“I am proud to sign the
Mississippi Religious Freedom Restoration Act, which will protect the
individual religious freedom of Mississippians of all faiths from
government interference,” Gov. Phil Bryant said.
Seen as a response to recent lawsuits that have required business owners to bake a cake for or photograph same-sex weddings, the bill managed to escape the controversy that killed a similar bill in Arizona last month.
Bryant signed the measure within hours of receiving it Thursday, during a private ceremony. The bill says government cannot put a substantial burden on the practice of religion. Though the bill is vaguely worded, supporters said an example of it would be a zoning law to limit the location of a church, mosque or synagogue but not limiting the location of a secular business.
The small signing ceremony was attended by a few elected officials, lobbyists for the state's influential Southern Baptist Convention and Tony Perkins, president of Family Research Council. The council, a conservative Washington-based group, has pushed states to enact laws that mirror the federal Religious Freedom Restoration Act that President Bill Clinton signed in 1993.
This is a victory for the First Amendment and the right to live and work according to one’s conscience,” said Tony Perkins, the president of the conservative Family Research Council and an attendant at the signing ceremony, in a public statement. “This commonsense measure was a no-brainer for freedom, and like the federal [Religious Freedom Restoration Act], it simply bars government discrimination against religious exercise. The legislature gave strong approval to a bill that declares that individuals do not have to trade their religious freedom for entrance into public commerce.”
Perkins said Mississippi becomes the 19th state to enact its own religious-practices law since 1996.
"Those who understand the importance and cherish the historic understanding of religious freedom are grateful for leaders who respond to fact and not fictitious claims of those who are trying to quarantine faith within the walls of our churches or homes," Perkins said in a statement.
The thrust of Senate Bill 2681 says no law should impose a "substantial burden" on someone's "exercise of religion" unless there is a "compelling interest" and a lack of less burdensome alternatives.
The bill was amended several times in recent weeks as homosexual rights supporters lobbied lawmakers and brought in stars, including former 'N Sync singer Lance Bass, to boost their cause. The second half of the bill adds the phrase "In God we trust" to the state seal, which features an eagle with a shield.
This year, several other states considered joining the 18 that already
have religious freedom laws. Each has been criticized because it could
pave the way for businesses to legally refuse to serve gays and
lesbians. The law passed in Mississippi is similar to what Arizona has
on its books -- and had sought to expand as part of a controversial
proposal that was recently vetoed by Gov. Jan Brewer.Seen as a response to recent lawsuits that have required business owners to bake a cake for or photograph same-sex weddings, the bill managed to escape the controversy that killed a similar bill in Arizona last month.
Bryant signed the measure within hours of receiving it Thursday, during a private ceremony. The bill says government cannot put a substantial burden on the practice of religion. Though the bill is vaguely worded, supporters said an example of it would be a zoning law to limit the location of a church, mosque or synagogue but not limiting the location of a secular business.
The small signing ceremony was attended by a few elected officials, lobbyists for the state's influential Southern Baptist Convention and Tony Perkins, president of Family Research Council. The council, a conservative Washington-based group, has pushed states to enact laws that mirror the federal Religious Freedom Restoration Act that President Bill Clinton signed in 1993.
This is a victory for the First Amendment and the right to live and work according to one’s conscience,” said Tony Perkins, the president of the conservative Family Research Council and an attendant at the signing ceremony, in a public statement. “This commonsense measure was a no-brainer for freedom, and like the federal [Religious Freedom Restoration Act], it simply bars government discrimination against religious exercise. The legislature gave strong approval to a bill that declares that individuals do not have to trade their religious freedom for entrance into public commerce.”
Perkins said Mississippi becomes the 19th state to enact its own religious-practices law since 1996.
"Those who understand the importance and cherish the historic understanding of religious freedom are grateful for leaders who respond to fact and not fictitious claims of those who are trying to quarantine faith within the walls of our churches or homes," Perkins said in a statement.
The thrust of Senate Bill 2681 says no law should impose a "substantial burden" on someone's "exercise of religion" unless there is a "compelling interest" and a lack of less burdensome alternatives.
The bill was amended several times in recent weeks as homosexual rights supporters lobbied lawmakers and brought in stars, including former 'N Sync singer Lance Bass, to boost their cause. The second half of the bill adds the phrase "In God we trust" to the state seal, which features an eagle with a shield.
