New State Bar section delves into religious freedom and the law

Ben Giles//July 29, 2016

New State Bar section delves into religious freedom and the law

Ben Giles//July 29, 2016

The American flag with a bible sitting on top of it

Two underlying forces are at work behind a new section of the State Bar of Arizona on the intersection of religious liberty and the law.

Attorneys that sought to create it say the religious liberty law section will serve as an educational arm of the State Bar to help lawyers in a variety of legal fields handle the complexities of religious freedoms protected in statute.

Other attorneys see the potential of the section as a counter-balance to what they describe as an encroachment on religious liberties, both locally and nationally, as the rights of different classes of age, race and gender clash with the right to follow one’s religious beliefs.

It’s unclear what impact the new section will have on Arizona law, as it’s still in its infancy. Attorneys will begin to meet in August to formally organize the religious liberty law section, which the State Bar’s board of governors approved in May. Its purpose is “to educate, to discuss, and to disseminate information regarding, as well to advance and to protect, the basic human and constitutional right of religious liberty through law,” according to the section’s application to the State Bar’s board of governors.

That liberty can be interpreted as freedom to and freedom from religion, noted David Brooks, a commercial litigator in Mesa and one of the attorneys instrumental in creating the new section.

“It’s the idea that everybody has a right to religion or even a right not to be religious,” he said.

Given recent legislative debates in Arizona and other state legislatures and courthouses, it’s easy to concede a need for a forum to discuss those laws and legal battles. Some who support the creation of the religious liberty law section are attorneys who’ve represented clients defending their religious freedoms in the very cases cited in support of the need for the section.

It’d be foolish to think that those who push for religious freedoms in law – which opponents often say would lead to, or legalize, discrimination – don’t have an agenda, said Jim Barton, a Tempe-based election law attorney.

“I’m not naïve,” he said. “I understand that the formation of the religious liberty section of the bar is put up as a response to an ‘agenda.’”

An ad hoc committee that helped create the religious liberty law section began meeting just a few months after then-Gov. Jan Brewer vetoed SB1062, a bill that was widely criticized as the legalization of discrimination based on sincerely held religious beliefs, and whose proponents argued was roundly mischaracterized.

Under the bill, based on religious beliefs businesses would have been allowed to deny service to gay and lesbian customers.

Yet Brooks said the section’s creation was inspired less by one particular bill and more a general swell of interest in religious issues and their relation to the law. The American Bar Association has already determined the topic garners enough attention to merit the creation of a Religious Freedom Committee within the national association, so Arizona would essentially be replicating the group at the local level, he said.

“I think it’s really a broader issue” than just a response to SB1062, Brooks said.

His vision for the section is more educational than advocacy. Attorneys with an interest in the intersection of religious liberty and the law will now have a forum for discussions with other attorneys. The section will encourage and facilitate debate, according to its application, as well as encourage and support mutual respect for different religious belief systems and practices.

That vision aligns with the State Bar’s intent for sections, according to bar spokesman Rick DeBruhl.

“We’re supposed to be a forum for the discussion of the practice of law,” Debruhl said. “That is the primary focus of what a section does on a regular basis.”

Lobbying limitations

Sections can also lobby the State Bar’s board of governors. The application notes that part of the religious liberty law section’s mission will be “to inform the board of governors on matters appropriate for board action.” Sections themselves are expressly prohibited from lobbying issues at the Capitol. Lobbying is left to the board of governors, which DeBruhl said rarely takes positions on issues at the Capitol, and if the State Bar does, “it can only take positions that are directly related to the core purposes of the bar and related to the profession,” he added.

“It’s not that the bar can’t take those positions, it’s simply that they can’t take member dues to take those positions,” DeBruhl said.

The State Bar itself also has lobbying limitations. Case law governs what the bar can wade into politically and what it’s prohibited from taking a stance on, so long as members of the bar pay dues. Those rules are in place to ensure that a member’s dues don’t go toward advocacy for or against issues on which a member might disagree with the bar, Debruhl said.

And that lobbying prohibition extends to sections of the State Bar. A section can take a position and present it to the board of governors, which might be convinced to take a position for the bar as a whole, but it’s essential that members of a section go through the board and don’t act on their own as a member of the section, Debruhl said.

“Individual members are always open to lobby on any issues,” he said. “They just can’t do it on behalf of the organization… Our members are generally instructed that they’re not to use section membership or the section gravitas to lobby on behalf of a bill. And frankly, (if they did), that would put the section at risk.

Potentially, that leaves a gray area of lobbying for members of a section like the religious liberties organization, which boasts several influential players in state and local politics who are frequent faces at the Capitol.

The 187 licensed attorneys who signed a petition to support the formation of the section – an indication that they’d be willing to be dues-paying members of the section – include Maricopa County Attorney General Bill Montgomery; Steve Twist, vice president and general counsel for Services Group of America, as well as a major political donor and ally of Gov. Doug Ducey; Cathi Herrod and Josh Kredit, the president and senior counsel, respectively, of Center for Arizona Policy; Anna Christina Estes-Werther, general counsel of the League of Arizona Cities and Towns; and Tyson Langhofer, senior counsel of the Scottsdale-based Alliance for Defending Freedom.

