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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.



The Free Exercise of Religion in Arizona – Part 1

The Free Exercise of Religion in Arizona:
This is blog post is Part I examines constitutional theory.
Part II examines Arizona’s Constitution and statutes.
Part III examines Arizona’s case law and tries to summarize discussion.

In a free government, the security for civil rights must be the same, as that for religious rights.  It consists, in the one case, in the multiplicity of interests, and in the other, in the multiplicity of sects.

— Joseph Story, Frmr. Assoc. Justice of the United States Supreme Court, Commentaries on Constitution of the United States, § 474 (quoting James Madison, Federalist Papers, #51 (1788)).

Religious freedom is a hot topic — both nationally and in Arizona.  This term the United States Supreme Court will hear arguments to what extent, if any, corporations have the right to free exercise of religion.  Locally, several religious oriented bills were proposed by the state legislature.

Furthermore this summer, a trial will start in Maricopa County, that will find if sex is a valid exercise of religion.  The Phoenix Goddess Temple claims to combine spirituality and sexuality to help the people who need love and guidance.  It is an officially recognized Oklevueha Native American Church (see more in the Arizona section below). Officials in Maricopa County shut down and arrested members claiming it is nothing more than a brothel.  Members of the temple say they are a federally recognized church and provide important spiritual services to the community.

This blog post will look at federal and state law and try to make sense of what the scope of religious organizations exercises under the United States Constitution and Arizona Constitution (Arizona will be covered in Part 2, the next blog post).

Free Exercise of Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

— U.S. Const. amend. I.

The free exercise of religion is a cornerstone of our democracy.  It is enshrined in the First Amendment, the Religious Freedoms Restoration Act 1993, 42 U.S.C. § 2000bb(1), among other statutes and protections on the federal level.  At the state level in two different parts of the Arizona Constitution protect religious freedoms, as well as state and local laws.  RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest.

Even our elected Congressmen (House and Senate), when taking their oaths of office as prescribed by the Constitution are reminded that religion does not factor their jobs.  “But no religious test shall ever be required, as a qualification to any office or public trust under the United States.” U.S. Const. art. II, § 1.

In fact, the Supreme Court noted the free exercise of religion is so entrenched “that few violations are recorded in our opinions.” Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 523 (1993).

Let’s look at the two most recent United States Supreme Court opinions that examine when the free exercise of religion, is considered by some, to have harmful effects in society.

Church of Lukumi Babalu Aye v. City of Hialeah, 1993

Plaintiffs practiced the religion Santeria.  The basis of Santeria is the “personal relation with the orishas, and one of the principal forms of devotion is animal sacrifice.”  Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 524 (1993).  Orishas depend on sacrifice for their survival.  “Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during annual celebrations.”  Id. at 525. The animals are killed by cutting the cartoid artery in the neck.

The Church of Lukumi Babalu registered with the state of Florida as a not-for-profit corporation and leased land in the city of Hialeah, Florida with the intent of building a place of worship.  It appears from judicial notice that the Church obtained all the necessary licensing, inspection and zoning approvals.  Id. at 526.

Community members began to complain about the planned church, so much so, the city council held an emergency meeting to address the topic.  The council passed several statutes incorporating and adding to the state of Florida’s animal cruelty laws.  Additional laws that Hialeah passed included a ban on “ritualistic animal sacrifices.”  The church filed suit alleging a violation of the Free Exercise clause, the church asked for an injunction and for declaratory relief.

The district court found the city had four compelling interests: 1.animal sacrifices present a substantial health risk, both to participants and the general public; 2. emotional injury to children who witness the sacrifice of animals; 3. protecting animals from cruel and unnecessary killing; 4. restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id. at 529-30.  Balancing the interests of the church and the interests of the city, the District court found the compelling governmental interests justified an absolute prohibition on ritual sacrifices.

The Supreme Court disagreed with the district court’s analysis.

Although the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’

Id. at 531 (quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).

The Supreme Court notes that if the object of the law is to target a specific group, religion or belief then the law is not neutral then only a compelling governmental interest will override the liberty interest.  The Court gives tips on how to determine if a law is neutral or not: 1. the law it must have facial neutrality, to not discriminate in the plain language of the law (facial neutrality is not determinative); and 2. the law’s application cannot subtly depart from neutrality.

Explaining the second part of the test the court notes: “[t]he Free Exercise Clause protects against governmental hostility which is masked as well as overt. ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.'” Id. at 534 (quoting Walz v. Tax Comm’n of New York City, 397 U.S. 664, 696 (1970)(Harlan, J., concurring)).

The Court importantly documents that religious liberty interests are impacted both by the legislative and executive branches.   The two different branches have different functions, writing the law and applying the law, and tasks can be performed in neutral and non-neutral manners.  Here, it seems the court accepts the different branches interests and interpretations of the law, but the Court will scrutinize the actions of both branches because of their independent roles.

