SB 1062: “Religious Freedom Restoration Act” or Another Ridiculous Piece of Embarrassing Arizona Legislation?

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Rocco’s Little Chicago Pizzeria in Tucson

On Thursday, February 20th, the Arizona Legislature passed Senate Bill 1062 by a 33-27 vote. SB 1062 re-defines and expands the state’s definition of “exercise of religion” and “state action” to protect businesses, corporations and people from lawsuits after denying services based on a “sincere religious belief”. According to the bill, “A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or a defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.” Governor Brewer, who vetoed similar legislation last year, has five days from Thursday to sign or veto the bill.

The bill is backed by the Center for Arizona Policy, a social conservative group that opposes abortion and gay marriage. The group says the proposal is needed to protect against increasingly activist federal courts and simply clarifies existing state law. “As we witness hostility towards people of faith grow like never before, we must take this opportunity to speak up for religious liberty,” the group said on its website, asking people to contact Brewer and urge her to sign the bill. “The great news is that SB 1062 protects your right to live and work according to your faith.” Republicans stressed that the bill is about “protecting religious freedom and not discrimination”. They frequently cited the case of a New Mexico photographer who was sued after refusing to take wedding pictures of a gay couple and said Arizona needs a law to protect people in the state from heavy-handed actions by courts and law enforcement.

But Arizona already has laws in place that protect religious liberty. According to Arizona Revised Statutes 41-1493.01, the free exercise of Imagereligion is a protected and fundamental right. So how does SB 1062 protect religious liberty? Serving gays and lesbians in the commercial marketplace doesn’t infringe upon your right to practice the religion of your choice. However, it is a means of giving businesses the license to discriminate.

Republican legislators have defended the bill as a First Amendment issue. Republican Sen. Steve Yarbrough called his proposal a First Amendment issue during the Senate debate. “This bill is not about allowing discrimination,”he said. “This bill is about preventing discrimination against people who are clearly living out their faith.”

The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

ImageOf the First Amendment, The First Amendment Center says, “The establishment clause separates church from state, but not religion from politics or public life. Individual citizens are free to bring their religious convictions into the public arena. But the government is prohibited from favoring one religious view over another or even favoring religion over non-religion.” SB 1062 sounds like it is heavily in favor of religion over a whole class of people.

ARIZONA STATE SENATE, Fifty-First Legislature, Second Regular Session, FACT SHEET FOR S.B. 1062

Civil rights were litigated with the passage of the Civil Rights Act of 1964 which protects classes of race, color, religion, sex, and national origin (but not sexual orientation). Like many issues pertaining to the application of constitutional law, the laws against discrimination in public accommodations is in a constant state of change. Some argue that anti-discrimination laws in matters of public accommodations create a conflict between the ideal of equality and individual rights. Does the guaranteed right to public access mean the business owner’s private right to exclude is violated? Generally, courts have decided that the constitutional interest in providing equal access to public accommodations outweighs the individual liberties involved.

The Legal Information Institute of Cornell University Law School says, “If there is a constitutional requirement for accommodation of religious conduct, it will most likely be found in the Free Exercise Clause. Some say, though, that it is a violation of the Establishment Clause for the government to give any special benefit or recognition of religion. In that case, we have a First Amendment in conflict with itself—the Establishment Clause forbidding what the Free Exercise Clause requires (Michael McConnell, Religion and the Constitution, 2002, pg. 102).

Although the decisions of the courts are not all consistent, with Section 3 of DOMA (Defense of Marriage Act) being struck down and many states passing laws in favor of equality for same-sex unions, anti-discrimination laws are much more in keeping with the will of most Americans who see anti-gay policies as discriminatory and against the spirit and letter of the Civil Rights Act. Although gay and lesbians are still considered an “unprotected” class of people, they are still people, citizens, and taxpayers. Allowing, much less legislating, discrimination against them is going backward.

Supporters of this bill define its critics as “opponents of religious liberty” however, no infringement upon religious rights occur when gays and lesbians get the same treatment, goods and services afforded to everyone else. “The heart of this bill would allow for discrimination versus gays and lesbians,” said Sen. Steve Gallardo, D-Phoenix. “You can’t argue the fact that bill will invite discrimination. That’s the point of this bill. It is.”

I agree. What do YOU think Blog Rollers?

 

 

About Tracy Encizo

Social Justice and Human Rights grad student at ASU.

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9 Responses to SB 1062: “Religious Freedom Restoration Act” or Another Ridiculous Piece of Embarrassing Arizona Legislation?

  1. beyers2013 says:

    I absolutely cannot agree with you more. As a human being, this bill scares me. As a person of color and a Catholic, I am petrified by it. Haven’t these people heard of the Constitution and religious freedom? Why is another persons religion or sexual orientation of so much importance anyway? Knowing the sexuality or religious affiliation of others will not change the price of peanuts or gasoline, so what difference does it truly make? I cannot believe the level of outright hatred and bigotry that is practiced so openly in this state! I have lived here since 1996 and I cannot leave Arizona fast enough. In my opinion, the worst part of this bill is that someone could form their mind to write and then present it to an almost completely anticipating legislature!

