October 19, 2010
Pursuant to Elections Code Section 9005, we have reviewed
the proposed initiative related to the free exercise of religion (A.G. File No.
10‑0022).
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:
Return to Propositions
Return to Legislative Analyst's Office Home Page