A draconian new law, on its way to the governor of Arizona for her signature, would make businesses “people” for the purposes of claiming “religious discrimination” in the state.
The law, SB1062, would also dramatically expand the scope of current religious protections for individuals under Arizona state law, making potentially every state law unenforceable in court, should someone claim that enforcement of the law impinges on their religious beliefs.
This is a particular problem for gay and trans Arizonans, whose civil rights are protected in only a handful of cities, but not under any state (or federal) civil rights law. A restaurant could now claim that its religious beliefs are offended by serving someone gay, or a bank could say it has a religious problem with providing a loan to someone who is transgender. The absurd over-reach of the legislation is leading some to call it the “Stand Your God” law.
In essence, the new law would undermine existing civil rights protections for gay and trans people in those cities – and that was in fact the original intent of the law, to permit discrimination against gays. But the law also potentially harms every Arizonan. Here’s why.
SB1062 grossly expands state protections for “religious beliefs”
It’s all a bit complicated, as are most things legal, but I had a long talk last night with the Alessandra Soler, the executive director of the ACLU of Arizona, and one of her staff attorneys. And in a nutshell, Arizona, like many states, already has a law on the books protecting religious freedom. It’s called the Religious Freedom Restoration Act (or RFRA). But RFRA only applies when the government is a party to the dispute, AND when the “victim” of religious discrimination is either an individual, religious assembly or religious institution.
Under the new law, the government no longer needs to be a party – all you’ll need is “government action.” (More on that in a moment.)
And the law not only protects individuals, religious assemblies and religious institutions, it also would now protect private businesses, who under this new law could now claim to have “religious beliefs.”
What does all this mean?
Under RFRA (existing law in Arizona), if a restaurant doesn’t want to serve a gay couple, and the gay couple sues, the restaurant could not invoke RFRA in its defense.
1) The restaurant is not an individual, religious assembly or religious institution – so RFRA doesn’t apply; and
2) The government isn’t a party to the suit – the gay couple is the plaintiff, and the restaurant is the defendant – so again, current RFRA doesn’t apply.
Under SB1062, however, the list of individuals and entities protected by the law would now be expanded to include associations, partnerships, corporations, churches, religious assemblies or institutions, foundations, and other legal entities.
That means even your homeowners’ association (HOA), which is a legal entity, could now have a religion, and potentially refuse to enforce your condo bylaws based on whatever religious concerns they have about you.
This is quite literally Citizens United for religion.
Tracey Stewart of the Anti-Defamation League agrees about the “troublesome” new definition of religious personhood that SB1062 would grant businesses. From a letter she released last month:
This broad definition of person would essentially include any for-profit business corporation or business entity providing them with a powerful affirmative defense to the enforcement of any state law or local ordinance which the entity deems religiously offensive.
As for RFRA’s second requirement, that the government be a party to the suit, under SB1062 you’ll only need “government action” in order to invoke RFRA. That means that two individuals, or an individual and a company, or two companies can have a dispute over, say, a contract, and if one party goes to court to enforce the contract, the other party can invoke SB1062, claim that the contract violates their religious beliefs, and attempt to stop the court from enforcing it all together.
You see, if the court were to enforce the contract, that’s “government action.” So an amended-RFRA would now apply to disputes between two individuals, and individual and a corporation, or two corporations (or any other entity covered by the new the law).
What kind of “government action” would be covered under SB1062?
The “government action” that might be covered under the new law could be just about anything. As previously discussed, SB1062 could stop courts from enforcing contracts, or even hearing tort disputes.
But government action isn’t just limited to judges.
Under the new law, what if a police officer, or an EMT, refused to answer a 911 call because the citizen in need was gay and “living in sin,” and this offended the emergency responder’s religious beliefs?
If the city had a civil rights public accommodations law covering gay and trans people, you could sue the city under that law, but the officer and the city could both claim to be exempt under RFRA, since your sexual orientation offended their religious beliefs. And as cities are “legal entities,” SB1062 could also permit the city to claim protection for their religious beliefs under RFRA, though this might run afoul of federal constitutional protections.
