Making sense of the legal analyses of SB 1062

There are a couple of legal analyses out today that attempt to make the point that SB 1062, the Religious Bigotry bill, is just not that big a deal. Wrong.

Howard Fischer has a report captioned in the Arizona Daily Star, Outcry over Arizona’s SB 1062 overshadows bill’s limited power. Howie relies on former ASU Law Professor Paul Bender, who comments “My summary is: It means almost nothing.””[T]he main thing people miss is, there’s no right of action against a bigot in the first place,” Bender said. “The bigot doesn’t need this.”

Howie cites the “three part test” contained in SB 1062:

The law provides a three-part test that someone seeking to use the shield would have to establish in court.

First, the person’s action or refusal to act “is motivated by a religious belief.” Second, that belief must be “sincerely held.”

And third, there would need to be proof that being forced to do something “substantially burdens the exercise of the person’s religious beliefs.”

It is that last provision that prevents SB 1062 from being a catch-all for any religious claim.

But Howie never asks the all important question: “How has this three part test been used in real world practical application?”

The only reporter today to ask the correct question is Megan Finnerty at the Arizona Republic (congrats Megan!) Can courts measure sincerity of faith?:

Our most deeply held convictions cannot be proved or disproved — the love we have for our children, the faith we have in our God, the respect we have for our parents — but SB 1062 would create an opportunity for a judge or a jury to ascertain and measure them.

Religious and legal experts disagree whether a judge or jury could know if a belief was sincere. They also don’t agree on what could be considered proof of such a belief. Words and actions only go so far.

About 250 cases have been brought since the federal Religious Freedom Restoration Act was put in place 20 years ago. Since then, 26 states have passed similar laws.

Judges have believed those who asserted a religious belief essentially because they said they held it, said Phoenix attorney Joe La Rue of the Christian legal organization Alliance Defending Freedom, which co-wrote SB 1062.

“The courts know how to figure this out; they’ve done it,” La Rue said. “The court generally takes your word for it. You don’t presume a person is lying. You take them at their word unless the belief is so preposterous or so over the top that you couldn’t.”

Courts have long abstained from defining what is a religious belief and what is a sincerely held belief out of deference to the First Amendment. The courts simply throw up their hands and say “I’ll take your word for it.” Which renders this three part test, which the authors claim is designed “to keep people from bringing frivolous lawsuits,” meaningless in practical application.

For those of you who followed the debate of SB 1062 in the Arizona legislature, you will recall that proponents were vehemently opposed to “government” defining what is a religious belief and what is a sincerely held belief. And yet SB 1062 assigns to the judiciary — a branch of the government — the task to decide this question. Ths is an invitation to litigation for those who seek to take advantage of the court’s policy of abstention in religion cases. It is an opportunity to push the envelope.

Howie entirely downplays the key significance in SB 1062 from existing law, which he leaves to the end of his report:

There is, though, one provision that could have some implications, Paul Bender said.

Under current law, the right to claim religious freedom extends to individuals, religious assemblies or institutions. This legislation would expand that to provide a shield to associations, partnerships, corporations, churches and other business organizations.

The courts have never extended the full panoply of civil rights afforded to individuals under the Constitution to fictional legal entities. Such rights and liberties have been applied on a selective basis. To assert that a fictional legal entity enjoys the same religious liberty under the Constitution as do individuals is a truly radical notion.

Hank Stephenson at the Arizona Capitol Times (subscription required) also ignores this key provision of SB 1062 from existing law in his analysis. Reality versus rhetoric in the SB1062 debate. A lawyer, Bill Hardin in an opinion in the Arizona Republic explains the significance. Lawyer: SB 1062 is a radical law change:

To the chagrin of my Baptist preacher father, I am a lawyer. I’m also someone who respects people of faith. I’ve been giving legal advice to Arizona companies and entrepreneurs for 30 years. ADF’s bland description of SB 1062 is simply wrong.

First, Arizona’s RFRA is not ambiguous. It clearly covers individuals, churches and religious organizations. It does not cover non-religious businesses. That isn’t an “ambiguity.” It’s what the law says as it strikes a careful balance between competing rights — freedom of religion and freedom from discrimination in the marketplace.

Civil rights laws often strike this balance between the religious and public spheres — for example, women and racial minorities have strong non-discrimination protection in commercial services, even though the law doesn’t require religious organizations to treat them equally.

Second, SB 1062 does much more than ADF admits. Businesses of course must comply with state and local law. SB 1062 radically expands RFRA’s limit on government action to include action by private parties that are merely complying with the law.

