Wednesday, August 30, 2006

California's Forward Looking But Controversial AntiDiscrimination Law

Some gays won't consider this a milestone given the legalization of gay marriages in Massachusetts but in some ways the Nondiscrimination in State Programs and Activities Act California Governor Arnold Schwarzenegger (R) signed into law yesterday far surpasses it.

SB 1441 (now Chapter 182) bars sexual orientation-based (classified as heterosexual, bisexual, and homosexual) discrimination in any program or activity conducted, operated, administered, or financed by the state and/or a California state agency, including any religious or non-religious private company that receives financial backing from the state. Organizations which choose to discriminate on this account presumably would have to forgo state funding.

To this date, California offered its gay and bisexual residents some limited, noncontroversial protections that most heterosexuals take for granted. The Unruh Civil Rights Act, for example, bars public accommodations and business establishments from discriminating on account of one's race, religion, ethnicity, sex, gender, disability, medical condition, or marital status. The state's Fair Employment and Housing Act, too, forbids sexual orientation-based discrimination.

But Chapter 182, unlike these laws which are commonly found in the northeast and midwest, treats anti-gay animus like sexism, racism, religious bigotry and other forms of discrimination California deems abhorrent. The state considers its commitment to sexual orientation-based equality as fundamental and vital to the state's interests as race-based and gender-based equality - so fundamental in fact that it will bar funding for otherwise worthy programs and activities when such discrimination is practiced.

Religious conservatives, understandably are fuming because Christian social service organizations which proselytize would be denied funding they may now get from the state if they do not abide by the state's prohibition against sexual orientation-based discrimination. Some principled libertarians who believe this may infringe upon social service workers' First Amendment religious exercise may object as well.

They might appeal in state and federal courts and collect signatures to overturn this precedent-setting law in a referendum or proposition. Their First Amendment religious exercise claim would have some merit since the state is conditioning their aid upon their accpetance of recipients they consider non-repentent sinners but the claim is weaker now then it was before The Supreme Court dismissed purse power coalition in Rumsfeld v. Forum for Academic and Institutional Rights where it suggested, fund witholding is not enoughto sustain claims of constitutional rights infringement when participation in a funding program is optional. Seek public financing and you are bound by the terms set by the donor or loaner. Add to that their acquiescence to federal and state laws that already conditions such aid on their promise to treat "saved" and unsaved" souls equally (The Christian organization that services the Jew or the Muslim and vice versa).

The Political Heretic believes they might have a stronger case if they use Section 104Section 104 (Charitable Choice) provision of the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 signed into law by then-President Bill Clinton. California's new law may conflict with this provision:

c) Nondiscrimination Against Religious Organizations.--In the event
a State exercises its authority under subsection (a), religious
organizations are eligible, on the same basis as any other private
organization, as contractors to provide assistance, or to accept
certificates, vouchers, or other forms of disbursement, under any
program described in subsection (a)(2) so long as the programs are
implemented consistent with the Establishment Clause of the United
States Constitution. Except as provided in subsection (k), neither the
Federal Government nor a State receiving funds under such programs shall
discriminate against an organization which is or applies to be a
contractor to provide assistance, or which accepts certificates,
vouchers, or other forms of disbursement, on the basis that the
organization has a religious character.
(d) Religious Character and Freedom.--
(1) Religious organizations.--A religious organization with
a contract described in subsection (a)(1)(A), or which accepts
certificates, vouchers, or other forms of disbursement under
subsection (a)(1)(B), shall retain its independence from
Federal, State, and local governments, including such
organization's control over the definition, development,
practice, and expression of its religious beliefs.
(2) Additional safeguards.--Neither the Federal Government
nor a State shall require a religious organization to--
(A) alter its form of internal governance; or
(B) remove religious art, icons, scripture, or other

in order to be eligible to contract to provide assistance, or to
accept certificates, vouchers, or other forms of disbursement,
funded under a program described in subsection (a)(2).

The religious organizations could argue that this law imposes upon states that seek federal aid cconditions which deny them the right to impose restrictions on those which it seeks to use state money. (This law, however, can be and should be challenged on First Amendment religious establishment grounds).

But whether they succeed or not, (The Political Heretic will leave that up to the courts to decide) the governor should be commended from gays across the political divide. Gay marriage legislation, while nice, does not commit the state to eradicating prejudice. This law, if applied, would.

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