Box Turtle Bulletin

Q&A: Arizona and Lawless Anarchy

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.