GOP governor orders change to Arizona adoption policy
April 23rd, 2015
In October of last year, U.S. District Court Judge John Sedwick found that the state’s ban on same-sex marriage was unconstitutional. And State Attorney General Tom Horne agreed, so Arizona did not appeal the decision and marriage equality came to the state.
As part of the new legality of same-sex couples, state adoption agencies began to treat all married couples equally.
But in January a new Attorney General was installed and Mark Brnovich decided that just because same-sex couples could wed didn’t mean you couldn’t still discriminate against them in adoption. So he advised the Department of Child Safety to reinstate policies that barred gay married couples from adopting or being joint foster parents.
But no one told the Governor. And he’s pissed. (Tuscon.com)
Gubernatorial press aide Daniel Scarpinato said Ducey only learned of Flanagan’s policy change on Wednesday. Ducey was clearly unhappy with both the policy and having to learn about it after an inquiry from a reporter.
“I have made it abundantly clear since day one that my administration is unambiguously and unapologetically pro-adoption,” the governor said in his prepared statement.
“With 17,000 children under the state’s care, we need more adoption in Arizona, not less,” Ducey continued. “That Ãs why I feel strongly, as I have said many times before, that all loving families should be able to serve as foster parents and adopt.”
The governor ordered DCS “to immediately ensure that all legally married couples in Arizona are able to jointly serve as foster parents and adopt.”
This is the second time this month that Ducey has had to slap down anti-gay adoption efforts.
The first came earlier this month when he vetoed legislation that would have allowed county attorneys to refuse to help with adoptions.
Maricopa County Attorney Bill Montgomery, who sought the change, said it was simply to get rid of a state mandate and allow his lawyers to focus on higher priorities. But it later became public that Montgomery had refused to help a gay couple complete an adoption.
Marriage equality comes to Arizona
October 17th, 2014
U.S. District Court Judge John Sedwick has issued his opinion as to whether or not Arizona’s ban on same-sex marriage is in violation with the US Constitution. And, to no one’s surprise, he found it unconstitutional.
Sedwick did not issue a stay. Yesterday, Attorney General Tom Horne filed a brief which basically conceded the plaintiff’s position. So it seems unlikely that Horne will either appeal the decision or petition the Ninth Circuit for a stay.
UPDATE: Horne is not appealing nor asking for a stay.
Arizona edges closer to equality
October 16th, 2014
Today was the deadline for parties to submit their briefs arguing whether or not the Ninth’s Circuit’s ruling on marriage equality applies to the state of Arizona. Attorney General Tom Horne seems to concede that it does. (AZCentral)
The state’s brief argument concedes that the 9th Circuit ruling would apply to Arizona, but says Sedwick should wait to issue his ruling until the 9th Circuit issues a mandate. The mandate is essentially a technical document telling the courts to go forward with the opinion. The 9th Circuit issued a mandate within hours of its original ruling but withdrew it so Idaho could appeal. That appeal is concluded but the 9th Circuit has not yet reissued the mandate.
Meanwhile in Arizona
October 10th, 2014
U.S. District Court Judge John Sedwick issued an order Thursday night stating he believes this week’s appellate court ruling that declared Idaho and Nevada’s marriage restrictions unconstitutional applies to Arizona as well. The U.S District Court of Appeals for the 9th Circuit said Tuesday that Idaho and Nevada’s marriage restrictions violated couples’ rights to equal protection under the 14th Amendment.
Sedwick, an Alaska judge who often helps pick up Arizona cases, gave the parties in two lawsuits challenging Arizona’s law until Thursday to file briefs arguing how the 9th Circuit decision does or does not apply.
Is Arizona Next?
September 16th, 2014
Last Friday, Federal District Court Judge John W. Sedwick issued a partial ruling which ordered the state to recognize a gay couple’s marriage after one of the partners died last summer. The state is now required to list the couple as having been married on the death certificate.
The case involves more than a dozen gay and lesbian couples seeking to overturn Arizona’s ban on same-sex marriage, and a ruling on the larger issue hasn’t come down. But Lyle Denniston at SCOTUSBlog thinks this early ruling tells us that Judge Sedwick is about to strike Arizona’s ban:
Judge Sedwick, who usually sits in Anchorage, Alaska, but is doing temporary duty to handle civil cases in Phoenix, cited a string of other federal court rulings striking down state prohibitions on same -sex marriage, and he commented on “the absence of any persuasive case law to the contrary.” He then added that the surviving partner in this case “is likely to prevail” in his challenge before the judge.
Because that claim is part of a broader case before the judge, involving one lawsuit filed in January and a separate case filed in March and proceeding jointly before him, his remarks were a strong indication that a 2008 state constitutional amendment and two state laws against same-sex marriage probably are going to be nullified.
