(Photo: Reuters/Kevin Lamarque)
A group of 11 law professors, both liberal and conservative, have written a letter to Ariz. Gov. Jan Brewer (R) explaining that she is being deceived by many of the critics of S.B. 1062, who have described the bill as "gay discrimination."
"Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading," the letter states.
Brewer must decide whether to sign, veto or not sign (which would make it become law) S.B. 1062, which makes some changes to the state's Religious Freedom Restoration Act.
The bill, the letter explains, is designed to address two ambiguities in RFRA: "It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion."
The bill does not, however, give any Arizonan free reign to do whatever they want as long as they declare they are doing so for religious reasons.
"But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest" (emphasis in original).
Critics of the bill have described it as an anti-gay bill and claim it would be used to deny access to public accommodations for gays. Some have compared it to the segregationist Jim Crow laws. Almost every media organization in the country, including the more conservative Fox News, have taken the side of the critics by describing S.B. 1062 as a "gay discrimination" bill.
These critics are wrong, the law professors claim. The bill would not allow public accommodations, such as a restaurant, to deny service to gays. Rather, the law specifically allows the government to deny any religious freedom claims if there is a compelling government interest to do so.
"And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner's exercise of religion. And as a business gets bigger, the government's claim of compelling interest will become stronger."
Opponents of the Arizona bill are wrongly conflating it with a Kansas bill (H.B. 2453), which they do not support, the signers say.
"People claiming that the two bills are similar are simply smearing the Arizona bill, disregarding the long and successful history of state and federal RFRAs, and trying to deceive you," they wrote.
The signers do not support the Kansas bill because, unlike the Arizona bill, the Kansas bill is one-sided and does not balance the interests of government against religious freedom rights.
"The Kansas bill does not enact a broadly applicable standard, give each side a chance to prove its case, and leave decisions to the courts. It enacts a specific rule about religious objections to same-sex marriages and civil unions, and it says the religious objector always wins, no matter what," they wrote (emphasis in original).
The letter concludes by asking Brewer not to base her opinion of the bill on the misinformation being put forth by the bill's critics.
"Whatever judgment you pass on SB1062, you should not be misled by uninformed critics. The Arizona bill is fundamentally different from the Kansas bill. It resolves ambiguities that have been the subject of litigation elsewhere. It deserves your accurately informed consideration," the letter states.
The conclusions of the law professors about the Arizona bill are essentially the same as an issue analysis of the bill published by The Christian Post on Monday.
The signers of the letter are Professors Mary Ann Glendon (Harvard Law School), Douglas Laycock (University of Virginia School of Law), Michael W. McConnell (Stanford Law School), Helen M. Alvaré (George Mason University School of Law), Thomas C. Berg (University of St. Thomas School of Law), Carl H. Esbeck (University of Missouri School of Law), Richard W. Garnett (Notre Dame Law School), Christopher C. Lund (Wayne State University Law School), Mark S. Scarberry (Pepperdine University School of Law), Gregory C. Sisk (University of St. Thomas School of Law), and Robin Fretwell Wilson (University of Illinois College of Law). (Affiliations are mentioned for identification only. The institutions they work for have not taken a position on the bill.)