No, this is not Jim Crow for gays — understanding Arizona S.B. 1062

The Arizona legislature has passed S.B. 1066. It amends a 1999 Arizona law called the Religious Freedom Restoration Act (RFRA). It does so in an attempt to strengthen the ability of vendors to follow their religious conscience by, for example, declining to provide services at gay weddings. The text of the legislation can be found here.

The legislation has generated much criticism. The two most recent Republican presidential candidates have urged Governor Brewer not to sign the bill. Various big businesses have done the same. Even the National Football League, that bastion of enlightenment, has weighed in. This is no small matter given that Arizona likes to host the Super Bowl. Must religious freedom pay for Richie Incognito’s sins?

I’m confident that a broad consensus exists on the issues raised (or allegedly raised) by S.B. 1066. First, it seems fundamentally wrong to deny someone service at, say, a restaurant or a gas station because of his or her sexual orientation (although doing so is not currently banned by Arizona state law). Likewise, it seems fundamentally wrong for a photographer to refuse to take, say, a passport photo of a person because of his or her sexual orientation.

But second, it also seems fundamentally wrong to require a photographer who believes, based on sincere religious conviction, that gay marriage is immoral to participate in a gay marriage celebration by photographing it. Indeed, it is odd (and telling) that any gay couple would want their sacred ceremony to be chronicled by someone who finds the event morally reprehensible. Such a photographer is unlikely to capture the spirit of the occasion.

S.B. 1062 is being portrayed as vindicating the second of these propositions at the expense of the first. If so, Gov. Brewer shouldn’t sign it. Instead she should, in effect, send the legislature back to the drawing board to craft a bill that better balances the two concerns — basic fairness for gays and religious freedom for religious believers.

But as I understand S.B. 1062, it does a good job of balancing these concerns. A RFRA law like Arizona’s is not a license to discriminate against gays based upon religious beliefs. Indeed, according to this analysis, no business has ever successfully used either a state RFRA or the federal RFRA to defend their right to not serve gays.

In any event, RFRA laws do not support the willy-nilly denial of service because they permit government action that curbs religious belief only if there is a “compelling government interest” in doing so and the “least restrictive means” were used to further that government interest. The government clearly possesses the requisite interest in protecting the access of all Americans to public accommodations. Thus, claims that S.B. 1062 would inflict “Jim Crow” on Arizona gays — including the claim by Fox News’ hysterical Sheppard Smith — are false.

What changes does S.B. 1062 actually make to current Arizona state law (which, remember, does not ban discrimination against gays, though some localities have done so)? As I understand it, the law makes three changes to the state RFRA.

First, it clarifies that any association, including for-profit corporations, gets the protection of the Act. Second, it provides that a religious freedom violation can be asserted “regardless of whether the government is a party to the proceeding.”

Third, to prevent frivolous RFRA claims, it requires those claiming a religious freedom violation to show that there is an actual religious belief behind their action, that they are sincere in their religious belief, and that a state action has placed a substantial burden on their religious belief.

The first two changes seem unobjectionable. Religious freedom be protected regardless of the type of entity exercising it and regardless of whether it is under assault by the government or by private parties.

The third change would, if anything, make it tougher to sustain a claim of a religious freedom violation. And remember, even if a party meets the “sincerity” test of the amended law, he or she will still lose if the government demonstrates a compelling governmental interest and use of the least restrictive means of furthering that interest.

This, as I say, is my understanding of S.B. 1062. If it is correct, then I believe Gov. Brewer should sign the legislation. If the wording of the law renders my understanding incorrect or creates a true risk that the legislation will be interpreted in a manner contrary to my understanding, the words should be fixed and then Gov. Brewer should sign.

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