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Davis, California

Tuesday, September 28, 2021

Column: Watts Legal?

Question: You said a few weeks ago that “ladies nights” are illegal in California. But if we have the right to free speech, can’t a bar just say that its “ladies night” is part of a religion? Would anyone still be able to sue for giving discriminatory benefits in favor of women?

— Faiq S., Davis, Calif.

Answer: The First Amendment to the U.S. Constitution indeed protects the “free exercise” of religion. California’s Constitution has a similar clause establishing a similar right to religious freedom. But this right is not unlimited.

Way back in 1996, the California Supreme Court considered this question in Smith v. Fair Employment & Housing Commission. A landlord tried to ban unmarried couples from living in her apartment complex, which violates California’s Fair Employment and Housing Act. When an unmarried couple sued, arguing that the landlord was discriminating against them, the landlord fought back. She said her religion forbade couples to live together unless they’re married, and she didn’t want to encourage such behavior.

The Supreme Court rejected the landlord’s position. Although her religion may not permit her to rent to unmarried cohabitants, the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability.” In other words, the First Amendment will not defeat a law that applies to everyone regardless of religion.

The Court held that the statutory prohibition against discrimination because of marital status was a law both generally applicable and neutral toward religion.

The law is generally applicable in that it prohibits all discrimination without reference to motivation. It doesn’t say “religious people are banned from discriminating” or “you can go ahead and discriminate, but not if you’re discriminating because your religion told you to.” It just says, “you can’t discriminate.”

The law is “neutral” because its goal is to prohibit discrimination regardless of reason. Its goal is not to punish religious people; its goal is to stop discrimination.

If the law unduly burdened religion without a good reason, then the free exercise clause might defeat the law. But the Unruh Civil Rights Act, which prohibits sex-based discrimination in businesses, does not unduly burden religion.

Imagine a world where the free exercise clause allowed people to get out of laws by claiming their religion made them do it.

Rastafarians could smoke pot. Jonestown cultists could murder people. And I’d sign up as the first Pope of the new religion, “Destroy-all-leaf-blowers-ism.”

Question: Unitrans buses can get pretty cramped to the point of pretty awkward discomfort. When the bus is at what a normal person would figure is total capacity, the bus pulls up to yet another stop with 10 people, and we have to get even more packed. The driver will yell that we can’t keep going unless every person gets on the bus. Is there a legal capacity to how many people they can shove into one bus?

— Ibram G., Davis, Calif.

Answer: Though it might not seem like it, there’s a legal limit to how many people you can cram on a bus. According to California Code of Regulations § 1217(a), no driver shall drive a vehicle transporting passengers in violation of the following rule:

“…The number of passengers (excluding infants in arms) shall not exceed the number of safe and adequate seating spaces, or for school buses, school pupil activity buses, youth buses and farm labor vehicles, the number of passengers specified by the seating capacity rating set forth in the departmental Vehicle Inspection Approval Certificate.”

That sounds like the capacity is determined by seating spaces, not square footage. If some weird party bus had only two seats — but a huge dance floor — the maximum capacity would be based on those two seats, not the dance floor.

The only question is whether Unitrans is a school bus. If it’s a school bus, the “number of safe and adequate seating spaces” doesn’t matter. School buses must comply with the Vehicle Inspection Approval Certificate, which is usually issued by the California Highway Patrol.

It’s kind of like the “max seating capacity” signs you see in restaurants; the actual physical capacity doesn’t matter. What matters is the opinion of a state inspector.

And what did a state inspector say about the Unitrans buses? Check the sign at the front of the bus. There should be a Vehicle Inspection Approval Certificate that specifies the bus’ safe seating capacity.

Next time you feel cramped, start counting heads. If it exceeds the capacity, shout back at the ornery driver. Tell him the bus already exceeds the maximum legal capacity. The people waiting at the bus stop will hate you, the driver will hate you, but your fellow passengers will breathe a sigh of relief.

(Literally — they’ll be able to breathe. And they’ll thank you for that.)

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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