The matter of the Arizona statute protecting religious liberties deserves extensive discussion. Here is a start via Gary Bauer writing at Campaign for Working Families. His newsletter commentary today is set forth with permission.
Gay Rights vs Religious Liberty
Arizona is ground zero in the latest culture clash. Governor Jan Brewer is under enormous pressure to veto a bill (SB 1062) that strengthens religious liberty protections for individuals.
The state legislature passed a bill intended to protect religious business owners from being forced to conduct business in any way that violates their religious beliefs. Eighteen states have laws preventing the government from substantially burdening an individual’s free exercise of religion. Where these laws fall short is when the parties involve private citizens, not the state government. SB 1062 attempted to clarify that important distinction.
For the past week, the American people have been told what the bill allegedly does. Some have outrageously suggested it is a throwback to Jim Crow laws.
But the bill was a response to a growing problem: Christian business owners, non-profit organizations and individuals are under siege from bureaucratic tolerance czars. In New Mexico, Oregon and Washington Christian photographers, bakers and florists have been sued for refusing on religious grounds to participate in homosexual weddings.
In each case, the owners were accused of violating the civil rights of homosexuals and were fined thousands of dollars. But what about the religious liberty rights of the photographer, the baker and the florist?
Catholic Charities has been forced to shut down its foster care and adoption services in several states because it would not violate the teachings of its faith by placing children in the homes of same-sex couples. When the state of Illinois forced Catholic Charities to close its doors, Bishop Thomas Paprocki of Springfield said, “In the name of tolerance, we’re not being tolerated.”
This growing intolerance is extending into the private lives of Christians too. A black professor at Gallaudet University was suspended from her job for merely signing a petition in support of normal marriage at the urging of her pastor.
The outcry against SB 1062 from the radical left and the media has accelerated a trend that has been in place for some time. The Arizona Chamber of Commerce and big businesses like Apple, AT&T, Yelp, Delta and PetSmart have come down on the side of the gay rights lobby, demanding that Governor Jan Brewer veto SB 1062. They claim that the legislation will create a hostile business environment in Arizona. The NFL is threatening to pull the 2015 Super Bowl out of Phoenix.
Now some Republican politicians are waving the white flag in this latest skirmish in the culture war. Senators John McCain and Jeff Flake want Brewer to veto the bill, as do former Republican presidential nominee Mitt Romney and contender Newt Gingrich.
Governor Brewer has until Saturday to make her decision. She promises to do “the right thing,” and it is widely believed that she will veto the legislation.
In the last 24 hours there has been a new development. A bi-partisan group of law professors from around the country has written a joint letter to Governor Jan Brewer arguing that uninformed critics of SB 1062 have “egregiously misrepresented” the legislation. Nevertheless, those uninformed critics seem to have the loudest voices.
Make no mistake, my friends, just like Obamacare, which is forcing business owners to violate their religious beliefs by forcing them to pay for abortions, increasingly the homosexual rights movement is waging war on religious liberty. We have been warning for decades that the ultimate goal of the radical left has little to do with same-sex marriage and everything to do with putting men and women of faith into the recently vacated closet.
The left may permit you to pray in private, but your faith will be off limits in the public square. The left has even argued that laws motivated by religious beliefs are invalid. That was a major justification for the decision striking down California’s traditional marriage law.
To see Romney and McCain fall for this is not surprising. To see Newt fall for it is truly disappointing.
Top Law Professors: Arizona Religious Freedom Bill Has Been ‘Egregiously Misrepresented’ Excerpts from their letter via The Weekly Standard.
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.
More at The Weekly Standard.
