Arizona “Discrimination” Bill SB1062: What Is It? Why Is It?

Arizona Bill

An extremely controversial bill is sitting on the desk of Arizona Governor Jan Brewer, waiting for a signature or a veto. Concerned religious groups and LGBT groups are watching from opposite ends of the current political storm.

The bill is being upheld by Christians as a needed protection for the religious freedom of business owners in Arizona, while opponents of the bill have called it “state-sanctioned discrimination” that allows “Christian extremists” to “violate any law under the guise of religious liberty.”

The bill was written by Arizona Sen. Steve Yarbrough (R) in response to several recent decisions by state courts finding that Christian business owners who declined to provide services requested by gay couples for gay marriages were guilty of discrimination under their states’ human rights laws. One such case, cited by Mr. Yarbrough, was Elane Photography v. Vanessa Willock (2013), in which a Christian family business which creates photographs and picture-books telling the story of weddings was sued for $6,638 because they declined an email proposing the company photograph a lesbian wedding.

The court in Elane looked at several arguments based on First Amendment free speech and religious expression rights, as well as similar guarantees under New Mexico’s own protections, but ruled that Constitutional rights to free speech and religious freedom were inferior to state anti-discrimination laws when it came to businesses. The unanimous court commented that although New Mexicans were now “compelled by law to compromise the very religious beliefs that inspire their lives,” Arizonans must all compromise. This what the case “taught,” wrote the commenting justices. “It is the price of citizenship.”

The New Mexico Supreme Court effectively legislated that all businesses in the state (with the exception of private clubs and churches) were legally required to serve gay marriages if gay people requested a service of the business. Failure to comply with the gay party’s request would result in court fines and a charge of discrimination.

Another businessman who was found guilty of discrimination was an Arizonan baker who declined to create a wedding cake for a gay marriage. The baker stated his beliefs, “I respectfully declined due to my personal Biblical convictions as a born-again Christian. I firmly believe that my convictions in the Bible are more important than money.”

Mr. Yarbrough drafted the bill in January with the intention of protecting religious rights, which, many people felt, were not adequately protected. “This bill is not about discrimination,” said Yarbrough. “It’s about preventing discrimination against people who are clearly living out their faith.”

The bill passed the Republican-dominated State Senate Feb. 19 with a 17-13 vote, although since that time it has been widely reported that three state senators have expressed regret over their approval of the bill.

Reportedly, the main group pushing for bill 1062 is the Center for Arizona Policy, a group that opposes same-sex marriage. The group has stated that the bill is not only about religious protection, but would also protect people from increasingly activist federal courts. The group has issued an “Action Alert” petition to focus support for bill 1062, warning that opponents are not interested in debate about the bill’s actual provisions, as evidenced by opponents’ mass calling and email campaigns to pressure Brewer into vetoing the bill.

Opponents of bill 1062 include gay activists, such as actor George Takei, who responded to the news of the bill with threats of an economic boycott. ”If your Governor Jan Brewer signs this repugnant bill into law, make no mistake. We will not come,” said Mr. Takei. “We will not spend. And we will urge everyone we know-from large corporations to small families on vacation-to boycott. Because you don’t deserve our dollars. Not one red cent.”

Recent opposition to bill 1062 has been heard not just from LGBT groups, but from large corporations who profit indiscriminately from revenue garnered in Arizona. The bill threatens the interests of these corporations, which have contacted the Arizona governor warning her of damaging economic effects (Apple), great suffering to tourism and business (American Airlines), and that they are following the issue “and will continue to do so should the bill be signed” (NFL). Criticizing bill 1062 for its stance placing speech and religious rights before strict capitalism, American Airlines CEO Doug Parker wrote. ”Our economy thrives best when the doors of commerce are open to all. This bill sends the wrong message.” The Arizona Superbowl host committee also released a statement: “A key part of the mission for the Arizona Super Bowl Host Committee is to promote the economic vitality of Arizona. On that matter we have heard loud and clear from our various stakeholders that adoption of this legislation would not only run contrary to that goal but deal a significant blow to the state’s economic growth potential. We do not support this legislation.”

