Academic journal article Public Personnel Management

Bessard V. California Community Colleges and the Religious Freedom Restoration Act: Implications for Public Administration

Academic journal article Public Personnel Management

Bessard V. California Community Colleges and the Religious Freedom Restoration Act: Implications for Public Administration

Article excerpt


Even in the midst of this decade, it is safe to say that administrators in the public sector have seen profound changes occur in employment relations due to the enactment of a number of important federal employment laws in the nineties. Among these laws are the Americans with Disabilities Act, the Civil Rights Act of 1991, the Family and Medical Leave Act, and the Religious Freedom Restoration Act.

After reading this list, even the most informed managers in public administration may be saying to themselves, "What was that last one again?" As it turns out, during the early nineties, a major battle has been waged between the judicial and legislative branches over a constitutional question involving one of our fundamental freedoms - the freedom of religion. At the heart of this conflict is a basic question. Where does one's freedom to believe end when the practice of that belief conflicts with the interest of the state? The outcome of this conflict was the enactment, in 1993, of the Religious Freedom Restoration Act (RFRA).

Recently, the results of the first employment case decided under this law have been published. In this article, we analyze the Religious Freedom Restoration Act and its implications for public sector administrators. First, we look at the historical background of the RFRA in both the judicial and legislative realms and examine the major provisions of the RFRA. Then, we look at the facts surrounding the case of Bessard v. California Community Colleges(1) and the Bessard court's interpretation of the RFRA. We then spotlight the implications of the RFRA and the Bessard case for administrators and supervisors in the public sector.

Freedom of Religion

What does "freedom of religion" really mean in America? After all, observers have stated that throughout our history, America has both a great tradition of religious freedom and a countertradition of religious prejudice and persecution.(2) As such, the guarantee of religious liberty contained in the First Amendment has proven to be the subject of much judicial and academic debate for over two hundred years.(3)

Within the First Amendment to the Constitution are actually two, separate religious freedom protections. The first, known as the establishment clause, means that government cannot establish official religions or pass laws favoring one religion over another. The second, the free exercise clause, provides protection to individuals in their religious beliefs and the practice thereof.(4) Writing in 1970, Chief Justice Warren Burger noted that these two freedoms are inherently in conflict, due to the fact that if either right were "expanded to a logical extreme, (they) would tend to clash with one another."(5) The Chief Justice noted that as courts attempt to both protect an individual's free exercise rights, while avoiding any semblance of establishing a state-supported or protected religion, judges face a task tantamount to walking a legal tight rope.(6)

The Free Exercise Clause, pre-Smith

The free exercise clause of the First Amendment was made applicable to states for the first time in the 1940 Supreme Court decision, Cantwell v. Connecticut.(7) In Cantwell, at issue was a state statute that prohibited religious or other charitable solicitations to occur without the express approval of a municipal official. Cantwell was a Jehovah's Witness who had been prosecuted under the Connecticut law for selling unapproved religious books door-to-door. The Cantwell Court found the Connecticut statute was unconstitutional due to that fact that it abridged his free exercise rights under the First Amendment that were protected from state action under the Fourteenth Amendment.(8)

The conflict between state laws and the protections afforded individuals to freely exercise their religious beliefs has been at the heart of several of the Supreme Court's most controversial rulings in the twentieth century. …

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