Constitution Daily

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Arizona’s religious freedom debate and the Sherbert test

February 26, 2014 by Scott Bomboy


Arizona’s outgoing governor, Jan Brewer, faced a national spotlight as she pondered signing a bill that would either protect religious freedom, or allows discrimination against gays, depending on your viewpoint. However, the debate over SB 1062 touches on some broader constitutional issues.

Jan_BrewerThe backlash against SB 1062 had been considerable, with three Arizona senate Republicans disowning their Yes votes and asking Governor Brewer to veto the bill. Brewer did that on Wednesday, citing what she called "broad language" in the bill.

“Senate Bill 1062 ... could divide Arizona in ways we cannot even imagine and no one would ever want,” she told the room packed with journalists from around the country. “Let’s turn the ugliness of the debate over Senate Bill 1062 into a renewed search for greater respect and understanding among all Arizonans and Americans," Brewer said.

Legal issues remain, and time will tell if Arizona's actions will influence a broader national debate about Religious Freedom Restoration Acts.

Republican lawmakers in Arizona decided to pursue SB 1062 after a court in neighboring New Mexico last year decided that a photographer who refused to document a same-sex couple’s commitment ceremony had violated New Mexico’s public accommodations laws.

The photographer in that case, Elane Photography v. Willock, has appealed the New Mexico Supreme Court decision to the United States Supreme Court. Briefs in the case have been filed with the Supreme Court, and the key question in the case centers on the photographer’s claim that the state law creates a conflict with her religious beliefs and violates the First Amendment’s ban on compelled speech.

The Arizona lawmakers saw the New Mexico case as a call to action to propose Arizona’s own expanded version of a Religious Freedom Restoration Act, also known as RFRA. If the acronym RFRA seems familiar, it is at the heart of two high-profile cases in front of the Supreme Court in March about the contraception mandate and the Affordable Care Act (also known as Obamacare).

The federal version of the Religious Freedom Restoration Act dates back to 1993, when it was passed by Congress after a controversial Supreme Court decision in 1990 angered liberals and conservatives.

In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."

A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

The compelling interest test dated back to another Supreme Court decision, Sherbert v. Verner, from 1963. The Sherbert test said that if a person claimed a sincere religious belief, and a government action placed a substantial burden on that belief, the government needed to prove a compelling state interest, and that it pursued that action in the least burdensome way.

But after Congress passed RFRA, the Supreme Court ruled in 1997 that the Act couldn’t be applied to states. In the City of Boerne v. Flores case, a majority led by Justice Anthony Kennedy found that Congress had exceeded its constitutional powers by enacting RFRA, because Congress couldn’t determine the way in which states could enforce RFRA’s restrictions.

Jumping forward to 2014, the Republicans in Arizona recently introduced SB 1062 as an amendment to an existing state RFRA law.

Link: Read the proposed version of SB 1062

SB 1062 directly references the Sherbert test from 1963 and it expands the definition of an entity allowed to claim a religious burden from “a religious assembly or institution” to “any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity.”

The text of SB 1062 actually doesn’t include the work “discrimination” or mention classes of people such as lesbians, gays, bisexuals or the transgendered.  And with the New Mexico case in mind, SB 1062 includes language “that a person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding.”

In the New Mexico case, the defendant couldn’t invoke that state’s version of RFRA, because it was a lawsuit between two parties not involving the state. The Arizona version ensures that RFRA can be used as part of a lawsuit not involving the state.

SB 1062 passed Arizona’s House and Senate on February 20, and then the national publicity over the law energized liberals and conservatives. Fueling the debate were comments made by SB 1062’s co-sponsor, state senator Steve Yarbrough, who said the bill was tied to the New Mexico case.

“This bill is not about allowing discrimination,” Yarbrough said in a public debate. “This bill is about preventing discrimination against people who are clearly living out their faith.” Many Democrats in Arizona saw the bill as a blatant attempt to promote discrimination against gays.

But Arizona Senate President Andy Biggs, a Republican, said the Democrats were misguided.

“I would suggest if there is going to be a backlash because of 1062, it won’t be because someone has read the content of this bill and recognizes that it is indeed tailored after Supreme Court cases dealing with First Amendment religious rights, it will because of the temperate and inaccurate rhetoric,” Biggs said.

Brewer's veto won’t resolve several other issues. As legal experts have pointed out, the LGBT community in Arizona doesn’t enjoy protected class status in the state, and it is currently legal for business owners to discriminate against gays.

Some critics believe SB 1062, if passed, would allow religious exemptions for businesses from all Arizona state laws.

However, Michael Dorf, a law professor at Cornell, believes RFRA’s impact would be limited to sexual-orientation discrimination.

“Federal statutes already forbid places of public accommodation from discriminating on the basis of race and sex, and under the Constitution’s Supremacy Clause, state law cannot provide exemptions from federal law,” Dorf said on the Justia blog.

Currently, 21 states have their own versions of RFRA laws and the future of those acts could hinge on developments at the federal level.

One of the briefs filed in the Hobby Lobby and Conestoga Woods cases about the contraception mandate and Obamacare argues that RFRA itself should be overturned as unconstitutional.

Marci Hamilton, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law, argues that RFRA should be invalidated because it was “Congress’s overt attempt to take over [the Supreme] Court’s role in interpreting the Constitution.”

Scott Bomboy is the editor in chief of the National Constitution Center.

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