Bruiser Blog

Let’s take a closer look at the bill currently sitting on Arizona Governor Jan Brewer’s desk, awaiting her signature. It is SB 1062 “AMENDING SECTIONS 41-1493 AND 41-1493.01, ARIZONA REVISED STATUTES; RELATING TO THE FREE EXERCISE OF RELIGION.” Full text available here (pdf) for now. (Disclaimer: I am not a lawyer, take my analysis with a big grain of salt.)

First of all, this is amending an existing law, not creating a new one. Arizona already has a law to protect religious freedom. This amendment extends its reach to ridiculous and unenforceable proportions.

What are some of the key changes? (Additions to existing law in bold and caps).

In Section 1:

19 5. “Person” includes a religious assembly or institution ANY
20 INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY
21 OR INSTITUTION OR OTHER BUSINESS ORGANIZATION.

Cue Mitt Romney: “Corporations are people, my friend!” Apparently in Arizona, corporations may also have religious beliefs. This ought to be a warning sign that things are starting to go off the rails in Arizona when any business entity is given “person” status in relation to religious practices and beliefs.

In Section 2:

7 B. Except as provided in subsection C, government OF THIS SECTION,
8 STATE ACTION shall not substantially burden a person’s exercise of religion
9 even if the burden results from a rule of general applicability.

Interesting. What is “state action”? Excellent question. They tacked the definition onto the end of the statute instead of in with the other definitions in Section 1. That’s just sloppy.

36 H. FOR THE PURPOSES OF THIS SECTION, “STATE ACTION” MEANS ANY ACTION,
37 EXCEPT FOR THE REQUIREMENTS PRESCRIBED BY SECTION 41-1493.04, BY THE
38 GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE
39 AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER
40 STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE
41 BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.

This entire subsection is new, so I’ll spare you the BOLD. The legalese makes my head hurt! It’s not easy to decipher this. It seems to be saying any law, regulation or rule, including those of regulatory agencies is included, and that the government need not be involved in implementing or applying it, meaning that it would presumably cover a civil lawsuit, to which the government would not be a party. This is reinforced by Subsection D (below).

10 C. Government STATE ACTION may substantially burden a person’s
11 exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON
12 SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the
13 burden to the person PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR
14 INSTANCE is both:
15 1. In furtherance of a compelling governmental interest.
16 2. The least restrictive means of furthering that compelling
17 governmental interest.

This is basically saying when it’s OK to “burden a person’s exercise of religion”.

18 D. A person whose religious exercise is burdened in violation of this
19 section may assert that violation as a claim or defense in a judicial
20 proceeding, and obtain appropriate relief against a government REGARDLESS OF
21 WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.
22 E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH
23 ALL OF THE FOLLOWING:
24 1. THAT THE PERSON’S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A
25 RELIGIOUS BELIEF.
26 2. THAT THE PERSON’S RELIGIOUS BELIEF IS SINCERELY HELD.
27 3. THAT THE STATE ACTION SUBSTANTIALLY BURDENS THE EXERCISE OF THE
28 PERSON’S RELIGIOUS BELIEFS.
29 F. THE PERSON ASSERTING A CLAIM OR DEFENSE UNDER SUBSECTION D OF THIS
30 SECTION MAY OBTAIN INJUNCTIVE AND DECLARATORY RELIEF. A party who prevails
31 in any action to enforce this article against a government shall recover
32 attorney fees and costs.

That’s all of the significant changes. Now you may notice that nowhere in the original or amended law does it mention sexual orientation. So what’s the problem, you damn, whining gays?! Well, context is everything:

…three cities in Arizona, Phoenix, Tucson and Flagstaff, have adopted local ordinances that protect the LGBTQ community from discrimination in the workplace or places of public accommodation, such as a public restaurant or hotel. The “religious freedom’’ bill was introduced for the first time last year, shortly after Phoenix approved its anti-discrimination ordinance including sexual orientation.

(source)

These local ordinances, which cover more than half the population of Arizona right now, would fall into the “state action” category. Anyone who sought relief under these ordinances would run smack into the wall of Section 41-1493 of the Arizona Revised Statutes. And if they lost a lawsuit against the so-called “religious” “person”, they would be liable for the defendant’s legal expenses under Subsection F. Furthermore, by the injuctive relief addition to Subsection F, a “person” could get a court order barring a gay person (let’s call a spade a spade here, as that’s what this is about) from even setting foot in their establishment (say a mall, or arcade) if they successfully assert that tolerating his presence would “burden” the exercise of their beliefs (or some such bullshit).

I am not even sure where to start with the other problems with this bill, so I’ll just pick something at random: Where does the burden of proof lie in Subsection E? If I assert that refusing to sell a TV to a gay dude is 1) motivated by a religious belief and 2) that belief is sincerely held, do I have to prove those are both true, or does whoever is bringing a “state action” against me have to prove they aren’t? How does one prove or disprove a religious belief? Here in the USA, a person’s religion can be damn near anything he says it. I can worship the Flying Spaghetti Monster if I want to!

Let’s say I, John Doe, own a retail business and employ Jane Smith. One day, Jane turns away a gay couple because helping them is allegedly against her religion. Ignoring the total bullshit of that claim for a moment, let’s further assume the gay couple decides to sue. Now, could I or the company be successfully sued? The religious beliefs aren’t mine or the company’s (ha!), they are my employee’s. Would I be shielded by this law? Assume my religion requires me to treat everyone equally (a much less bullshitty proposition). Can I fire Jane Smith? She’s acting on her legitimate religious beliefs, right? So isn’t she protected by this law? And flip that around: what if the employee firmly believes in treating everyone equal, but the employer says she can’t serve a certain group of people? What happens when the beliefs of the “corporation” person conflict with those of the “individual” person?

There are federal laws protecting discrimination on the basis of age, sex, race and religion, but that would seem to leave some loopholes, wouldn’t it? What if I’m a Jewish dry cleaner, and I claim I can’t serve customers who eat bacon or shellfish? What if I only refuse to serve Jews who don’t keep kosher? How about a Muslim cab driver that won’t pick up females with exposed skin? What if my made-up but deeply held religion believes that circumcision is mutilation of the body and the soul, and I won’t serve anyone who is circumcised?

This law is flawed on so many levels and–despite its seemingly neutral wording–rooted in deep animus. Governor Brewer’s only choice is to veto it, unless she wants to open a Pandora’s Box in her state.