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Lawmakers push bill to overturn ruling on ‘religious beliefs’

Rep. Daniel Hernandez explains legislation to extend the protection of anti-discrimination laws to include sexual orientation and gender identification. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

Rep. Daniel Hernandez explains legislation to extend the protection of anti-discrimination laws to include sexual orientation and gender identification. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

State lawmakers from both parties are seeking to enact new laws that effectively nullify last year’s Arizona Supreme Court ruling allowing business owners to cite their “sincerely held religious beliefs” to refuse to serve gays.

The proposals from Sen. Kate Brophy McGee, R-Phoenix, and Rep. Daniel Hernandez, D-Tucson, would expand existing laws that now prohibit discrimination in public accommodation based on race, religion, sex, age, disability or national origin. Both SB1321 and HB2716 would add sexual orientation and gender identification to the list. Only a handful of Arizona local governments already have such protections.

But the potentially more far-reaching part of the plan would be to alter existing laws that now generally make it illegal for government to “substantially burden a person’s exercise of religion,” even if that burden results from laws that apply to everyone else.

It was that section of the law that the state’s high court used to rule that a Phoenix city ordinance, similar to parts of the statute that Brophy McGee and Hernandez are proposing, did not require the owners of Brush & Nib Studios to prepare custom wedding invitations for gays.

Kate Brophy-McGee

Kate Brophy-McGee

To that end, they are proposing new language to say that if a business is open to the public – as was the studio – it has to provide services to all customers, regardless of whether those services run counter to the beliefs of the owners.

Both measures face an uphill fight. Neither Senate President Karen Fann nor House Speaker Rusty Bowers has agreed to even allow either one to be heard.

Fann said she’s been trying to keep all legislation dealing with gay rights, on both sides of the issue, off the legislative agenda.

Bowers, however, said he sees no need to expand existing anti-discrimination laws to cover issues of sexual orientation and gender identity. And he was particularly adamant about not overturning the Brush & Nib decision.

“I think that my right of freedom of religion and religious beliefs and expression is at least equal to anybody else’s,” Bowers said.

Cathi Herrod, president of the Center for Arizona Policy, said the law “would violate Arizonans conscience rights with the apparent intent to force health care providers to participate in abortions, or provide puberty blockers or surgery to minors and adults struggling with gender identity questions.”

“It essentially puts the demands of the LGBTQ community above those who exercise their First Amendment rights of freedom of speech and religion,” she said.

Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)

Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)

But Brophy McGee told Capitol Media Services that Herrod is finding problems with her legislation where none exist.

“Arizona has the strongest religious freedom laws in the country, which I support,” she said. “All we’re asking for is fairness in employment, housing and public accommodations.”

And Brophy McGee, who is a foe of abortion, said she would not support any legislation that affects that issue.

Herrod does agree with sponsors of the legislation on one issue – it would effectively overturn that Brush & Nib decision.

“The court made clear that the government ‘must not be allowed to force persons to express a message contrary to their deepest convictions,’ ” Herrod said, quoting from the ruling.

Cathi Herrod

Cathi Herrod

But Brophy McGee said she views the issue in a different way.

She uses the example of what would happen if she, as a Catholic, were to go into a Muslim-owned bakery to order an Easter cake, complete with three crosses and inscribed “God our Savior, He is Risen.”

“I would expect them to bake it for me and decorate it for me,” Brophy McGee said, saying they had opened their business to the public.

“If you are a public business, we expect everybody be open to the public in the same way they are open to anybody else,” Hernandez said. “That’s what we’re trying to codify in law.”

Even if Brophy McGee and Hernandez can get hearings and the votes, it still has to get the signature of Gov. Doug Ducey.

But he told Capitol Media Services last year, in the wake of the Brush & Nib ruling, that he does not support extending state laws to prohibit discrimination to protect people based on sexual orientation. And Ducey also said he believes the Arizona Supreme Court struck the right balance when the justices decided that the Christian owners of a calligraphy firm have the right to refuse to prepare wedding invitations for same-sex couples.

Hernandez said he is not deterred, saying that lawmakers sometimes go along with ideas that no one thought they would approve.

His Exhibit No. 1 is last year’s repeal of what he called the “no promo homo” laws that prohibited teachers in sex-education classes from promoting homosexuality as a positive lifestyle. It also said if schools teach about “safe sex” they cannot say there is any such possibility when it involves homosexual conduct.

“And yet what happened is circumstances changed,” he said.

That was a lawsuit challenging the law by Equality Arizona and the decision by Attorney General Mark Brnovich that he would not defend it in court.

Hernandez said the political stars are similarly lining up behind this issue.

“After the Brush & Nib decision we’ve opened up Pandora’s Box,” he said. Hernandez said that ruling essentially says that people can use the courts to justify discrimination against the LGBT community.

That, he said, fired up One Community, an organization which crafted a Unity Pledge to promote equal treatment in housing and public accommodations.

“Now there is an urgency where there wasn’t before,” he said. “And people who have signed the Unity Pledge at the time were more passive are realizing this is an actual thing where we need to act and we need to move forward.”

“It’s an evolution,” said Brophy McGee. She compared it to the years of trying it took get state lawmakers to enact a ban on texting while driving.

Robert Heidt, president and CEO of the Glendale Chamber of Commerce, said he believes the issue must be seen as one of economic development.

“Large conventions and national events generate hundreds of millions of dollars for the hosting region, city and our state,” he said. “But we are truly at a competitive disadvantage to attracting these marquee events because we are not inclusive (of the) LGBTQ community and our neighbors are.”

David Drennon, executive vice president of the Arizona Lodging and Tourism Association, told Capitol Media Services that his organization has no way of knowing how many conventions the state might have lost because of its failure to have laws protecting people based on sexual orientation and gender identity. But he said it may be because some groups simply do not inquire about having Arizona events because they are aware of the lack of such protections.

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