Thursday, February 27, 2014
The veto, coverage, and misrepresentation of AZ 1062
Gov. Brewer has vetoed what the Wall Street Journal calls a "service refusal" bill (an earlier WSJ headline had said "religious liberty"; the New York Daily News refers to it as a "controversial anti-gay" bill). In my view -- and, frankly, whatever the ultimate merits of the bill (which would have modified the state's RFRA-type bill, which is modeled on the federal RFRA, which was strongly supported by Sen. Kennedy and signed into law by Pres. Clinton) -- it is depressing to note the extent to which the proposal was mischaracterized and misrepresented, in many cases by commentators who should have known, and I suspect did know, better.
Here is a letter, authored by Prof. Douglas Laycock and signed by a number of other law-and-religion scholars (including Tom Berg, Doug Sisk, and me), which explains what the law would have, and would not have, done. As the letter points out, the bill would have "amend[ed] the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs." Later:
SB1062 does not say that businesses can discriminate for religious
reasons. It says that business people can assert a claim or defense under RFRA, in any kind
of case (discrimination cases are not even mentioned, although they would be included),
that they have the burden of proving a substantial burden on a sincere religious practice,
that the government or the person suing them has the burden of proof on compelling
government interest, and that the state courts in Arizona make the final decision.
Again, the bill has been vetoed, no doubt in response to the outcry -- itself driven largely by the mischaracterizations of the bill -- from business groups (and the N.F.L.). The debate about religious accommodations is changing strikingly.