    Discrimination in ANY FORM is horrific. To propose and propel such hatred is abominable! Yes, we are the laughing stock of the United States and unfortunately, if Jan Brewer signs off on this piece of trash, it will only continue to get worse.

  2. eyemhuman says:

    This is definitely one interesting piece of legislation. To begin with I do wish to applaud you for not relying on the media to tell you what the bill is about. Doing your own research is the right thing.

    Before I go on the topic of discrimination let us look at what has occurred in the United States, legally speaking. In the early 2000s the Supreme Court ruled in the Citizens United court case that businesses were people and reserved the rights of people. This defined businesses as an individual and caused a huge mess for the country (in my opinion it did cause a mess). Now let’s see why several states including as Arizona and Kentucky are passing legislation such as SB 1062.

    In New Mexico the owner of a private business (photography) chose not to take the wedding photos of a gay couple. The individual was sued and could not be protected for exercising their religious freedom because despite having the RFRA statute, New Mexico did not define the person or the government (Although the Supreme Court approved the constitutionality of the RFRA it could not go through because it was a state’s right to enact rather than the federal government’s).

    SO legally speaking we have the constitutionally backed RFRA statute and the ruling that businesses are individuals whom have rights. So after the New Mexico incident Arizona took revisited the RFRA statute and edited the definition of a person (to match the ruling of the Supreme Court) and what government action is in order to defend that position.

    This is to protect the business owner from being forced to act against their religious views. The first amendment (and religion) cannot back the discrimination of anyone, but it can protect an individual from being forced to act against their will via their religious or non religious beliefs. For example, a doctor has the right to refuse to perform an abortion because it is against their religious beliefs, and church’s cannot be forced to marry a homosexual couple if it is against their belief system. That is because of the first amendment. This is exactly what SB 1062 does.

    So for those against SB 1062, does a pastor have the right to refuse the marriage of a gay couple? Should a doctor be forced to perform an abortion? The answer to these questions are obvious, and SB 1062 reinforces the rights of these individuals and more. To force someone to act in a way against their religious belief or else face the consequences of losing their livelihood IS discrimination. To not support something is a right. And if that disbelief is not harming an individual than it is protected.

    I know this comment will receive a lot of negative feedback, but I wanted to explain the other side of the argument that has been greatly overlooked thanks to the media. Especially as the one side was explained so well. I also wanted to bring up the legality of the issue according to previous rulings of the Supreme Court. This is not meant to reflect my personal view or attack any group in our society. And I hope that we can look at this bill with an open mind and not jump to conclusions. Then if our findings are for or against, but only after we do as I just stated, we can have a civil an appropriate discussion on how to move forward.

    • Tracy Encizo says:

      You make some very good points. I did look at the other side of the arguement while researching for my post because I didn’t want to miss something valid and present a weak argument. I don’t agree that media representation has been one-sided as I read a lot of support for it on conservative web sites.

      One thing you said gave me pause, “A doctor has the right to refuse to perform an abortion because it is against their religious beliefs.” But as I thought about it, I concluded that people go to doctors that perform abortions, they don’t go to a podiatrist, a chiropractor, or a psychiatrist. It would be futile if they did because a doctor has the right to specialize and has to have the right qualifications and licenses to practice their area of medicine and any ethical doctor would simply say I don’t perform abortions. So, I don’t think that is a compelling argument.

      In states that have anti-discrimination laws in place (unlike Arizona), yes there have been lawsuits, such as the instance of the New Mexico wedding photographer and another in California against a fertility clinic that refused to perform a procedure for a same-sex couple. In both cases the courts ruled against their First Amendment claims. However, for churches and other religious-oriented institutions, there are federal exemptions in place to protect them and some states also have religious exemptions in place. So, I think the concerns about clergy being forced to perform weddings for same-sex couples is, again, not a very compelling defense for legislation like SB 1062.

      I understand that the freedom to practice one’s religion is of supreme importance, but as far as running a business, the goal is earning a living. If you aren’t prepared to serve everyone, then what are you doing in business?

      So the question is, “What is the balance between gay rights and religious rights?” and can a balance be achieved? One way to achieve a balance between conflicting rights is for states to include religious-based exemptions to statutes protecting individuals from discrimination based on sexual orientation.

