That Arizona religious-liberty bill

by Walter Olson on February 27, 2014

I discussed it yesterday at Cato at Liberty, shortly before Arizona Gov. Jan Brewer vetoed the bill. My Cato colleague Ilya Shapiro’s thoughts are here. For those who want a deeper dive, here’s the Douglas Laycock-drafted letter on the bill in its entirety, and here is the student note he cites making a case for courts’ application of RFRA to private lawsuits. (& welcome visitors: Ramesh Ponnuru, Paul Mirengoff, Stephen Richer/Purple Elephant, Memeorandum, Hans Bader)

P.S. To clarify, the Arizona bill would have enacted into law as part of the state’s mini-RFRA two broad applications of RFRA that many courts have been unwilling to concede to advocates heretofore. One is its availability as a defense in private litigation, not just in discrimination complaints but across the entire range of legal disputes arising in some way from state (in this case) law. That’s potentially a broad intervention into otherwise available private rights, and the fact that it’s in no way limited to discrimination law is one reason I would foresee that it would wind up having some surprising or unintended consequences along the line. A second broad application which drew fire from some critics would be to make available to businesses and various other nonprofit and associational forms of organization the defenses and other remedies otherwise available to individuals. I noted in this post a few weeks ago a high-profile case in which a panel of the D.C. Circuit, parting company from the Fifth, declined to recognize business coverage under the federal RFRA.

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The Bizarre, Slanted Coverage of Arizona’s SB 1062
02.28.14 at 11:19 am

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1 Malcolm 02.28.14 at 2:03 am

That fact that a Religious Freedom Restoration Act is considered necessary is an acknowledgement that government has grown too big. America was originally conceived as a republic of free men ie the weight of government fell lightly on their shoulders. To give one example. Saturday was originally a work day. Therefore, any Jew who wished to keep the sabbath had to either work for himself, work for another Jew, or find a sympathetic gentile employer. However, there was never any suggestion of a law requiring businesses to be open on Saturday, or for businesses to employ someone who didn’t want to work on Saturdays. People were expected to sort it out among themselves.
It would never have occurred to the founding fathers that Congress would ever require one party to buy a product on behalf of another party, or to make extensive “anti-discrimination” laws telling them whom they could hire, rent to, sell to, or otherwise do business with. If government keeps expanding, it is inevitable that it will eventually clash someone’s religious sensitivities. That is bad enough in its own right, but when it clashes with the majority religion, Christianity then it becomes immoral, because it is the word of God which is the ultimate guide to morality.
That is another thing the founding fathers never envisaged.

2 nl7 02.28.14 at 12:18 pm

Hard not to find RFRA-style arguments and policies silly. If we’re acknowledging that a rule can be breached by people of strong religious conviction, why does it need to be a rule at all?

3 Theo 02.28.14 at 2:01 pm

“If government keeps expanding, it is inevitable that it will eventually clash someone’s religious sensitivities. ”

As if there were no government clashes with religious sensitivities during the time of the revolution? Or were the founder simply unaware of them? Religion and government have clashed since the time of, uh, religion and government.

4 Theo 02.28.14 at 2:02 pm

“why does it need to be a rule at all?”

‘Cause it’s better to have some people follow the law, than no people follow the law.

5 gitarcarver 02.28.14 at 4:28 pm

My little town of 10,000 residents has a community center which the town rents to groups. As part of the city code, the city cannot rent the community center to a religious group – either a church or a group with a religious message. When I questioned this code, the city attorney said the city had the “absolute right to rent or not rent to whomever it wanted.”

I then contacted the Liberty Counsel and spoke to them. Initially they said there was a case and they would look into it. After a week or so, an attorney called me back and said that not only could the city rent to whomever it wanted and in doing so discriminate against whomever they wanted, there was Florida law and Florida case law to support the city’s actions.

I have always wondered why governments (at least in Florida) are allowed to “discriminate” on religion / moral viewpoints, but businesses cannot.