Governor Jan Brewer shot down a law that she said ‘could result in unintended and negative consequences.
Arizona gov. vetoes controversial ‘religious freedom’ bill
Governor Jan Brewer shoots down law that she says ‘could result in unintended and negative consequences’
Arizona Gov. Jan Brewer on Wednesday vetoed a Republican bill that
set off a national debate over gay rights, religion and discrimination
and subjected her state to blistering criticism from major corporations
and political leaders from both parties.
The bill, backed by Republicans in the Arizona Legislature, was designed to give added protection from lawsuits to people who assert their religious beliefs in refusing service to gays. But opponents called it an open attack on Arizona's LGBT community.
The bill thrust Arizona into the national spotlight last week after both chambers of the state Legislature approved it. As the days passed, more and more groups, politicians and average citizens weighed in against Senate Bill 1062. Many took to social media to criticize the bill.
Prominent Phoenix business groups said it would be another black eye for the state and warned that businesses looking to expand into Arizona might not do so if the bill became law.
Companies such as Apple and American Airlines and politicians including Arizona's senior GOP senator, John McCain, were among those who urged Brewer to veto the legislation.
The governor was under intense pressure to veto the bill, including from three Republicans who had voted for it last week. They said in a letter to Brewer that while the intent of their vote "was to create a shield for all citizens' religious liberties, the bill has been mischaracterized by its opponents as a sword for religious intolerance."
SB 1062 would allow people to use their religious beliefs as a defense against claims of discrimination. Backers cite a New Mexico Supreme Court decision that allowed a gay couple to sue a photographer who refused to document their wedding, even though the law that allowed that suit doesn't exist in Arizona.
Republican state Sen. Steve Yarbrough called his proposal a First Amendment issue during a Senate debate.
"This bill is not about allowing discrimination," Yarbrough said. "This bill is about preventing discrimination against people who are clearly living out their faith."
Democrats said it was a veiled attempt to legally discriminate against gay people and cite religious freedom as a defense.
The bill, backed by Republicans in the Arizona Legislature, was designed to give added protection from lawsuits to people who assert their religious beliefs in refusing service to gays. But opponents called it an open attack on Arizona's LGBT community.
The bill thrust Arizona into the national spotlight last week after both chambers of the state Legislature approved it. As the days passed, more and more groups, politicians and average citizens weighed in against Senate Bill 1062. Many took to social media to criticize the bill.
Prominent Phoenix business groups said it would be another black eye for the state and warned that businesses looking to expand into Arizona might not do so if the bill became law.
Companies such as Apple and American Airlines and politicians including Arizona's senior GOP senator, John McCain, were among those who urged Brewer to veto the legislation.
The governor was under intense pressure to veto the bill, including from three Republicans who had voted for it last week. They said in a letter to Brewer that while the intent of their vote "was to create a shield for all citizens' religious liberties, the bill has been mischaracterized by its opponents as a sword for religious intolerance."
SB 1062 would allow people to use their religious beliefs as a defense against claims of discrimination. Backers cite a New Mexico Supreme Court decision that allowed a gay couple to sue a photographer who refused to document their wedding, even though the law that allowed that suit doesn't exist in Arizona.
Republican state Sen. Steve Yarbrough called his proposal a First Amendment issue during a Senate debate.
"This bill is not about allowing discrimination," Yarbrough said. "This bill is about preventing discrimination against people who are clearly living out their faith."
Democrats said it was a veiled attempt to legally discriminate against gay people and cite religious freedom as a defense.
"The heart of this bill would allow for discrimination versus gays and lesbians," said state Sen. Steve Gallardo, D-Phoenix.
"You can't argue the fact that the bill will invite discrimination. That's the point of this bill. It is."
Supporters of the law criticized the governor's decision as a loss for religious freedom.
“Freedom loses when fear overwhelms facts and a good bill is vetoed. Today’s veto enables the foes of faith to more easily suppress the freedom of the people of Arizona," said Doug Napier, a lawyer for Alliance Defending Freedom, a conservative group that supported the bill.
The Center for Arizona Policy argued that the law was needed to protect against increasingly activist federal courts and simply clarified existing state law. "We see a growing hostility toward religion," said Josh Kredit, legal counsel for the group.
