Was Arizona’s Religious-Freedom Bill ‘Anti-Gay’?

Arizona Gov. Jan Brewer vetoed the bill, which opponents claimed allowed discrimination against homosexual persons, but a group of top constitutional scholars said it did no such thing.

PHOENIX — Amid a blizzard of attacks and boycott threats, Arizona Gov. Jan Brewer vetoed an amendment to the state’s Religious Freedom Restoration Act (RFRA) that was criticized as “anti-gay.”

Brewer, a Republican, vetoed the bill on Feb. 26 after her office had received thousands of phone calls registering both support and opposition, as well as pleas from state business groups.

The National Football League also hinted that if the bill passed it would consider finding a different location for next year’s Super Bowl, which is scheduled to take place in Glendale, Ariz.

Homosexual-rights activists and their allies hailed Brewer’s action as a victory for their cause and for civil rights for all Americans, while the bill’s authors and a group of top constitutional scholars said its purpose had been falsely presented in public forums.

“The bill has been egregiously misrepresented by many of its critics,” stated Douglas Laycock, a leading expert on religious freedom at the University of Virginia Law School.

Laycock wrote a letter to Brewer warning her that the bill had been mischaracterized as a license to discriminate. The letter was signed by a bipartisan group of legal scholars, including Harvard law professor Mary Ann Glendon, Notre Dame’s Richard Garnett, and Stanford’s Michael McDonnell, all experts on constitutional law.

“[The bill] does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA," stated Laycock’s letter, which noted that the courts would then weigh such claims with no guaranteed outcome.

In her brief statement explaining her reasons for vetoing the bill, Brewer said that she did not believe there was a need for additional religious freedom protections for businesses owners, and that the issue was not a legislative priority for her administration, which has been focused on rebuilding Arizona’s economy and generating jobs.

“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,” she added.

Brewer did not specify what those consequences might be, nor did she address the allegations made by the bill’s opponents.


Confusing Characterization

Claims that the bill permitted employers to discriminate against customers have driven headlines across the country, prompting both of Arizona’s Republican U.S. senators to signal their opposition and major U.S. corporations like Apple, American Airlines and Intel to announce that they were reassessing their ties to the state.

In her statement, Brewer sought to adopt a middle stance, neither repeating the charges nor discounting the importance of religious liberty, which she described as a “core American and Arizona value.”

She acknowledged that shifting cultural norms governing marriage and the family had fueled anxiety from some of her constituents, but she signaled that existing state laws could address future problems.

The governor did not use her brief press conference to clarify what the bill actually did and did not say.  

Thus, the next explosion of headlines announcing Brewer’s veto echoed the past characterization of the bill as an “anti-gay” refusal of service provision.

“Arizona Governor Vetoes Bill on Refusal of Service to Gays,” announced The New York Times in a Feb. 26 headline.

But did the bill actually allow a “refusal of service to gays”?

“This bill is not about allowing discrimination,” State Sen. Steve Yarbrough, R-Chandler, insisted during debate on the measure last week in the Republican-controlled Arizona Legislature. “This bill is about preventing discrimination against people who are clearly living out their faith.”

But that message didn’t get much traction amid a blur of news stories, angry editorials and social media campaigns that presented it as a “license to discriminate.”

“With mounting opposition to Arizona’s so-called ‘Religious Freedom Restoration Act,’ today the Human Rights Campaign (HRC) called on other states considering such measures to abandon their own ‘license to discriminate’ bills,” reported a Feb. 25 post on the website of HRC, the nation’s leading advocate for legal recognition of same-sex “marriages.”

Said HRC President Chad Griffin, “These bills have nothing to do with faith and everything to do with shameful discrimination. Make no mistake about it; states that do enact these bills into law will face less investment, fewer jobs and a reputation for standing on the wrong side of history.”


Past Precedent

The University of Virginia’s Laycock, in his letter to Brewer, challenged the claim that religious freedom protections permitted discrimination against any group, and he noted that Arizona already had a RFRA law on its books for many years without igniting any controversy.

“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,” the letter stated.

“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,” he added.

The proposed amendment, wrote Laycock, was designed 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.”

Most state RFRA laws are modeled on the federal statute, which says that the state cannot pass laws that unduly burden religious freedom without a clearly demonstrated interest — and then the state must advance that interest in the least restrictive manner. But some state RFRAs and other proposed bills vary in their approach, as Laycock’s letter made clear.

The Arizona Catholic Conference had endorsed the bill, and it stood by that decision after Brewer's veto.

“The Arizona Catholic Conference (ACC) is strongly in support of religious liberty and we are most grateful to those who have been willing to defend this fundamental principle. We also want to be clear that our support of religious liberty is consistent with our support for the human dignity of all people and does not diminish our opposition to all forms of unjust discrimination,” read a ACC statement releasted on Feb. 27.

Arizona is not the only state to propose amendments to its RFRA statute, and the Human Rights Campaign has already announced plans to stop similar legislation introduced in “Georgia, Kansas, Maine, Missouri, Ohio, Oregon (proposed ballot measure), South Dakota and Tennessee.”

Both activists for homosexual rights and religious freedom anticipate that other proposed bills viewed as an attack on homosexual rights will receive similar treatment.

In a sign that further attempts to amend or pass state religious freedom bills could become a hot-button issue in the run up to the 2014 midterm elections and even the 2016 presidential campaign, national leaders from both parties applauded Brewer's veto.

“Inclusive leadership is really what the 21st Century is all about,” said Hilary Rodham Clinton, while she was in Florida giving a speech at the University of Miami in Coral Gables.

Mitt Romney, the GOP presidential candidate during the 2012 presidential election, also backed the governor's veto.


Implications for HHS Mandate?

Meanwhile, religious freedom experts and Church leaders have another reason for setting the record straight on the truth about Arizona’s proposed amendment to the state RFRA. Legal challenges to the federal Health and Human Services contraception mandate allege that the controversial law failed to meet the high standard established by the federal RFRA signed into law by President Bill Clinton. It is thus important for the courts, for legislators and the general public to know how these laws work, religious freedom advocates stress.

Asked whether the furor generated by the Arizona bill would have an impact on legal challenges to the HHS mandate, with two closely watched cases now before the U.S. Supreme Court, Laycock said he thought it was “unlikely.”

“It could conceivably scare a swing vote or two about … the public acceptability of protecting businesses,” he acknowledged.

“But I think the facts are sufficiently different that even that is unlikely. The overriding value in the Arizona fight was nondiscrimination; that is not much at issue in the contraception cases.”

Further, Laycock suggested that when judges scrutinize employers’ claim that a law has unduly burdened their free exercise, the court looks for “sincerity” and evaluates the actual “burden” imposed by the law.

“And the burden is so clear” [in HHS lawsuits],” he added. “It’s hard to be sure, but I think the contraception cases will be unaffected by all this.”

Joan Frawley Desmond is the Register’s senior editor.