The Free Exercise of Religion in Arizona – Part 2

This is the second post in a series that examines the free exercise of religion in Arizona. It is helpful to read the first part before reading the second, but it is not necessary.

The Free Exercise of Religion – Part 1 (constitutional theory).

The Free Exercise of Religion – Part 3 (Arizona case law).

Onto the second part.


State constitutions can expand upon liberties granted in the United States Constitution, but cannot restrict them.  The United States Constitution is the supreme law of the land and cannot be overridden by a state. See Large v. Superior Court, In & For Maricopa Cnty.,714 P.2d 399, 405 (1986) (stating United States Constitution is a “benchmark” for minimum constitutional protection).  When looking at the Arizona Constitution, it is important to keep in mind that it can only expand liberties the United States Constitution grants.

The Arizona Constitution contains two different sections that deal with religion Ariz. Const. art. 2, § 12, and Ariz. Const. art. 20, § 1. Both Arizona constitutional provisions to work together to secure religious liberty, in sort of a piecemeal approach.  “The first amendment (sic) to the United States Constitution and Ariz. Const. Art. 20 guarantee religious freedom. Perfect religious toleration is qualified by Ariz.Const. Art. 2, § 12.” Matter of Appeal In Cochise Cnty. Juvenile Action No. 5666-J, 650 P.2d 459, 465 (Ariz. 1982). The court noted further that religious acts are not absolutely protected.  However, the basis of the protection of religious acts, or the free exercise is discussed in part 1.

Ariz. Const. art. 20, § 1.

“Perfect toleration of religious sentiment shall be secured to every inhabitant of this state, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.”

The term perfect toleration is not defined in the Arizona Constitution, nor is it defined in Arizona case law.  However, our courts have told us the term perfect toleration is not absolute.  See Barlow v. Blackburn, 798 P.2d 1360, 1363 (Ariz. Ct. App. 1990) (stating “the of our constitution (sic) did not intend the perfect toleration clause to protect the practice of polygamy”).  Even though Arizona courts are hesitant to define the term, they do provide us with some context.  “[S]tatehood was expressly conditioned on the ‘perfect toleration of religious sentiment.'” Kotterman v. Killian, 972 P.2d 606, 636 (Ariz. 1999).

Even though the language of this clause seems to be absolute on its face, the Arizona courts have followed in the footsteps of the United States Supreme Court precedent that no rights or liberties are absolute.  C.f. City of Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 (Wash. 2009) (stating article I, sec. 11 of the Washington Constitution “absolutely protects” the exercise of free religion).  Some states have broadened the scope of rights considerably.  In Arizona, we know that there can be exceptions to the rule.

Ariz. Const. art. 2, § 12.

Article 2 of the Arizona Constitution is entitled Declaration of Rights.  Presumably, this is the section that gives rights to the ‘liberty of conscience,’ and ‘religious freedoms.’

The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. . . No

opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.

This provision of the Arizona Constitution protects religious beliefs / thoughts.  The state cannot tell any citizen what to think about religious matters, nor hold her religious opinions against her.  This is consistent with United States Supreme Court jurisprudence.  See generally Sherbert v. Verner, 374 U.S. 398 (1963) (holding unemployment benefits cannot be withheld based upon religious beliefs).

The first sentence in this section can be problematic because the word ‘licentiousness’ is very broad and acts as a limiting instruction. Typically, when a rights rights are thought of in a constitutional sense, it is a grant of rights, but here there is an express limitation on the right. The express language Licentiousness is a restriction upon an act, not upon a thought.  The constitutional provision allows for all thoughts, but the freedom of thought cannot be used as a justification for an act of licentiousness. See Planned Parenthood Arizona, Inc. v. Am. Ass’n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 197 (Ariz. Ct. App. 2011) (citation omitted) (stating licentiousness acts as a limitation on the judiciary, but the legislature can pass statutes to provide greater protections).  Neither Arizona’s constitution, statutes, or case law define the term ‘licentious.’  So there appears to be some vagueness of what licentiousness entails.

Peace and safety of the state are probably easier to define.  These are more common terms in contemporary society with more context for definition.

Strategies To Interpret Arizona Constitution’s Religious Freedom Sections

When faced with a statute that is unclear on its face the court of appeals instructs us: “When a constitutional or statutory provision is not clear, we may look to the context, subject matter, historical background, effects, consequences, spirit, and purpose of the law. Finally, we strive to interpret a constitutional provision or statute in a manner that gives meaning to all of its language.” Chavez v. Brewer, 214 P.3d 397, 407 (Ariz. Ct. App.2009); C.f. 1 William Blackstone, Commentaries 59 (1765).  In other words, the court will look to all evidence that it can find to make the strongest argument.

To find a common definition of a word would be to look to a popular dictionary.  Merriam Webster’s dictionary defines licentiousness as lack moral or legal restraints, especially sexual restraints. This definition is pretty broad and really does not provide any guidance in one direction or another.

Another option would be to take a historical look to the law of Arizona.

Looking back at the construction and intent of the Arizona Constitution may provide some insights. The Arizona constitutional convention consumed a mere two months from beginning to end. As one of the last states admitted to the Union, Arizona borrowed much from those that preceded it. Language was lifted from the constitutions of Washington, Oregon, Texas, and Oklahoma, to name a few.” Kotterman v. Killian, 972 P.2d 606, 624 (1999) (citations omitted). There is some speculation that the language of Arizona’s Constitution article II, § 12 was borrowed from the state of Washington’s Constitution.  “Article I, § 11 of the Washington Constitution is in pertinent part identical to Arizona’s article II, § 12. It is therefore safe to assume that our provision was borrowed. Thus, Washington cases interpreting their constitution are persuasive authority with respect to our constitution.” Kotterman v. Killian, 972 P.2d 606, 638 (Ariz. 1999). Reading Washington’s Constitution article I, § 11 the first two sentences are almost exactly the same, word-for-word. Because of the sameness of Arizona’s and Washington’s constitutional section on religious freedoms, Washington’s interpretation of that particular section is persuasive in Arizona courts.  What that means is Arizona courts will strongly look at how Washington handled any claim that fell under its constitutional religious freedom section, but Arizona reserves the right to interpret it’s own Constitution the way it wants.

Looking to the common law could also provide an understanding to what the legislature’s intentions were when the constitutional provision was passed.  When Arizona joined statehood the legislature criminalized several immoral or sexual acts: rape, human trafficking, indecent exposure, adultery, disturbing a church service, using offensive or abusive language in the presence of women, and owning and operating a public dance house.  Ariz. Rev. Stat. of 1913, Part I, Title IX Crimes Against the Person and Against Public Decency and Good Morals.  The breadth of offenses categorized as criminal at the common law is staggering.  Not only are many of the crimes listed at Arizona’s statehood not applicable today, there are some things that are considered crimes today which were not on the books then.

Current Arizona laws can provide the intent of how the legislature currently interprets the constitutional provisions.  There are a couple of state statutes that deal with religion.

The section of the state statutes that deals most with religion is 41-1493 et. seq. (means the whole chapter), which deals with the freedom of religion as a civil right.  The Definitions section is helpful because it defines what it means to “exercise religion” as “the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” Ariz. Rev. Stat. § 41-1493(2). That helps provide a scope for religion and the constitutional sections above.  To further re-enforce the standard the legislature included a statute on what it means for free religion to be protected — the state statute is modeled after the federal Religious Freedoms Restoration Act.  See Ariz. Rev. Stat. § 41-1493.01; C.f. 42 U.S.C. § 2000bb.

Part 3 of this series will analyze Arizona case law to see how the courts have interpreted free exercise of religion in Arizona.



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