That means that if an employee believes his employer’s compliance with a local law would violate the employee’s religious beliefs, SB 1062 allows the employee to sue the employer.

SB 1062 imposes an unreasonable choice on the employer: either violate the law or litigate with her own employee. It shifts the burden and cost of defending religiously neutral state and local laws from the government to employers.

Further, SB 1062 actually creates ambiguity, with vague language that could be interpreted to prevent businesses from voluntarily maintaining a non-discriminatory workplace, either for business reasons or because their own moral or religious principles demand it.

* * *

As a lawyer, I’m here to tell you that SB 1062 represents a radical change that would burden Arizonan’s businesses.

The government action versus private action based upon compliance with government regulation (anti-discrimination laws) is significant, and as Hardin says, is radical.

What Stephenson gets right is that SB 1062 was in response to the non-discrimination ordinances in the cities of Phoenix, Tucson and Flagstaff, which speaks to the underlying discriminatory purpose and intent of this bill:

[T]hree cities in Arizona, Phoenix, Tucson and Flagstaff, have adopted local ordinances that protect the LGBTQ community from discrimination in the workplace or places of public accommodation, such as a public restaurant or hotel. The “religious freedom’’ bill was introduced for the first time last year, shortly after Phoenix approved its anti-discrimination ordinance including sexual orientation.

Kory Langhofer, an attorney with Brownstein Hyatt Farber Schreck, said the cities with anti-discrimination ordinances protecting sexual orientation are “the only place this law will really matter.”

“The only place LGBT folks have protection in Arizona is a couple of cities, like Flagstaff and Tucson and Phoenix. What this would do is create an exemption to the local anti-discrimination ordinances protecting sexual orientation. So if you’re in Gila Bend or someplace where there’s no anti-discrimination ordinance, this doesn’t do anything for you. It’s kind of a state law that’s an exemption to nothing,” Langhofer said.

The bill would give business owners in Phoenix, for example, a way out of the anti-discrimination ordinance in situations such as if the business owner can prove that treating gay couples equally would be a substantial burden on their religious beliefs, he said.

In those places, he said, “discrimination (against gays) is going to be permissible on a case by case basis.”

In the rest of the state, if a business owner doesn’t want to serve gays, they don’t even need to claim it’s for a religious reason.

Furthermore, state and federal civil rights acts only apply to employers with fifteen (15) or more employees, so small employers are most at risk of litigation:

“The Federal Civil Rights Act, in the employment arena, applies to only business that have 15 or more employees. So a small business could say, ‘We have a religious objection to hiring someone because of their race or national origin or religion,’” David Selden said.

However, he said the same rule wouldn’t apply to whether a business would have to provide service to people based on their race, religion or gender – which is governed by a different set of laws.

Tom Irvine notes that the bill opens up the possibility that someone could raise religious objections to serving people based on their race, religion or gender – even though he doesn’t think the suits would be successful.

He said the bill appears to provide a basis for those types of claims, and the bill would result in a flood of litigation from people claiming their religious beliefs had been violated, even if state and federal law would ultimately trump those claims.

It is the litigation of these religious liberty claims that organizations like the Center for Arizona Policy and the Alliance Defending Freedom are actually after. it is the raison d’être for their existence, and keeps their financial contributions coming in.

While there has been media attention to the fact that gays and lesbians are not a “protected class” under the state or federal civil rights acts, there has been no discussion of the recent Ninth Circuit Court of Appeals opinion that holds discrimination against gays and lesbians violates equal protection under the 14th Amendment. 9th Circuit bans juror exclusion over sexual orientation:

A federal appeals court became the first in the nation to rule that prospective jurors may not be excluded because of their sexual orientation, a decision that expands juror protections beyond race and gender and provides legal ammunition to challenge laws that limit gay rights.

* * *

When a law discriminates on the basis of sexual orientation, it must be closely evaluated to “ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Judge Stephen Reinhardt wrote for the court. The panel said excluding gay jurors violated their constitutional right to equal protection under the law.

* * *

Tuesday’s landmark ruling extended the restriction to federal courts in California and courts in eight other Western states, lawyers said.The decision will also make it harder to justify laws that treat gays differently from others, including bans on same-sex marriage, lawyers said.

In fact, the states of Nevada and Oregon (in the Ninth Circuit) have already abandoned their defense of their state’s same-sex marriage bans in pending litigation as a result of this opinion. Should Governor Brewer sign SB 1062 or allow it to become law without her signature, the legal challenge to SB 1062 will be based upon the equal protection clause of the 14th Amendment. It will be stayed from going into effect until the Ninth Circuit strikes it down as unconstitutional — as so many bills from the Center for Arizona Policy have been.

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