What Law Professors Said About SB 1062

Before Gov. Jan Brewer vetoed SB 1062, law professors from Stanford, the University of Virginia, George Mason, Pepperdine, and Harvard’s law colleges, among others, wrote a letter to the Governor asking her to “make [her] decision on the basis of accurate information” because “[t]he bill has been egregiously misrepresented by many of its critics.”

Here’s the gist of their argument, though I urge you to check out the whole letter:

Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure. So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA [Religious Freedom Restoration Acts, which have been enacted in 18 states, including Arizona, as well as at the federal level. SB 1062 would have been an amendment to AZ’s RFRA], in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.

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(Screenshot from the letter letter taken by author.)

I said before that I think the law was driven by “paranoia and pettiness,” but the lazy and sensationalistic way in which many news outlets have slugged SB 1062 as “Arizona’s anti-gay bill” is equally ridiculous. That last link is an interesting article defending the label “anti-gay” in reference to SB 1062. It’s interesting to see how lawyers view something versus activists.

Activist: OMG! This bill is anti-gay! It was written by conservative-Christian groups and introduced by conservative legislators in reaction to lawsuits in which gays claimed discrimination from business-owners making a “free exercise” claim.

Lawyer: How is it “anti-gay?” The bill doesn’t legalize discrimination against anybody, it simply allows someone to use the practice of their religion as a defense in a lawsuit.

Activist: So you admit business-owners who discriminate against gays would have a legal defense they wouldn’t have before? In practice, the bill would encourage discrimination.

Lawyer: “In practice” the business-owner would have to show why her “free exercise” rights trump the compelling interest of the state to prevent discrimination….

And on and on and on. Hyperbole and hard-learned cynicism on one side, text (some might say legalese) and lack of imagination on the other.

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3 Responses to What Law Professors Said About SB 1062

  1. seancity971 says:

    It does seem to me that there is no clear way to approach this issue. Both sides have their points as you said but one thing you forgot to mention is the emotional ties each party has to their chosen side. On one side the religous groups see strong conviction in making sure they get every thing they can in support of their religion and on the other side, homosexuals, are fighting still to simply not have any barriers in life. Whether or not one side is right or wrong is not the issue to me. To me, the issue is who gets to express their freedom more, as both of these are conflicting interests.

  2. zoneofsubduction says:

    The entire debate of the SB1062 bill was typified by a lack of intelligence discourse and virtually no analysis of the logical proof in the proposed legislation. Both sides in the debate engaged in emotional pandering to their constituents, disinformation, and inferential ad hominem disparagement.

    The idea of religion and sexual identity are not mutually exclusive – the Unitarian-Universalist church, Anglican, some Presbyterian, Episcopals, the Evangelical Lutheran Church in America, the United Church of Christ, and others in the Christian church; the Reform Jewish and Conservation Jewish community, Hinduism, Buddhism [though they disapprove of excessive libido and ‘sexual misconduct’, the Dalai Lama calls on human rights for all], Taoism, and Confucianism; all either accept or have no prohibitions against homosexuality.

    Some advocates of Social Reform ascribe nothing altruistic or redeeming to organized religion, proponents of traditional societal structures, etc. Their allies in the combined media demonize their opposition and use Alinskyite tactics to shape the discussion to their advantage.

    Emotionalism has no real value when examining the sociological implications of proposed legislation. The lack of a televised round table intelligently discussing the issues surrounding this issue is indicative of the increasing fractionalization of the American society. The overwhelming majority of religious people are not all members of the Westboro Baptist Church and likewise, the overwhelming majority of homosexual, bisexual, transgender, etc. people simply wish to have their unions publicly acknowledged and codified. They are not the outrageous characterizations of some on San Francisco’s Castro Street.

    Both sides in the debate need an introductory course in the rational argumentation of logic and the application of truth tables in the construct of logical proofs.

  3. jamietraxler says:

    I do think that the media did sensationalize this bill a great deal but there is no way to approach an issue like this without having major ridicule from either end. I think it’s important to look at why we As a Society even need to be making bills like this or having these discussions when the whole point of America is to be able to practice our own values and beliefs without intervention providing we’re not doing harm to others. Someone being gay has never harmed me, just like someone being a Protestant, or Jewish, or Muslim who practices their religion has had no impact on my life.

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