Once it is decided if a law is neutral or not then different levels of scrutiny will apply.  If it is decided the law is not neutral or it impacts a particular group or class of people then only a compelling governmental interest that is narrowly tailored to address the problem will be enough to overcome targeted religious liberty infringement.

The Court unanimously found the laws banning animal sacrifice to be unconstitutional (there was some disagreement as to the test to use).

* It is important to note that Religious Freedoms Restoration Act (RFRA) 42 U.S.C. § 2000bb was made into law in Nov. 1993, while this case was decided months prior in June 1993.  RFRA was not available as a guidepost when this opinion was written.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 2006

A religious organization uses a sacramental tea in its worship that contains a hallucinogen prohibited by the Controlled Substances Act (CSA) Title 21 U.S.C. § 801.  At communion, worshippers drink hoasca, made from two plants in the Amazon region of South America.  “One of the plants, psychotria viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsiscaapi.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425 (2006). DMT is listed as a Schedule I drug, which means that it has a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.

Customs officials intercepted a shipment of hoasca (sacramental tea) to the church.  Records indicated that in addition to the three drums in the current shipment, fourteen drums had previously been shipped to the church.  The hoasca was seized and the church was threatened with criminal prosecution.   The church filed suit against the United States for an injunction and for a declaratory opinion as to the legality of the hoasca during worship.

Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,and legislated the compelling interest test as the means for the courts to strike sensible balances between religious liberty and competing prior governmental interests.

Id. at 439 (internal quotation marks omitted).

The government challenged the the legality of hoasca even though they conceded it substantially burden the church’s free exercise of religion.  Despite substantially burdening religion, the government argued the ban on hoasca was the least restrictive means of advancing three governmental interests: “protecting the health and safety of [church] members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances.” Id. at 426.

Both sides presented evidence about the effects of hoasca.  The government contended the hallucinogen can cause psychotic reactions, cardiac irregularities, and adverse drug interactions.  The church contended that how the hoasca was used during worship it minimized the health risks cited by the government.  The district court found that the evidence of health risks was equal.  Neither the government’s nor the church’s evidence was more compelling.  The evidence on diversion was also very close.  The district court granted the injunction and told the government it had to show harm to church members or that the levels of DMT increased to dangerous levels.

The Supreme Court held the government never showed a compelling reason for limiting religious exercise that the Religious Freedom Restoration Act 42 U.S.C. § 2000bb required. Even from the district court level, the government never contested that it limited freedoms, it just said that it’s interests overrode any liberty interests of the church.

The Supreme Court noted that while DMT is dangerous and correctly classified as a Schedule I drug, Congress never considered its usage in a tea used during religious worship.  The opinion compares DMT to peyote when used for religious purposes by Native Americans and says it would be unfair to make an exception for peyote and not for DMT during religious worship.  Id. at 433. “The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.” Id. at 434.

The Court gave short shrift to the argument about potentially violating the international treaty because hoasca is not a named substance to be banned.

Again a unanimous Court (Justice Alito recused himself) found the prohibition of hoasca to be unconstitutional.


The Untied States Constitution allows one to believe in whatever one wants, even if it includes animal sacrifice and hallucinogenic teas.

Once it is established that activity is religious in nature, it is the Government’s job to prove why the activity should not be permitted.  There may be restrictions on non-neutral speech as long as there is a compelling governmental interest and the law is narrowly tailored for the least restrictive means.

It is interesting to note that both of these cases are unanimous decisions.  The Court is sending a strong message with these two cases that the government must have a really strong reason to restrict religious freedoms.  Perhaps what is most telling is the Court was even willing to make an exception to Schedule I drugs on  the Controlled Substances Act.  Schedule I drugs, by Congressional definition have a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.  In other words, Congress said there is no redeeming value at all to Schedule I drugs.  However, the Supreme Court said that was too broad and if applied within the historical practices of the Church the government did not have a strong enough interest to restrict the religious liberty.

If religious liberties will allow activities as dangerous as consuming Schedule I drugs and performing animal sacrifices, it is quite possible that if a church believes the performance of sex is part of spirituality then that may be permitted.  Sexual conduct may be permitted, even if money is exchanged at some point because all religious institutions have expenses of some sort and must pay for those expenses. See Catholicism and offertories.  Restricting a church’s religious freedoms and the ability to practice spirituality and sexuality together because a payment is made to the Church could be seen as a non-neutral restriction of speech.

I will continue my analysis in the next post where I will also discuss Arizona law and it’s impact on the free exercise of religion.

Part II: Arizona’s protections for the Free Exercise of Religion.
Part III: Arizona’s case law and a summary of the whole analysis.