Speaking Truth to Chaos: The Arizona RFRA Amendment

There is a good deal of confusion as to whether Arizona’s SB1062, if signed, would enable businesses to systematically discriminate against homosexuals. Some major media outlets strongly indicate that it would and further suggest that this is the primary aim of the law. CNN Money states that the law: “would allow retailers to refuse service to lesbian, gay, bisexual and transgender customers based on the owners’ religious convictions.” The L.A. Times describes it as “a measure to bolster the rights of business owners to refuse service to gays and others on the basis of religion.” Thus framed as a pro-discrimination measure, the law is the subject of great deal of public ire and disdain.

Speaking helpfully into these discussions, a number of prominent law professors yesterday sent this letter to Arizona Governor Janice Brewer. Its authors include Mary Ann Glendon of Harvard Law School, Michael McConnell of Stanford Law School, Richard Garnett of Notre Dame Law School, and Douglas Laycock of UVA Law School, among a number of others.

While I commend reading the letter in its entirety, its major points include:

• Framing this amendment to Arizona’s Religious Freedom Restoration Act in the larger context of Federal and state RFRAs, which provide certain limited protections for religious believers faced with the prospect of being forced to personally participate in an activity which would violate their religious beliefs.
• Clarifying that when an is action covered under Arizona’s RFRA–even as amended–it does not mean that the action will be vindicated, but rather that certain guidelines will shape it’s subsequent adjudication in court (burdens on sincerely held religious convictions can only be sustained for compelling state interests–requiring assessment of sincerity, burden, and state interest). In the words of the letter: “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.“
• Explaining how the changes that SB1026 makes to Arizona’s existing RFRA legislation help to clarify ambiguities in its current language that lead to increased litigation, particularly on threshold issues rather than substantive ones.
• Finally, noting how SB1026 does not suffer from the same discriminatory defects as Kansas’ HB2453.

The letter concludes:

“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.”

While many will still disagree about the substance of the law, this sort of clear legal thinking provides an important voice that may be missing from much of the current public discussion.