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Arizona's Religious Freedom Restoration Act has been on the books since 1999 and has not been updated during that time. In light of increasing threats to religious liberty at all levels of government, SB 1062 makes important clarifications to ensure religious liberty is further protected in our state.
Our nation and state have a rich heritage of religious freedom. The Arizona Constitution specifically protects each citizen’s liberty of conscience, and the Legislature has passed laws to affirm religious freedom in specific contexts.
In 1990, the U.S. Supreme Court ruled in Employment Division v. Smith that a law that burdened the free exercise of religion was not unconstitutional if it was a neutral law of general applicability.[i] This decision weakened protections for religious beliefs. Previously, the Court had required a burden on religious exercise to pass the strict scrutiny test.[ii] Strict scrutiny is the highest standard for evaluating government infringement of a constitutional right. The test asks whether the government has a compelling interest in restricting the religious exercise and whether the restriction the government has placed on the religious exercise is the least restrictive means of accomplishing that interest.
After Smith, Congress responded by passing the federal Religious Freedom Restoration Act (“RFRA”), reinstating the strict scrutiny test for all infringement of religious exercise by the government.[iii] However, the Supreme Court struck down the federal RFRA as applied to the states, on the grounds that Congress had acted beyond the scope of its powers under the Constitution.[iv] In response, most states, including Arizona, passed state-level Religious Freedom Restoration Acts, applying the strict scrutiny test to all government action by the state and its political subdivisions.[v]
In recent years, the Arizona Legislature has added specific applications of religious freedom to the law, including protection for religious land use and protection for professional licensees.[vi] However, the core of Arizona’s RFRA has not been updated since its enactment in 1999.
SB 1062 will provide two much-needed updates to Arizona’s RFRA statute. First, the bill clarifies that the definition of “person” includes all types of businesses and legal entities. Although the question of whether private business owners should be afforded First Amendment protection should be a non-issue, opponents of religious freedom continue to argue that for-profit businesses do not have consciences. They argue that businesses cannot operate according to a sincerely held religious belief and make a conscientious objection to a government mandate. Further, the updated definition is similar to what already exists in Arizona law defining a person as including corporations and other business entities.[vii]
An example of these outrageous claims can be seen in the legal filings opposing businesses like Hobby Lobby and Conestoga Wood who are simply trying to operate their businesses according to their consciences. Such a narrow view flies in the face of the fact that the First Amendment has no limitation on its protections, which is why SB 1062 makes it clear that all individuals and business owners are protected.
Finally, the bill also ensures that a government enactment is not permitted to infringe on religious belief merely because the enactment allows for enforcement by a private individual.
The critical need for this change came to light in a case recently ruled on by the New Mexico Supreme Court. On August 22, 2013, the New Mexico Supreme Court unanimously ruled in Elane Photography v. Willock that the state’s RFRA did not apply in a case where a private party sought to enforce a state law against another private party.[viii] New Mexico’s RFRA is similar to Arizona’s, and Arizona’s law includes the same deficiency that was revealed by the Elane Photography case. SB 1062 seeks to ensure that state laws that violate the religious liberty of private persons cannot be enforced simply because the government is not technically a party to the case.
As an example of just how serious the threats to religious liberty are and of the mindset of some opposed to religious liberty, a New Mexico justice in a concurring opinion to the ElanePhotography case stated that the “price of citizenship” is being forced to compromise one’s religious beliefs. This is not what the founders of this nation had in mind when they drafted the First Amendment, yet America and Arizona continue to witness religious liberty shrink as organizations like the Freedom From Religion Foundation attempt to undermine our nation’s first freedom. In order to better protect religious freedom for all Arizonans, it is essential that Arizona strengthen the state RFRA.
SB 1062 is necessary to update Arizona’s Religious Freedom Restoration Act and to close loopholes that might jeopardize a person’s free exercise of religion in Arizona.[i]Employment Division v. Smith, 494 U.S. 872 (1990).[ii]SeeSherbert v. Verner, 374 U.S. 398 (1963).[iii] 42 U.S.C. §§ 2000bb through 2000bb-4.[iv]City of Boerne v. Flores, 521 U.S. 507 (1997).[v]Arizona’s RFRA is found in Ariz. Rev. Stat. §§ 41-1493 through 41-1493.02.[vi]See Ariz. Rev. Stat. §§ 41-1493.03 and 1493.04.[vii] Ariz. Rev. Stat. § 1-215(28).[viii] Elane Photography v. Willock, No. 33,687, (N.M. 2013).