A huge factor weighing against Arizona’s ban is that it is in the Ninth Circuit, which requires the more demanding “heightened scrutiny” test. Judge Sedwick has already denied the state’s claim that it doesn’t apply for this case in last week’s ruling.
Tempe Voters Approve Charter Change Banning LGBT Discrimination
August 27th, 2014
A number of cities in Arizona have anti-discrimination ordinances to protect LGB and sometimes T’s from discrimination in hiring, housing and public accomodations. But the only ways to ban discrimination in city hiring would be for the state legislature to do it (fat chance!) or for a city to amend its charter, a process that typically requires voter approval. During yesterday’s primary, Tempe voters were the first in the state to approve such a charter change. According to unofficial results, they did so overwhelmingly with 69% support.
Former Arizona AG op-ed in support of equality
June 25th, 2014
Grant Woods, a Republican, was the Attorney General of Arizona from 1991 through 1999. Today he shares his views with the Arizona Republic:
I had the honor of serving as Arizona’s attorney general from 1991 to 1999. If I were serving in that role today, I would make the case that our state’s ban on same-sex marriage is unconstitutional.
As Supreme Court Justice Anthony Kennedy wrote in the Windsor decision, DOMA’s ban on same-sex marriage “violates basic due process and equal protection principles.” I agree with the Supreme Court ruling and believe the same law and principles apply to Arizona’s ban.
Also in agreement are the judges who have struck down marriage bans in other states. For example, Judge John E. Jones III, a Republican appointed by President George W. Bush, wrote in his decision striking down Pennsylvania’s ban, “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection.”
Equality is not only our founding principle, but also the core of the political and legal convictions of Americans across the political spectrum. Throughout our history, Americans, both famous and forgotten, have fought to ensure that we live up to our ideals.
Formerly vocal anti-gay GOP leaders now moving on
March 1st, 2014
The New York Times interviewed some leading Republican politicians about the now vetoed anti-gay pro-discrimination bill in Arizona and found nearly all speaking the language of conciliation:
More than anything else, the division was a window into a Republican Party that remains torn on gay rights issues, be it the Arizona measure, same-sex marriage or permitting gay men and lesbians to serve openly in the military. Some of the party’s most committed voters continue to be intensely opposed to gay marriage, but their views are at odds with an increasing percentage of the American electorate, particularly younger and independent voters.
“The establishment’s reaction to the Arizona law reflects the reality that much of the country’s views on these issues have changed,” said Tim Pawlenty, the former governor of Minnesota who sought the Republican presidential nomination in 2012.
Wait. Tim Pawlenty?
Just three years ago Pawlenty was signing the National Organization for Marriage’s Pledge that he’d push for a Federal Marriage Amendment and only appoint anti-gay judges. Just three years ago he was on Family Research Council’s bus tour promoting Christian supremacy and narrowly defined family values.
Frank Keating, a former governor of Oklahoma, said that while he opposed same-sex marriage, issues of public accommodation had long ago been settled. He said that he, too, would have vetoed a bill like the Arizona one.
“This isn’t 1964 anymore,” he said. “We’ve moved beyond that. If you open up your doors to the general public, you can’t pick and choose who you are going to deal with.”
And with that, the conservative Oklahoma Republican kicked institutionalized anti-gay discrimination into a grave.
Oh we will continue to fight battles and defend our right to exist. Marriage and other matters of full inclusion will remain contentious for a while.
But I think this article answers the question as to whether we’ve reached a turning point. We have.
The opponents of equality put up quite a fight and many of us were lost. But we have won the day. The river has been forded and the gates are in ruins. Never again will those who seek to impose their definitions of righteousness upon us be in majority nor hold the presumption of moral truth.
Fournier compares Arizona bill to segregation
February 27th, 2014
Ron Fournier, a conservative writer, made some interesting comparisons between the (now vetoed) Arizona bill to legalize discrimination against gay people and the efforts to keep segregated schools in the South. Rather than focus on the similarities or differences between the two efforts, he discusses the motivations and justification. (National Journal)
For me, it starts with the time I spent in Arkansas with Faubus, Bates and Clinton, several members of the Little Rock Nine and countless others touched by the 1957 crisis. Faubus began his career as a progressive Democrat who desegregated state buses and public transportation and considered the possibility of introducing multi-race schools after his 1954 election. A challenge from his right prompted Faubus to adopt a segregationist stance, which he disingenuously insisted was not a matter of race. With public opinion so strongly against the Supreme Court ruling in 1957, Faubus argued that integrating would undermine the safety of all students.
Safety was his straw man. Religious liberty, like public safety, is a just cause, except when it’s used to justify intolerance.
“This bill … bars government discrimination against religious exercise,” Tony Perkins, head of the conservative Family Research Council, said of the Arizona measure, “so by vetoing this bill, Gov. Brewer is saying she supports government discrimination against people’s religious freedom.”
