A veteran state lawmaker is pushing legislation that would allow businesses to discriminate against gays — and maybe even women and Jews — as long as they were acting on sincerely held religious beliefs.
SB 1062 would allow those sued in civil cases to claim that they have a legal right to decide not to provide their services to any individual or group because it would “substantially burden” their freedom of religion. That specifically means doing something that the person feels is contrary to their religious teachings.
Sen. Steve Yarbrough, R-Chandler, said the measure is aimed specifically at preventing what happened in New Mexico where courts there said a gay couple could sue a wedding photographer who turned away their request to take pictures at their nuptials. He said that should not be allowed to happen here.
But Yarbrough said his legislation could also be interpreted broader than that, allowing motel operators with vacant rooms to refuse to rent to gays.
Potentially more significant, Yarbrough acknowledged there may be individuals who have religious beliefs about unmarried women, or even employing people who do not share their same beliefs.
The senator said, though, he believes it would be harder for someone accused of such discrimination to hide behind his law.
That's because already existing laws allow the state to forbid discrimination if there is a “compelling governmental interest” in such regulation and if the regulation is the “least restrictive means” of furthering that governmental interest. Yarbrough said he believes there are enough legal precedents against bias based on gender and religion to keep a business owner from using his or her own beliefs as an excuse to discriminate.
Dan Pochoda, an attorney with the American Civil Liberties Union, said he's not so sure, which is why his group generally opposes any kinds of laws which protect what he called “indirect burdens” on an individual's religion.
“They generally result from persons claiming that their religious beliefs entitle them to disregard civil rights laws that protect against various discriminations including on the basis of religion, gender, marital status, national origin and sexual orientation,” Pochoda said. He said it permits those who claim such protections to “act in a manner that threatens the health, safety, well-being and liberties of others.”
The chances of the measure gaining approval are quite good.
In fact, a virtually identical proposal actually was approved last year only to be vetoed by Gov. Jan Brewer, but she did that not because of the text of the legislation but because she was ticked at lawmakers for refusing to consider the state budget and her Medicaid expansion plan.
Yarbrough also said there is precedent for what he wants.
He said state law already makes it illegal for the government to impose requirements on people that violate their religious beliefs. What's missing, he said, is a defense in civil lawsuits when the fight has nothing to do with the government.
Central to the issue is the general prohibition against discrimination in public accommodations.
But Yarbrough, who is an attorney, said can extend beyond restaurants and hotels to any other business that offers its services to the public. That, he said, is how it ended up being used in New Mexico against the photographer there — and could be used against all types of businesses here.
That, however, raises the question of the reach of the legislation.
He said that wedding photographer deserved the right to turn away the business because there were other photographers available for the same job. He said that shows there was no “compelling governmental interest” in forcing the reluctant photographer to take on unwanted business.
And what of hotels? Yarbrough said it's possible that, under the terms of his legislation a hotel owner could turn away a gay couple without fear of suit simply because there are other nearby facilities.
“It's a fact-intensive question in those instances when you've got the preference that we've got for public accommodation and the First Amendment right to the free exercise of religion,” he said. “How does the friction play out?”
Conversely, Yarbrough said the answer might be different if that were the only hotel in town.
This isn't the first time Arizona lawmakers have considered measures to allow freedom of religion trumps customer rights.
Most notably is a law which permits pharmacists, who are licensed by the state, to refuse on religious or moral grounds to dispense the “morning after” pill designed to block pregnancy following unprotected sex. Yarbrough said a pharmacist who is a devout Catholic should not be forced to be a part of what he or she believes is someone's immoral act.
A challenge to the 2009 law as approved failed. But Yarbrough said that he could foresee situations in which the case might be a closer call, as in examples as the photographer and the hotel.
“If he's the only pharmacy in Bisbee, you may have a problem,” he said. Yarbrough said the outcome would be different “if there are two more down the road and Target does this and there's no issue, and he knows that you can go there.”
“And, of course, if he's at all smart, is probably going to say, ‘And by the way, two blocks down the road is a Target and they have a pharmacy,’” Yarbrough said.