The Arizona Legislature passed (through both the House and the Senate) a bill that would allow businesses to have the religious freedom to choose who it conducts its business with.
The newspapers have just summed up the bill without really into the text of the language. In fact, many traditional newspaper articles I have read about the subject don’t even mention either the House or Senate Bill number for readers to read the text for themselves. Here is the text of Arizona SB 1062, so you can reference the actual bill from the Arizona Legislature for yourself. Also, here is the Fact Sheet for SB 1062 compiled by the Arizona Legislature for members to have an objective guide about the bill.
Let’s walk through the bill. Because one of the first rules of statutory construction (interpreting a statute) is to read it in its entirety. The bill is pretty short, so let’s go through it, section by section.
A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B. Except as provided in subsection C of this section, state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
The first two clauses set out the scope of the bill, or in which ways it can be applied.
Section A states religious freedom is a fundamental right. The right of freedom of religion can be found in the First Amendment’s ‘Establishment’ and ‘Exercise’ clauses. Furthermore, the Supreme Court has noted that freedom of religion is a fundamental liberty. Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 40 (1947).
At the end of section A an interesting phrase is used, “government actions that are facially neutral” (facially neutral is a fancy way of saying the policy applies generally). This is used to show the strength of the right of freedom of religion. The author of the bill is saying, even if the legislature later creates a bill that seems like it does not affect religion, no holiday decorations will be allowed on commercial premises, the freedom of religion will trump any legislation that is passed by the legislature. Even though the legislation is not religious in nature, an exception will be made for religious purposes.
Section B starts to restrict what the government can do. Unless whatever action taken by private citizens is a “substantial burden” to Arizona, the state cannot restrict a person’s right to religion even if it is applied generally. So going back to our holiday decorations ban, unless it somehow “substantially burdens” the state, then the government cannot take any action.
C. State action may substantially burden a person’s exercise of religion only if the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person’s exercise of religion in this particular instance is both:
1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest.
D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.
Section C creates the only exception of when a government or even a private person or company may interfere with religious freedoms. It uses the standard of strict scrutiny which is a level of constitutional judicial scrutiny. The United States Supreme Court created judicial scrutiny to evaluate laws that might infringe upon fundamental rights. Holding fundamental rights to be the most important, the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. This creates a very high hurdle for any potential exception to the legislation.
Section D allows any person, it does not have to be a business, to make a claim of religious freedom. This claim can be made against the government or against a private citizen or company.
E. A person that asserts a violation of this section must establish all of the following:
1. That the person’s action or refusal to act is motivated by a religious belief.
2. That the person’s religious belief is sincerely held.
3. That the state action substantially burdens the exercise of the person’s religious beliefs.
F. The person asserting a claim or defense under this subsection D of this section may obtain injunctive or and declaratory relief. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
Section E lays the foundation for a claim of infringement of religious freedom. This standard would be used in court. The plaintiff has the burden of proving his/her religious freedom are infringed upon. The problem with the three prongs that concerns me is the third prong. In both Sections C and D language is used to indicate either the state or a nongovernmental actor can infringe upon the religious freedom. The third prong of Section E only provides for governmental infringement. Do not be confused. Because even though earlier sections made a distinction between governmental and nongovernmental action, this section includes both even though “state action.” See Section H for clarification on “state action.”
Section F provides for remedies. Injunction relief would allow an individual to ask a court to either start or stop an action. Basically this allows the court to force change. This is an important option because without injunctive relief the same action, either from the government or a nongovernmental actor, could continue to persist after the decision. Declaratory relief is a resolution where the judge rules on a matter on an issue of law on undisputed or relatively undisputed facts. Thus, the statute does not provide for any monetary damages.
G. For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
H. For the purposes of this section, “state action” means any action, except for the requirements prescribed by section 41-1493.04, 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 by the government or nongovernmental persons.
Section G is important because it defines the term “substantially burdens.” Earlier in Section E the term “substantially burden” is used to in what the plaintiff must prove to the judge in a claim.
Section H defines the term “state action” to include pretty much anything under the sun, including nongovernmental actors. This helps clarify Section E. Instead of conflicting with the earlier sections by not including non-governmental actors, the Arizona Legislature made up for this by sloppily and confusingly defining state action to include nongovernmental actors.
This bill allows individuals, corporations, partnerships, churches, religious assemblies, a way to assert their religious freedoms have been infringed and a legal avenue to correct it.
One impact of this bill is to give businesses and corporations religious freedoms. Typically, religious freedoms have been though to a freedom for a person, not an inanimate object like a corporation or business. This bill could help change that, at least in Arizona. The United States Supreme Court already has ruled that businesses and corporations have the right to free speech in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). And this term, the United States Supreme Court may touch on the concept of businesses and religious freedoms in the case in Sebelius v. Hobby Lobby Stores Inc. 13-354 (2014) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-354.htm.
Another impact is discrimination. This is the major critique of the bill and I agree with it. Our freedoms found in the Bill of Rights are not absolute. When competing interests are at odds we as a society must act in fairness. Here both religious freedoms and equal protection are at odds. Equal protection is in place to protect the most vulnerable members of our society who have been discriminated against and at times had their rights taken away.
There is a better way to balance both religious freedoms and equal protection interests than this bill.