Similar religious-protection legislation has been introduced in Ohio, Mississippi, Idaho, South Dakota, Tennessee and Oklahoma, but Arizona's plan is the only one that has been passed by a state legislature. The efforts are stalled in Idaho, Ohio and Kansas.
The push in Arizona comes as an increasing number of conservative states grapple with ways to counter the growing legality of gay marriage. Arizona's voters approved a ban on gay marriage as a state constitutional amendment in 2008. It is one of 29 states with such constitutional prohibitions, according to the National Conference of State Legislatures.
Federal judges have recently struck down those bans in Texas, Utah, Oklahoma and Virginia, but those decisions are under appeal.
Al Jazeera and The Associated Press
"You can't argue the fact that the bill will invite discrimination. That's the point of this bill. It is."
Supporters of the law criticized the governor's decision as a loss for religious freedom.
“Freedom loses when fear overwhelms facts and a good bill is vetoed. Today’s veto enables the foes of faith to more easily suppress the freedom of the people of Arizona," said Doug Napier, a lawyer for Alliance Defending Freedom, a conservative group that supported the bill.
The Center for Arizona Policy argued that the law was needed to protect against increasingly activist federal courts and simply clarified existing state law. "We see a growing hostility toward religion," said Josh Kredit, legal counsel for the group.
Similar religious-protection legislation has been introduced in Ohio, Mississippi, Idaho, South Dakota, Tennessee and Oklahoma, but Arizona's plan is the only one that has been passed by a state legislature. The efforts are stalled in Idaho, Ohio and Kansas.
The push in Arizona comes as an increasing number of conservative states grapple with ways to counter the growing legality of gay marriage. Arizona's voters approved a ban on gay marriage as a state constitutional amendment in 2008. It is one of 29 states with such constitutional prohibitions, according to the National Conference of State Legislatures.
Federal judges have recently struck down those bans in Texas, Utah, Oklahoma and Virginia, but those decisions are under appeal.
Al Jazeera and The Associated Press
Arizona Religious-Freedom Bill Becomes Test Case
Opponents of the measure say it would allow stores
and other businesses to refuse to serve gays and some other minorities.
Zuma Press
Legislation in Arizona that would
allow business owners to deny service to customers based on the owners'
religious beliefs is becoming a test case in a widening clash over
religious freedom and discrimination.
This week, under mounting pressure from business groups, companies including
Apple Inc.
AAPL -0.16%
and gay-rights advocates to veto the bill passed by the state Legislature, Arizona Gov.
Jan Brewer
is expected to decide whether to sign it into law.
Advocates
say the bill doesn't discriminate and merely strengthens and clarifies
the state's existing religious-freedom law to protect business owners
from being forced to act against their consciences.
Opponents say the measure—prompted in
part by a New Mexico photographer who refused to work at a gay couple's
commitment ceremony—would open the door to discrimination against gays,
lesbians and women, and potentially boost similar legislative efforts
in other states.
"Are we going back to the days when we have signs in the windows saying, 'Don't come in, I don't want to serve you?' " said
Sarah Warbelow,
state legislative director for the Human Rights Campaign, which advocates for gay rights.
The Arizona bill adds businesses,
churches and foundations to the list of entities protected under the
state's religious-freedom law, which says the state may not
"substantially burden" the free practice of religion without "compelling
interest." It also allows individuals and businesses to assert
religious freedom as a defense even when the government isn't a party to
a legal proceeding.
The bill is one of
several being considered around the country. In Georgia, lawmakers
introduced an act modeled on the federal version, which has been adopted
in over a dozen states, as well as an act prohibiting teachers from
penalizing students from expressing their religious beliefs in school.
The federal law, passed by Congress in 1993, says the U.S. government
may not put a substantial burden on a person's exercise of religion
unless it advances a "compelling governmental interest" and is "the
least restrictive means of furthering" it.
Arizona Gov. Jan Brewer is expected to decide this
week whether to sign a bill that has become a test case for religious
freedom and discrimination.
Associated Press
In Oregon, backers have launched an
effort to get an initiative on the ballot to allow business owners to
opt out of playing a role in same-sex commitment ceremonies based on
religious belief, and a California pastor is behind a ballot effort that
would protect individuals from "any action that would violate their
liberty of conscience" based on biblical authority.
