An amendment to Arizona's existing religious freedom law was demagogued to death last week by pundits and politicians who warned that it would usher in a new era of Jim Crow for gay people. "You can believe anything you want," said CNN legal analyst Jeffrey Toobin. "You can't turn away gay people from your store--unless this law becomes effective."
Toobin's claim, widely echoed in the media, was unfounded. According to a bipartisan group of religious liberty scholars, the legislation would have simply clarified that business owners and private citizens subject to civil lawsuits may defend themselves under Arizona's Religious Freedom Restoration Act (RFRA).
"But nothing in the amendment would say who wins in either of these cases," the scholars wrote in a letter to Arizona governor Jan Brewer (emphasis in original). They explained that RFRA commands a balancing test that allows judges to make decisions on a case-by-case basis: "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."
For religious liberty advocates, the Arizona amendment's defeat revealed something deeply troubling about the state of our politics and the news media. The loss will likely forestall efforts in other states to establish religious liberty protections. But the good news, according to one leading religious liberty scholar, is that the courts will likely conclude that Arizona's RFRA already covers business owners and private citizens in civil suits--even without the clarifying amendment.
"The irony about the Arizona law is that I actually think the law was quite unnecessary. But it certainly wasn't dangerous," Stanford law professor Michael W. McConnell told THE WEEKLY STANDARD. "I don't know anything about politics in Arizona or why the legislature voted for it, but there was no pressing legal need for it."
McConnell, a former federal appeals court judge who signed the aforementioned letter debunking misconceptions about the Arizona bill, explained that "it never really occurred to anyone until quite recently that RFRA did not protect for-profit businesses. This is a new idea. If you look at [University of Virginia law professor] Doug Laycock's amicus brief in the Hobby Lobby case, you'll see clear evidence that that is so. That is to say, that everyone understood RFRA to cover for-profit corporations."
"Until the Arizona law came up and all the commotion ensued, it never occurred to me that RFRA didn't apply to civil suits. Certainly the Free Exercise Clause is applied to civil suits, and all other aspects of the First Amendment apply to civil suits," McConnell added.
"The courts probably would have come out this way anyway," he said of the proposed clarifications to the Arizona law. "Usually you don't need to clarify things unless the courts had gone the other way, and they had not."
So why did Arizona legislators think they needed to pass the bill? According to the Arizona Policy Center, the group that led the charge for the amendment, "The critical need for this change came to light in a case recently ruled on by the New Mexico Supreme Court… Elane Photography v. Willock." In that case, the New Mexico Supreme Court held that a Christian photographer who was sued for declining to photograph a same-sex "committment ceremony" could not defend herself under the state's RFRA because it is inapplicable in a suit between private parties.
But McConnell explained in an email that the Arizona and New Mexico laws are different, and Arizona's RFRA already covers civil suits: "The New Mexico RFRA specifically covers action by 'a government agency.' The Arizona RFRA applies to all action by 'government' and extends to 'all state and local laws and ordinances and the implementation of those laws and ordinances.' Courts are not agencies, but they are an arm of government. 'All' law includes common law; civil suits are a means of implementing and enforcing law."
The argument that these minor clarifications would have led to the institution of Jim Crow for gay people is especially ridiculous considering that the state of Arizona does not prohibit discrimination based on sexual orientation at public accommodations. In other words, it was and still is legal in much of Arizona and 28 other states for restaurants to turn away people becasue of their sexual orientation. But you never hear of that happening. On Thursday, I asked the Human Rights Campaign, the nation's leading gay rights organization, if they could provide any examples of discrimination against gay people at public accommodations. HRC still hasn't responded.
Such discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash and boycotts. So there's no reason to think the amendment's passage would have suddently led Arizona businesses to discriminate against gay customers as if they were African-Americans in Alabama circa 1950.
The current debate has focused on a handful of cases outside of Arizona involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. A small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different from the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.
Religious Freedom Restoration Acts, which are on the books in 18 states and the federal government, haven't collided yet with public accommodation laws. But what if they do? "For the most part, I think the public accommodation laws are going to win out," Stanford's Michael McConnell told me. "But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they're trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it's no real interference with their ability to find housing--these cases are just not all one way or the other. They depend powerfully on the particular circumstance."
It all comes back to RFRA's balancing test. It allows a person's exercise of religion to be "substantially burdened" only if the law achieves a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest." This balancing test is the reason why the slippery-slope arguments are wrong. The federal RFRA has been on the books since 1993, and the chaos predicted by its opponents has not occurred. Sometimes the courts have ruled in favor of religious exemptions, but other times they haven't. As Michael McConnell said, "If there were a slippery slope out there, we'd be at the bottom of it already."