Policy: Law

Law professors: Arizona bill isn't about gay marriage

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A bipartisan group of law professors, including some who support gay marriage, told Arizona Gov. Jan Brewer that the Religious Freedom Restoration Act update that she is considering signing into law does not legalize discrimination, or even focus on gay marriage, despite criticism to the contrary.

The signatories didn't endorse Arizona S.B. 1062, only asking that she give it "accurately informed consideration," because they are not proponents of the bill.

"Some of us are Republicans; some of us are Democrats," they wrote in a letter available at the Arizona Policy Center. "Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading."

The Democratic Congressional Campaign Committee sent out an email Wednesday claiming that the Arizona bill "would allow any restaurant or bar-owner to puts up a sign that says 'No Gays Served.' It's legalized discrimination — plain and simple."

That's not true, according to the law professors, who suggest that the bill isn't focused on gay marriage. "So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons," they wrote. "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."

In other words, the Arizona bill would require the government to have a good reason for making an individual do something that violated his or her religious beliefs. That comment about discrimination cases is important, because -- for all that the Arizona bill is portrayed as targeting gays -- the state RFRA update is modeled on the same federal law that Hobby Lobby and others have invoked as a defense against the Health and Human Services contraception mandate in Obamacare, so it would apply to a lot more issues than gay marriage.

Those HHS mandate lawsuits are pending in court, just as every claim made under the Arizona RFRA would have to be reviewed by courts.

"But nothing in the amendment would say who wins in either of these cases," they wrote (original emphasis).

The law professors distinguish the Arizona bill from a piece of legislation in Kansas that is also intended to buttress religious freedom in light of pending lawsuits against traditional marriage laws.

"The Kansas bill does not enact a broadly applicable standard, give each side a chance to prove its case, and leave decisions to the courts," the letter says. "It enacts a specific rule about religious objections to same-sex marriages and civil unions, and it says the religious objector always wins, no matter what. ... The real problem with the Kansas bill is not that it proposes a specific rule, but that it proposes a very one-sided and unfair rule."

The Kansas conference of Roman Catholic bishops disagrees with that view of the Kansas bill, saying that it would only protect churches and private businesses from having to provide services to weddings that violate their religious beliefs, and that religious adoption agencies shouldn't be required to abandon their religious beliefs about marriage as a condition of operating.

"[The Kansas bill] creates no right for anyone to deny general services to, or otherwise discriminate against, anyone based upon sexual orientation or identity," according to a fact sheet on the bishops' website. "The bill does NOT create a right for businesses to refuse service to someone just because they are gay."

So, the bill doesn't allow photographers to decline to photograph gay people, according to the bishops, it just allows wedding photographers to refuse to photograph weddings that clash with their religious beliefs about marriage.

"The bill also protects the religious beliefs and actions of those who support same-sex marriage. The bill would protect a lesbian who is a professional photographer, and who objects to a Christian Church’s teaching on same-sex marriage, from being forced to photograph a wedding at that church," the bishops' fact sheet says. "This is true to the extent that some have expressed concern that this even-handed protection grants too much in a state that has a constitutional amendment protecting marriage as a union between one man and one woman."

Whatever the merits or demerits of these bills, it's apparent that the Arizona legislature didn't "copy" their Kansas counterparts, and a Missouri lawmaker who thinks he can base a bill on the Arizona and Kansas proposals is missing the mark.

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