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| 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.
