Thursday, February 27, 2014

What does the Arizona veto mean?

As you almost certainly know by now, Arizona governor Jan Brewer vetoed SB 1062, the now-notorious bill that would have offered a defense to businesses that refused to serve people if serving them would have violated the business owner's sincerely held religious beliefs. Critics portrayed the bill as giving governmental cover to religious bigotry, particularly against gays: legislators made no secret of the fact that the bill was inspired (if that's the word) by a lawsuit filed against a baker in New Mexico who refused to provide a wedding cake for a gay couple's marriage ceremony.

An insightful AP article by Bog Christie describes Gov. Brewer's meetings with interested parties prior to deciding what to do with SB 1062. The insight that caught my eye was:

Lawyers from across the political spectrum say much of the opponents' arguments that the bill opens the door to discrimination are overblown, but that has not eased the pressure on Brewer to act decisively.
I hadn't heard that business of opponents' fears being overblown, so I looked up the bill's text. (I've linked to what the Arizona legislature calls the "Senate Engrossed Version", which is different from — and to my untrained eye, slightly clearer than — what the legislature calls the introduced version.) Here's how state law would have read if the bill had been signed into law (you can find the exact changes in the online versions to which I linked):
41-1493.01. Free exercise of religion protected; definition

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C of this section, state action shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

C. State action may substantially burden a person's exercise of religion only if the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person's exercise of religion in this particular instance is both:

1. In furtherance of a compelling governmental interest.

2. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.

E. A person that asserts a violation of this section must establish all of the following:

1. That the person's action or refusal to act is motivated by a religious belief.

2. That the person's religious belief is sincerely held.

3. That the state action substantially burdens the exercise of the person's religious beliefs.

F. The person asserting a claim or defense under subsection D of this section may obtain injunctive and declaratory relief. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

G. For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

H. For the purposes of this section, "state action" means any action, except for the requirements prescribed by section 41-1493.04, by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made by the government or nongovernmental persons.

One big change would have been the term "state action", which would have replaced the term "government" and which would have described a broader range of activities and actors. The biggest change, though, would have been Section E, which, along with Sections F and H, were new. And undoubtedly the thorniest part of E would have been part 2. How would you establish "sincere belief"? As far as I can tell, the bill's authors said nothing to guide implementation of the would-be law on that score. That seems problematic, to put it mildly. How are you supposed to judge sincerity? (The Great Pumpkin apparently can, but the Great Pumpkin is fictional.)

The less heralded but no less consequential change the bill would have made would have been to the definitions of "exercise of religion" and, you might be surprised to learn, "person". (I haven't quoted these definitions here but they're available at the aforementioned links.)

"Exercise of religion" would have been expanded to include "the practice or observance of religion". I don't understand the implication of this change since the existing definition seems quite broad and the proposed change looks superfluous; however, legislators don't word-smith for the fun of it so I assume I'm missing an important detail here.

The revised definition of "person" would have been quite drastic, understandable since it would have been central to the bill's purpose. Currently "person" is defined as

a religious assembly or institution
but the revised definition would have been
any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.
If you've been paying attention to the challenge to the Affordable Care Act by Hobby Lobby, et al., you may have noticed the relevance of the revised definition of "person". Hobby Lobby, a privately-owned for-profit business, would have been covered by SB 1062. It wouldn't have helped Hobby Lobby vis-a-vis federal law, but as has often been observed, the states are where legislative experimentation is supposed to take place.

I think Republicans at the state level are floating bills like SB 1062 as trial balloons that can serve as model legislation for Congress. They're trying to work out the bugs in their legal language in the fifty states so they'll have solid, unchallengeable wordings by the time they recapture the Senate and with it, Congress (the House is likely to stay Republican for a while).

What far-right conservatives have discovered (not just in Arizona, but across the country) is that the concept they're pushing — expanded "religious freedom" — is all too easily painted as bigotry. They may see Gov. Brewer's veto as further proof that the devout are in need of protection from persecution, protection very much in the spirit of SB 1062.

Another thing far-right conservatives will have discovered is that money speaks louder than morality. The bill's future seemed bright before its critics started reminding business leaders of prior retrograde Arizona laws that led would-be visitors, including the NFL (for a Super Bowl, no less), to avoid the state. Cancellations and boycotts cost Arizona hundreds of millions of dollars and I'm convinced the very real threat that things could be worse this time around was the key factor in Brewer's veto.

Must business be a foe of more robust defenses for religious freedom? Only if the far right's legislative agenda continues to draw so much negative attention. It's theoretically possible for a legislature to pass controversial bills in the dead of night, figuratively speaking, but in this day and age it's unlikely that such a sweeping change as SB 1062 could be hidden. Even so, other states may not rely so much on tourist and convention dollars and their business community may be less inclined to take sides.

Still, even the neutrality of business interests hasn't been enough to salvage bills similar to Arizona's in other states. In most, maybe all, of them, the legislature itself killed the bill before it could be voted on. That, I think, is a reflection of how successfully "greater religious freedom" has been portrayed as a flimsy excuse for discrimination.

Having said all that, opponents of SB 1062 and its ilk shouldn't gloat too much over the fates of the proposed legislation so far. The modern age is moving too quickly for a substantial minority of people and their response — fundamentalism — means that the tug-of-war between greater acceptance of non-heterosexuals and a restoration of older morĂ©s will continue.

[EDIT: reworded summary of SB 1062's effects in first paragraph because the original wording was awful.]

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