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Q&A: Arizona and Lawless Anarchy

Rob Tisinai

February 23rd, 2014

I could use some lawyers to chime in here, because to me it looks like Arizona is on the verge of abolishing the rule of law statewide.

Arizona legislators, as you know, are working on a “religious freedom” bill to keep the state a safe haven for anti-gay discrimination. Critics have pointed out the bill would legalize discrimination against just about anyone, but I don’t think that description goes far enough.

As far as I can tell, the bill could theoretically suspend just about every Arizona state and local law — at least temporarily — and introduce a new legal era in which citizens, businesses, and organizations get to decide which laws apply to them.

I can imagine the many sensible objections to this interpretation, so let me bring them up and address them.

Isn’t this just about anti-gay discrimination? Would it really bring all laws into question?

The bill says:

Except as provided in subsection C of 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.

But that’s just about exercising your religion. How do you get to “all laws”?

According to the bill:

“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—

So at least they’d have to show it’s official religious doctrine!

Let me finish:

“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.

Emphasis added. That means you can do something ordinarily illegal (or decline to do something the law requires) as long as you claim a religious reason, even if your choice isn’t mandated by your religion, important to your religion, or really even part of your religion — or rather, your “larger system of religious belief.”

But the lawbreakers have to prove their case, right?

They have to prove three things:

  1. That the person’s action or refusal to act is motivated by a religious belief.
  2. That the person’s religious belief is sincerely held.
  3. That the state action substantially burdens the exercise of the person’s religious beliefs.

We’ve already shown that (1) is vague enough to include just about anything, which makes it easier to prove (2), especially in the absence of mind-reading juries.

That still leaves the “substantial burden” requirement. In fact doesn’t the law say “the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions”?

But what is a substantial burden? UCLA law school professor Eugene Volokh explains the Supreme Court’s treatment of the concept:

Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice….So does requiring people not to do something that is required by their faith……

“While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.”And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court… “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.”

Read the whole thing. Basically, though, you don’t have to establish the law is making you personally violate your religion (or, in the case of this Arizona bill, whatever vague religious sentiment you have even if it’s not really part of your declared religion). All you need to show is that you feel somehow involved in someone else’s violation of your religious hunch, even if that connection seems inconsistent or unsound to the court.

So the “substantial burden” requirement is satisfied almost by tautology: any perceived violation of religious freedom, however tenuous the link to your actual religion, and however unreasonable it may seem to the court, is by definition a substantial burden. Is that the most expansive possible interpretation of the law? I would hope so. Is that the interpretation that the bill’s advocates will push for in court? I can’t imagine otherwise.

Does the bill ever allow the government to enforce its laws?

To a degree. It says:

State action may substantially burden a person’s exercise of religion only if it the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person’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.

In some cases, this is easy to establish. If you want to go all Leviticus and start stoning the wicked, the state can argue preventing murder is a compelling government interest and that laws against murder are the least restrictive way of accomplishing that. Same thing for a corporation that decides it can pollute a river because the Bible gives man dominion over the earth; laws against dumping toxic waste into a river are probably the least restrictive means of preventing toxic waste from getting dumped in a river. Depending, I suppose, on your definition of “toxic.”

(It is fun, as a twisted sort of game, to think of all the things an imaginative mind could justify under this bill.)

This two-step justification, though, isn’t always that easy. In fact, it’s part of the “strict scrutiny” standard, which is so tough and has been the death of so many laws that it’s been jokingly dubbed “strict in name, but fatal in practice.” At the very least, Arizona courts will have to step in and make some decisions, many of them extending up to the state Supreme Court. Some of these issues are already decided; others will be settled will quickly and easily; many, many others will not. But until that process is done (and here’s the complete set of Arizona state law; see how long it takes you just to read it, and then move on to the city and local law), we’re in legal limbo.

Of course, in reality the courts will immediately stay this entire law, and then find it unconstitutional. On the other hand, I say “of course” only because I hope/assume who reads the bill will find it clearly insane, and on that count I’m clearly wrong.

Hold on, you mentioned corporations. This is just about clergy and fundamentalist bakers. Corporations don’t have religious beliefs. Corporations aren’t even people!

Aren’t they? But I don’t have to invoke Supreme Court rulings. It’s all right there in the Arizona law, which “protects” the religious freedom of a whole motley crew of non-human people:

“Person” includes any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.

Okay. So that takes me back to where I started: As far as I can tell, the bill could theoretically suspend just about every Arizona state and local law — at least temporarily — and introduce a new legal era in which citizens, businesses, and organizations get to decide which laws apply to them.

That doesn’t sound so crazy now. Or it’s just as crazy, but it also seems plausible.  And it’s based on a few simple points:

  • The bill expands the definition of “person” to include, well, anything.
  • The bill expands the notion of religion to include things that are not compulsory, central, or possibly even part of your religion — in other words, just about anything.
  • The exceedingly subjective interpretation of “substantial burden” can include things that do not seem reasonable, sound, or consistent in a court of law; the tautological definition of “substantial burden” can include just about anything, given the wording of this bill.
  • The mandated standard of strict scrutiny can strike down, well, not anything, but a huge and not entirely predictable chunk of the state’s laws.

Again, I’ll admit this is the most extreme interpretation of the law. But that’s no stumbling block for some of our opponents.

I’ll go even further with my speculation. A few years back I predicted that when NOM and their cohorts realized they couldn’t ban marriage equality in the courts, and then in the legislature, and then in direct votes by the people, they’d resort to going back to the courts to argue that our marriages violated their religious freedom. It’s hard to remember that some people rolled their eyes at me back then.