Other
bills, like ones in Kansas, Tennessee and South Dakota, have failed or
been tabled after an outcry from civil-rights activists.
Bruce Hausknecht,
a judicial analyst for Focus on the Family, a conservative group
whose sister organization, CitizenLink, has been involved in proposing
or backing such bills in several states, said the clash over religious
freedom in the private sector has been building for years.
The
new bills are an outgrowth of expanding definitions of what qualifies
as a "public accommodation," Mr. Hausknecht said, which traditionally
has meant public venues like buses, restaurants and stadiums. Those
spaces are protected from discrimination under federal civil rights law.
But some states and municipalities have been expanding the definition
of public accommodation to include all types of business, he said.
Some
religious groups also are feeling pressured by the expansion of gay
rights and the federal Affordable Care Act's mandate that employers pay
for contraceptives.
"The threat to
religious freedom is really being driven by government officials and
policies that are focused on compelling people to violate their
conscience," said
Brian Walsh,
head of the American Religious Freedom Program, which advocates
for religious-freedom laws.
Though the
Arizona bill and some others like it don't specifically mention sexual
orientation, the bills follow several lawsuits involving business owners
who objected to providing services to same-sex couples.
Arizona is becoming ground zero for a national debate
over religious freedom and discrimination as Gov. Jan Brewer must decide
whether she will veto a bill that allows businesses to refuse service
to gay customers on religious grounds. Tammy Audi and Ashby Jones report
on the News Hub. Photo: Getty Images.
Douglas Napier,
senior vice president for the Alliance Defending Freedom, a
Scottsdale, Ariz.-based conservative group that helped draft the Arizona
bill, said "there's an increased amount of hostility toward people of
faith, especially with regard to the homosexual agenda."
Mr.
Napier's group represents the photographer who was sued for refusing to
photograph the same-sex couple's ceremony. Her case has been appealed
to the U.S. Supreme Court.
The Arizona bill reached Ms. Brewer's desk Monday. A number of fellow Republicans, including U.S. Sen.
John McCain
of Arizona and former presidential candidate
Mitt Romney
—as well as three state senators who had voted for the bill—urged Ms. Brewer to veto it.
An
array of business groups and leaders, including the state's Chamber of
Commerce, also spoke out against the bill, fearing the impact it could
have on tourism and commerce.
Marriott International Inc.
MAR -0.47%
and
American Airlines Group Inc.
AAL -0.68%
have criticized the bill as being potentially damaging to the
state's economy. Apple, which has opened a component-manufacturing plant
in Mesa, Ariz., is urging its veto.
Already,
18 states have passed some form of basic religious-freedom laws. But
the Arizona bill would "take Arizona beyond where any other state has
gone," said Ms. Warbelow of the Human Rights Campaign.
—Daisuke Wakabayashi contributed to this article.
(By
Jacob Gershman)
Write to Tamara Audi at tammy.audi@wsj.com and Jacob Gershman at jacob.gershman@wsj.com
Some have claimed that a bill recently passed by the Arizona legislature would give businesses broad license to not serve someone for being gay. This claim, though, may be a misreading, according a CP legislative analysis. While the bill is an attempt to broaden who is covered under its religious freedom protections, in all cases it actually narrows when a religious belief could be used to refuse service.
Here are six important points to understand about the just-passed bill:
1. If Gov. Jan Brewer (R) signs it, the bill, S.B. 1062, would make some modifications to a 1999 Arizona law called the Religious Freedom Restoration Act (RFRA).
2. Under current Arizona law, if a business wanted to discriminate against gays, they would not need this bill to be passed to do so. It is not currently illegal for a business to deny service to someone because they are gay. Some cities in Arizona have ordinances against it but there is no state law against it. If business owners in Arizona wanted to deny service to gays, they could do so in most of the state under current law.
3. Even though business owners across most of Arizona (and much of the United States) have the right to deny service to gays, they are not doing so. Opponents of the bill claim it would usher in an era of "Jim Crow for gays," in which gays would be denied service at businesses across the state. If business owners really wanted to do this, though, they could already be doing it. The bill does not make that more or less likely. Business owners do not want to deny service to gays. This is not because they fear government sanction. Rather, it is because: 1) Their religious, ethical or moral beliefs tell them it is wrong to deny service; and/or, 2) the profit motive - turning away customers is no way to run a business.
