Senator John McCain was one of many prominent Republicans who urged Governor Jan Brewer to veto an amendment to Arizona's existing religious freedom law two weeks ago. Following an intense backlash from activists and pundits who who said the bill was "anti-gay," Brewer followed McCain's advice and killed the bill. But on Tuesday, McCain was unable to explain how the Arizona bill he opposed was different from a federal law he supported in 1993--the Religious Freedom Restoration Act.
"To tell you the truth, I don't remember enough of the details of the bill in '93 that I voted for," McCain told THE WEEKLY STANDARD following a Senate GOP luncheon. "It's been 14 years--ah--11 years, so I don't remember the details."
The Religious Freedom Restoration Act was signed into law 21 years ago by President Clinton after it passed the Senate on a 97-3 vote. Following a 1997 Supreme Court ruling that held RFRA was inapplicable in cases involving state and local laws, Arizona and 17 other states passed their own Religious Freedom Restoration Acts.
Stanford law professor Michael W. McConnell, a former federal appeals court judge, said that the Arizona amendment would have simply made explicit the long-standing understanding that the RFRA covers businesses and private citizens subject to civil lawsuits.
But as McConnell and other religious liberty scholars explained, RFRA doesn't say that that people invoking the law will always win: "The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest."
While the Arizona amendment was being debated, McCain indicated he was less concerned with the bill's legal impact than the economic impact of the boycotts resulting from the law's passage. "Most importantly, it's the impression it's creating because it is viewed as dicriminatory," McCain told Fox News. "I think there's a back-and-forth argument about whether it is [discriminatory] or not. But this can affect tourism, our state's economy, and job creation. The entire business community of Arizona is urging a veto of this bill."