Arizona and the continuing quest for religious freedom?

The Wild Hunt is exclusively supported by readers like you. No advertising. No corporate sponsors. Your support helps us pay our writers and editors, as well as cover the bills the keep the lights on. We cover the community because of your generosity. Consider making a one-time donation – or become a monthly sustainer. Every amount helps. Thank you for reading The Wild Hunt!

After weeks of debate and protest, the show-down in the Copper State is finally over.  Arizona Governor Jan Brewer vetoed State Bill 1062, the so-called anti-gay bill. With high stakes and increased pressure from corporations, Brewer had little choice but to object. On Feb. 26 she said:

I have not heard of one example in Arizona where business owners’ religious liberty has been violated … The bill is broadly worded, and could result in unintended and negative consequences. (The Washington Post)

While the notorious Arizona State bill is now certainly dead, the conversation is far from over.

Image: Wing-Chi Poon, CC lic. Wikipedia Commons

Image: Wing-Chi Poon, CC lic. (Wikipedia Commons)

The mainstream media dubbed SB 1062 “anti-gay” legislation in order to link the bill to recent public discourse surrounding marriage equality. However SR 1062 was not specifically “anti-gay.” In fact SB 1062 was not even new legislation. It was a proposal to amend a current Arizona law – one that is commonly referred to as a Religious Freedom Restoration Act (RFRA.)

Mark Bailey, a Druid living in Phoenix, Arizona explains:

We took the time as a State to vote on the people that we felt would advance our beliefs and protect our rights from those who do not understand Arizona. Instead what we got was a few very unscrupulous people who decided instead to forward a small minority of people’s rights ahead of everyone else’s. They decided that it was okay to try to legalize an individual’s right to bigotry, prejudice and outright hatred.

Mark Bailey, Druid and Arizona resident

Mark Bailey, Druid and Arizona resident

In April 2013 we reported on Kentucky’s passage of its own RFRA law after a series of disputes with its Amish community. Generally speaking, RFRA’s seek to protect the right to act or not to act based upon “sincerely held religious beliefs” when imposed upon by the government. This might include a public school test held on a holy day, a ban on beards or religious head wear, or a requirement to conduct legal business on the Sabbath.

At first glance the concept sounds great until you look a bit closer. Legislators have repeatedly recognized that the broad language of these type laws could potentially lead to abuse. Kentucky Senator Daryl Owen, “This is a piece of legislation looking for a reason.”

What changes did Arizona’s legislature make to its own RFRA that led to the recent uproar? SB 1062 expanded the RFRA language to include private industry. Here is a portion of the text from the revised law:

‘State action’ means any action  by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made or attempted to be made by the government or nongovernmental persons.

Arizona Governor Jan Brewer (official portrait)

Arizona Governor Jan Brewer (official portrait)

SB 1062 replaced “government” with “state action.” The original (and current) Arizona RFRA only addresses burdens placed upon individuals by governmental agencies (e.g., the Amish buggy controversy, prayer in public schools.) The revised version would have included those burdens placed upon nongovernmental persons by nongovernmental persons when using a ‘law’ or ‘state action.’ This means that businesses could claim a defense under RFRA laws when they feel their “sincerely held religious beliefs” are being burdened. For example, this might include the subsidizing of birth control or the hiring or firing of certain individuals. Mark Bailey expressed his concern:

Companies have to designate themselves as “religiously affiliated employers” and can therefore by RFRA not be forced against their religious will to do something. Since the Bill was ambiguously written, it would have allowed wide varieties of actions to be potentially covered by this Bill … I saw the potential for this arrogance to be the beginning of a very dark time for just about anyone that someone in power thought was wrong for some reason.

While all the media attention was on Arizona,  Kansas had been pushing its own revised RFRA with very specific language. It reads in part:

No individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender …

While the Kansas bill has a very clear target, the Arizona law was far more open-ended and could have resulted in problems for many sectors of its population – not only the LBGTQ community. However, it is easy to see how SB 1062 quickly became a “gay issue.” Consider John C. Eastman’s, chairman of the National Organization for Marriage (NOM), reaction to the veto:

The fight has to be over what the First Amendment is … This is not somebody adhering to old Jim Crow lunch-counter discrimination. This is a fundamental dispute about what marriage means, and why it’s important for society.

Eastman’s comments demonstrate the underlying agenda of RFRA supporters.

In an on-air CNN debate with Cathi Herrod of The Center for Arizona Policy, Rob Boston of Americans United explains, “I really think that bills like this are the dying last gasp from people who just can’t accept the fact that American Society is changing.” He adds:

What legislation like this does is take a very noble concept like religious freedom and it turns it into a tool of oppression of other people and that is simply not right. That is a fundamentally anti-American value. It’s at odds with the First Amendment.

Last April Rev. Selena Fox, founder of Lady Liberty League and Circle Sanctuary, agreed saying:

Religious Freedom is an important foundation for the United States. We need to be vigilant, guard it, preserve it and uphold it. However, as part of this work, we also need to closely examine political crusades and legislation that are put forth in the name of “Religious Freedom.” Just because something is proclaimed to be about “Religious Freedom” does not make it so.

According to The Washington Post, there are currently nine states considering related RFRA legislation. As the Post says, “Here are the states to watch if you want to keep tabs on this issue:” Mississippi, Missouri, West Virginia, Oklahoma, Michigan, Idaho, Hawaii, North Carolina and Oregon. In West Virginia, there is even a proposal to amend the state constitution with specific religious language.

The same article also notes that six states have now abandoned attempts to push through or amend RFRA legislation. These include Tennessee, Utah, South Dakota, Ohio and Georgia. Kansas has even tabled its bill.

Image: Gonzo fan2007, CC-BY-SA-3.0 lic. via Wikimedia Commons

Image: Gonzo fan 2007, CC-BY-SA-3.0 lic. via Wikimedia Commons

Finally one more side point needs to be made with regards to the Arizona “kerfuffle.” During the weeks leading up to the veto, the NFL, the Arizona Cardinals Football Team, the 2015 Super Bowl Committee and Major League Baseball all came forward very quickly with strong statements against Arizona’s SB 1062 affirming their practice of diversity. These statements were expressed just as the multimillion dollar sports industry was faced with its own internal diversity challenge. Potential NFL draft pick Michael Sam announced he was gay. Conservative lobbyists now want Congress to legally ban gay players from the NFL and similar leagues. How will these national sports organizations react when confronting this issue in their own backyards?

The conversation is far from over.