4. A RFRA law, either state or federal, does not give anyone the license to do anything they want based upon their religious beliefs. Rather, it says what needs to happen for the government to take away someone's religious freedom. RFRA provides citizens with religious freedom protections, but that does not mean that everyone who claims their religious freedom is violated will win a court case using RFRA as their defense.
5. No business has ever successfully used RFRA, either a state RFRA or the federal RFRA, to defend their right to not serve gays. In fact, no business has even been before a court claiming to have that right.
6. Even if a business wanted to claim the right to not serve gays under RFRA, their claim would be even harder to defend under S.B. 1062. So, anyone who is concerned that someone may one day try to use RFRA to discriminate against gays should prefer the bill that was just passed over current law.
To understand these points, it first helps to understand the history of RFRA.
RFRA was first a federal law, passed by Congress in 1993, in response to a U.S. Supreme Court decision, Employment Division vs. Smith (1989). In that case, the Court did not protect the religious freedom of a member of the Native American Church who used peyote, a hallucinogenic, as part of a religious ceremony. The state did not violate Smith's religious freedom, the Court concluded in an opinion written by Justice Antonin Scalia, because the law making illegal the use of the hallucinogenic applied to people of all faiths, not just the Native American Church.
Many were deeply concerned about what that decision would mean for religious freedom in the United States. In practice the decision meant that if a government policy interferes with a person's right to freely practice their religion, that is acceptable as long as the policy was not specifically designed to do so.
A broad coalition of both conservatives and liberals came together, therefore, in support of the federal Religious Freedom Restoration Act. This law would tell the courts that the state may only violate someone's religious freedom under certain conditions (more on these later), and it is up to the government to show those conditions are met. Plus, having a law that is generally applicable (applies to all faiths and those with no faith), is not sufficient reason to deny someone religious freedom.
The law was passed by an overwhelming majority, a unanimous vote in the House and a 97 to three vote in the Senate, and signed by a Democratic president - Bill Clinton.
Later, though, the U.S. Supreme Court would rule, in Boerne vs. Flores (1996), that RFRA cannot be applied to state laws. States would have to pass their own RFRA if they wanted it to apply to their state and local laws, the Court said. So, many states did exactly that. Arizona was one of those states.
The bill passed Thursday by the Arizona legislature modifies that existing law. More specifically, it more precisely spells out what RFRA was always understood to mean. Arizona legislators believed a few points needed to be clarified mainly for two reasons, according to Arizona State Representative John Kavanagh.
First, the Obama administration's birth control mandate raised the question of whether RFRA applies to a person's religious freedom when they own a business. The U.S. Supreme Court will decide that question next Summer. Two Christian owned businesses, Hobby Lobby and Conestoga Woods Specialties, sued the government over the mandate, saying it violated their religious freedom.
Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, was instrumental in helping get the federal RFRA passed. He points out for a Feb. 19 ScotusBlog post that RFRA was always understood to protect corporations, including for-profit corporations. The birth control mandate cases, though, demonstrate the possibility that judges may not see it that way, even though that was the intent of the legislators who passed those laws.
Second, in a case involving a wedding photographer who refused to work at a gay wedding based upon her religious beliefs, the New Mexico Supreme Court ruled that the state's RFRA law only applies when the government is a party in the case. RFRA was never understood to mean that by the legislators who passed it, but that case demonstrated the need to make the Arizona state law more specific.
Given that, here are some of the main changes the Arizona bill would make:
While the first two changes are designed to make sure that religious freedom is protected in the broadest way possible, the third change is to make sure that people are not concocting their own religion or religious belief in order to sue. If the bill is passed, those asserting a religious freedom violation would have to prove to the court that it is based upon an actual religious belief, and that they hold strongly to that religion.
While the bill clarifies the broad coverage of RFRA, it also makes it more difficult to sue under RFRA. Let us assume, though, the Arizona bill is signed and becomes law, and someone is able to pass those stricter tests and is allowed to sue under RFRA. Being allowed to sue does not mean they automatically win in court.
Under RFRA, government action may still violate one's religious beliefs. To do so, though, it must show there is a "compelling government interest" and the "least restrictive means" were used to further that government interest. Claiming the law is generally applicable (applies to all faiths or no faith), though, is not sufficient reason, under RFRA, to take away someone's religious freedom.
