Skip to comments.Issue Analysis: Arizona Bill Does Not Give Businesses License to Discriminate Against Gays [Truth!]
Posted on 02/26/2014 6:20:00 AM PST by SoFloFreeper
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."
In sum, the bill would essentially make three changes for RFRA: 1) Clarify that any association, including for-profit corporations, are covered. 2) Clarify that the government does not have to be a party in the case. And, 3) to prevent frivolous RFRA claims, require that those claiming a religious freedom violation show that there is an actual religious belief behind their action, that they are sincere in their religious belief, and a state action has placed a substantial burden on their religious belief.
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.
But hey, let's believe the media, right, guys?
They all ought to be ashamed of themselves.
The truth is irrelevant.
Jan Brewer is going to veto this bill because the NFL has blackmailed her into doing so.
Homosexuals are deeply religious about their sexual orientation
"Shame" connotes having a conscience - and here you're barking up the wrong tree.
If a gay couple tries to hire a photographer for their wedding and the photographer says no, why can’t the couple just go find another photographer! You know, like we did it in the “Good Ol’ Days!” (before political correctness)?
Interesting. Bump for later.
Didn't do ANY good to anyone as the straight, white, Christian Euro-men make up the major work force in this straight, white, Christian Euro-nation. They simply worked for less $$, went overseas or did SOMETHING to deal with governmental racial, ethnic, religious and gender discrimination against them.
I know this because my husband was one such man. We went overseas and made a BUNDLE.
In Saudi Arabia, the pay from Saudi ARAMCO was/is/always will be obscenely high....AND we Americans pay/paid NO federal or state income tax. Wow!! Such a deal!! We made so much money my heart races every time I remember.
I have what I have now thanks to Saudi Arabia, their government, the wonderful Saudi men I worked with, that straight, white, Christian, American Euro-man I married AND our own hateful government discrimination against him.
That is because they really don't know that ANYTHING but heterosexuality is a choice. They have talked themselves into believing that their homosexuality is genetic.
State laws requiring segregation of blacks from whites are another matter and are unconstitutional (14th Amendment). The feds have a Constitutional right to interfere with state laws that require segregation of blacks form whites.
However, the feds have no other Constitutional authority to interfere with any other form of discrimination on the state level and the feds have no Constitutional authority to interfere with the God given right of individuals and businesses to exercise their freedom of discrimination (freedom to choose) as they see fit.
Anything else is MY RIGHT to not be part of or condone their perversion. And that right includes telling them to bake their own cake.
But it would also create an opportunity for business owners who have no moral objection to homosexual behavior to label themselves as "homosexual friendly", seeking the business of such individuals.
HOMOSEXUAL, because there's nothing GAY about it.
But if the business is Islamic they can discriminate i.e. a Muslim cab driver refusing to allow a seeing eye dog on board or someone with alcohol either in a bag or in the stomach (people picked up at a restaurant going home). They have many more discrimination laws they apply.
I think the bill as written was overreach. I would be happy with a bill that said “no business is required to provide goods or services to any event or assembly which would conflict with their religious beliefs.”
Well...in the future I belive they will find ways to say no...they will just have to be more creative...ie...”gee...I already am busy THAT day”
The homo-nazis seek out Christian owned businesses to create a controversy where none exists. Why would two homosexuals wanting to create cherished memories of their warped lifestyle want someone taking photos who didn’t genuinely support that lifestyle? The risk of a poor product would be a genuine concern if you were worried that your photographer was unmotivated, insensitive, or hostile to your ceremony. If I was a Republican candidate I wouldn’t hire a Democrat supporter as my campaign photographer. This is all part of the agenda to change laws, embarrass and harass law abiding Christian business people and to force acceptance and “pride” in someone else’s perversion.
I think they have a slam Arizona button on the editorial board. All the "reporting" has been slanted by the agenda regardless of the facts.
What it does is protects freedom of conscience. I don’t see why anyone should be forced to provide goods or services for a gay wedding if that violates his or her conscience.
But “progressives” don’t believe in freedom of conscience nor in individual liberty. They believe in setting group against group to advance themselves.
And there are plenty of “progressives” in the GOP.
“The FACTS are that John McCain, Jeff Flake, Newt Gingrich, and Mitt Romney ARE WRONG about this law.”
Like Obamacare they did not read the law, or in this case know what the law already permits; they are simply acting as whores for the media in this case.
Did you read the article? The bill was written to clarify an existing law.
Yes, I read the article and that fact doesn't influence or change my position at all. What's right and what's politically feasible are not always the same. The bill as written was always going to be subject to a dishonest but withering attack by the left and the media which is why the Governor will almost certainly veto it due to political pressure. A blind man could have seen that coming.
Tell me any law passed by a Republican majority that isn’t subject to “withering attack” by the left.
I’ve asked before someone else how they would improve the law, and no one has offered anything.
Religious freedoms are under attack. We have to protect them.
I did offer an alternative in my post which would have effectively dealt with the "providing services to a gay wedding" scenario yet didn't mention homosexuals at all. It would not have been subject to the same attacks the current bill is experiening and I think Brewer would have signed it. Sometimes you take what you can get and half a loaf is better than none.
I'm not sure I'm seeing the difference they are trying to make.
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