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Arizona businesses already can refuse to serve gays: SB1062 explained

Religion and BeliefLaws and LegislationCrime, Law and JusticePoliticsCourts and the JudiciaryNational GovernmentBusiness

It’s either a small fix to protect the free exercise of religion or a "no cake for gays" bill that would invite businesses to discriminate, depending on whom you talk to.

The legislation, SB 1062, would bolster a business owner’s right to defend refusing service to someone when the owner believes doing so would violate their the practice and observance of religion. Supporters call it a "religious freedom" bill.

As Arizona Gov. Jan Brewer weighs whether to sign the measure into law, here’s a look at what the proposal is all about. 

Why was SB 1062 proposed?

Last August, the New Mexico Supreme Court ruled that a photography company discriminated against a same-sex couple when in 2006 it refused to shoot the couple's civil-commitment ceremony.

New Mexico law specifically bars a public accommodation from denying services to someone based on that person’s sexual orientation or gender identity. Twenty-one states have similar laws, according to Human Rights Campaign.

Arizona isn’t one of them. But state lawmakers were concerned about the implementation of another law: the Religious Freedom Restoration Act.

Arizona and New Mexico are among 26 states that, along with the federal government, recognize the gist of the Religious Freedom Restoration Act, said Joe LaRue, an attorney at the Alliance Defending Freedom who helped draft SB 1062.

The act prevents a law from placing a “substantial burden” on an individual’s religious beliefs.

LaRue said it has been used by people about 200 times nationwide since 1993 to argue in court that they don’t have to do something the law requires because the action interferes with their religion.

The law was invoked by the New Mexico photographers. But in that case, a court ruled for the first time that the law could not be invoked in a lawsuit between two private parties, LaRue said. The photographers have asked the U.S. Supreme Court to hear an appeal.

“The problem is the New Mexico Supreme Court created a loophole that if government is not party to a legal proceeding, the Religious Freedom Restoration Act cannot be used as a defense,” LaRue said. 

Why the need if the law is only under threat in New Mexico?

“Freedom is too important to leave to chance,” LaRue said.

He offered an example:

“There is a law that bans discrimination at public accommodations based on religion in Arizona. Let’s pretend that I’m a bakery and that in my town here in Arizona, Westboro Baptist Church comes to picket a funeral of a soldier, and they tell me to bake a cake. They want it to say, ‘God hates ...’ and that terrible word they use.

“It would offend my dignity. I don’t want to give voice to that horrible message. Right now, they could sue me for discriminating based on their religious beliefs. If the Arizona courts went the way of the New Mexico courts, I would lose and if they targeted me,  I could lose my business because of the damages I’d have to pay out. I would never be able to assert my Religious Freedom Restoration Act defense because it’s available only if the government is prosecuting me.”

University of Arizona law professor Toni Massaro said many Arizona lawmakers likely fear that either the federal government or the courts will expand gay rights and other rights in ways that would restrict religious freedom.

What does SB 1062 do?

“They are amending Arizona law in a way that would make clear it covers businesses and allows them to use the religious freedom law as a defense if someone would sue them for sexual orientation discrimination,” Massaro said.

It would be a first-of-its-kind amendment to religious freedom laws in the country, said Erwin Chemerinsky, dean of the UC Irvine law school.

Still, according to legal experts, even if the photographers in New Mexico or the hypothetical bakery in Arizona were able to use religious freedom as a defense for their refusal of service, they would need to prove that they had sincerely held religious beliefs that were seriously affected.

“The courts will be the ultimate arbiters between balance of freedom of customers and religious beliefs of owners,” Massaro said.

Legal experts also said SB 1062 is redundant because, under Arizona law, gays have no special protections at businesses and public accommodations. In other words, businesses don't need protection for something they can't be sued for.

In fact, the attention brought by this measure might cause more problems for them.

“This sort of legislative effort may have a boomerang effect to mobilize a national effort to ban sexual orientation discrimination at public accommodations,” she said.

How does government balance all of this?

“On the one hand, the Constitution provides free exercise of religion,” Massaro said. “Government has to do that, but if it goes too far in providing rights, it starts establishing religion and giving religious actors rights that lead to religious favoritism. It has to navigate between those."

She added that there’s no question given the cases before the Supreme Court -- about whether businesses must provide health coverage for contraception as part of Obamacare -- that  questions are being raised about the proper balance between religious autonomy and an individual’s right to services.

"The Civil Rights Act of 1875 required American business to serve regardless of race," she said. "What’s the difference between that 19th century -- which we’ve ended -- and this debate? For some people, it’s resurrecting the old debate about whether there should be limits on a commercial actor’s right to not serve.”

Why the uproar?

"The law [in Arizona] already says you have a right to discriminate against gays and lesbians," Chemerinsky said. "Businesses have stronger reason not to discriminate because it would mean they would lose business."

And plenty of business owners have noted just that, saying they don't discriminate and they don't need more protection.

"It’s harmful because it sends a message that the state is bigoted," Chemerinsky said.

Who supports SB 1062?

The measure was cosponsored by three Republican senators, and 50 out of 53 Republican lawmakers voted for it. Two conservative groups helped work on the measure: the Center for Arizona Policy and Defending Freedom Alliance. The Arizona Catholic Conference has urged congregants to back the measure.

Who is against SB 1062?

Business leaders, civil liberties groups and gay rights groups have opposed SB 1062. Phoenix Mayor Greg Stanton warned that it would revive the impression that Arizona is intolerant, damaging the state's economy.

Also opposing SB 1062 are several Republican candidates seeking to replace the termed-out Brewer as governor in this year's election. Among the opponents are Secretary of State Ken Bennett, State Treasurer Doug Ducey, attorney Christine Jones, former healthcare executive John Molina and Mesa Mayor Scott Smith. Two others have not weighed in, and a third voted for it in the Legislature, according to the AP.

U.S. Sen. Jeff Flake (R-Ariz.) hopes Brewer vetoes it, he said Saturday on Twitter.

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