Critics have also attacked the language of bill 1062. Legal experts have warned that 1062 could be used by businesses to refuse service to single women and non-Christians, should business owners so wish.

Mrs. Brewer, who returned from Washington, D.C., to her state Tuesday, must make a decision on bill 1062 by Saturday morning. Brewer has stated that upon returning she will read and be briefed on the bill. If Brewer takes no action on the bill by Saturday, the bill will automatically become law. Brewer vetoed a similar bill proposed by Yarborough last year. In response to interviewers who have recently challenged Brewer to state her position on the matter, Brewer has said that she will thoroughly investigate the bill before making a decision. “I can assure you, as always, I will do the right thing for the state of Arizona,” Brewer said.

Arizona GOP sources have made statements that Mrs. Brewer considers herself a pro-business politician. The sources have stated that Brewer places economic interests above all other interests, and that she knows that passing bill 1062 would draw economic retribution. Brewer herself has made statements to this effect. “I am pro-business, and that is what’s turning our economy around,” Brewer recently said.

So what is bill 1062?

Bill 1062 is a revision of the Arizona statute that regulates the basis for exercising religious freedom claims in a lawsuit. The statute already allows a person to defend him- or herself from any law if it “substantially burdens” his or her religious expression. However, the current law only protects as a “person” “a religious assembly or institution.” Basically, the current law only allows churches to decline service based on religious rights. Bill 1062 expands “person” to include “any individual, association, partnership, corporation, church,” “estate, trust, foundation, or other legal entity,” so that businesses, too, can claim religious rights against work that conflicts with their religion. There are also some technical changes written into the bill, stemming from recent trials. For example, bill 1062 would allow religious-freedom lawsuits “regardless of whether the government is a party” to the trial–in recent trials, courts denied rights claims because the legislation required the government to be a party.

Neither the current legislation nor bill 1062 allow religious freedom to trump all other claims, however. A burden may still be imposed even on a person with a religious claim if the burden is “the least restrictive means of furthering” a “compelling government interest.”

The bill also defines the terms by which a person must prove their religious rights have been violated. Some commenters have noted that bill 1062 actually makes it more difficult to claim religious rights because they would have a greater burden of proof under the amended law. Three terms must be shown: that the person’s refusal is motivated by religious belief, that the belief is sincere, and that the state’s action substantially burdens the person’s religious beliefs.

With so much media, institutional, and economic pressure to veto the bill–as well as technical legal doubts–any chance this bill may have to pass might depend upon Arizonans themselves, who are divided on the issue of gay marriage.

Arizonan and national attitude towards gay marriage is currently not conclusively known. In 2008, Arizonans voted to approve a constitutional amendment to ban gay marriage. Gay marriage is currently illegal in Arizona, despite recent rulings in Arizona’s courts punishing businesses which decline to provide services for gay marriages. Although somewhat different from the issue of whether businesses should be forced to serve at gay marriages against their faith, a May, 2013 Rocky Mountain poll found that 55% of Arizonans support allowing gay marriage. while 35 percent disagreed. In another relevant study–a July, 2013 Rasmussen poll–85 percent of American Adults believed a Christian wedding photographer who had deeply held religious beliefs had the right to say no if asked to work a same-sex wedding, while 8 percent disagreed.

Nationally, many changes have come about in the wake recent U.S. Supreme Court rulings that bans on gay marriage are federally unconstitutional. Because of the Full Faith and Credit Clause of Article IV of the U.S. Constitution, which requires every state to respect the laws of other states, individual states are currently unresolved as to how to deal with the legalization of gay marriage in sister states. Between 1996 and 2004, 29 states enacted legislation prohibiting gay marriage. Currently, gay marriage has been legalized in 17 states–seven as a result of court decisions, eight by state legislation, and three by popular vote. Legislation similar to bill 1062 has been introduced in Ohio, Tennessee, South Dakota, Mississippi, Idaho, and Oklahoma, but these bills have not passed.

By Day Blakely Donaldson


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