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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.

Arizona

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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What Constitutes a Brothel in Arizona?

A legal argument is brewing in Arizona state courts as to what constitutes a brothel because of the Phoenix Goddess Temple trial currently being argued.

Let me back up and give you the background. Back in 2011 police raided a building in midtown Phoenix, Arizona because it was a suspected brothel.  A brothel is just another way of saying that it was a house of prostitution.  Police said they found advertisements on the website Backpage.com offering sex in exchange for donations.

Prosecutors say the Goddess Temple was a front for prostitution and masqueraded as a church.  Basically, prosecutors say there is a litmus test for prostitution: if money was exchanged for sex.

The women who worked in the Goddess Temple claimed the entire organization, including the sex, was for religious purposes.  “It was about women being the teachers, the leaders, the guides and men saying ‘I want to be with a woman who is in her power.'”   Tracy Elise, Goddess Temple’s ‘Mystic Mother,’ said in an a videotaped interview with Channel 12 news, starting at 1:25 of the video.

Tracy Elise seems to be making two basic defenses: that donations are not a fee arrangement according to contractual law principles, and she has a First Amendment right to practice her religious how she sees fit.

In court this past week, Elise also tried to distinguish the Goddess Temple from a brothel by the amount of revenue.  Elise questioned Dennis Hof, the owner of seven brothels and is a “brothel expert” at the trial, if his brothels could be financially viable on a donation system.  He quipped that he would have to hire probably a 5,000 more prostitutes at each location to make up for the lost revenue.  The suggestion Dennis Hof is making is that a brothel is a business.  And like any other business, it fees it charges its customers to pay for operating expenses and to make a profit.  If the organization is not concerned with making a profit, then perhaps it is not a brothel.

If money is not the main motive (it is some kind of motive because the Goddess’ solicited donations) does that make it a brothel?  And does the religious / First Amendment defense hold any water?

Brothel and Prostitution Law in Arizona

Let’s look at what laws the prosecution is saying Tracy Elise broke related to a brothel / prostitution.  According to the Maricopa County Superior Court online docket, Tracy Elise is charged with violating Ariz. R. Stat. § § 13-3208, 13-3209, 13-3214 (to just name the laws related to prostitution).  All three of these laws fall under the Prostitution chapter of the Criminal Code for the state of Arizona.

Ariz. Rev. Stat § 13-3208 – is titled “Keeping or Residing in a House of Prostitution”  In this article I will just call it Arizona’s Brothel Law.

A. A person who knowingly is an employee at a house of prostitution or prostitution enterprise is guilty of a class 1 misdemeanor.

B. A person who knowingly operates or maintains a house of prostitution or prostitution enterprise is guilty of a class 5 felony.

Ariz. R. Stat. § 13-3209 – Pandering.

A person is guilty of a class 5 felony who knowingly:

1. Places any person in the charge or custody of any other person for purposes of prostitution.

2. Places any person in a house of prostitution with the intent that such person lead a life of prostitution.

3. Compels, induces or encourages any person to reside with that person, or with any other person, for the purpose of prostitution.

4. Compels, induces or encourages any person to lead a life of prostitution.

Ariz. R. Stat. § 13-3214 – Prostitution Classifications.

A. It is unlawful for a person to knowingly engage in prostitution.

Well, it appears the Arizona legislature likes tautological definitions.  Instead of providing a definition of what a house of prostitution or a brothel is, it just uses the word being defined in the definition.  As we will see next there is a definition statute for the Prostitution chapter of the Criminal Code for the state of Arizona that will provide some clarity.  However, on its face, these statutes are annoyingly vague.

Ariz. R. Stat. § 13-3211 – Prostitution Definitions.

2. “House of prostitution” means any building, structure or place that is used for the purpose of prostitution or lewdness or where acts of prostitution occur.

5. “Prostitution” means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration.

Finally, there is some language that actually defines prostitution.  The Arizona Legislature again provides no help whatsoever in defining a brothel or house of prostitution.  It takes a lot for a law to be unconstitutionally vague, but these tautological definitions are pushing the envelope.

The definition of the act of prostitution is clearer.  The law says that there needs to be some kind of contract.  There needs to be “bargained for agreement” where going in each side knows they will get something they want.  The ‘John’ knows that he will receive sex and the ‘prostitute’ knows she/he will receive something of value (usually money).  So we know there needs to be some type of fee arrangement.

