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Home » Archives » News Archives » 2013 » Keynote speaker for a panel on diversity for the San Diego Bar

Keynote speaker for a panel on diversity for the San Diego Bar

Religious Freedom and Diversity

The article below is excerpted from a speech presented the San Diego County Bar Association, panel on diversity, September 12, 2013. [1]

In today’s legal culture, with its emphasis on diversity, equality and inclusiveness, ironically, liberty of conscience has been shoved into the back seat.

The religion cases of the past two decades lead to the conclusion that free exercise of religion no longer enjoys vigorous constitutional protection, but is at the mercy of the legislature either to protect or restrict.

In 1996, the California Supreme Court rejected the free exercise defense of a Presybterian landlady charged with housing discrimination when she refused to rent one of four duplex apartments in Chico, California, to an unmarried couple who were “living in sin.”  She believed that she would be sinning. The Court held that FEHA did not impose a substantial burden on her religious exercise.[2]

If Mrs. Smith did not suffer a substantial burden to her faith, the bar has been set so high as to effectively preclude a successful free exercise claim. After all, in order to avoid sinning, Mrs. Smith was compelled by the court to sell her apartments, incur capital gains taxes, and seek an alternate investment to provide a similar income. Since then, no free exercise claim has prevailed..

In three cases, the California Supreme Court again deferred to a statutory scheme, this time upholding the FEHA exemption for religious organizations.[3] In the same year, the Court rejected Establishment Clause challenges to another form of religious exemption, permitting religious properties to object to landmark designation.

So, the Court will uphold legislative exemptions that protect religious freedom.

It will even uphold legislative exemptions designed to restrict religious freedom. In the Catholic Charities case in 2004, a legislative exemption for religious institutions was deliberately crafted so narrowly as to exclude every institution that might actually need one.[4] The court upheld the legislative judgment that religious organizations did not deserve any free exercise protections from having to pay for services deemed morally repugnant.

In 2008, our Supreme Court went further, and subordinated fundamental constitutional rights of free speech and religion to statutory interests regarding non-discrimination. In the process, it rejected a plain reading of the California Constitution. [5]

Article I, Section 4, is considerably meatier than the First Amendment.

Unlike the First Amendment, which fails to address whether there are limits to the rights of free exercise, or what those limits might be, Article I, Section 4 establishes limitations on religious freedom:  your freedom to practice your faith is limited with respect to actions deemed immoral or a threat to peace and safety. These are sensible restrictions. Yet, the California Supreme Court, with remarkable disregard for the principles of statutory interpretation, declared that the California Constitution doesn’t mean what it says.

In the same case, the Court subordinated constitutional rights to statutory ones, unambiguously and without embarrassment:

Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.[R1] ”[6]

The California Supreme Court has consistently deferred to the legislative judgment, either to protect or restrict religious freedom, and in the past two decades, has never upheld a free exercise claim.

Ironically, the California legislature has been more protective of religious freedom than our courts, providing some 150 discrete exemptions for religious entities and respecting religious freedom, turning conventional rights theory on its head

A prime example of legislative respect for religious freedom is the California Workplace Religious Freedom Act, AB 1964. Author Mariko Yamada described AB 1964 in testimony as the Rosa Parks bill of the 21st century, as it would make it illegal to send workers who express their faith in their appearance to the back of the store. In addition to this non-segregation provision, AB 1964 also broadly defined religious dress and appearance as protected workplace activities. Finally, the bill clarified that the “undue hardship” on an employer sufficient to justify a denial of religious accommodation must be the same as that for disabilities – i.e., a “significant difficulty or expense.” [7]

One final observation:  in our prevailing ethos emphasizing diversity, equality and inclusiveness, the rights of conscience are often excluded.

The most common conception of religious freedom is that everyone has the freedom to believe as I do. The “my way or the highway” approach is, of course, the antithesis of inclusiveness. But it is found equally among liberals as conservatives.

Liberals readily perceive intolerance on the right, such as North Carolina’s failed resolution proposing to permit the establishment of Christianity as the state’s official religion. But conservatives see hypocrisy of those on the left who profess to be champions of equality and diversity, but exclude traditional religious values. Thus, the Boy Scouts have been excluded from facilities in California on account of their moral values, although they eventually won their battle here in San Diego.[8] Catholic adoption agencies have been closed, unable to provide services without compromising their own religious beliefs, including in San Francisco.

Too often, diversity has limits. The orthodoxy of diversity has been used to oppress the rights of conscience. As the New Mexico Supreme Court recently said to a wedding photographer who refused to film a same sex commitment ceremony, compromising your beliefs is the price of citizenship.

I vigorously dissent. A social and legal order premised on the obligation to subordinate one’s deeply held values and beliefs to the majority is not a free society.  The right to live according to the dictates of your own conscience should not be a zero sum game, with winners and losers. Liberty of conscience must be preserved for both the believer and the same sex couple. If one loses it, we all lose it.

[1] Alan J. Reinach, Esq., has served as Executive Director of the Church State Council for twenty years, and has participated in amicus briefs in most of the cases discussed herein.

[2] Smith v. Fair Employment & Hous. Com., 12 Cal. 4th 1143, 913 P.2d 909 (1996)


[3] McKeon v. Mercy Healthcare Sacramento, 19 Cal. 4th 321, 965 P.2d 1189 (1998); Kelly v. Methodist Hosp. of S. Cal., 22 Cal. 4th 1108, 997 P.2d 1169 (2000); Silo v. CHW Med. Found., 27 Cal. 4th 1097, 45 P.3d 1162 (2002)


[4] Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 535, 85 P.3d 67, 72 (2004)


[5] N. Coast Women's Care Med. Grp., Inc. v. San Diego Cnty. Superior Court, 44 Cal. 4th 1145, 189 P.3d 959 (2008)


[6] N. Coast, supra.

[7] See, Government Code Section 12940 (l) and 12926 (p) and (t)

[8] Evans v. City of Berkeley, 38 Cal. 4th 1, 20, 129 P.3d 394 (2006)(sea scouts excluded from marina); Barnes-Wallace v. City of San Diego, 704 F.3d 1067 (9th Cir. 2012).


 [R1]Need footnote/source.