The Arizona Law That Never Was…And the Bigger Picture


Here are my thoughts on the Arizona bill that was vetoed by Gov. Jan Brewer. It appeared this morning on legal website

Last night, Arizona Governor Jan Brewer vetoed the controversial SB 1062 bill. It has been known as the “religious freedom bill,” as well as an “anti-gay bill.” The simplified meaning of the bill is that it would give small business owners the right to deny service based on the owner’s religious beliefs. The Arizona legislature approved the bill, but it required Gov. Brewer’s signature to become law. She vetoed the bill, stating that she not heard of one case in Arizona where a business owner’s religious freedom was affected, and that the law was over-broad with the possibility of negative and unintended consequences.

Here is a prime case of when religion, law, and money collide. It appears that this law came from conservative Christian business owners, who did not want to perform certain services for the gay community. The examples that came up were those of the photographer who did not want to photograph a same sex wedding; a printer who did not want to make flyers for a gay event; a baker who did not want to bake a wedding cake for a gay couple.

On its face, it seems to be narrowly intended for the gay community. However, any law can easily take on a life of its own. The lawmakers may have one intent, but laws have much wider applications. Under the proposed Arizona law, as long as you can (1) show that your action or refusal to act is motivated by a religious belief, (2) that your religious belief is sincerely held, and (3) that the state action substantially burdens the exercise of your religious beliefs, there would be no adverse actions against you for denial of a service.

So look at the possible broader application. A small business owner can say: “My religious beliefs say that I cannot do a wedding cake for an interracial couple, and forcing me to do so will burden my religious practice.” Sadly, there are people that truly believe this. The law now becomes a slippery slope of application, making the law over-broad. Also, how does one define a “substantial burden” to the exercise of your religion? This standard is too vague, which would lead to problems in the court interpreting and applying the law.

Keep in mind, nothing prevents business people from declining clients now. A business can pick and choose their clients, as well as the types of project they want to do. Most patrons tend to go to places where they are welcome or have been referred to by friends. So from a common sense application, this law was not needed. There have been stories from across the country of conservative Christians being “forced” to do work for gay clients and sued for refusing. But each case needs to be examined, based on the facts, by the courts involved. There is always more to a story. Our judicial system is designed to decide such matters. And this is what Gov Brewer pointed to when she vetoed the bill. She said that she could not find any such cases of this in Arizona. As a result, it was clear that legislation was not necessary.

The other interesting aspect about this bill is that some Arizona legislators ran for cover in the face of the backlash. Some legislators came out and asked Gov. Brewer not sign the bill. One legislator claimed that they didn’t know what they signed and that the law wasn’t explained to him and his fellow legislators. It seems as the depth of the possible applications became known, the legislators had a change of heart.

Last but not least is finances. Arizona is hosting the next Super Bowl, and the NFL, which will soon have its first openly gay player, was keeping a close eye on this bill. Other large corporations publicly voiced their opposition. Arizona was in jeopardy of losing business dollars if the bill passed.

Similar bills are pending in other states, including Kansas and Georgia. Constitutionally, gays are not always a protected class the way African Americans, women, and people with disabilities are. Because of this, discrimination against gays is a huge legal battleground.

America is about freedom, including freedom to disagree. The face of America is changing. The law is going to have to keep up, which will be a challenge. Equality for all will be enforced, either through the ballot box or the pocketbook.

The author Melba Pearson is an attorney in South Florida. Follow her on Twitter @ResLegalDiva.

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