WASHINGTON — As Arizona Gov. Jan Brewer weighs a decision whether to sign a bill strengthening the state's religious liberty protections for individuals and businesses, her state is one of several wrestling with a balance between religious liberty and anti-discrimination laws.
The bill comes in the wake of a number of cases across the country in which same-sex couples complained that business owners refused service on the grounds of religious belief. In one prominent example, a New Mexico court said last year that the refusal of wedding photographer Elaine Huguenin to take pictures of a same-sex wedding was not protected under that state's version of the 1993 federal Religious Freedom Restoration Act, or RFRA, since the state was not acting to force an action.
That decision has moved legislators in several states to try to pass religious protections for their citizens. While Arizona's bill passed the Legislature, most of the others have failed in various legislative processes for reasons including political pressure, concerns over constitutional challenges and fears of public backlash.
In Kansas, for example, a bill protecting religious beliefs passed the state House of Representatives two weeks ago, but was killed in the state Senate, the Kansas City Star reported, after a flood of protests. The paper cites state Senate Vice President Jeff King, a Republican, as saying a Senate committee will re-examine religious freedom issues in March.
In Idaho, House Bill 426 would prevent state or local agencies from denying licenses to businesses that exercised their conscience. It was sent back to committee, and observers believe it won't return to the floor of the Legislature this year.
South Dakota's Senate Judiciary Committee on Tuesday squashed a bill protecting businesses that refused to serve or hire gays from lawsuits, South Dakota Public Broadcasting reported. In Tennessee, a bill allowing businesses and organizations to refuse service to same-sex couples was withdrawn from the state Senate Judiciary Committee on Tuesday as well, according to WSMV-TV in Nashville.
Liberty vs. liberty
One proponent of religious conscience exemptions maintains the Arizona measure has been misunderstood.
Joseph La Rue, an attorney with the Alliance Defending Freedom in Scottsdale, Ariz., and which bills itself as a "legal ministry that advocates for the right of people to freely live out their faith," said that state's measure, SB1062, is designed to fill in any gaps potential litigants might find in Arizona's version of RFRA, which he said has been in place since 1999.
"Twenty-eight states have RFRA or similar protection in their states," La Rue said in a telephone interview. "In none of these places has any person been denied service at a lunch counter, hotel or anywhere else and asserted RFRA as a defense. RFRA is about making sure people of faith aren't second-class citizens because the government passes laws willy-nilly infringing on religious freedom."
La Rue said opposition to the Arizona measure was misinformed: "Opponents of religious freedom have attacked it (by) manufactured mass hysteria that simply is not grounded in reality," he said.
Jennifer C. Pizer, a senior counsel for Lambda Legal who directs the gay rights advocacy group's law and policy project, maintained that religious liberty cannot be used to excuse discrimination.
"A refusal to serve a gay person for a religious reason (is) still sexual orientation discrimination," Pizer said from her Los Angeles office. "Our Constitution protects absolutely the freedom to believe that gay people are sinful and wrong, but not the freedom to exclude gay people for those reasons."
Pizer said that to oppose bills such as Arizona's is not to oppose religious liberty: "To say no to religious discrimination is not discrimination. We all need to live together, and the marketplace needs to be open to everybody," she said.
Finding middle ground
Other attorneys and scholars want states to find a middle ground. Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, said from Charlottesville, Va.: "On the more specific issue of objections to participating in or facilitating same-sex marriages, I think the small entrepreneur who's providing services, like the wedding photographer in New Mexico — they ought to be protected."
Laycock is part of a group of legal scholars promoting bills that would protect religious rights for "businesses of five or fewer employees," because he said these were firms in which the owner — whose beliefs might come into play — is likely to be directly involved in providing the service. He said such an exemption would apply only in areas where a similar service was available from other providers.
Robin Fretwell Wilson, a University of Illinois Law School professor and director of the school's Program in Family Law and Policy, told the Deseret News it's essential to balance rights on both sides of the equation.
"You're not going to and should not get protection in the law to treat people differently," Wilson said. At the same time, "Marriage is not like a hamburger or a taxi ride; it's a deeply intimate service that's religiously infused."
She added, "This is one of the places where the law can temper bad impulses. We don't want to run religious people out of the public square, nor do we want to drive lesbians and gays out of society."
Stephen Prothero, a professor of religion at Boston University, said in a telephone interview that the issue of baking cakes or taking photos is not, in his view, one where religious exemptions can be claimed. He compared the issue to decades-earlier claims that racial discrimination was sanctioned by some peoples' readings of the Bible. Once government ruled such discrimination invalid, the argument, he said, became irrelevant.
"If the state or federal government decides this discrimination is not constitutional, the issue of conscience is not going to carry the day," Prothero said. "That's what all religious liberty law (cases) at the Supreme Court level (are) all about: balancing the rights of the individual versus the state."
Attorney La Rue, however, suggests the issue isn't as cut and dried: If a religious baker "believes that baking that cake will cause them to sin against their God, then it is a crushing blow to their dignity to force them to bake that cake," he said.
What's more, he asserted, alternative suppliers are generally available: "We at ADF represent approximately 10 clients in active cases involving these types of issues," La Rue said. "And in each of those cases, the person who is suing them found the service that they wanted, at the same or cheaper price, and have testified that in each case they were pleased with the services they found."