[DB:  As regular readers know, I have long expressed concern that antidiscrimination principles are gradually infringing on civil liberties, including freedom of religion.  Facing tremendous public pressure over what  activist groups and many in the media portrayed as “anti-gay" legislation, last night Arizona governor Jan Brewer vetoed Arizona SB1062, which would have clarified and strengthened religious freedom protections in the state.  I couldn’t help but notice that the text of the bill didn’t come close to matching the harsh rhetoric opposing it, so I asked University of Virginia Professor Doug Laycock, one of the nation’s leading law and religion scholars, if he could help clarify things for our readers.  His contribution is below.]

According to the New York Times, and as best I can quickly gather, most other news sources, Arizona Governor Jan Brewer vetoed a bill “that would have given business owners the right to refuse service to gay men, lesbians and other people on religious grounds.”

SB1062, which would have amended Arizona’s Religious Freedom Restoration Act, was been egregiously misrepresented both before and after the veto. The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard — substantial burden and compelling interest — to be interpreted and applied to individual cases by courts. They rest on the sound premise that we should not punish people for practicing their religion unless we have a very good reason.  These laws have produced surprisingly few cases, on gay rights or any other issue; before the current litigation on contraception, most people had never heard of the federal RFRA.

SB1062 would have amended the Arizona RFRA to address two ambiguities that have been the subject of litigation elsewhere. It would have provided that people are covered when state or local government requires them to violate their religion in the conduct of their business, and that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would have said who wins in either of these cases. SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, in any kind of case (discrimination cases were not even mentioned, although they would have been included), that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision. As a business gets bigger and more impersonal, courts would have become more skeptical about claims of substantial burden on the owner’s exercise of religion, and more open to the government’s claim of compelling interest.

I know of no American religious group that teaches discrimination against gays as such, and few judges would be persuaded of the sincerity of such a claim. The religious liberty issue with respect to gays and lesbians is about directly facilitating the marriage, as with wedding services and marital counseling. Conservative believers could show a burden on their religious exercise with respect to that; it would still be up to courts to assess the government’s claim of compelling interest.

RFRAs leave 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 people and the diverse array of government regulations. And second, when passions are aroused on all sides, it becomes extraordinarily difficult for legislatures (or governors) to make principled decisions about whether to allow 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.

The Arizona bill was fundamentally different from the Kansas bill that also got much publicity. The Kansas bill would not enact a broadly applicable standard, give each side a chance to prove its case, and leave decisions to the courts. It would enact a specific rule about religious objections to same-sex marriages and civil unions, and it would say the religious objector always wins — even if same-sex couples have to do without goods and services and even if they have to do without the services of a government agency.

The Arizona bill addressed two ambiguities revealed by litigation under the federal RFRA. Arizona copied verbatim federal language that authorizes relief against a government, inserted for reasons having to do with sovereign immunity. The drafting history of this language is very clear; there was never a congressional intention to preclude a RFRA defense against private citizens. This history is carefully reviewed in Shruti Chaganti, Note, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 Va. L. Rev. 343 (2013).

If the state enacts a law that burdens someone’s religion, and a private citizen sues to enforce it, the burden on religion is imposed by the state law, not by the private plaintiff. This has long been settled in constitutional law, as famously illustrated by New York Times v. Sullivan, 376 U.S. 254 (1964). Given that principle, and the drafting history, Arizona’s RFRA should provide a defense in suits by private plaintiffs even without SB1062. The bill would have made the answer explicit. And these private plaintiffs may not be suing a business; they may be suing a church, a minister, a religious charity, an individual, or anyone else protected by Arizona’s RFRA.

There is also good evidence that Congress thought businesses were covered by RFRA. Arizona did not copy this language verbatim and may have taken a different view. This issue has been highlighted by the contraception litigation, and it too will be litigated in Arizona even without SB1062.