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Top Law Professors: Arizona Religious Freedom Bill Has Been 'Egregiously Misrepresented'

5:36 PM, Feb 26, 2014 • By JOHN MCCORMACK
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All of this is fundamentally different from the Kansas bill that has gotten so much publicity (HB2453). The Kansas bill does not enact a broadly applicable standard, give each side a chance to prove its case, and leave decisions to the courts. It enacts a specific rule about religious objections to same-sex marriages and civil unions, and it says the religious objector always wins, no matter what.

The Kansas bill appears to limit discovery for both sides. It authorizes awards of attorneys’ fees against private citizens; the Arizona bill does not. Any religious objection triggers the Kansas law; it doesn’t matter that a business may be so large and impersonal that there is no substantial burden on anyone’s religion. Substantial burden on religion isn’t required. There is no compelling interest exception, and no hardship exception; it doesn’t matter if the religious objector is the only provider of some essential goods or services in a rural Kansas county. Government officials and employees are protected, and there is a hardship exception for the government. If all the employees in a government office object to serving a same-sex couple, the answer must always be that one of them has to serve that couple anyway. The Kansas bill’s proposed answer is that if the government cannot serve them without undue hardship, the same-sex couple has to do without. This gets things backwards. The problem with the Kansas bill is not that it proposes a specific rule. Carefully crafted specific exemptions can clarify the law for everyone and avoid the need to litigate the issue under the general standard of a RFRA or a state constitution. But specific exemptions for specific situations are very different from a general standard under RFRA, and it is important to recognize that difference. 

The real problem with the Kansas bill is not that it proposes a specific rule, but that it proposes a very one-sided and unfair rule. We agree with Congress and a clear majority of states that government should not burden a person’s religious practice without a compelling interest. But sometimes the government does have compelling interests, and then religious practices must be burdened. The Arizona bill recognizes that; the Kansas bill does not. 

People claiming that the two bills are similar are simply smearing the Arizona bill, disregarding the long and successful history of state and federal RFRAs, and trying to deceive you.

We should also say a word about the history of the two ambiguities in the Arizona bill. The Arizona RFRA was modeled on the federal RFRA, parts of which were copied verbatim. Language in the federal RFRA that authorizes relief against a government, inserted for reasons having to do with sovereign immunity, has been misinterpreted by a few courts to mean that RFRA cannot be a defense against a suit by a private citizen. The legislative history on how this ambiguity arose is very clear; there was never a congressional intention to preclude a RFRA defense against private citizens. This history is carefully reviewed in Shruti Chaganti, Note, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 Va. L. Rev. 343 (2013). 

Arizona copied the sovereign immunity language from the federal RFRA, and presumably had no intent to change the meaning. Defendants will assert RFRA defenses in suits by private plaintiffs whether or not you sign this bill. Without the bill, whether RFRA applies will be an additional issue for litigation; with the bill, the answer will be clear and the parties and the court can proceed to the merits. And keep in mind that these private plaintiffs may not be suing a business; they may be suing a church, a minister, a religious charity, an individual, or anyone else clearly protected by the Arizona RFRA. 

If the state enacts a law that burdens someone’s religion, and a private citizen sues to enforce it, the burden on religion is imposed by the state law, not by the private plaintiff. This has long been settled in constitutional law; common-law rules enforced by private plaintiffs are unconstitutional if they violate a defendant’s constitutional rights. We believe that it this also the law of RFRAs. The most famous constitutional case is New York Times v. Sullivan, 376 U.S. 254, 265 (1964), protecting the First Amendment right to criticize public officials from overreach in the common law of defamation; that opinion cites earlier cases. 

There is also good evidence that Congress thought businesses were covered by RFRA, although of course that is disputed. Arizona’s legislature may have taken a different view. But this too will be the subject of litigation if you veto the bill. If you sign the bill, the threshold issue will be resolved and the case will proceed to the merits. 

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