      The problem is that gay people do not have rights in places of public accommodations while the First Amendment does afford protections in the religious arena. Additionally, the Civil Rights Act of 1964 protects people from religious discrimination. Let’s balance this out, put protections in place for ALL citizens and then work on the nuances of religious exemptions. It’s immoral to deprive millions of Americans of their civil and human rights because they have a sexual orientation with which religious people don’t agree. There are more vulnerable, unprotected people in America because of a lack of anti-discrimination laws than there are religious institutions suffering because their religious practices are being infringed upon. People who are in business to make money aren’t religious institutions and they should make a decision to stay in business and serve the public or earn their living another way.

      And in Arizona, there aren’t any anti-discrimination laws protecting gays and lesbians. But there IS a religious freedom statute and the changes proposed according to SB 1062 are way too broad and grant too much power to those with “sincere” religious belief. It’s a bad, bigoted bill and its agenda, I charge, isn’t to protect religious freedom, but to discriminate.

    • I think you would find the court decisions on he New Mexico wedding photography case and the Colorado wedding cake case very instructive as to how the courts asses invocations of the Free Exercise Clause: https://www.aclu.org/sites/default/files/assets/initial_decision_case_no._cr_2013-0008.pdf http://verdict.justia.com/2013/09/04/new-mexico-supreme-court-anti-discrimination-law-to-wedding-photographer

      It is important to understand that churches and businesses are looked upon very differently in the legal system. Churches have special protections under the First Amendment. Since they aren’t businesses, they aren’t taxed, for example.

      If you choose to start a business, however, you enter into the commercial realm which the state regulates. You can’t pick and choose which laws you want to follow based on your religious beliefs or the door opens up to anyone ignoring the law with the Free Exercise Clause argument.

      In the marketplace, as legislators have enacted and the courts have ruled, customers also have the right to be free from discrimination.

  3. Coming from the state of California, I am use to seeing the basic rights of humans be denied. Prop 8 denied and defined what a marriage is a marriage is going to be. I am ashamed that a state can pass a law where people/businesses can determine who they can and can not serve.
    But thanks to the Supreme Court and the decision of Hollingsworth v. Perry, saying it is unconstitutional to to outlaw same sex marriage. I have a good feeling if this does pass, it will not be the last of this law.

  4. ajgoldsmith says:

    It seems convenient that religious “rights” are used in order to preserve the status quo and promote a view of humanity where when some people, for holding beliefs that are inconvenient for societal norms, are subjugated for the convenience of the power elite. Advocates of legislation like SB 1062 often act as if people who are predominately White, Christian, Economically Stable, and Male are the ones who are the victims and need protection from the impending morally void secular minority. Here is a reality check — these people are afforded every advantage that society has to offer! They do not need, at the expense of those who are already disadvantaged, need privileges that make them feel better about themselves.

    Another issue is why is the morality of the business owner placed before that of the consumer, well besides capitalism. How far are we willing to allow the right to refuse service? If we can pose the question of pastors with gay marriage, then I believe it to be equally fair to raise of refusal of service for a reason that seems clearly wrong to us. Let us hypothetically suppose that it goes against my religion, as a Christian, to admit Jews to my business because “they” killed Jesus. Would this be a fair protection of my religious liberty? Well then you could say, “Adam, that is preposterous, the Civil Rights of 1964 prevents such an action.” Well then how is it not ok for my religion to exclude Jews, or African-Americans, or Women etc., but it is ok to exclude based on sexual-orientation? Unfortunately, such protections are not in Civil Rights act. All we need to do is look toward the Equal Protection Clause in conjunction with the first amendment that equality is the goal at hand — not the equality of “we equally get to discriminate.”

    To conclude, the fact that this piece of legislation is even being considered is embarrassing to the values of life, liberty, and the pursuit of nation that we were founded upon. The very basis of our nation was built on the notion of expanding the rights of humanity in order to create a more perfect union. It seems to me that this is a clear step backwards from that ideal. I will let history be the judge, will they look back and praise Arizona for limiting the rights of groups who are reduced to second class citizens for the beliefs they hold at the behest of the elite, or will they admonish us for wasting our time when issues of economic inequality and climate change are present. Let us strive to love, in the greatest sense of the word, one another since it seems to be our only hope at a meaningful existence.

  5. zoneofsubduction says:

    In the name of a Deity, all things are possible. Especially the abject, the inhuman, and the profane.

  6. Pingback: Let’s Stop and Take a Breath: American Divisiveness | The Omnipotent Poobah Speaks!

  7. lgallar1 says:

    Reading about this bill makes me think of, “why do we need it?” Don’t we have our First Amendment in which we have freedom of religion? People can exercise their religion freely in the United States, none is looked down upon and such. As well I cannot believe that person, forgot his name, said it will not lead to discrimination but let people exercise their religion freely. That’s great, we already do that. I feel like this bill will allow people to do what they want like discriminate and use it against people because the bill is so vague. It has no rules or regulations of any kind just, if you feel like it goes against your religion you can deny service. But, I am glad our governor has a brain that thought about it and vetoed the pathetic and useless bill that is not only vague but leads to discrimination.

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