No, that’s not what she’s saying. Brewer no more supports religious discrimination than Eisenhower encouraged violence in public schools. Perkins knows better, and his inflammatory language hurts his cause.
Is Arizona a Turning Point?
February 27th, 2014
It would appear that the outcry over Arizona’s license-to-discriminate bill that was finally vetoed by Gov. Jan Brewer last night may have reached something of a high water mark. Major companies, business group, professional organizations, and major league sports all came out with strong statements denouncing the bill in the moments leading up to Brewer’s veto. Typical was this one from Yelp’s CEO Jeremy Stoppelman:
SB 1062 would serve to create an environment where consumers would not know how they would be treated – or whether they would even be served – when they patronize a business. This bill goes against the rule that every great business subscribes to, which is that the customer is always right. It will not only be bad for customers, but also bad for local business in the state. I also believe that it would be in consumers’ interests to be made aware of businesses within the state that did engage in discriminatory behavior. Since early 2010, Yelp has hired over 650 employees in Arizona. Over the next few years, we hope to hire hundreds more. It would be unconscionable for the state to encourage discrimination against any of them.
Arizona joins three other states in putting an end to their license-to-discriminate bills in just the past twenty-four hours:
- Sponsors of Ohio’s license-to-discriminate bill withdrew their support yesterday. Moments later, the chairman of the House Judiciary Committee announced that the bill was dead.
- The Mississippi House of Representatives Civil Subcommittee late yesterday voted to strike almost all of the provisions of their license-to-discriminate bill, leaving only a provision adding “In God We Trust” to the state seal. This move came after the state Senate gave its unanimous approval in January.
- Florida Gov. Rick Scott announced yesterday that he will veto a proposed license-to-discriminate bill if it reaches his desk. Earlier that day, he had refused to address the question during an interview on MSNBC.
Over the past several weeks, license-to-discriminate bills have been defeated or withdrawn in Colorado, Kansas, Maine, Tennessee, and Utah. But we’re not out of the woods yet. Similar bills are still working their way through Idaho, Missouri, South Dakota, and Georgia, where Atlanta-based Delta Airlines has announced its opposition. The Idaho bill was returned to a House committee last week, with the sponsor saying he wants to “find the right language.” In addition, there’s a push to put a similar measure on the ballot in Oregon in November.
A Rare Loss In Arizona for Herrod
February 26th, 2014
Cathi Herrod heads the Focus On the Family-affiated Center for Arizona Policy (CAP), and she’s become quite accustomed to having her entire legislative agenda breeze through the legislature year after year. But today’s veto of SB 1072 by Gov. Jan Brewer represents an exceptionally rare moment of sanity for the state of Arizona and a highly unusual setback for Herrod:
Today’s veto of SB 1062 marks a sad day for Arizonans who cherish and understand religious liberty.
SB 1062 passed the legislature for one reason only: to guarantee that all Arizonans would be free to live and work according to their faith.
Opponents were desperate to distort this bill rather than debate the merits. Essentially, they succeeded in getting a veto of a bill that does not even exist.
When the force of government compels one to speak or act contrary to their conscience, the government injures not only the dignity of the afflicted, but the dignity of our society as a whole.
SB 1062 made certain that governmental laws cannot force people to violate their faith unless it has a compelling governmental interest–a balancing of interests that has been in federal law since 1993.
The religious beliefs of all Arizonans must be respected and this bill did nothing more than affirm that. It is truly a disappointing day in our state and nation when lies and personal attacks can over shadow the truth.”
Brewer vetoes SB 1062
February 26th, 2014
Good evening, and thank you for joining me here today.
I am here to announce my decision on Senate Bill 1062.
As with every proposal that reaches my desk, I gave Senate Bill 1062 careful evaluation and deliberate consideration. I call them like I see them, despite the cheers or boos from the crowd.
I took the time necessary to make the RIGHT decision. I met or spoke with my attorneys, lawmakers and citizens supporting and opposing this legislation. I listened and asked questions. As Governor, I have protected religious freedoms when there is a specific and present concern that exists in OUR state. And I have the record to prove it. My agenda is to sign into law legislation that advances Arizona.
When I addressed the Legislature earlier this year, I made my priorities for this session abundantly clear… Among them are passing a responsible budget that continues Arizona’s economic Comeback.
From CEOs — to entrepreneurs — to business surveys — Arizona ranks as one the best states to grow or start a business. Additionally, our IMMEDIATE challenge is fixing a broken Child Protection system. Instead, this is the first policy bill to cross my desk.
Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated. The bill is broadly worded and could result in unintended and negative consequences.
After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago. To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before.
Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.
Religious liberty is a core American and Arizona value, so is non-discrimination. Going forward, let’s turn the ugliness of the debate over Senate Bill 1062 into a renewed search for greater respect and understanding among ALL Arizonans and Americans. Thank you.