Now I have to wonder if the sweeping nature of this bill doesn’t represent a flaw in the eyes of their proponents, but is in fact a feature. This truly may not just be about discriminating against gays. Perhaps they’re thrilled at the idea that the bill would gut anti-discrimination laws in general. And perhaps they’re thrilled it would throw the entire legal structure into anarchy. The Tea Party wants a revolution. Perhaps this is their way of getting it.

As I said up top, I’d appreciate the input of any lawyers on this. Does the vague language of the law open the door to all manner of chaos? Let us know what you think. Also, check out Jim Burroway’s intriguing take on the bill.

Comments

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RussTX
February 23rd, 2014 | LINK

Rob, I didn’t know till I saw this interview that the Ariz. law is modeled on a federal law already on the books. Check it out.

1. http://joemygod.blogspot.com/2014/02/anderson-cooper-grills-arizona-state.html

2. https://en.wikipedia.org/wiki/Religious_freedom_restoration_act

Mark
February 24th, 2014 | LINK

As Prof. Yoshino points out in that interview, the AZ law goes way beyond the RFRA, which applies to government policies, not to private instances of discrimination.

The sponsors repeatedly made clear in debate that they didn’t intend for the law to apply to protected classes (gays and lesbians aren’t protected in AZ); it’s hard to imagine that any AZ court would so interpret it.

So yes, it’s theoretically possible that Jim’s parade of horribles would occur, but realistically this law would only be used to discriminate against gays and lesbians.

Neil
February 24th, 2014 | LINK

This does seem to be a law crafted to potentially impinge upon the public accommodation of same sex couples seeking services towards their wedding ceremonies. The Anderson Cooper interview with Arizona Rep, John Kavanagh, seems to bear this out. The ideal example Kavanagh kept citing was the New Mexico wedding photographer, who was unable to refuse the custom of a gay couple due to state anti-discrimination law.

Kavanagh refused to accept the law might be interpreted broadly enough to allow the refusal of a home loan to a same sex couple. If he’s representative of the bill’s legislative supporters, it seems they’re expecting nothing too controversial.

It will be fascinating (and sadly, possibly quite tragic) to see how this plays out. All this so some conservatives might have the opportunity to throw spanners instead of rice.

Michael C
February 24th, 2014 | LINK

Sooo not a lawyer, but it seems to me that this bill could undermine any number of AZ state laws that go beyond Federal regulation. Being that it doesn’t appear that Arizona protects any statuses not already protected at the federal level, discrimination in public accommodation/housing/employment remain unaffected. So the question remains… what Arizona laws DOES this legislation affect?

Charles
February 24th, 2014 | LINK

In short, the law is clearly flawed and should be vetoed by the governor. It is a foolish vindictive law that makes the opponents of gay rights look foolish. That said, gays and lesbians should patronize gay friendly businesses. Especially those that provide services for same sex marriages and functions. We are not going to gain more acceptance by forcing those who clearly dislike us by forcing them to serve us.

Mark
February 24th, 2014 | LINK

But under the terms of the law, what’s the distinction between an anti-gay photography business refusing to serve a gay couple and an anti-gay bank refusing to loan to a gay couple? The wording of the bill clearly gives authority to both businesses to discriminate.

That Kavanagh refused to acknowledge it in the interview (when other legislators had admitted it during the floor debate) suggests he was being willfully obtuse.

Larry G
February 24th, 2014 | LINK

I would be interested in comparing all of the bills that have been introduced along these lines in other states to see how similar in wording they are. There is some talk on the net that ALL of these bills were written by some arm of the FRC, I would like to see if that is true.

jpeckjr
February 24th, 2014 | LINK

Not a lawyer. But it seems to me that even if the sponsors say it is about gay weddings (which are not permitted in Arizona so what’s the problem the law is addressing), it is a very broadly written law.

It will be used against other people, not just gays. “Sincerely held religious beliefs” are used to justify lots of things — beating your wife, flying a plane into a skyscraper, or, for that matter, feeding the homeless.

Would this law protect a gay person who, on the basis of his/her “sincerely held religious beliefs” refused to sell to a straight person? Yes, I think it would. Sexual orientation is not protected in AZ. I see no reason why gay owners of businesses should not discriminate against straight people. Except it’s bad for business.

And since the law states that one’s “sincerely held religious belief” need not be related to a larger system of religious belief, a person who does not participate in a religious organization is protected.

Could an employee of a business that has a nondiscrimination policy be protected from termination under this law? If I work for a bank that prohibits discrimination as a matter of company policy, and I refuse service to a gay person, and am fired for violating company policy, can I use this law as my defense?

Obviously, without cases, we don’t know what a judge would decide. But right now, I’m really glad I didn’t get that job in Phoenix I interviewed for last year.

Ben in Oakland
February 24th, 2014 | LINK

I don’t remember exactly when it happened, probably the early eighties, but Arizona passed a law making it illegal for a man to be” turgid”, or slightly aroused, in public.

Troglodytes.

John30013
February 24th, 2014 | LINK

Re: Charles’ comment above, I doubt most GLBT consumers would purposely patronize an anti-gay business, but (a) there isn’t always a choice (in some markets there may only be one provider of a certain service), and (b) anti-gay service providers don’t always (or even often) advertise their bigotry.

Hyhybt
February 26th, 2014 | LINK

Ben in Oakland: I remember Mississippi doing that about ten years ago.

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