The return of ‘religious liberty’ bills — state sanctioned discrimination

It is now too late in the legislative session for the revival of SB 1062, the so-called Religious Liberty bill to legalize discrimination against gays — and any other minority one’s “personal religious beliefs” says they can discriminate against — from being introduced in the Arizona legislature. This would amount to state sanctioned discrimination.

Depending on how the U.S. Supreme Court rules on the same-sex marriage appeals at the end of June, I would expect Cathi Herrod and her Christian Taliban to be back with SB 1062 in the next legislative session.

In fact, Tea-Publican lawmakers in places like Georgia, Arkansas, and Oklahoma are already taking up bills “that would make it easier for businesses and individuals to opt out of serving gay couples on religious grounds.” States Weigh Legislation to Let Businesses Refuse to Serve Gay Couples:

As it looks increasingly likely that the Supreme Court will establish a nationwide right to same-sex marriage later this year, state legislatures across the country are taking up bills that would make it easier for businesses and individuals to opt out of serving gay couples on religious grounds.

Many states are now reliving a version of events that embroiled Arizona in February 2014, when Gov. Jan Brewer, a Republican, vetoed a bill that would have allowed businesses to use their religious beliefs as a legal justification for refusing to serve gay customers.

The resurgent controversy is fueled in part by a deep anxiety among many evangelicals and other conservatives that the Supreme Court will make same-sex marriage legal in all 50 states after it takes up the matter in April.

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As in Arizona last year, some of the new bills are already experiencing pushback from businesses and prominent conservatives who are concerned that they might lead to boycotts or harm their states’ reputations. And gay-rights groups say the bills would enshrine [state sanctioned] discrimination.

In Arkansas, a so-called conscience protection bill was scuttled in the Judiciary Committee of the State Senate on Feb. 25, a day after the homegrown retail giant Walmart released a statement arguing that the bill would send “the wrong message about Arkansas, as well as the diverse environment which exists in the state.”

Supporters of the proposal, which the State House of Representatives overwhelmingly approved, said they might introduce a new version this session.

In Georgia, powerful business interests helped kill similar legislation last year. Opposition to two similar bills remains strong among a portion of the state’s elite, who are sensitive to the perceptions that Southern states, in particular, can be havens of intolerance.

“What you have to be careful about is making sure you don’t conform to those perceptions,” said former Gov. Roy Barnes, a Democrat. “That’s the reason this bill is so dangerous.”

The Georgia Senate approved a version of the legislation on Thursday afternoon by a vote of 37 to 15.

Similar bills have been introduced in Colorado, Hawaii, Indiana, Michigan, Utah, West Virginia and Wyoming, according to the Human Rights Campaign.

Bills in South Dakota and Wyoming recently failed. In Texas, which already has such a law, lawmakers are considering a constitutional amendment that would make it even easier for religious people who feel aggrieved by government policy to win their cases in court.

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Concern over the expansion, which has accelerated in the last year with a flurry of federal court decisions, is driving a good deal of support for the bills.

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In Michigan, supporters have said a bill there would serve as a necessary legal counterweight to a proposal seeking expanded anti-discrimination policies for lesbian, gay, bisexual and transgender people.

Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said the religious-freedom bills were necessary to address the “increasing religious pluralism in American culture.”

“In recent years, I think more people are aware of the need to explicitly and clearly protect religious liberty,” he said.

In general, the bills would make it easier to win court cases brought by individuals who claim their exercise of religion was infringed by government policy.

Many of the bills contain language that the government may not “burden,” or in some states “substantially burden,” the practice of religion, and may do so only if it can both demonstrate a “compelling” interest, and show that it is doing so by the least restrictive means.

Their model is the federal Religious Freedom Restoration Act, or R.F.R.A., which was signed into law in 1993 by President Bill Clinton, and which enjoyed overwhelming support from both liberal and conservative members of Congress.

The act was an effort to restore the rights of religious practitioners that had been curtailed by the Supreme Court’s 1990 decision in the case Employment Division v. Smith. In that case, the court upheld Oregon’s denial of unemployment benefits to employees fired for using peyote in a religious ritual.

In 1997, however, a Supreme Court ruling effectively limited the law’s application to the federal government. In response, a number of states began passing and putting together their own laws similar to the Religious Freedom Restoration Act. Today, the laws exist in 19 states, and courts in a number of other states apply the act’s legal standards in determining relevant cases.

But gay rights and civil rights groups have become increasingly concerned, as some lawmakers have said their aim is to protect wedding planners and other businesses who might wish to refuse service to a same-sex couple on religious grounds.

The Human Rights Campaign, in a recent position paper, warned that the current bills would empower “any individual to sue the government to attempt to end the enforcement of a nondiscrimination law.”

As a result, the group says, an evangelical business owner could sue, claiming his faith compels him to refuse to hire “Jews, divorcees, or L.G.B.T. people.” Landlords could refuse to rent apartments to Muslims.

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Sarah Warbelow, the legal director of the Human Rights Campaign, said that her group fully supported the idea of protecting religious rights.

But she said she would like to see even the existing laws amended “to clarify that they should not be used to undermine nondiscrimination principles, or to engage in harm against others.”

In Arizona, a recent opinion issued by the state’s judiciary ethics advisory committee holds that:

Arizona judges are being told they must perform same-sex marriages if they chose to perform any marriages.

An opinion issued recently by a state judiciary ethics advisory committee says turning away same-sex couples would violate a state judicial-conduct rule against bias or prejudice based on sexual orientation.

The opinion also says a judge’s religious or other personal beliefs don’t make a difference nor does it matter if the judge performs weddings at non-court locations.

A court ruling last October made same-sex marriage legal in Arizona.

Wait for it . . . Cathi Herrod, lobbyist and president of Center for Arizona Policy, told The Arizona Republic that she was unhappy with the opinion.

“We are looking at all options,” she said. “There is a reconsideration process that’s set out. The opinion certainly will have a binding effect on justices of the peace and judges, so we are looking at all options.

“It may take until next legislative session to pursue a legislative option – we just have to wait and see whether that’s the best course or not. But all options are on the table.“

To my friends in Why Marriage Matters Arizona, the Human Rights Campaign and Arizona ACLU, I hope that you have not been resting on your laurels since the Court ruled in your favor last October. Your work is not done; your civil rights are not yet secured.

There are two ballot measures you must be prepared to file shortly after the U.S. Supreme Court issues its opinion in the same-sex marriage appeals in late June:

Remove the artifact of State Sanctioned Discrimination from the Arizona Constitution

The federal courts have struck down Article 30 of the Arizona Constitution, approved by voters as Proposition 102 (2008), amending the Arizona Constitution to define marriage as being between a man and a woman only. Same-sex marriage is now a reality in Arizona.

But this artifact of state sanctioned discrimination should be repealed and removed from the Arizona Constitution, much in the same way that former slave states repealed constitutional provisions for slavery and Jim Crow laws in state constitutions.

Amend the Arizona Civil Rights Act

Amend the Arizona Civil Rights Act (ACRA) to prohibit discrimination on the basis of gender identity or sexual orientation in employment, public accommodations, and housing in the same manner as other protected classes currently covered under the ACA. This provides broader coverage than the proposed federal Employment Non-Discrimination Act (ENDA).

This bill has been introduced in the Arizona legislature every year since the mid-1990s, and has gone nowhere — despite the fact that most Arizonans believe, wrongly, that such anti-discrimination protections already exist.

Don’t wait for Cathi Herrod and her minions to take the fight to you in the next legislature. It is in your best interest to preemptively take the fight to Cathi Herrod and her ilk with ballot measures this summer.