February 22nd, 2014
That’s what it looks like to me.
Arizona Republican lawmakers thought they were striking a blow against gay people when they voted to approve their right-to-discriminate law. But they know the Constitution and Romer v Evans well enough to know that making a law which comes right out and says that you can discriminate against gay people to your sincerely-held-belief’s content simply won’t pass muster in the courts. And, of course, they don’t want the words “discriminate” or “discrimination” anywhere in the bill either. Those are political red flags. So to get a law to do what they wanted to do, they had to open its wording up this way (Uppercase are additions, strikeouts are deletions to Title 41 of the existing code):
Section 1. Section 41-1493, Arizona Revised Statutes, is amended to read:
In this article, unless the context otherwise requires:
1. “Demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
2. “Exercise of religion” means the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
3. “Government” includes this state and any agency or political subdivision of this state.
4. “Nonreligious assembly or institution” includes all membership organizations, theaters, cultural centers, dance halls, fraternal orders, amphitheaters and places of public assembly regardless of size that a government or political subdivision allows to meet in a zoning district by code or ordinance or by practice.
5. “Person” includes
a religious assembly or institutionANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION, ESTATE, TRUST, FOUNDATION OR OTHER LEGAL ENTITY.
6. “Political subdivision” includes any county, city, including a charter city, town, school district, municipal corporation or special district, any board, commission or agency of a county, city, including a charter city, town, school district, municipal corporation or special district or any other local public agency.
7. “Religion-neutral zoning standards”:
(a) Means numerically definable standards such as maximum occupancy codes, height restrictions, setbacks, fire codes, parking space requirements, sewer capacity limitations and traffic congestion limitations.
(b) Does not include:
(i) Synergy with uses that a government holds as more desirable.
(ii) The ability to raise tax revenues.
8. “Suitable alternate property” means a financially feasible property considering the person’s revenue sources and other financial obligations with respect to the person’s exercise of religion and with relation to spending that is in the same zoning district or in a contiguous area that the person finds acceptable for conducting the person’s religious mission and that is large enough to fully accommodate the current and projected seating capacity requirements of the person in a manner that the person deems suitable for the person’s religious mission.
9. “Unreasonable burden” means that a person is prevented from using the person’s property in a manner that the person finds satisfactory to fulfill the person’s religious mission.
Sec. 2. Section 41-1493.01, Arizona Revised Statutes, is amended to read:
Free exercise of religion protected; definition
A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B. Except as provided in subsection C
, governmentOF THIS SECTION, STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
GovernmentSTATE ACTION may substantially burden a person’s exercise of religion only if itTHE OPPOSING PARTY demonstrates that application of the burden to the personPERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both:
1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest.
D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding,
and obtain appropriate relief against a governmentREGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING. THE PERSON ASSERTING SUCH A CLAIM OR DEFENSE MAY OBTAIN APPROPRIATE RELIEF. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
InFOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
F. FOR THE PURPOSES OF THIS SECTION, “STATE ACTION” MEANS ANY ACTION BY THE GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE OR ATTEMPTED TO BE MADE BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.
The meat of the changes are in two places. In the first section, the legislature changes how the entire Article 9 of the Arizona Statute covering “Free exercise of religion” interprets the word “person.” Before, the free exercise of religion statutes protected religious assemblies or institutions. You know, churches, synagogues, mosques and the like. Now, the definition has been expanded to include any legal entity, including individuals, businesses, and tax-exempt charities.
Then in section two, the legislature changes “government” to “state action,” which opens the applicability of the free exercise of religion statute to “any law, including state law, ordinances, rules, regulations and policies.” And the definition applies regardless of whether the enforcement is being made by the government or by “nongovernmental persons” — that would be you or me if we were to try to sue for being fired on discrimination grounds. And if you or I were to sue and lose, which this bill seeks to make inevitable, we would be on the hook for attorney fees and court costs.
So, notice what the bill does. It exempts anyone from having to follow a whole host of state laws, ordinances and regulations if they conflict with an individual’s religious belief. This would mean that a Muslim landlord could forcibly evict single women or a convert to Christianity, since either action would be covered by Sharia law. It would also allow a Muslim employer to treat his non-Muslim employees with the same rules as his Muslim employees. He could compel non-Muslims to work longer hours at lesser pay and reduced rank.
But here is where things can get really chaotic. Because “state action” includes anything that is “statutory or otherwise,” it includes regulations, court decisions, and legal contracts, and it goes way beyond anti-discrimination laws,which aren’t mentioned anywhere in this bill. This means a self-proclaimed Muslim could refuse to pay interest to his mortgage company, which goes against his sincerely held beliefs. A divorced Muslim could refuse to pay his alimony obligations. Or, conversely, he could prevent an ex-wife from seeing their children.
In reality, I suspect that there would be exceptionally few, if any, Islamic adherents who would jump to take advantage of Arizona’s new law. Muslems tend to fall into two groups: either they are Americans who converted to Islam or they are immigrants and descendants of immigrants who came here because they value American principles of equal opportunity and freedom. Right-wing paranoia to the contrary, I don’t see any significant movement anywhere in the country to elevate Sharia into a state-valued place in our civil codes. And yet the Republican-controlled Arizona Legislature has done precisely that.
Now, all of these so-called freedoms would be available to anyone claiming a violation of their religious beliefs, not just Muslims. Protestants, Catholics, Jews, Mormons, Hindus, Buddhists, Pagans, Wiccans, Scientologists, Satanists, Zoroastrians, Moonies, Astrologists and Trekkies would all be able to line up and claim special rights against all sorts of laws, regulations, court rulings and legal contracts. And while they celebrate their newfound freedoms to discriminate, they can all find themselves on the receiving end of discrimination, also in the name of “religious freedom.”
But hey, as long as they can stick it to gay people, who really cares about a little collateral damage?
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Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
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And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.
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