1AP’s 3 Things to Know–California Assembly Bill 569

Posted on October 25, 2017
  1. The California legislature passed AB-569 in September. If signed into law, the bill would subject religiously-affiliated organizations to employment non-discrimination laws that ban discrimination on the basis of reproductive health decisions. Faith-based organizations have been exempted from these rules for decades–and with good reason. Faith-based organizations would be forced to employ and unable to discipline people who do not publicly support their religion’s teachings. Consider two examples: a Catholic hospital or crisis pregnancy center would be required to employ someone who blogged in favor of elective abortions and an Orthodox Jewish day school could not discipline a teacher who brought non-Kosher food to school. This would be particularly troubling in schools, where teachers and staff are setting an example for their students.

  2. The only purpose of AB-659 is to force religiously affiliated organizations to violate their faith’s teachings or shut down. Governor Brown clearly understood this, which is why he vetoed the bill. Secular employers are already covered by the California Fair Employment and Housing Act. This bill was an attempt to remove an established and reasonable religious exemption from decades-old non-discrimination law. Faith-based employers are different from secular ones because they are driven by a mission based on religious teaching. To force faith-based employers to abandon that mission in their staffing is to force abandonment of the mission altogether. This is a vast overreach by the legislature; fortunately, Governor Brown saw and stopped that.

  3. The California legislature cited Justice Alito’s concurrence in Hosanna-Tabor, while completely misreading it. In that case, the Supreme Court unanimously ruled that federal discrimination laws do not apply to religious leaders employed by religious organizations. The “ministerial exception” applies not just to traditional leaders like priests or ministers, but to all employees (of religious employers) who serve a religious function as part of their employment. In his concurrence, Justice Alito described this, saying, “The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” What Justices Alito and Kagan stated as clarification (many faiths do not use the term “minister”), the California legislature has co-opted to infer that the “ministerial exception” applies only to clergy. Their interpretation is the exact opposite of what the text says. “Serves as a messenger or teacher” is a clear statement that includes many more employees than just clerics.

Governor Brown did the right thing in vetoing this bill. The “ministerial exception” is a common sense protection for religious institutions, ensuring that government stays out of the business of how religious institutions share their message.

 

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