Arizona Governor Jan Brewer has vetoed a religious freedom bill that had been widely characterized in the media as "anti-gay."
Over the past week, the governor's office reportedly received thousands of calls related to the bill, which news paper headlines described as a license for businesses to discrimination against persons with same-sex attraction.
During a brief press conference, Brewer said that the bill "does not address a specific or pressing concern" and that she had other legislative priorities.
"I have not heard of one example in Arizona where business owners' religious liberty has been violated," Brewer said. "The bill is broadly worded, and could result in unintended and negative consequences."
Brewer vetoed another religious freedom bill last year, so it's not clear whether her decision was influenced by a well-orchestrated political campaign against the bill that prompted both the state's GOP senators, and various state businesses groups to urge the governor to reject it.
Even the NFL, which had already agreed to hold the 2015 Super Bowl in Arizona, signaled its concern, generating another blast of hysteria from the bill's oppoents and some business groups.
Media coverage generally framed the bill as a license to discriminate against persons with same-sex attraction. One headline in The New York Times anounced:
Religious right cheers a bill allowing businesses to refuse to serve gays.
After Brewer vetoed the bill, The Times' fresh headline again describe the legislation as allowing a "refusal of service."
Yet amid the "blizzard of hysterical misinformation," as Bench Memo's Ed Whelan described the coverage, few reporters or commentators bothered to mention one salient fact:
SB 1062 does not mention, much less single out, gays or same-sex ceremonies.
More to the point, the bill did not say "that businesses can discriminate for religious reasons," confirmed a bipartisan group of top legal scholars. They sent a letter to Brewer warning that the legislation, "which amends Arizona’s Religious Freedom Restoration Act," had been "egregiously misrepresented" by many of its critics.
Written by Douglas Laycock, a leading scholar on religious freedom at the University of Virginia and a supporter of marriage equality, the letter was made public earlier this week. It was signed by Harvard law professor Mary Ann Glendon, Notre Dame's Richard Garnett, and Stanford's Michael McConnell, among others. The letter stated:
So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.
The legal scholars also note that Arizona is not the only state to seek clarity and equity on such matters.
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. There have been relatively few cases; if you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona. Few people had heard of the federal RFRA before the current litigation over contraception and the Affordable Care Act.
Too bad their message didn't surface sooner, if only to provide accurate and complete coverage of the proposed bill.
For now, we have a playbook for ambushing future legislation designed to secur a balanced and just hearing of religious freedom claims in a pluralistic society.