Religious-Liberty Scholars Counter “Egregious” Distortions of Arizona Bill

There has been a blizzard of hysterical misinformation about Arizona’s SB 1062. As anyone who takes the trouble to consult the text of the legislation will readily discover, SB 1062 does not mention, much less single out, gays or same-sex ceremonies.

As Douglas Laycock (who supports redefining marriage to include same-sex couples) and other leading religious-liberty scholars explain in a letter to Arizona governor Jan Brewer, SB 1062 “has been egregiously misrepresented by many of its critics.” What the legislation would do is amend Arizona’s Religious Freedom Restoration Act “to address two ambiguities that have been the subject of litigation under other RFRAs”:

It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.…

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.

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