise of
religion (A.G. File No. 09-0033, Amdt. #1-S).
Background
Federal Laws. The U.S. Constitution
prohibits the enactment of any law (1) in respect to an establishment of
religion, (2) that would prohibit the free exercise of religion, or (3)
restrict freedom of speech.
State Laws. The State Constitution
guarantees free exercise and enjoyment of religion without
discrimination or preference and prohibits the Legislature from enacting
any law in respect to an establishment of religion. However, the State
Constitution specifies that this religious liberty does not excuse acts
that are licentious or inconsistent with the peace or safety of the
state. The State Constitution also provides that every person may freely
speak his or her sentiments on all subjects, but allows a person to be
held responsible for abuse of this right.
Existing
California statutes also contain several provisions that protect and
regulate the right to exercise religion and free speech. For example,
the state Penal Code specifies that it is a misdemeanor to disturb
places of worship with rude discourse (Section 302); makes it a
misdemeanor to prevent individuals from entering or exiting a health
care facility, place of worship, or school (Section 602.11); and makes
it a felony to use threats to attempt to cause a person to refrain from
exercising his or her religion (Section 11412).
Local Ordinances. Some local
governments have also adopted ordinances that regulate the exercise of
religion and free speech. For example, some local governments may
require that a property owner obtain a land-use permit in order to
conduct a religious assembly at a location within their jurisdiction. In
addition, local agencies sometimes require that individuals or groups
obtain a permit to conduct a public demonstration.
Proposal
This measure would adopt several amendments to
the State Constitution regarding the free exercise of religion. In
particular, the measure would specify that a person "using any part of
the Bible's content as authority" may freely communicate his or her
views at any public or private gathering, school, or place of worship,
or in specified forms of communication (such as the radio or telephone).
The measure further specifies that these particular provisions shall not
be construed to conflict with Penal Code Sections 302, 602.11, and
11412, discussed above, which generally regulate free speech and the
exercise of religion. In addition, the measure repeals the existing
provision of the State Constitution stating that the exercise of freedom
of religion does not excuse acts that are licentious or inconsistent
with the peace or safety of the state.
Fiscal Effect
Some of the provisions of this measure could be
subject to challenge in the courts and found unconstitutional under
federal law. For example, the measure's reference to the Bible could be
challenged in the courts as being in violation of the provisions in the
U.S. Constitution that prohibit laws in respect to the establishment of
religion.
The fiscal effect of this measure on state and
local government is uncertain due to these and other potential legal
issues but is likely to be minor. Specifically, this measure may result
in minor costs to resolve various legal issues pertaining to the
measure, such as potential conflicts with local ordinances.
Summary of Fiscal Effect
The fiscal impact of this measure would depend in
large part on how the measure is interpreted and whether the measure
would withstand federal constitutional or other potential legal
challenges as discussed above. If upheld in the courts, we estimate that
this measure could have the following fiscal effect:
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