California Governor Jerry Brown in Beijing, China, June 6, 2017. (Thomas Peter/Reuters)

The legislature defined ministerial exception narrowly. Supreme Court precedent contradicted it.

A feud between California’s Democratic governor, Jerry Brown, and liberal state legislators and abortion-rights activists has exposed the depth of the extreme Left’s disdain for religious liberty.

The dispute made headlines earlier this week, following Governor Brown’s Sunday-night veto of Assembly Bill 569, which would have made it illegal for a California employer to discipline or fire employees for “their reproductive health decisions, including, but not limited to, the timing thereof, or the use of any drug, device, or medical service.” Dubbed the Reproductive Health Non-Discrimination Act, or RHNDA, AB-569 expressly covered religiously affiliated institutions and would exempt employees only if they served as “the functional equivalent to a minister.”


In other words, a Catholic hospital could not fire a media-relations director for appearing in a public-interest story on the local news station to discuss her experience with in vitro fertilization. A pro-life crisis-pregnancy center could not fire a counselor for “shouting her abortion” for a Planned Parenthood video. And a private Christian school could not fire a pregnant, unmarried, abstinence-education teacher.

In vetoing the bill, Governor Brown explained his rationale, writing: “Assembly Bill 569 would add to the labor code a prohibition against any employer from taking an action against an employee because of that employee’s reproductive decision. The California Fair Employment and Housing Act has long banned such adverse actions, except for religious institutions.”

When news of the veto broke on Monday morning, NARAL, which had sponsored the legislation along with California Latinas for Reproductive Justice, quickly issued a press release condemning Governor Brown. Amy Everitt, the state director of NARAL Pro-Choice California, wrote:

We need reproductive freedom and economic security to live our best lives, and we can’t have one without the other. With Trump and his anti-choice cronies attacking reproductive freedom at every turn, California has a duty to protect access to reproductive health care. Governor Brown had every opportunity to work with us on this bill to address his concerns. With this veto, Governor Brown failed women in California and around the country.


While the pro-life movement celebrated the veto, the overwhelming legislative support for AB-569 bodes badly for the future of religious liberty. In passing AB 569, the state legislature purposely sought to remove the long-standing protection California afforded religious institutions, as Governor Brown noted in his veto message. Instead, AB-569 expressly limited any religious exemption to that required by the United States Constitution, as interpreted in the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.

But the California lawmakers went even further, attempting to put a “judicial” gloss on Supreme Court precedent by stating in Section 1 of the legislative text: “The Legislature agrees with the concurring opinion of Justice Alito in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) 565 U.S. 171, 199, which argues that the ministerial exception should apply only to an ‘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.’ ”

In passing the bill, the state legislature purposely sought to remove the long-standing protection California afforded religious institutions, as Governor Brown noted in his veto message.



Section 1 presents a few problems. The obvious: A state legislature lacks the authority to establish the limits of the federal constitutional right to free exercise of religion. And the more obvious: It is a concurrence! But those quibbles aside, the California legislature misreads (purposely?) Justice Alito’s concurrence, which does not suggest that the ministerial exception “should apply only” to employees who perform specific functions. Rather, Justice Alito sought to clarify that a “ministerial exception” applied in a variety of circumstances in all faith traditions, and not merely to those designated “minister.” In other words, Justice Alito’s concurrence argued for a broad and flexible application of the “ministerial exception”; he did not seek to narrow the constitutional protection by mandating that an employee serve specific functions, as Section 1 declares.


The state legislature’s attempt to contract our constitutionally protected free-exercise rights is telling. In a mere 25 years since the nearly unanimous passage of the federal Religious Freedom and Restoration Act, liberals have gone from legislating liberty to dictating immorality. California is especially shameless in its efforts — especially in the realm of abortion — as demonstrated by its passage of AB 775, which requires pro-life crisis pregnancy centers to notify clients that they may qualify for free abortions. (Litigants in three separate cases are currently seeking Supreme Court review of AB 775.)

However, it is not just California. And it is not just a threat from the legislature. The greater risk to religious liberty comes from litigants turning to the judicial branch to overturn laws protecting religious liberty, most recently seen in the lawsuits, filed against the Trump administration, challenging the new moral and religious accommodations to the birth-control mandates of the Affordable Care Act. Those lawsuits argue that laws providing religious exemptions violate the establishment clause. Yet the Supreme Court has long held that the government may accommodate religion, even if not required to do so under the free-exercise clause, without violating the establishment clause. The Supreme Court calls this “benevolent neutrality.” Unfortunately, California and a growing number of liberals prefer malevolent hostility.