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ASU law prof: SB1062 ‘means almost nothing’

Opponents of Arizona's recently passed "religious freedom" bill SB1062 rally in front of the capitol Feb. 24 (Photo by Ryan Cook/RJ Cook Photography)

Opponents of Arizona’s recently passed “religious freedom” bill SB1062 rally in front of the capitol Feb. 24 (Photo by Ryan Cook/RJ Cook Photography)

The hype and rhetoric on both sides of SB1062 now awaiting action by Gov. Jan Brewer may disguise the fact that the measure does far less than some have suggested.

The legislation extends existing state laws which provide a shield for those of faith from having to comply with certain government statutes and regulations. But, as with all things, it’s not that simple.

First, despite a key example cited by proponents, the legislation affects neither the rights of gays nor the rights of businesses to refuse service to gays.

The existing Religious Freedom Restoration Act and its proposed expansion in SB1062 essentially deal with those for whom the government has provided special “protected class” status. That includes issues of gender, race, religion and national origin.

Neither Arizona nor federal law provide any special protection on sexual orientation or gender identification.

That differs from New Mexico, where the state Supreme Court ruled that a gay couple could sue a photographer who refused to take pictures of their wedding. New Mexico law does extend protected status to sexual orientation.

It was that case, and a similar one in Colorado over a wedding cake for gays, that led to calls for SB1062. And that’s what got the attention of the LGBT community.

In Arizona, however, nothing in state law requires businesses to serve those who are gay.

And even in Phoenix, Tucson and Flagstaff, which do extend rights based on sexual orientation, only the government can take action against an offending firm, with companies already able to claim a shield against government action under existing law. There is no individual right to sue.

“My summary is, it means almost nothing,” said Paul Bender, former dean of the Arizona State University College of Law.

“People talk about, ‘I’ll go into a bakery and ask them for a wedding cake,’ and they’ll say, ‘I don’t do wedding cakes for gay weddings,’” Bender said. “So what? You can’t sue them for that.”

That gets to the heart of what SB1062 actually would do: provide the same shield to businesses they now have from government action in cases of civil lawsuits — at least in cases of discrimination based on protected classes like race, religion and gender.

But it’s far from automatic.

The law provides a three-part test, things that someone seeking to use the shield would have to establish in court.

First, is that the person’s action or refusal to act “is motivated by a religious belief.”

Second, that belief must be “sincerely held.”

Finally, there would need to be proof that being forced to do something “substantially burdens the exercise of the person’s religious beliefs.”

It is that last provision that prevents SB1062 from being a catch-all for any religious claim.

Consider: A Muslim taxi driver might not want to take a Hindu to temple. But it would be difficult to argue that would burden the taxi driver’s ability to live his or her faith.

Potentially a closer call might be a Catholic cab driver refusing to take a pregnant woman to an abortion clinic to terminate her pregnancy.

Josh Kredit, attorney for the Center for Arizona Policy, said it would be up to the taxi cab driver to assert that what the passenger wanted substantially burdened his or her religious belief. Then the woman would have to show there is a legitimate governmental interest in any rules that require cab drivers to pick up all fares, and that any such restrictions are the least onerous necessary to achieve that.

Kredit said the outcome of the lawsuit might even depend on whether that was the only taxi in town.

But even that does not end the inquiry. If the business meets that three-part test, then the burden falls on the government — or, in the case of SB1062, an individual denied service — to convince the judge to ignore all that.

Specifically, a judge would need to believe that whatever protections are in the law for taxi patrons are necessary both to further “a compelling governmental interest,” and that the protections are “the least restrictive means of furthering that compelling governmental interest.”

But Senate President Andy Biggs, an attorney, said he sees no chance of a lawsuit. He said women are not a “protected class” under Arizona law.

Instead, Biggs prefers the example of a Catholic art gallery owner who refuses to put on display a painting of a crucifix immersed in urine. He said an argument could be made that being forced to display such a painting burdens the owner’s religious beliefs.

Sen. Steve Yarbrough, R-Chandler, the prime sponsor of SB1062, prefers a different example: A corporation formed by some devout Jews to provide kosher catering that is asked to provide pork products at the event.

He said their sincerely held religious beliefs would prevent them from doing that. But Yarbrough said that, without the changes in SB1062, the business owners could find themselves in court having to defend their actions.