6 Malcolm 02.28.14 at 4:35 pm

If we’re acknowledging that a rule can be breached by people of strong religious conviction, why does it need to be a rule at all?
That was exactly the point I made in my last two sentences. The fact that a law conflicst with the Christian conscience is proof that the law is immoral. If the lawmakers had had their own consciences intact, they would have recognized it while it was still in the draft stage.

7 Walter Olson 02.28.14 at 8:40 pm

On most of the laws at issue here the consciences of Christians are split, some pointing toward approval, others disapproval. And of course lawmakers’ job is not to enact the tenets of Christianity or any other religion, let alone its sectarian sub-divisions, into law. Religious accommodation — finding a way for Mennonites not to bear military arms, Quakers not to swear oaths, and people with scruples about someone else’s wedding not to have to participate in it — is a different matter.

8 Boblipton 02.28.14 at 10:21 pm

I fear, Walter, that your stating it is a different matter does not convince me. Why should Mennonites get accommodation but not some group that lacks standing? Is this not the government deciding what is and is not a legal religion? Is that not, in some way, an establishment of certain religions and not others? If not, then why? If being a Christian means holding to the Bible in some sense, then does not “render unto Caesar” mean anything? If someone does not give away all his possessions to follow Christ, doesn’t that mean that he (or she) is not a Christian? In that case, why should there be accommodation?

Bob

9 Walter Olson 02.28.14 at 10:57 pm

Perhaps it was inartful for me to have used the term “religious accommodation.” I see a case for trying to accommodate scruples arising from other types of deeply held belief as well, such as the committed ethical vegetarian who requests a meatless option in the public employee cafeteria, or the convinced pacifist who comes to that position without being a member of a peace church.

10 Boblipton 03.01.14 at 8:10 am

I agree that if I hire someone, it is decent and kind of me to try to accommodate his issues. However, by enlarging the protected class from people who seek religious accommodation to “deeply held beliefs”, you simply enlarge the protected class and we likely wind up with an awkward, litigated monstrosity like the ADA.

Bob

11 HFB 03.02.14 at 10:41 am

I’m conflicted…after all, it’s just meant to follow the Federal law…but what impact would this have on society?

I know it’s not the best (since we know where that will lead), but I think anyone has the right to refuse service to anyone.

In this day and age of instant media, people discriminating against others for race, sex, etc. will risk ruin…except for places where many in that area feel the same. And there’s the rub…some places could get away with real discrimination.

Not wanting to be part of a religious ceremony due to your own religious beliefs seems to qualify…if only just barely.

12 gitarcarver 03.02.14 at 7:21 pm

Bob,

Respectfully, if one says “you cannot act on your religious beliefs in business,” but allows non-religious beliefs to be acceptable, isn’t that a different burden on religions or religious people? Why should the basis of a deeply held belief matter?

Also (and this is not directed at you,) I struggle with the idea that business owners have different requirements placed on them from their employees.

For example, assume for a moment that printing company is owned by a homosexual individual. As luck would have it, all of his printers / type setters are homosexuals as well. In walks the folks from the Westboro Baptist Church who want flyers and placards printed for one of their protests.

If the owner says “take a hike,” is his refusal protected? After all, he is acting on a secular held belief against a religious group? Does he have the right to refuse the “church” because he disagrees with their beliefs?

If he cannot refuse, he goes to his employees and says “print these.” By law, they can refuse as the material is against their moral code and the owner cannot force people to act against their moral code.

Now we are left with the idea that only the owner can print the material.

Why should this owner be forced to act in a manner that employees can refuse and in a manner that is against his conscience? And if he is not forced because his beliefs are not based on religion, why should his business have a different standard of operation from that of a business owned by a religious person?

13 DensityDuck 03.03.14 at 3:23 am

The issue at hand is that the business owner declared that homosexuality was the specific reason why they didn’t want to do business with that couple.

If they’d just said “sorry, we’re booked up that day” and said nothing else, ever, then this never would have happened. You can certainly bring a cou

14 Boblipton 03.03.14 at 8:55 am

I don’t disagree, Gitarcarver. No matter how you figure it, it’s a freaking mess.

Density, old duck, the same thing happened with at least one of the wedding photographer cases — or was it a wedding cake baker?

Bob

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