This means RFRA is telling the court to balance the needs of government to accomplish its purposes against the religious freedom of its citizens. Religious freedom must be protected, unless there is an important government purpose that outweighs religious freedom and there is no other way to accomplish that purpose without violating someone's religious belief.
Recent cases involving Christian vendors refusing service for gay weddings has, understandably, been part of the debate over the Arizona bill. Those recent cases, though, involving wedding photographers and wedding cake bakers, are not about discrimination against gays. The photogaphers and bakers in those cases have made clear they would gladly serve gays outside the context of a same-sex wedding. They are not refusing to serve gays, they are refusing to serve a same-sex wedding.
Should the government be able to force them to violate their religious conscience? A court using RFRA would apply the balancing test: the answer is yes, only if there is a compelling governmental interest and the least restrictive means of furthering that interest were used.
At this point, it should be clear why the Arizona bill would not usher in an era of "Jim Crow for gays" in that state. Even if there were a host of Arizona businesses hoping to turn away gay customers (there is not), this bill would not make that any more likely. In fact, just the opposite. Sueing under RFRA is made more difficult by the Arizona bill.
Issue Analysis: Arizona Bill Does Not Give
Some have claimed that a bill recently passed by the Arizona legislature would give businesses broad license to not serve someone for being gay. This claim, though, may be a misreading, according a CP legislative analysis. While the bill is an attempt to broaden who is covered under its religious freedom protections, in all cases it actually narrows when a religious belief could be used to refuse service.
Here are six important points to understand about the just-passed bill:
1. If Gov. Jan Brewer (R) signs it, the bill, S.B. 1062, would make some modifications to a 1999 Arizona law called the Religious Freedom Restoration Act (RFRA).
2. Under current Arizona law, if a business wanted to discriminate against gays, they would not need this bill to be passed to do so. It is not currently illegal for a business to deny service to someone because they are gay. Some cities in Arizona have ordinances against it but there is no state law against it. If business owners in Arizona wanted to deny service to gays, they could do so in most of the state under current law.
3. Even though business owners across most of Arizona (and much of the United States) have the right to deny service to gays, they are not doing so. Opponents of the bill claim it would usher in an era of "Jim Crow for gays," in which gays would be denied service at businesses across the state. If business owners really wanted to do this, though, they could already be doing it. The bill does not make that more or less likely. Business owners do not want to deny service to gays. This is not because they fear government sanction. Rather, it is because: 1) Their religious, ethical or moral beliefs tell them it is wrong to deny service; and/or, 2) the profit motive - turning away customers is no way to run a business.
4. A RFRA law, either state or federal, does not give anyone the license to do anything they want based upon their religious beliefs. Rather, it says what needs to happen for the government to take away someone's religious freedom. RFRA provides citizens with religious freedom protections, but that does not mean that everyone who claims their religious freedom is violated will win a court case using RFRA as their defense.
5. No business has ever successfully used RFRA, either a state RFRA or the federal RFRA, to defend their right to not serve gays. In fact, no business has even been before a court claiming to have that right.
6. Even if a business wanted to claim the right to not serve gays under RFRA, their claim would be even harder to defend under S.B. 1062. So, anyone who is concerned that someone may one day try to use RFRA to discriminate against gays should prefer the bill that was just passed over current law.
To understand these points, it first helps to understand the history of RFRA.
RFRA was first a federal law, passed by Congress in 1993, in response to a U.S. Supreme Court decision, Employment Division vs. Smith (1989). In that case, the Court did not protect the religious freedom of a member of the Native American Church who used peyote, a hallucinogenic, as part of a religious ceremony. The state did not violate Smith's religious freedom, the Court concluded in an opinion written by Justice Antonin Scalia, because the law making illegal the use of the hallucinogenic applied to people of all faiths, not just the Native American Church.
Many were deeply concerned about what that decision would mean for religious freedom in the United States. In practice the decision meant that if a government policy interferes with a person's right to freely practice their religion, that is acceptable as long as the policy was not specifically designed to do so.
A broad coalition of both conservatives and liberals came together, therefore, in support of the federal Religious Freedom Restoration Act. This law would tell the courts that the state may only violate someone's religious freedom under certain conditions (more on these later), and it is up to the government to show those conditions are met. Plus, having a law that is generally applicable (applies to all faiths and those with no faith), is not sufficient reason to deny someone religious freedom.
