|Arizona Governor Jan Brewer|
Some have claimed that a bill recently passed by the Arizona legislature would give businesses broad license to not serve someone for being gay. This claim, though, may be a misreading, according a CP legislative analysis. While the bill is an attempt to broaden who is covered under its religious freedom protections, in all cases it actually narrows when a religious belief could be used to refuse service.
Here are six important points to understand about the Arizona Religious Freedom Restoration Act:
1. If Gov. Jan Brewer (R) signs it, the bill, S.B. 1062, would make some modifications to a 1999 Arizona law called the Religious Freedom Restoration Act (RFRA).
2. Under current Arizona law, if a business wanted to discriminate against gays, they would not need this bill to be passed to do so. It is not currently illegal for a business to deny service to someone because they are gay. Some cities in Arizona have ordinances against it but there is no state law against it. If business owners in Arizona wanted to deny service to gays, they could do so in most of the state under current law.
3. Even though business owners across most of Arizona (and much of the United States) have the right to deny service to gays, they are not doing so. Opponents of the bill claim it would usher in an era of “Jim Crow for gays,” in which gays would be denied service at businesses across the state. If business owners really wanted to do this, though, they could already be doing it.
4. A RFRA law, either state or federal, does not give anyone the license to do anything they want based upon their religious beliefs. Rather, it says what needs to happen for the government to take away someone’s religious freedom. RFRA provides citizens with religious freedom protections, but that does not mean that everyone who claims their religious freedom is violated will win a court case using RFRA as their defense.
5. No business has ever successfully used RFRA, either a state RFRA or the federal RFRA, to defend their right to not serve gays. In fact, no business has even been before a court claiming to have that right.
6. Even if a business wanted to claim the right to not serve gays under RFRA, their claim would be even harder to defend under S.B. 1062. So, anyone who is concerned that someone may one day try to use RFRA to discriminate against gays should prefer the bill that was just passed over current law.
To understand these points, it first helps to understand the history of RFRA.
In 1993 a broad coalition of both conservatives and liberals came together in support of the federal Religious Freedom Restoration Act. This law would tell the courts that the state may only violate someone’s religious freedom under certain conditions, and it is up to the government to show those conditions are met. Plus, having a law that is generally applicable (applies to all faiths and those with no faith), is not sufficient reason to deny someone religious freedom.
The law was passed by an overwhelming majority, a unanimous vote in the House and a 97 to three vote in the Senate, and signed by a Democratic president – Bill Clinton.
Later, though, the U.S. Supreme Court would rule, in Boerne vs. Flores (1996), that RFRA cannot be applied to state laws. States would have to pass their own RFRA if they wanted it to apply to their state and local laws, the Court said. So, many states did exactly that. Arizona was one of those states.