The Arizona ‘religious rights’ bill — and where the fight might move next

Updated at 11:30 a.m.

Arizona lawmakers passed a bill Thursday that allows businesses in the state to deny service to LGBT customers on religious grounds. The bill has not been signed by Gov. Jan Brewer (R), who told reporters at the National Governors Association this week that she was in no rush to decide the bill's fate.

Arizona Gov. Jan Brewer (R) has until the end of the week to decide whether she'll sign or veto a bill that would allow business owners with strongly held religious beliefs to deny service to gays. (Reuters)

As states and federal courts have slowly expanded gay rights, groups pushing for increased religious protections have tried to coax momentum in the other direction, through both law and lawsuit.

The catalyst for the recent flood of religious exemption legislation seems to have been a number of court cases that were decided in favor of LGBT clients who were denied wedding services. In August 2013, the New Mexico Supreme Court said that a photographer who refused to document a same-sex commitment ceremony broke the state's anti-discrimination law. The Washington state attorney general filed a consumer-protection suit against a florist who declined to provide flowers for a same-sex wedding ceremony. A state judge in Colorado ruled last December that a baker can't send away same-sex customers for religious reasons.

A similar religious exemption battle is brewing over the Affordable Care Act's contraception mandate. The Supreme Court will hear oral arguments on Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius — which deal with the companies' religious reservations about providing the mandated contraception coverage — on March 25, 2014.

Arizona is the first state to pass a bill on religious freedoms specifically addressing LGBT rights. Here are other states where legislators have floated such laws, most of which have fizzled out in the last few weeks:

Kansas

The Kansas legislature was considering a bill similar to Arizona's until last week, when senators from both parties decided not to pass the House-approved bill, saying it promoted discrimination. State representative Patricia Sloop, who voted no on the House bill, agreed. She explained her vote in the House Journal: "I strongly support religious freedom, but this bill is not about religious freedom. In my opinion, this is about legalized discrimination, and I cannot vote in support of this."

Many of the lawmakers who voted against the bill said there was too much overlap with the religious protection law already passed in April 2013, the Kansas Preservation of Religious Freedom Act. Like the federal Religious Freedom Restoration Act, it states that religious freedom can be limited only by the “least restrictive means of furthering that compelling government interest.” Eighteen states, including Arizona, have passed such legislation since the Supreme Court said the Religious Freedom Restoration Act does not apply in state courts in 1997.

Tennessee

The Tennessee State Judiciary Committee was supposed to consider SB 2566 last Tuesday, a bill that would allow businesses that cater to wedding ceremonies the opportunity to deny same-sex clients if they would interfere with “sincerely held religious beliefs.” However the bill's sponsor, state Sen. Mike Bell, withdrew his sponsorship and pulled the bill before it was debated, releasing a statement that said:

The text of the Religious Freedom Act never allowed a restaurant or hospital to refuse service to anyone. I would never introduce legislation that attempts to limit the civil rights of any Tennessean, whether straight or gay. The bill was designed to protect a pastor, rabbi, or singer from being sued and forced to participate in a same-sex ceremony against their will.

With that, the chance of a measure similar to Arizona's passing in Tennessee seems slim. Tennessee currently has a ban on same-sex marriages, an amendment that passed in 2006 with 81 percent of the vote, although four same-sex couples filed a lawsuit against the state in October 2013, calling the amendment unconstitutional. The bills recently under consideration in the legislature were intended to preempt any changes that these lawsuits could prompt, as well as any lawsuits against vendors who deny services in the future. The legislation's opponents called it the "turn the gays away" bill.

Idaho

The Idaho legislature was considering two bills related to religious protections: HB 427 — a bill that would protect businesses facing legal recourse for denying services for religious reasons, which the House unanimously decided to send back to committee last week, and HB 426 -- a bill that would prohibit the state from revoking the occupational licenses of businesses that denied services for religious reasons, which never even got a committee hearing. The sponsor of HB 427, state Rep. Lynn Luker said in a statement explaining the bill's step backward: "Many misinterpreted the intent to be a sword for discrimination. I respect the concerns that I heard and therefore want to find the right language to balance those concerns.”

More than 250 protesters gathered outside the state Capitol during the bill's hearing on Feb. 5. At that hearing, Brian Thom, bishop of the Episcopal Church of Idaho, testified that the bill would "distort a protection of religious freedom." The state's attorney general thought both bills would be ripe for constitutional challenge if passed.