What is a Fee Arrangement?

The language in the Ariz. R. Stat. § 13-3211(5) suggests that the act of prostitution requires a contract for sex.  For a valid contract to occur three elements need to occur: offer, acceptance, and consideration (as expressly mentioned in the statute).  The only part in dispute in the Goddess Temple case is the consideration.

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for
his promise and is given by the promisee in exchange for that promise.

— Restatement (Second) of Contracts § 71 (1981).

Consideration is the legal concept that each side gets something of value out of the agreement.  This principle distinguishes a contract and a promise, in its most basic form. As my Contracts Professor would like to say, “if I offer to take out the garbage for a friend” there really is not anything in it for the party taking out the trash, other than the good feeling of a cleaner area.  In a legal sense, one is not getting anything of value for taking out the trash, so there is not any consideration.

But the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project.

Murdock v. Com. of Pennsylvania, 319 U.S. 105, 111 (1943).

Similarly, Tracy Elise is saying that her announcement on Backpage.com is not the basis of a contract.  The Mystic Mother argues it is like passing around the collection plate at church, where a contract cannot occur because it is not clear if Tracy Elise will receive anything for her sexual services at all.  Donations by definition are not agreed upon.  The donee has control how much, if anything, is given.  This is similar to what Dennis Hof, the brothel expert, was saying at the trial.  A business has set fees for what it charges — that is part of consideration, which is not how the Goddess Temple operated.

There is one example in Arizona’s history of a fee arrangement for “prostitution” from the case State v. Taylor, 808 P.2d 314 (Ariz. App. Ct. 1990).  Where a theater offered an area where behind glass, patrons could watch live dancers fondle their own and others breasts and vaginas.  There the defendants worked under a strict fee arrangement with patrons.  The audience had to pay a pre-arranged, upfront fee of $20 per woman, and then a fee of four tokens per thirty seconds of performance time thereafter. The Taylor court found this to be a fee agreement.

The problem is that Taylor had pre-defined fees.  Going into the agreement both parties knew what they would receive.  The patrons of the theater would be able to watch a live sex show.  The theater and the dancers would receive payment upfront and in thirty second increments there after.  The Goddess Temple was not charging a cover fee at the door, nor were they asking for payment based on any time increments.  There is a big difference between what happened in Taylor and how the Goddess Temple conducted their services.

It is very likely that the Goddess Temple did not have a fee agreement as defined by Ariz. R. Stat. § 13-3211(5).

Religious Freedom for Sexual Acts

Whether Arizona’s statutes prohibiting prostitution infringed upon the Goddess Temple’s free exercise of religion is less clear.

The word religion is not defined in the Constitution.  To determine which religious freedoms are guaranteed, courts must look elsewhere. Often times courts will look to the pattern and practice of states currently and in the past.  Using this approach, they will often say ‘this is how we have always done it,’ — United States Supreme Court Justice Antonin Scalia is known for this way of thinking.

The common law does not provide much support.

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?

— Reynolds v. United States, 98 U.S. 145, 166 (1878).

Citizens are allowed to think whatever they want.  They may believe in one God, multiple Gods or no Gods and that is protected.  Although when one acts, even in the name of religion, it may violate the principles of government.  When the two conflict then there must be a determination of which is more important.

The restriction of the right to freely exercise religion has been held constitutional several times before: Reynolds v. United States, 98 U.S. 145, 166 (1878) (holding a statute banning bigamy constitutional); Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (holding a state can restrict a nine year old girl from selling newspapers on a street corner, even though her religion, Jehovah’s Witness, tells her to do so); Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223-24 (1963) (holding requiring schools to read bible verses daily is not protected by the First Amendment);Stone v. Graham, 449 U.S. 39, 41 (1980) (holding a requirement of posting the Ten Commandments in each school classroom is not protected by the First Amendment’s freedom of religion).

So even assuming the Goddess Temple is a recognized religion, it is not automatically protected by the freedom of religion — because sex is an act.