The wedding photographer

Though SB1062 may not have been the impetus for Brooks and others to form a new section of the bar, ties to the bill and its supporters are found throughout the section’s application to the bar. The application notes that numerous areas of the law intersect with issues of religious liberty, but none more so than business law. And the cases cited in the application are some of the very legal examples that were provided as evidence of the need for SB1062 in the first place.

For example, Elane Photography v. Willock dealt with a 2013 case against a New Mexico-based wedding photographer who refused service to a same-sex couple at their wedding. Courts ruled that the First Amendment did not give the vendor license to discriminate when companies offer services to the general public.

In a Senate committee hearing in 2014, Sen. Steve Yarbrough, the bill’s sponsor, said SB1062 was a proactive response to the New Mexico Supreme Court’s ruling. Alterations to the Religious Freedom Restoration Act prescribed in SB1062 would ensure a similar ruling would not occur in Arizona.

Yarbrough, a Chandler Republican, said alterations to the existing Religious Freedom Restoration Act amounted to a “modest clarification” of the law.

The bill, backed by the conservative Center for Arizona Policy, was ultimately vetoed by Brewer amid a wave of opposition from the local and national business community, as well as fears among some conservatives that the legislation would have the unintended consequence of harming Arizona’s reputation, and potentially encourage discrimination. Three Republican senators even wrote a letter to the governor expressing regret for voting to pass the bill.

Center for Arizona Policy officials said at the time that confusion over the legislation led to the governor’s veto. Kredit, the organization’s senior counsel, said a section of the bar focused on religious liberty would have been useful during that debate, and acknowledged that SB1062 may inspire those with the interest in the new section.

“The fact that we’ve had a Religious Freedom Act since 1999, with little to no fanfare until we tried to amend it, was interesting to me,” Kredit said. “It may be being used now in what people say is more conservative ways, but I think it was misconstrued.”

Having a voice and a forum for dialogue on laws, and future bills, that deal with religious freedom laws, has merit, he said.

Cakeshop and T-shirts

The Alliance for Defending Freedom may also benefit from the new section. They’ve represented clients defending religious freedoms in several high-profile cases cited in the religious liberty law section’s application, including the New Mexico wedding photographer’s case.

The Christian nonprofit organization also defended clients in Charlie Craig and David Mullins v. Masterpiece Cakeshop, a case stemming from a same-sex couple being denied a wedding cake. The court ruled against the alliance’s client, and declared that the shop violated Colorado’s anti-discrimination laws.

The Alliance also represents attorneys in two ongoing cases cited on the application: A Kentucky court battle involving a custom T-shirt company that refused to print shirts for the Lexington Pride Festival in 2012, citing religious beliefs, and a case in Washington state involving a flower shop owner who refused service for a couple’s same-sex wedding.

Fourteen attorneys at the Alliance for Defending Freedom signed the petition to create the religious liberty law section of the State Bar of Arizona.

At least in part, some interest in the committee was certainly spurred by cases such as these, according to Barton, who serves on the Sexual Orientation and Gender Identity Committee of the bar, also known as SOGI.

That’s why it’s important to distinguish between “committees” and “sections” of the bar, said John Phebus, chair of the SOGI Committee. Committees are created by and for the board of governors to serve in an advisory role, and the committee members are appointed by the board.

“It’s kind of apples and oranges,” said Phebus, a criminal defense attorney in Phoenix. While a committee is created specifically as an adviser to the board, a section such as the religious liberty group is a “voluntary sub-section within the bar that comes together to address issues of concern to that group.”

For example, Barton said the SOGI Committee would never take a position on gay marriage – not that it would need to anymore, given the Supreme Court’s 2015 ruling legalizing it – but that the committee’s interest would certainly include advancing equitable treatment of the LGBT community.

Phebus said it’s not the SOGI Committee’s place to criticize or object to the creation of another group: “Certainly we don’t oppose that,” he said.

The SOGI Committee has come up against Center for Arizona Policy in the past. In 2011, the organizations fought over a proposed rule change to ethical rules governing lawyers to give protection to “gender expression,” a reference to an individual’s manifestation of masculinity or femininity, as evidence of a need for a new voice within the bar.

The proposed rule change was eventually shelved by the State Bar.

Kredit said changes such as those proposed by the SOGI Committee are the kind of interests that are crashing across the country and in Arizona, and it’s appropriate to have another voice on the State Bar during those debates, he said.

Members of the religious liberty law section who work at the Capitol will have to walk a fine line between lobbying as individuals and as members of the section, Kredit acknowledged. The difference lies in the not-so-clear distinction between lobbying and educating.

Senate Minority Leader Katie Hobbs, D-Phoenix, said the State Bar offers the expertise of various sections of the law as legislators go on fact-finding missions about certain issues. That sort of education is OK, she said, though that could even extend to a committee hearing. Say, if a legislative committee member has a question about a law, and a section member in the audience testifies at the legislator’s request.

“If they’re not taking a specific position on a specific piece of legislation, that’s education, not lobbying,” Hobbs said.

So how does a lobbyist treat that distinction?

“Carefully, obviously,” Kredit said. “But I think to promote good policy within the bar is a noble policy in and of itself.

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