Outcry over Arizona's SB 1062 overshadows bill's limited power

2014-02-26T00:00:00Z Outcry over Arizona's SB 1062 overshadows bill's limited powerBy Howard Fischer Capitol Media Services Arizona Daily Star
February 26, 2014 12:00 am  • 

PHOENIX — The hype and rhetoric on both sides of SB 1062, now awaiting action by Gov. Jan Brewer, may disguise the fact that the measure does far less than some have suggested.

The legislation extends existing state laws that provide a shield for those of faith from having to comply with certain government statutes and regulations.

But as with all things, it’s not that simple.

First, despite a key example cited by proponents, the legislation affects neither the rights of gays nor the rights of businesses to refuse service to gays.

The existing Religious Freedom Restoration Act and its proposed expansion in SB 1062 essentially deal with those for whom the government has provided special “protected class” status. That includes issues of gender, race, religion and national origin.

Neither Arizona nor federal law provides any special protection on sexual orientation or gender identification.

That differs from New Mexico, where state law does extend protected status to sexual orientation. New Mexico is often cited in SB 1062 discussions because its state Supreme Court ruled that a gay couple could sue a photographer who refused to take pictures of their wedding. And that’s what got the attention of the LGBT community.

In Arizona, however, nothing in state law requires businesses to serve homosexuals.

And even in Phoenix, Tucson and Flagstaff — cities that extend rights based on sexual orientation — only the government can take action against an offending firm. Companies already are able to claim a shield against government action under existing law. There is no individual right to sue.

“My summary is: It means almost nothing,” said Paul Bender, former dean of the Arizona State University College of Law.

“People talk about, ‘I’ll go into a bakery and ask them for a wedding cake,’ and they’ll say, ‘I don’t do wedding cakes for gay weddings,’ ” Bender said. “So what? You can’t sue them for that.’’

That gets to the heart of what SB 1062 actually would do: provide the same shield to businesses they now have from government action in cases of civil lawsuits — at least in cases of discrimination based on protected classes like race, religion and gender.

But it’s far from automatic.

The law provides a three-part test that someone seeking to use the shield would have to establish in court.

First, the person’s action or refusal to act “is motivated by a religious belief.”

Second, that belief must be “sincerely held.”

And third, there would need to be proof that being forced to do something “substantially burdens the exercise of the person’s religious beliefs.”

It is that last provision that prevents SB 1062 from being a catch-all for any religious claim.

Here’s an example: A Catholic cabdriver refuses to take a pregnant woman to an abortion clinic to terminate her pregnancy.

It would be up to the cabdriver to assert that what the passenger wanted would substantially burden the driver’s religious belief, said Josh Kredit, attorney for the Center for Arizona Policy. Then the woman would have to show there is a legitimate governmental interest in any rules that require cabdrivers to pick up all fares, and that any such restrictions are the least onerous necessary to achieve that.

The outcome of the lawsuit might even depend on whether that was the only taxi in town, Kredit said.

But even that does not end the inquiry. If the business meets that three-part test, then the burden falls on the government — or, in the case of SB 1062, an individual denied service — to persuade the judge to ignore all that.

Specifically, a judge would need to believe that whatever protections are in the law for taxi patrons are necessary both to further “a compelling governmental interest” and that the protections are “the least restrictive means of furthering that compelling governmental interest.”

But Senate President Andy Biggs said he sees no chance of a lawsuit. He said pregnant women are not a “protected class” under Arizona law.

Instead, Biggs prefers the example of a Catholic art gallery owner who refuses to put on display a painting of a crucifix immersed in urine. He said an argument could be made that being forced to display such a painting burdens the owner’s religious beliefs.

Sen. Steve Yarbrough, R-Chandler, the prime sponsor of SB 1062, prefers a different example: A corporation formed by some devout Jews to provide kosher catering that is asked to provide pork products at an event.

Their sincerely held religious beliefs would prevent them from doing that, he says. Without the changes in SB 1062, the business owners could find themselves in court having to defend their actions, he said.

States began enacting their own versions of the Religious Freedom Restoration Act after the Supreme Court ruled that federal law did not extend to them, Bender said. What SB 1062 does, he said, is extend that Arizona law to a private right of action.

“But the main thing people miss is, there’s no right of action against a bigot in the first place,” Bender said. “The bigot doesn’t need this.”

There is, though, one provision that could have some implications, Bender said.

Under current law, the right to claim religious freedom extends to individuals, religious assemblies or institutions. This legislation would expand that to provide a shield to associations, partnerships, corporations, churches and other business organizations.

Still, the issue of SB 1062 goes beyond the question of whether it’s needed or actually would accomplish anything, Bender said. “When you do that, ... people take it as an encouragement to discriminate.”

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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