However, there is another constitutional argument that does not appear to be considered from what I have seen: the law is overbroad.  Legislation does infringe upon religious liberty must be narrowly tailored to achieve a compelling governmental interest.  State v. Taylor, 808 P.2d 314, 319 (Ariz. App. Ct. 1990) the court noted that Ariz. R. Stat. § 13-3211(5) is “broadly written.”  This suggests that the Court thought there may be exceptions to Arizona’s definition of prostitution on an overbreadth challenge.  However, the court said since neither party brought up the overbreadth of the statute they would not comment on it.  That is a pity, because if there is a chance that § 13-3211(5) is overbroad, I would love to hear a court’s thoughts on the rest of the prostitution chapter and its tautological definitions.

An overbreadth argument is a nuanced constitutional argument.  The complainant is saying that even if there is a compelling governmental interest that would require infringing upon my rights, Congress or the state legislature, needs to narrowly write the law in the least restrictive way possible in order to avoid if possible the loss of individual liberty.  This is basically arguing the legislative process was sloppy.

So there may be a chance the Goddess Temple can use the First Amendment’s Free Exercise clause of religion as a defense.

In addition to overbreadth, the United States Supreme Court may expand religious freedoms in the upcoming case Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).

In any event, it will be interesting to see how the Phoenix Goddess Temple case plays out.

See my related article on what is free exercise of religion.

Is Arizona SB 1062 Constitutional?

One of the main issues raised by the potential passage of Arizona SB 1062 into law is whether corporations have right to freely exercise their religious beliefs.  It is an interesting concept because corporations are inanimate objects and currently it is unclear whether the First Amendment affords corporations a right to religious freedom.

Historically, the Bill of Rights have applied to people and not corporations.  It is because the traditional thought has been that individuals and corporations function differently.  Corporations cannot freely assemble under the First Amendment.  Corporations have to deal with cruel and unusual punishment in the Eighth Amendment.  Conversely, people can do things that corporations cannot.  As Shakespeare recognized, people are unique:

If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?

— William Shakespeare, The Merchant of Venice, act 1, sc. 3.

However, the recent trend is for courts to recognize liberties for corporations that have been traditionally reserved only for people.  The best example of this is where the Supreme Court held the government cannot suppress political speech on the basis of the speaker’s corporate identity Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010).  It appears that the court may be poised to extend religious liberties to corporations next.

Much of the language of Arizona Religious Freedom SB 1062 is very similar to the federal Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb.  RFRA generally prohibits the government from substantially burdening a person’s exercise of religion.  The language of the federal legislation RFRA refers to a person.  However, as noted in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013), if the word person is not defined in the statute then the definition is used from 1 U.S.C. § 1.

[T]he word[ ] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013) (quoting 1 U.S.C. § 1).

Do not ask me why Congress created this default definition of the word person.  The definition includes pretty much any type of person, group, business, association or corporation conceivable.  It does not make much sense to me, but that is the way it is.  Either way, the statute 1 U.S.C. § 1, is also an indication of the broadening of the word person.

The United States Supreme Court via Hobby Lobby Stores, Inc. v. Sebelius, 134 S. Ct. 678 (U.S. 2013) (cert. granted) may directly hold that corporations have rights to religious freedoms.  Hobby Lobby is a closely held corporation.  The Green family runs the arts and crafts store with religious principles: it is not open on Sundays; has a practice of allowing employees time for family and worship; and has a sizable amount of religious themed items for sale.   The Hobby Lobby/Greens sued the federal government because the Affordable Health Care Act (Obama Care) mandated that corporations must provide certain types of preventive health services, including contraceptives.  Hobby Lobby then sued claiming RFRA gave them the right to opt out of the Affordable Health Care Act because corporations have religious freedoms.

On appeal the court refused to look at the issue whether corporations have a right to religious freedom from the Free Exercise clause in the First Amendment.  Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1121 n.2 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).  The United States Supreme Court will have a chance to rule on this issue.

It is speculative what United States Supreme Court will address in the Hobby Lobby case, but if the Court does rule on whether corporations have a right to religious freedoms then it will provide legal cover for legislation like Arizona’s SB 1062.  Even though the bill and the court case have different catalysts, they are both touching upon the same issue: do corporations have a right to religious freedom?

Corporations do not bleed when pricked.  Corporations do not laugh when tickled.  Corporations do not die when poisoned (they cannot literally be poisoned). Corporations may seek revenge.  However, the point is that even after all the time has passed since Shakespeare lived, there is still a distinct difference between people and corporations.

However the line is starting to be blurred between people and corporations in the courts.