Bipartisan group of attorneys ask Brewer to sign SB 1062

posted at 12:41 pm on February 26, 2014 by Ed Morrissey

Yesterday, I wrote about the effort by the Arizona legislature to amend their state constitution to expand religious-liberty protection in the wake of lawsuits attempting to force participation in same-sex weddings by private businesses. The reaction of some to the bill described it as the next Jim Crow, without apparently knowing that Jim Crow mandated segregation rather than allow for private decisions on commerce. That hyperbolic and uninformed reaction doesn’t mean that the bill is good, though, and the retreat by Arizona politicians that once supported it — including one of its sponsors — sends a pretty big signal that it would create a lot of unintended consequences, either legal, commercial, political, or all three.

Governor Jan Brewer is still mulling over her options, although NBC reported yesterday that she was leaning toward a veto. Brewer vetoed a similar bill earlier, with less fanfare. My friend Paul Mirengoff at Power Line has received a letter from a bipartisan group of noted legal scholars sent to Brewer today arguing that, far from a return to Jim Crow, SB 1062 simply uses a familiar statutory framework for codifying religious liberty in order to require courts to prioritize sincerely-held religious beliefs over weaker state interests. The signatories are not just a mix of Republicans and Democrats, but also a mix of same-sex marriage supporters and opponents:

Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading.

The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.

That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990. …

SB1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest.

In an earlier post, Paul offered conditional support unless the language was poorly written to allow abuses in discrimination.  These legal scholars are satisfied that none exists. If this is accurate — and I’m hardly in a position to challenge a constitutional scholar like Michael McConnell or Douglas Laycock, who come down on opposite sides of the same-sex marriage argument in all other contexts– then it appears that those worries about the legal impact are misplaced. That still doesn’t necessarily address the commercial and political impact to Arizona if Brewer signs this bill, and there isn’t a politician who doesn’t take those issues in account when making decisions like these.

It would be far better if courts just took this as a common-sense application of the freedom to religious expression, without the potential backfire of using an expansion of statutes and the potential for unintended consequences that result from them. Common sense, in this case, would recognize that the right to religious liberty trumps the extremely weak state interests in the commercial industries surrounding weddings. Unfortunately, the Obama administration has been undermining that application of common sense with the HHS contraception mandate for the last two years, and courts haven’t entirely embraced the common-sense conclusion that business owners shouldn’t be compelled to provide free contraception and sterilization services when it opposes their religious principles. As I noted yesterday, if everyone took the same approach as Andrew Sullivan, there wouldn’t be a need (real or perceived) for this bill at all:

I would never want to coerce any fundamentalist to provide services for my wedding – or anything else for that matter – if it made them in any way uncomfortable. The idea of suing these businesses to force them to provide services they are clearly uncomfortable providing is anathema to me. I think it should be repellent to the gay rights movement as well.

The truth is: we’re winning this argument. We’ve made the compelling moral case that gay citizens should be treated no differently by their government than straight citizens. And the world has shifted dramatically in our direction. Inevitably, many fundamentalist Christians and Orthodox Jews and many Muslims feel threatened and bewildered by such change and feel that it inchoately affects their religious convictions. I think they’re mistaken – but we’re not talking logic here. We’re talking religious conviction. My view is that in a free and live-and-let-live society, we should give them space. As long as our government is not discriminating against us, we should be tolerant of prejudice as long as it does not truly hurt us. And finding another florist may be a bother, and even upsetting, as one reader expressed so well. But we can surely handle it. And should.

Leave the fundamentalists and bigots alone. In any marketplace in a diverse society, they will suffer economically by refusing and alienating some customers, their families and their friends. By all means stop patronizing them in both senses of the word. Let them embrace discrimination and lose revenue. Let us let them be in the name of their freedom – and ours’.

That is the definition of tolerance — not enforced participation, but allowing people to make their own personal choices free of government-imposed mandates of acceptance and participation. Speaking of which, this test case in the UK is making the e-mail rounds today, and seems on point:

Britain’s most famous surrogate gay dads have hired lawyers to sue the Church of England for the right to a full-blown religious wedding.

Barrie and Tony Drewitt-Barlow told Gay Star News it was important for them as Christians to marry in church and for their kids to see they were equal.

Under the Marriage (Same Sex Couples) Act for England and Wales, which has been signed into law but won’t be implemented until 2014, religious groups can opt in to marrying same-sex couples but don’t have to if they don’t want to.

The Church of England, the state religion, is protected by a quadruple lock to protect it from being forced to wed gay couples.

But the Drewitt-Barlows, from Essex, southeast England, attend their local parish church in the village of Danbury with their five children and want to marry there.

They told GSN: ‘We actually feel that the government has done all it can do right now to push equality for same sex marriage in the right direction.

‘However, there is still discrimination towards same-sex couples in terms of being allowed to marry in a church.[“]

Before scoffing that this can’t happen here, let’s remember that ministers occupy a quasi-official state role in certifying marriages — a much more significant state interest than in bakers or photographers. It’s certainly food for thought, and don’t be surprised to see test-case lawsuits filed here in the US for the same purpose.

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