Now that doesn’t mean the officer and the city would be able to meet the burden of proof provided under the law. But RFRA would offer them a new arrow in their quiver, with which to undermine civil rights laws and basic city services to all citizens.
And even if you didn’t sue, but simply wanted the police department to reprimand the officer in question, the officer could simply claim that under the new-and-improved RFRA the city is not permitted to take government action that impinges on his freedom of religion, so they can’t punish him for his religious beliefs. Now, again, the officer would have to meet the law’s burden of proof, but the point is that he wouldn’t even have this ridiculous defense under current law, he would under SB1062.
I know this 911-example sounds absurd, but Tyra Hunter, a trans woman in DC, died several years back because the emergency responders refused to help her when they found out she was transgender. These things actually do happen.
The ADL offer some additional examples of the kinds of absurd claims that could be made under SB1062:
- An employer could raise SB 1062 as defense to an employee’s equal pay claim under A.R.S. §23-341 arguing that his or her religious beliefs require that men be paid more than women.
- The legislation could be used as defense to paying statutorily accrued interest on liens or other amount owed to individuals or private entities based on a religious objection to paying interest.
- A secular corporation with religious owners could refuse to hire someone from a different religion, so as to avoid paying a salary that might be used for a purpose that is offensive to the owners’ religious views.
- A Christian-owned hotel chain might refuse to rent rooms to those who would use the space to study the Koran or Talmud.
- A Muslim-owned cab company might refuse to drive passengers to a Hindu temple.
Hobby Lobby and the Affordable Care Act
Or take the case of Hobby Lobby.
The arts and crafts chain has sued the Obama administration, claiming that it should be exempt from the Affordable Care Act’s contraceptive coverage provisions because it’s a really pious arts and crafts store.
Under federal law, it remains to be seen whether picture frames and glitter count as the body of Christ, and whether a company, in contrast to the people running the business, can have religious beliefs. But under an amended state RFRA, corporations would now be Christians too, and Hobby Lobby might just have a claim, at least in Arizona.
This is all about the gays
While SB1062 is ridiculously broad, and could undermine every state law affecting every citizen of Arizona, make no mistake – the underlying intent here is to take a swipe at gays.
Arizona Republicans, clearly following the lead of some yet-to-be-identified national religious right group, claim they’re trying to avoid a situation where a gay couple sues because their wedding photographer backs out because the bride and bride are gay. Of course, forget the fact that gays can’t even get married in Arizona. In another state. a gay couple sued over such a claim, so Arizona Republicans just had to preemptively bash the gay.
And Arizona ACLU executive director Soler confirmed last night that the real target for this overly-broad legislation is gays and lesbians:
“Once again Arizona’s Legislature is on the wrong side of history. Four years ago, after the passage of SB 1070, we were ridiculed for legalizing discrimination against brown people. The targets today are gay and lesbian Arizonans. They own homes, run businesses and pay taxes just like everyone else but under the guise of religious freedom they are now being vilified by Arizona lawmakers. This bill is not about God or faith. There are already laws on the books in Arizona protecting religious freedom. What today’s bill does is allow private individuals and businesses to use religion to discriminate, sending a message that Arizona is intolerant and unwelcoming.”
The curious thing is that we’ve seen similar “religious freedom” bills proposed recently in Idaho, Oregon, South Dakota, Tennessee, Kansas, Arizona, Hawaii, Ohio, Oklahoma and Mississippi. It’s clear that some religious right group, in cahoots with the Republican party, has latched on to this as the new way to bash gay people in the 21st century. And while in a number of states recently, the effort failed, in Arizona it hasn’t. (Our own Becca Morn has more on this nationwide coordinated campaign.)
It’s now up to Arizona Gov. Jan Brewer.
UPDATE: Great interview by Anderson Cooper demolishing a GOP supporter of the legislation.