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(a) From its earliest beginnings, the United States cherished religious freedom. Enshrined in the First Amendment to the Constitution is the admonition that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Even predating the First Amendment, Article VI of the Constitution prohibited, and continues to prohibit, a religious test for any federal office. The California Constitution is in line with its federal counterpart, guaranteeing, in Article I, Section 4, the “[f]ree exercise and enjoyment of religion without discrimination or preference” and prohibiting any law “respecting an establishment of religion.”
(b) These constitutional pronouncements have been matched in recent decades by legislation recognizing that discrimination based on religion is intolerable in a free society. As prime examples, the Civil Rights Act of 1964 outlaws discrimination on the basis of religion in employment and access to public accommodations, the Fair Housing Act of 1968 outlaws discrimination on the basis of religion in housing, and the Religious Freedom Restoration Act of 1993 offers considerable protection against laws which, though neutral in form, place burdens on the free exercise of religion. In California, the Unruh Act protects against religious discrimination in public accommodations, and the Fair Employment and Housing Act protects against religious discrimination in those areas.
(c) San Francisco’s laws champion the same commitment to religious freedom, tolerance, and diversity that federal and state law recognize. These principles are articulated, for example, in the findings and policy declaration forming the basis for the Human Rights Commission (Administrative Code, Sections 12A.1, 12A.2). It is the official policy of the City to eliminate discrimination within the City based on religion. (Police Code, Section 3301.) Following through on that policy, City laws proscribe religious discrimination in many areas, including public accommodations, employment, and housing. (Police Code, Article 33.)
(d) Against this backdrop of federal, state, and local laws insisting that people not be treated differently because of religion – demanding that people be free to enjoy their religious beliefs, associations, practices, backgrounds, and identities – any proposal to base a governmental registry on religion or for a governmental entity to compile a database of individuals based on religion is anathema to this country, this state, and this city. For government to label people by religion would repudiate our most cherished values.
(e) And such a registry or database would be very dangerous. It would demean those in our community included in the registry or database, and would foster the very prejudice and discrimination that federal, state, and local laws are designed to combat. It would teach people that hate, fear, and suspicion of religious minorities is permissible. Misguided individuals could see the registry or database as sanctioning the commission of hate crimes against religious minorities in general, and especially against those individuals whose religion – or perceived religion – is targeted as the basis for inclusion in the registry or database. At the same time, those individuals the government seeks to label by religion would naturally be reluctant to interact with government beyond what is absolutely necessary. Cooperation with local law enforcement investigations would likely decline; use of the City’s public health facilities, and the provision of personal information related to public health, would likely decline; participation in programs designed to uplift the disadvantaged would likely decline. In these and like circumstances, the entire community – not just the targeted individuals – would suffer.
(f) Further, once the government starts classifying people by religion, no one can say where or when the practice will end; which groups will be the subject of classification, and which not; how the information will be used by the authorities; and what additional measures, if any, will be taken by government toward or against people based on religion. In this regard, history’s examples are not comforting. Gross violations of human rights can begin with smaller violations. The first step down that road can lead to second, third, and fourth steps that at the beginning would have seemed unimaginable.
(g) Notwithstanding this country’s fidelity to the principle of religious freedom, there have been instances in which we have sometimes fallen short in practicing religious tolerance. Catholics, Jews, Muslims, Sikhs, Jehovah’s Witnesses, and some other Protestant sects, among many other faith communities, have at times felt the sting of religious bigotry and discrimination. Members of certain faith communities have been the victims of hate crimes, including in recent years most particularly Jews and Muslims. There has been an upsurge in anti-Muslim sentiment in recent years, as measured by hate crimes statistics and other social science data. In the modern era, if not always in the more distant past, government has acted as a positive force to curb religious bigotry and discrimination. For government to start to classify people by religion through a registry or other database would put government on a different, more ominous course and would profoundly injure the City’s relationship with its residents.
(h) A registry of individuals identified by national origin or ethnicity, or a database including that information, could be used by the government as a proxy for determining religion, as many countries and ethnic groups are made up of individuals of predominantly one religion. A registry or database keyed to national origin or ethnicity that is created for purposes of determining the likely religion of the people in the registry or database would be just as offensive to our values, just as damaging to the affected individuals, and just as harmful to our community, as a registry or database based directly on religion. And even if it could not be determined that such a registry or database was created for the purpose of indirectly classifying people by religion, it could, in fact, be used for that purpose, or have that effect.
(i) Independent of its possible use to indirectly identify individuals by religion, a registry or database classifying individuals by national origin or ethnicity would – like a classification system based on religion – tread on the most fundamental values of our country, our state, and our community. Constitutional guarantees of equal protection of the laws cannot be squared with the maintenance of such a registry or database. Nor can state and City laws prohibiting discrimination based on national origin or ethnicity. Notwithstanding the persistence of ethnic prejudice in some Quarters, and its exacerbation in a time of terrorism, eradication of such prejudice is among the highest priorities of all levels of government in the United States. To maintain a registry or database identifying people by national origin or ethnicity would grossly distort our priorities, and for the worse. And it would ignore the tragedies of history rooted in ethnic prejudice – such as the tragedy experienced during wartime, not so long ago, by persons of Japanese descent, including American citizens, in California and elsewhere. Rather than soft-pedal the dangers that would abound in a registry or database identifying individuals by national origin or ethnicity, this City should be ever-vigilant to call out those dangers and, within the limits of the law, should not cooperate in the creation, maintenance, or use of such a registry or database.
(j) It is the City’s intent that this Chapter prevent the use of City resources to assist in any way with a government registry based on religion, national origin, or ethnicity, and to prevent the City from disclosing personal information regarding any individual that could be used to create such a registry. Nonetheless, and out of abundance of caution, due solely to the existence of Section 1373(a) of Title 8 of the United States Code, this Chapter exempts from its scope the sending to or receiving from a Federal agency charged with enforcement of Federal immigration law information regarding an individual’s citizenship or immigration status. It is the City’s position that Section 1373(a) is unconstitutional, and the City has filed a federal lawsuit seeking a judgment declaring it as such. See City and County of San Francisco v. Trump, et al., Case No. 3:17-cv-00485 (N.D. Cal.). Until the City obtains court relief from Section 1373(a), it will continue to comply with Section 1373(a).