church and state hi res_newBy General Counsel K. Hollyn Hollman

How did Arizona legislation that looked pretty similar to many other religious freedom statutes grab the national spotlight and get characterized by some as a license to discriminate? Several factors led to the highly publicized veto of legislation known as SB1062, many of which will continue to challenge the popularity and public understanding of religious freedom claims.

A little background is needed to put the story in proper context. The federal government and 18 states have laws known as Religious Freedom Restoration Acts (RFRAs). Another dozen states interpret their state constitutions to provide similar protections. The driving principle behind these laws is that religious practice based upon sincere religious belief should be protected, even from governmental acts that are not aimed at religion but have an incidental impact. The most common articulation of this legal standard requires the government to prove that it has a compelling reason before placing a substantial burden on religion and that it has used the least restrictive means to accomplish its purpose. In other words, the government must show that the burden on religion is necessary to achieve the government’s important interest. These laws do not mean that every religious claim will be successful, but they assume that courts are competent to weigh the claims of religious adherents against other governmental interests.

So what happened in Arizona? First, Arizona already had a RFRA. The recently proposed legislation would have strengthened the existing law to ensure a broader application than some courts have found under similar statutes. The proposed changes would make clear that the statute could be invoked by any business and in cases between private parties. The proponents of the Arizona measure, however, did not seem prepared or able to show why the amendments were necessary.

Second, the bill was advocated in an environment focused on a claim that one’s religious practice includes refusal of certain business services to customers who are gay. In neighboring New Mexico, which has some legal protections based upon sexual orientation, a wedding photographer asserted (unsuccessfully) the state’s RFRA as a defense for refusing to serve a gay couple who sued under the state public accommodations law. Though the business owners in the Elane Photography case lost in the state’s highest court, they are continuing to pursue their case, seeking review by the U.S. Supreme Court. Recently in Kansas, a state that also already has a strong religious freedom protection statute, a bill was proposed that explicitly allowed business owners to refuse services to same-sex couples. That bill is one example of a legislative strategy launched by opponents of same-sex marriage to enact laws in response to the rapidly increasing number of states that are recognizing marriage rights for same-sex couples.

Third, unlike most religious freedom claims, the few RFRA cases that have recently received wide media attention deal with religious claims that affect the rights of others, leading some to question whether RFRAs go too far in general. In addition to the Elane Photography case, the U.S. Supreme Court is considering a religious freedom claim by Hobby Lobby, a large, for-profit arts-and-crafts company that, if successful, could affect the rights of its employees to receive certain health care benefits. The lower courts have split on the issue of whether the federal RFRA covers such claims.
Underlying this story is the fact that religious freedom in the bold American constitutional tradition means religious freedom for the broadest range of religious claims, including ones that are not well-understood or well-liked. Religious freedom is popular in general — most Americans take pride in it as a distinctive feature of our Constitution. It is more difficult, however, to understand and empathize with the incredible diversity of claims and contexts in which religious conflicts arise and RFRA can be invoked.

Contrary to some reports, the Arizona legislation did not mention discrimination or any minority group. But, a growing concern for the rights of the LGBT community made even the possible future usage to discriminate more than Arizona could stand. For most people, it is difficult to see how one’s religious beliefs can legally justify discrimination against a customer based upon some minority status. The idea that such a claim could be made, regardless of the specific context (related to weddings or other religious services) was enough to taint the Arizona legislation. Likewise, the idea that an employer’s religious belief could determine the cost or access to health care benefits of employees who do not share their beliefs is troublesome.

The Arizona episode is noteworthy for the intensity of the media attention, the misinformation conveyed and the current political climate in which proponents of legal protections based on sexual orientation and identity clash with religious objectors. RFRAs are designed to provide a uniform standard for all claims, and it should be expected that asserted claims will reflect wide religious diversity and encompass unpopular beliefs. It seems, however, that claims that threaten to harm the rights of others have tainted the popularity and public understanding of religious freedom. As we await a Supreme Court decision interpreting RFRA and witness state legislative debates focused on particular claims instead of broad standards, it is an inopportune time for legislation that is likely to perpetuate misunderstanding and harm broad support for universal religious liberty principles.

From the March 2014 Report from the Capital. Click here for the next article.