The headline in the New York Times trumpeted the paper’s approval: “Arizona Governor vetoes bill on refusal of services to gays.” Had Jan Brewer not done the right thing, the nefarious bill passed by the Arizona legislature “would have given business owners the right to refuse services to gay men, lesbians, and other people on religious grounds.”
The National Football League, shocked at the mean-spirited people of Arizona, had begun plans to move an upcoming Super Bowl from the state. How could the NFL not take action, the commentators asked, when an openly gay man (Mike Sam) was soon to land on an NFL roster? Arizonans might not rent him a room in the team hotel or permit him to join teammates in public restaurants.
During late February, the fourth estate succeeded in calling national attention to Arizona’s “anti-gay bill,” but it is doubtful whether any member of the media ever read SB 1062 or examined its history.
For example, Forbes accused Arizona of attempting to enshrine discrimination with “a bill cleverly named the Religious Freedom Restoration Act” (RFRA). Arizona’s RFRA, however, was actually enacted in 1999, before homosexual marriage became a national issue, and it was patterned on the federal RFRA that was passed by Congress and signed by Bill Clinton in 1993.
SB 1062 simply sought to amend the existing statute to address ambiguities that had arisen in litigation concerning the federal statute and RFRAs in other states. The federal statute provides that a “person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government.” Federal courts are split on whether this language allows an individual to raise the defense of religious exercise in a suit with a private party, or whether this defense can be invoked only against the government. The words “against the government” were probably included in the federal statute to make express the waiver of sovereign immunity, and the legislative history hints at a broader purpose than just a defense to government action.
SB 1062 tried to clarify the intent of the statute by striking “and obtain appropriate relief against the government” from Arizona’s RFRA and inserting the language “regardless of whether the government is a party to the proceeding.”
The change would have ensured that, for instance, if a church owned an apartment building, declined to rent to an unmarried couple, and was sued by the lovebirds, the church could raise the exercise of religion as an affirmative defense. This does not mean that the church would automatically win the case. The church would still have to prove that it held a sincere religious belief regarding cohabitation and that state laws prohibiting housing discrimination imposed a substantial burden on the church’s exercise of its religious beliefs. SB 1062 merely made it clear that the church was allowed to raise the exercise of religion when defending the lawsuit.
SB 1062 also sought to expand the availability of the affirmative defense. Under the 1999 version of RFRA, only “a religious assembly or institution” could raise exercise of religion against the government or a private litigant. SB 1062 would have expanded covered persons to include individuals, businesses, foundations, and other legal entities.
The impetus for this change was ObamaCare’s treatment of Christian businesses, such as Hobby Lobby, that object to the government requiring them to fund contraception through company health plans. Hobby Lobby’s troubles taught the Arizona legislature that religious assemblies are not the only entities put in untenable positions because of government demands.
The media’s coverage of SB 1062 was so distorted that a group of law professors, some of whom did not support the bill, wrote to Governor Brewer to counter the most egregious misrepresentations. The professors were from various schools, including Harvard, Stanford, and the University of Virginia. The scholars summed up the effect of the bill as follows:
So, to be clear: SB 1062 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 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.
Differing sides to a controversy often engage in zealous advocacy and stretch the truth. In the case of SB 1062, the national media downright lied about the purpose and effect of RFRA. As if we needed a reminder, this episode demonstrates the sorry state of journalism in the United States.