Thursday, February 27, 2014

Law Profs' Sympathetic View of Vetoed Arizona Bill

Arizona Governor Jan Brewer has vetoed a bill that provided a defense to business owners who refused to serve gays or lesbians - in violation of the owner's religious beliefs.  Republican Party leaders ducked and covered - fearing another self-inflicted blow by the party of No. Most people were of the view that this was like segregated lunch counters.  OMG was the response.  But Douglas Laycock of the University of Virginia and other (mostly conservative) law professors take a different view.  They see the now-vetoed bill SB 1062 as an extension of the Religious Freedom Restoration Act which limits laws of general application if government substantially burdens religious practice and has not taken the least restrictive means to advance a compelling governmental interest.

Freedom to engage in commerce is surely a right of a member of a protected class.  Recently a New Mexico photographer said she had no duty to agree to photograph a gay wedding - since she thinks such bonds are sinful.  That is a good distance from the lunch counter at Woolworth's in Greensboro, North Carolina fifty years ago.

Laycock et. al explain their view in a letter to Governor Jan Brewer:
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. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.
Arizona’s RFRA, like all RFRAs, leaves resolution of these issues to the courts for two related reasons. First, it is impossible for legislatures to foresee all the potential conflicts between the diverse religious practices of the many faiths practiced in Arizona and the diverse array of regulations enacted by the state and all its agencies, counties, municipalities, and special purpose districts. And second, when passions are aroused on all sides, as they have been in this case, it becomes extraordinarily difficult for legislatures to make principled decisions about whether to make exceptions for unpopular religious practices. Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure.
h/t Mirrors of Justice blog
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