The law was passed by an overwhelming majority, a unanimous vote in the House and a 97 to three vote in the Senate, and signed by a Democratic president - Bill Clinton.
Later, though, the U.S. Supreme Court would rule, in Boerne vs. Flores (1996), that RFRA cannot be applied to state laws. States would have to pass their own RFRA if they wanted it to apply to their state and local laws, the Court said. So, many states did exactly that. Arizona was one of those states.
The bill passed Thursday by the Arizona legislature modifies that existing law. More specifically, it more precisely spells out what RFRA was always understood to mean. Arizona legislators believed a few points needed to be clarified mainly for two reasons, according to Arizona State Representative John Kavanagh.
First, the Obama administration's birth control mandate raised the question of whether RFRA applies to a person's religious freedom when they own a business. The U.S. Supreme Court will decide that question next Summer. Two Christian owned businesses, Hobby Lobby and Conestoga Woods Specialties, sued the government over the mandate, saying it violated their religious freedom.
Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, was instrumental in helping get the federal RFRA passed. He points out for a Feb. 19 ScotusBlog post that RFRA was always understood to protect corporations, including for-profit corporations. The birth control mandate cases, though, demonstrate the possibility that judges may not see it that way, even though that was the intent of the legislators who passed those laws.
Second, in a case involving a wedding photographer who refused to work at a gay wedding based upon her religious beliefs, the New Mexico Supreme Court ruled that the state's RFRA law only applies when the government is a party in the case. RFRA was never understood to mean that by the legislators who passed it, but that case demonstrated the need to make the Arizona state law more specific.
Given that, here are some of the main changes the Arizona bill would make:
- Those covered by RFRA would include "any individual, association, partnership, corporation, church, religious assembly or institution or other business organization."
- A religious freedom violation can be asserted "regardless of whether the government is a party to the proceeding."
- The person asserting a religious freedom violation must show three things: "1. That the person's action or refusal to act is motivated by a religious belief. 2. That the person's religious belief is sincerely held. 3. That the state action substantially burdens the exercise of the person's religious beliefs."
While the first two changes are designed to make sure that religious freedom is protected in the broadest way possible, the third change is to make sure that people are not concocting their own religion or religious belief in order to sue. If the bill is passed, those asserting a religious freedom violation would have to prove to the court that it is based upon an actual religious belief, and that they hold strongly to that religion.
While the bill clarifies the broad coverage of RFRA, it also makes it more difficult to sue under RFRA. Let us assume, though, the Arizona bill is signed and becomes law, and someone is able to pass those stricter tests and is allowed to sue under RFRA. Being allowed to sue does not mean they automatically win in court.
Under RFRA, government action may still violate one's religious beliefs. To do so, though, it must show there is a "compelling government interest" and the "least restrictive means" were used to further that government interest. Claiming the law is generally applicable (applies to all faiths or no faith), though, is not sufficient reason, under RFRA, to take away someone's religious freedom.
This means RFRA is telling the court to balance the needs of government to accomplish its purposes against the religious freedom of its citizens. Religious freedom must be protected, unless there is an important government purpose that outweighs religious freedom and there is no other way to accomplish that purpose without violating someone's religious belief.
Recent cases involving Christian vendors refusing service for gay weddings has, understandably, been part of the debate over the Arizona bill. Those recent cases, though, involving wedding photographers and wedding cake bakers, are not about discrimination against gays. The photogaphers and bakers in those cases have made clear they would gladly serve gays outside the context of a same-sex wedding. They are not refusing to serve gays, they are refusing to serve a same-sex wedding.
Should the government be able to force them to violate their religious conscience? A court using RFRA would apply the balancing test: the answer is yes, only if there is a compelling governmental interest and the least restrictive means of furthering that interest were used.
At this point, it should be clear why the Arizona bill would not usher in an era of "Jim Crow for gays" in that state. Even if there were a host of Arizona businesses hoping to turn away gay customers (there is not), this bill would not make that any more likely. In fact, just the opposite. Sueing under RFRA is made more difficult by the Arizona bill.
(By Napp Nazworth, Christian Post Reporter, 02/24/ 2014)
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