Bender said states began enacting their own versions of the Religious Freedom Restoration Act after the Supreme Court ruled that federal law did not extend to states. What SB1062 does, he said, is extend that Arizona law to a private right of action.

“But the main thing people miss is there’s no right of action against a bigot in the first place,” Bender said. “The bigot doesn’t need this.”

However, Bender said there is one provision which could have some implications.

Under current law, the right to claim religious freedom extends to individuals, religious assemblies or institutions. This legislation would expand that to also provide a shield to associations, partnerships, corporations, churches and other business organizations.

But Bender said the issue of SB1062 goes beyond the question of whether it’s needed or actually would accomplish anything.

“When you do that… people take it as an encouragement to discriminate,” he said.

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  1. If this bill does not affect anything and anyone, then why was it passed by the Arizona legislature and why are we debating it? Simply…it does affect people, citizens, taxpayers, voters and the future of Arizona. Businesses are not a person. If I were to wear my “Virgen de Guadalupe” medallion and a business feels that this is counter to their religious beliefs, can they discriminate and get away with it? Under this law yes. I will have religious rights on my side and the business will have religious beliefs on their side. Federal law trumps, but why put our state through this type of divisiveness among us citizens. The three state examples, upon which this is based, they all had anti-discrimination laws against sexual orientation. Those businesses chose to violate the law and lost. Those are the risks of doing business. We have these laws in three of our largest cities. If you break the law you will pay. Maybe sexual orientation should be included in federal law! End of story Arizona.

  2. I believe the article’s contention (either by Mr. Bender or Mr. Fischer) is incorrect in asserting that SB1062 has no bearing on the city ordinances found in Tucson, Flagstaff, and Phoenix that bar discrimination based on sexual orientation. The article asserts that: “And even in Phoenix, Tucson and Flagstaff, which do extend rights based on sexual orientation, only the government can take action against an offending firm, with companies already able to claim a shield against government action under existing law. There is no individual right to sue.”

    A look into the case in New Mexico finds this assertion unconvincing. If we look at the case involving Elane Photography, LLC we see that New Mexico’s Human Rights Commission attempted to arbitrate the compliant issued by the gay couple toward Elane Photography over discrimination prior to the case finding its way to a courtroom. The Commission found in favor of the couple and ordered Elane Photography to pay the plaintiffs’ attorney fees (later waived by the couple). Elane Photography appealed the decision to a district court. When the case reached the New Mexico Supreme Court the High Court found that Elane Photography could not evoke the state’s RFRA defense because district courts do not constitute government agencies and “The government’s adjudication of disputes between private parties does not constitute government restriction of a party’s free exercise rights for purposes of the NMRFRA,” (page 26 of the NW High Court decision:,687.pdf).

    Therefore, we see that SB1062 – contrary to the article’s contention – may very well change enforcement of these city ordinances and RFRA legal defense here in Arizona. Without SB1062, an Arizonan judge may follow the same logic as the NM High Court. For example, while the Tucson City Code calls for allegations of discrimination to be arbitrated via its Office of Equal Opportunity Programs (OEOP), a religious business owner trying to appeal its findings in court may be told he/she cannot invoke a RFRA defense because OEOP is not party to the suit and the city’s attempt at arbitration does not constitute government action suppressing religious freedom. With SB1062, however, that business owner will most likely be able to use a RFRA defense in that district court because it becomes irrelevant whether the government is party to the suit.

    In a separate matter, the headline of the article’s title aims to gain readership but does a disservice to the discussion. Even if my above argument holds little water in eyes of most readers, the fact that SB1062 explicitly bestows religious exercise freedoms onto business entities means a lot more than nothing. Yet, the article mentions it only in passing. As indicative of the immense consequences at stake over precisely this issue, the U.S. Supreme Court is set to weigh in on the Hobby Lobby v. Sebelius case where Hobby Lobby wishes religious exemption as a business entity from the Affordable Health Care’s requirement for employee health coverage to include birth control. SB1062 is a highly consequential bill. it deserves careful discussion and input from various legal experts. In this article, the writer relies on the input of a former dean of ASU’s College of Law followed assertions of those pushing the bill. Even-handedness should be the watchword of the day.

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