South Dakota

Last week, the Senate Judiciary Committee in South Dakota rejected SB 128, which aimed to "protect the citizens and businesses of South Dakota regarding speech pertaining to views on sexual orientation and to provide for the defense of such citizens and businesses." Republican state Sen. Mark Kirkeby called it “a mean, nasty, hateful, vindictive bill.” Earlier in the year, the Judiciary Committee also tabled a bill that would have allowed churches the right to deny religious services, saying that was a right the clergy already had.

Utah

State Sen. Stuart Reid is sponsoring a Religious Liberties Amendment, which would allow businesses to deny services on religious grounds in a way similar to the Arizona legislation. He is drafting two other bills pertaining to religious protection. The Deseret News reported in late January that "general descriptions indicate they would protect individual religious conscience rights, require religious freedom instruction in public schools, and establish a nondiscrimination law that 'avoids sexual politics.'"

The other religious protection legislation being considered in Utah is considerably narrower, dealing only with religious organizations, and not believers writ large. Some state legislators are hoping to get an amendment on November's ballot that would give churches legal protection from conducting marriages that go against their religious beliefs. The amendment's sponsor, Rep. Jacob Anderegg, told the Salt-Lake Tribune in December: "The truth is, the main reason I’m proposing this is that I just want people to relax. If they know they have their federal religious guarantees in writing, I hope they will just relax." The day after Anderegg introduced the amendment, the state's constitutional ban on same-sex marriage was struck down by a federal court — a decision the state is challenging. Before this amendment — or Reid's — can get on the 2014 ballot, it needs to earn two-thirds support from the House and Senate.

Last August, Jonathan Johnson, executive vice president of Overstock.com, began a campaign pushing for the same protections offered in Anderegg's amendment, and started the First Freedom PAC as a way to raise money for the effort.

Mississippi

The Mississippi Senate passed the Religious Freedom Restoration Act at the end of January, which says that the state cannot "burden a person's right to the exercise of religion" and added "In God We Trust" to the state seal. The bill would need to survive the House, which currently has a Republican majority.

The legislation is very broad — and lack of specificity and the probability of discrimination are what doomed many of the other religious freedom bills being considered around the country. State Senator Hob Bryan said he was worried because the legislation's expansive decree would protect all religions during floor debate on the bill. “This bill applies to all religions, including Islam, Buddhism and New Age religions," he said soon after the bill made it through the Senate, according to the Associated Press. "We need to think carefully about the implications of it.”

The rest

State senators in Oklahoma sponsored a Religious Freedom Act in 2014, while members of the Hawaii House of Representatives put forward a similar bill in December, which got pushed ahead to this year's legislative session. The bills haven't moved forward much yet, but haven't gone the way of Kansas and Idaho's either. Religious freedom bills were also introduced in Nevada and Colorado last year. In Nevada, the legislation is stuck in committee; in Colorado the bill failed along party lines. Opponents thought that the legislation would legalize discrimination against gay people.

Religious organizations in Oregon, including the Oregon Family Council, are trying to get the "Protect Religious Freedoms Initiative" on the state's ballot this November.

Ohio representatives introduced HB 376 in January, which the state's American Civil Liberties Union branch has said it opposes strongly: "HB 376 opens a Pandora’s box of claims that a state or local law imposes on someone’s religious beliefs. Because HB 376, by its terms, forbids the government to place even an insubstantial burden on religion, even a trivial burden may be contested. For example, a person could file a lawsuit against a municipality for ticketing their car during a church service, claiming imposition on their right to worship."

Tim Derickson, one of the bill's sponsors, told the Dayton Daily News: “What we’re hoping to do is to put in statues that are already in place and other states and the federal level already has. We’re always being challenged. We have such diversity in religious views and religious differences, why not put into statues what we’re already practicing in the courts.”Another of the bill's sponsors, Bill Patmon, has said he is confident that the legislation will end up on the governor's desk by the end of this year's session.

Must-reads:

"In Kentucky Senate race, Bill Clinton plays a starring role" — Philip Rucker, The Washington Post

"Obama to host governors at White House" — Dan Balz and Karen Tumulty, The Washington Post

"Pentagon Plans to Shrink Army to Pre-World War II Level" — Thom Shanker and Helene Cooper, The New York Times

An earlier version of this post attributed a quote to Mississippi Governor Phil Bryant that was said by state Senator Hob Bryan. Mississippi's House of Representatives has a Republican majority, not a Democratic one.

Jaime Fuller reports on national politics for "The Fix" and Post Politics. She worked previously as an associate editor at the American Prospect, a political magazine based in Washington, D.C.
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