Bipartisan Group of Legal Scholars: Critics 'Egregiously Misrepresented' Arizona's SB 1062

The nature of Arizona's SB 1062 -- a bill to expand the parameters of the state's religious freedom protections -- was "egregiously misrepresented by many of its critics," according to a bipartisan group of constitutional law experts who wrote to Gov. Jan Brewer (R) prior to her Wednesday veto of the bill.

By extension, as we've noted in our reporting, the liberal media glommed onto the bill's critics and presented their attacks as accurate descriptions of what the bill actually does. But as these experts explained in their missive to Brewer, the law is much narrower than the nightmare scenarios its opponents dreamed up for it. From Warren Richey's February 27 story for the Christian Science Monitor (emphasis mine):


Amid the accelerating outcry, supporters of the measure had been few and far between, often trying to dodge the media rather than defend the bill.

Among the few standing up for the proposed law were a group of 11 constitutional scholars.

In a four-page letter sent this week to Brewer, the scholars said the Arizona law had been “egregiously misrepresented by many of its critics.”

“Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it,” the letter said.

Nine of the signers of the letter said they supported the legislation; two were not sure. “But all of us believe that many criticisms of the Arizona law are deeply misleading,” the letter said.

The federal government and 18 states have Religious Freedom Restoration Acts on their books. More than 12 other states have interpreted their state constitutions to provide similar protections to religious individuals.

Under the Religious Freedom Restoration Act, the government is barred from imposing a substantial burden on a person’s exercise of religion unless the government can offer a compelling justification for the burden and then minimize the burden as much as possible.

The law empowers individuals to challenge government laws that infringe upon the exercise of their religious beliefs. It also provides a defense for someone who claims that a neutral, generally applicable law is forcing them to choose between fidelity to the law or fidelity to their religious beliefs.

It is that dilemma that forms the basis of two cases set for argument next month at the US Supreme Court. Both cases test the power of the federal government to force business owners to provide their employees with contraceptives that the owners say violate their religious faith.

The owners are suing the federal government under the federal RFRA, arguing that the government burden on their religious beliefs violates RFRA and their right to freely exercise their religion without government interference.

The Arizona statute sought to provide the same protections at the state and local level. But the lawmakers wanted to clear up two potential ambiguities. The first amendment was designed to make clear that Arizona’s RFRA would cover instances when a state or local government measure requires a person to violate their religious beliefs while conducting their business.

The second amendment sought to make clear that RFRA protects individuals who are sued by a private citizen seeking to enforce a state or local measure that would force them to violate their religious faith.

“To be clear: SB 1062 does not say that businesses can discriminate for religious reasons,” the scholars said in their letter.

The proposed amendments provided a defense for a business owner or allowed a business owner to file a lawsuit to enforce RFRA protection. But it is ultimately up to the Arizona courts to decide if such protection is warranted or not, they said.

The scholars said the Arizona statute was substantially different than a measure under consideration in Kansas that has also sparked protests and significant media attention. Rather than a broadly applicable standard, the Kansas bill requires that in any confrontation between gay rights and religious objections, the religious objector would always win.

“The real problem with the Kansas bill is not that it proposes a specific rule, but that it proposes a very one-sided and unfair rule,” the scholars said.

“We agree with Congress and a clear majority of states that government should not burden a person’s religious practice without a compelling interest,” they said in the letter. “But sometimes government does have compelling interests, and then religious practices must be burdened. The Arizona bill recognizes that; the Kansas bill does not.”

The scholars added: “People claiming that the two bills are similar are simply smearing the Arizona bill, disregarding the long and successful history of state and federal RFRAs.”

Of course, liberal journalists are personally free to disagree with that assessment, but they have deprived their readers and viewers of the benefit of a civil debate on the merits of the bill that actually dispassionately deals with the legislation on its terms rather than grounding the debate in the rhetoric of its opponents.

Kudos to Richey and the Christian Science Monitor to reporting this story and bringing some clarity to the issue, albeit perhaps a bit late.

P.S.: I also recommend this Feb. 25 blog post by Paul Mirengoff of the Power Line blog: "No, this is not Jim Crow for gays — understanding Arizona S.B. 1062"

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters