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No, this is not Jim Crow for gays, Part Two

As I explained here, Arizona S.B. 1062 would not subject gays to a regime of discrimination. The bill is simply an attempt (successful in my view) to balance the right to religious freedom and the right of non-discrimination.

Eleven leading religious-liberty scholars have written to Arizona Governor Jan Brewer to provide her with a sorely needed rational analysis of S.B. 1062 as she considers whether to sign it. The professors include Stanford’s Michael McConnell, my go to source in these matters, and Douglas Laycock who supports same-sex marriage. The others are Mary Ann Glendon, Helen Alvaré, Thomas Berg, Carl Esbeck, Richard Garnett, Christopher Lund, Mark Scarberry, Gregory Sisk, and Robin Fretwell Wilson University.

The letter states, in main part:

SB1062, which amends Arizona’s Religious Freedom Restoration Act, is on your desk for signature. The bill has been egregiously misrepresented by many of its critics. We write because we believe that you should make your decision on the basis of accurate information.

Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading.

The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.

That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990.

There have been relatively few cases; if you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona. Few people had heard of the federal RFRA before the current litigation over contraception and the Affordable Care Act.

SB1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest.

As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.

Arizona’s RFRA, like all RFRAs, leaves resolution of these issues to the courts for two related reasons. First, it is impossible for legislatures to foresee all the potential conflicts between the diverse religious practices of the many faiths practiced in Arizona and the diverse array of regulations enacted by the state and all its agencies, counties, municipalities, and special purpose districts.

And second, when passions are aroused on all sides, as they have been in this case, it becomes extraordinarily difficult for legislatures to make principled decisions about whether to make exceptions for unpopular religious practices. Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure.

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. . . .

There have been very few [RFRA] claims by businesses over the years, but there have been a few. It is true that some of these claims are based on objections to same-sex marriage, although that is not an issue in Arizona.

The cases pending in the Supreme Court involve business owners who believe they are being asked to pay for abortions. Business regulations do not often require a business owner to violate a deeply held religious belief, but sometimes they do, and when that happens, the Arizona RFRA should be available. Keep in mind that it will not guarantee either side a win; it will test the government’s claims and the religious believer’s claims under RFRA’s general standard.

Whatever judgment you pass on SB1062, you should not be misled by uninformed critics. The Arizona bill. . .resolves ambiguities that have been the subject of litigation elsewhere. It deserves your accurately informed consideration.

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