By Joseph LaRue and Kerri Kupec, Alliance Defending Freedom
Opponents of the proposed amendment to Arizona’s Religious Freedom Restoration Act are putting the people of Arizona in a high-risk disaster zone when it comes to their First Amendment freedoms.
In America, we live by the basic principle that you don’t forfeit your religious freedom just because you step outside the four walls of your home.
Congress passed the federal Religious Freedom Restoration Act (RFRA), the legislation after which the Arizona RFRA is modeled, for that very purpose.
But the federal RFRA only applies to the federal government, and thus, a number of states, including Arizona, enacted their own versions to ensure this religious protection for their citizens.
Arizona’s RFRA, as it currently stands, does not contain the necessary specificity regarding who can use RFRA for protection if the government discriminates against them because of their religious faith. Contrary to the voices opposing protecting religious freedom for all Arizonans, Senate Bill 1062 and House Bill 2153, which were approved last week, will not allow people to do “whatever they want” in the name of religion.
The use of the amended RFRA will only come into play when the government’s law inhibits someone from freely acting in accordance with his or her faith, as has always been the case. And even then, sincerely held religious beliefs will continue to be balanced against state interests. So, Arizona will always be able to make certain things — like murder — crimes even if someone says that his religious beliefs require him to kill someone.
So, what happens in states that don’t have a clear RFRA? Elane Photography in New Mexico is a perfect illustration.
Elaine Huguenin, the Christian owner of Elane Photography, declined to photograph what two women called their “commitment ceremony.” The women had no trouble finding another photographer because plenty of them were clamoring for their business. But the couple sued Elaine’s business anyway, alleging that it had violated a law banning sexual-orientation discrimination.
Elaine, however, did not refuse the women because they identify as homosexual. She declined to photograph the ceremony only because she didn’t want to promote a message at odds with her sincerely held religious beliefs about marriage. So, Elaine asserted a defense under New Mexico’s RFRA, similar to Arizona’s current RFRA, saying that the government should not be able to force her to promote and participate in the ceremony when doing so violates her religious convictions.
But the ambiguity in New Mexico’s RFRA, like Arizona’s current one, allowed the New Mexico Supreme Court to hand down a strained interpretation that actually distinguished between Elaine as a photographer and Elaine as a small-business owner.
And because the government was not actually a party to the lawsuit, the court had wiggle room to ignore the state RFRA, even though the entire case dealt with a state law. Instead, as one of the judges wrote, “the price of citizenship” for Elaine was that she must be forced to violate her beliefs.
Did the legislators ever intend for such a messy interpretation? Probably not, but this is what happens with lack of clarity in a law — the type of ambiguity that SB 1062 aims to fix in Arizona. An old adage states, “Those who fail to plan, plan to fail.” In states like New Mexico, that’s exactly what happened.
No Arizonan should be forced to choose between making a living and living free. An amended bill that provides a safeguard from laws that violate our First Amendment freedoms — while still letting government enact laws necessary to the common good — is a sensible one.
No court in Arizona should be able to tell you that a violation of those freedoms is just the “price of citizenship.”
Joseph La Rue is legal counsel and Kerri Kupec is legal communications director for the Arizona-based Alliance Defending