Religious Freedom

The United States Constitution establishes religious freedom in the First Amendment through the Establishment and Free Exercise Clauses (both reside in the First Amendment).  Between the two clauses it protects all religions from preferential treatment and allows religions to practice their religion as they see fit (within compelling governmental interests).

There are two different and distinct parts of the Arizona Constitution that work in tandem to provide for free exercise of religion.  The two sections work to provide religious liberty. The division of religious liberties, and while using different language than the United States Constitution, the Arizona Constitution provides changes from the federal format that may provide more freedom.

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…

Ariz. Const. art. 2, § 12 (also prohibiting public money or property to be used with a religious establishment).

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.

Ariz. Const. art. 20, § 1.

In addition to the two sections establishing religious freedoms (listed above) there are two sections that restrict religious freedom.

Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state.

Ariz. Const. art. 20, § 2 (directly following the ‘perfect toleration’ section).

Only a union of one man and one woman shall be valid or recognized as a marriage in this state.

Ariz. Const. art. 30 (the last section of the Arizona Constitution).

I analyzed the Arizona sections protecting religious freedoms in a detailed blog post.  I am really intrigued that Arizona’s founders used two completely different sections of the Constitution to protect religious liberties, especially because they seem to overlap at points.  There does not appear to be much scholarship (at least in Arizona) contrasting the state and federal protections.  I hope to do more of a compare and contrast in the near future.

Provisions Granting Religious Freedom

United States Constitution

Arizona Constitution

Cain v. Horne, 183 P.3d 1269 (Ariz. Ct. App. 2008) (stating the Religion Clause, which is State’s analog to the federal Establishment Clause, was intended to ensure the separation of church and state).

Elliot v. State, 242 P. 340 (Ariz. 1926) (holding the state legislature has the power to pass ‘Sunday Closing Laws’ under health and promotion of good morals to reinforce that the Sabbath is a religious institution).

 

Provisions Restricting Religious Freedom

See Reynolds v. United States, 98 U.S. 145 (1878) (holding polygamy is not a protected religious belief).

See Barlow v. Blackburn, 798 P.2d 1360 (Ariz. Ct. App. 1990) (holding the toleration of religious sentiment is not absolute, and polygamy is an exception to it).

 

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A Discussion About the Law in Arizona

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