(text from Towelroad)
Note the careful way in which she discusses the challenges to long held norms about marriage and family and dramatic change without actually stating her opinions about such challenges and change.
Opposition to Arizona’s Right-To-Discriminate Bill Grows
February 26th, 2014
Arizona’s License-To-Discriminate law is still on Gov. Jan Brewer’s desk awaiting her decision. The expansive SB 1062, which would allow virtually anyone to discriminate against anyone else — and more — on the basis of religious belief, would effectively bring anarchy to the state of Arizona and its employers with non-hostile workplace policies. Which is why local Arizona business groups are lining up to urge Brewer to veto the bill:
The Greater Phoenix Economic Council and Arizona Technology Council are joining gay rights groups in opposition to Senate Bill 1062. Part of their worries are the measure will repeat the bad publicity and negative impact on tourism and business investment seen after Gov. Jan Brewer signed the SB 1070 immigration bill four years ago.
“This legislation has the potential of subjecting the Super Bowl, and major events surrounding it, to the threats of boycotts,” said GPEC chairman James Lundy and CEO Barry Broome in a letter to Brewer today. They also said four companies looking to bring jobs to Arizona might reverse course if Brewer signs the measure, which passed the Legislature this week. They did not identify the companies.
Businesses are looking to avoid repeating the SB 1070 debacle four years ago when Arizona lost millions of dollars in businesses and tax revenue due to the fallout. Other business groups opposing SB 1062 this time include the Arizona Chamber of Commerce, Greater Phoenix Chamber of Commerce, Greater Phoenix Leadership, the Arizona Hispanic Chamber of Commerce, the Greater Phoenix Economic Council, the Arizona Lodging & Tourism Association, Tucson Hispanic Chamber of Commerce, the outhern Arizona Leadership Council, and Visit Tucson, the city’s tourism board.
Individual businesses have also lined up to oppose the bill, including Apple, which is set to open a new sapphire glass plant in Mesa with 700 full-time jobs. Other Arizona employers opposing SB 1062 include PetSmart, Intel, Dignity Health, American Express, Mariott, American Airlines (which recently merged with Tempe-based USAirways) and Delta Airlines.
Local politicians are voicing their opposition. Tucson’s Mayor Jonathan Rothschild opposes the bill, as does Phoenix Mayor Greg Stanton, and Mesa Mayor Scott Smith. Surprisingly, I haven’t heard from Glendale Mayor Elaine Scott. That city risks losing the 2015 Super Bowl if SB 1062 makes it into law:
The NFL said it was monitoring the progress of the bill, the Cardinals said they are concerned about the negative image the bill could bring the state, and the Arizona Super Bowl Host Committee said it flatly opposes the legislation.
…n 1993, Arizona was in line to host the Super Bowl in Tempe, but Arizona voters in November 1992 voted against a referendum recognizing Martin Luther King Jr. Day as a state holiday, prompting the NFL to give the Super Bowl to Pasadena, CA.
Even Fox News, which has spent several months drumming up support for bills like Arizona’s SB 1062, has done an about face and now compares the bill to Jim Crow laws. Which has got to be very disorienting to Arizona politicians living in the Fox News bubble. But at least it’s having its effect. Three Republican State Senators who had supported SB 1062 before they opposed it, are now urging Brewer to veto the bill.
Sens. Bob Worsley, Adam Driggs, and Steve Pierce delivered a letter to Brewer on Monday, saying, “While our sincere intent in voting for this bill was to create a shield for all citizens’ religious liberties, the bill has instead been mischaracterized by its opponents as a sword for religious intolerance. These allegations are causing our state immeasurable harm.”
The senators asked Brewer to veto the bill.
“We must send a clear message that Arizona is a state that values religious tolerance and protects and values each individual’s ability to follow the dictates of their own conscience,” they wrote.
Now they come to their senses. If they had voted against the bill in the first place, it would have failed in the Senate 14-16. Instead, it passed in a 17-13 vote.
As for SB 1052 supporters, the include the bill’s primary cheerleader, the Center for Arizona Policy’s Cathi Herrod. CAP, by the way, is an official state policy council of Focus On the Family. And there’s this guy, State Sen. Al Melvin (R-SaddleBrooke/Tucson):
Which more or less means that any halfway sane governor would veto this bill before it even had a chance to settle on her desk. But since Brewer has until Friday to make up her mind, the rest of the country gets to see what we Zonies have to put up with every day.
Q&A: Arizona and Lawless Anarchy
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:
- That the person’s action or refusal to act is motivated by a religious belief.
- That the person’s religious belief is sincerely held.
- 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:
- In furtherance of a compelling governmental interest.
- 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.
Did the Arizona Legislature Just Legalize Sharia Law?
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?