Before Gov. Jan Brewer vetoed SB 1062, law professors from Stanford, the University of Virginia, George Mason, Pepperdine, and Harvard’s law colleges, among others, wrote a letter to the Governor asking her to “make [her] decision on the basis of accurate information” because “[t]he bill has been egregiously misrepresented by many of its critics.”
Here’s the gist of their argument, though I urge you to check out the whole letter:
Courts can generally devote more time to the question, hear the evidence from both sides, and be more insulated from interest-group pressure. So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA [Religious Freedom Restoration Acts, which have been enacted in 18 states, including Arizona, as well as at the federal level. SB 1062 would have been an amendment to AZ’s 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.
(Screenshot from the letter letter taken by author.)
I said before that I think the law was driven by “paranoia and pettiness,” but the lazy and sensationalistic way in which many news outlets have slugged SB 1062 as “Arizona’s anti-gay bill” is equally ridiculous. That last link is an interesting article defending the label “anti-gay” in reference to SB 1062. It’s interesting to see how lawyers view something versus activists.
Activist: OMG! This bill is anti-gay! It was written by conservative-Christian groups and introduced by conservative legislators in reaction to lawsuits in which gays claimed discrimination from business-owners making a “free exercise” claim.
Lawyer: How is it “anti-gay?” The bill doesn’t legalize discrimination against anybody, it simply allows someone to use the practice of their religion as a defense in a lawsuit.
Activist: So you admit business-owners who discriminate against gays would have a legal defense they wouldn’t have before? In practice, the bill would encourage discrimination.
Lawyer: “In practice” the business-owner would have to show why her “free exercise” rights trump the compelling interest of the state to prevent discrimination….
And on and on and on. Hyperbole and hard-learned cynicism on one side, text (some might say legalese) and lack of imagination on the other.