Arizona Legislature Approves State-Sanctioned Discrimination Law under Guise of Religious Freedom

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Gay rights advocates are aghast at Arizona’s new “religious freedom” bill, but this issue won’t just affect gay, lesbian, bisexual, and transgendered persons. It’s even more—and even worse—than mere state-sanctioned discrimination. Here’s why, and here’s what the law says.

In a relatively close vote, the Arizona House voted to send a bill to the governor’s desk that would allow any church, institution, or individual to cite “sincere religious belief” for choosing not to provide service to a specific class of people. The obvious intent, as one clownish member of the legislature noted by raising a “NO GAYS ALLOWED” sign from the floor in violation of the legislature’s rules, is to permit discrimination against gays and lesbians. Explaining his rationale, Republican state representative Steve Montenegro said, “Please, I will accept you because you are a child of God, I love you because you are a child of God. But please don’t ask me to go against my religious beliefs.” All but three Republicans voted for the bill.

Here is the relevant portion of the text of Senate Bill 1062 as approved by the Arizona legislature:

1-1493.01. Free exercise of religion protected; definition

  1. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
  2. Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
  3. Government STATE ACTION may substantially burden a person’s exercise of religion only if it THE OPPOSING PARTYdemonstrates that application of the burden to theperson PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCEis both:
    1. In furtherance of a compelling governmental interest.
    2. The least restrictive means of furthering that compelling governmental interest.
  4. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding,and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING. THE PERSON ASSERTING SUCH A CLAIM OR DEFENSE MAY OBTAIN APPROPRIATE RELIEF. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
  5.  In FOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

While the intent of the legislation is obvious, the implications encompass more than gays and lesbians. What about someone who, citing religion, won’t serve women who are unaccompanied by a male relative, or unless they have covered their heads or are dressed modestly? What about someone whose religion sees Jews, Muslims, or Baha’is as somehow objectionable?

Arizona’s legislature may be the first to pass this kind of bill, promoted by a conservative think tank called the Center for Arizona Policy, but legislation has been introduced in at least seven other states, according to the Associated Press story. However, the implications go to motivation.

The legislation defines “exercise of religion” as:

“…the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.”

In other words, if you sincerely hold a belief, even if the religion you belong to doesn’t hold to, much less mandate, that position, that’s good enough justification in Arizona for discriminating against gays and lesbians.

We have now reached a point in the U.S. where one’s personal, solipsistic, irrational precepts can be used as legal justification for heinous behaviors that this nation has worked for years to eradicate as violations of civil rights. The latest example of the “belief” defense—in this case, belief of another, non-religious sort—was in the trial of Michael Dunn, charged with murder of 17-year-old Jordan Davis. Dunn was able to cite his belief that Davis was a threat to his safety without a scintilla of evidence that Davis was actually threatening Dunn or possessed a weapon with which to do so, and thereby was able to convince two or three jurors he was justified in killing David in self-defense and should not be convicted of first-degree murder. Fundamentally, what was that belief? Dunn’s perception that the mere presence of young black men playing “loud music” was a threat to him. It was a defense reliant on stereotype in contravention of the facts, in contravention of rationality.

Stand-your-ground laws make belief the basis for choosing to apply deadly force where, in instances like Dunn’s shooting of Davis, absolutely no force or violence was needed—not a single shot, and certainly not ten shots from a pistol fired into the Davis car in two volleys, the second when the car was driving away. The Arizona law allows bigots to couch their bigotry as piety in order to violate the civil rights of other citizens.

If she grasps the implications of this bill fully, its impact on making Arizona look like a state that condones discrimination, Arizona Governor Jan Brewer may be convinced to exercise her veto. But for all of us, gay and straight, black and white, Christian, Muslim, and Jew, we have to stand up against the notion that one’s personal beliefs should be allowed to trump the civil rights—or in Jordan Davis’s case, the very existence—of people who don’t fit those beliefs.

This article has been altered to correct the name of the conservative think tank; it’s the Center for Arizona Policy, not the Center for Social Policy. NPQ regrets the error.


  • Chuck Anziulewicz

    All the bakeries and photographers and caterers that people think are being so horribly put-upon? They aren’t in the business of providing spiritual guidance or enforcing moral doctrines. They are there to turn a profit. As such, they are obligated to abide by prevailing civil rights laws, whether those laws protect people from discrimination based on race, religion, or sexual orientation.

    Should a restaurant owner be able to refuse service to Blacks because he has “moral objections” to race-mixing? Should an employer be able to fire a Muslim employee because he wants to run “a nice Christian workplace”?

    If they answer to both questions is NO, what justification is there refusing service to a Gay couple who wish to get a wedding cake or celebrate their anniversary in a restaurant? Does this bill allow people to use “religious freedom” as a justification for discriminating against ANY customer, or does it simply single out Gay citizens?

    Either way, it’s going to do WONDERS for tourism.

  • wayne

    …..and so the Christians turn Jesus Christ into George Wallace…….

  • Michael Srsic

    WOW!! Thank you for providing the text of the law. Look past the discrimination issue for the unintended consequences.This law adds an additional burden of proof, that of proving “compelling governmental interest” which MUST also be the “least restrictive means” of furthering that interest.
    This must look very liberating to the FLDS. Where is the government interest in restricting polygamy? Prove it, then ALSO prove the government interest can’t be met without this restriction. Vaccination? What other “STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES” must be proven before they can be enforced?

  • ManYunSoo

    It doesn’t really matter in the long run because the law won’t hold up under current jurisprudence and the current interpretation of the supremacy clause. The only way AZ will be able to let this stand is if they ignore any and all federal rulings that will soon (and really, already have) nullify this law.

  • R.W. Clever

    Religion by itself is not such a bad thing. But how do we regard the people whose defining religious beliefs are based on a need to ostracize and punish people because of who they love? It is nothing less than hate disguised as religious freedom. Religious freedom is the right to practice your religion as you choose, not to inflict your beliefs on others. It is hard to believe that the Arizona legislature is run by such narrow, bigoted pinheads as to pass a law like this. Who elects these idiots?

  • Traci

    I find the placement of this story to be disturbing. What is the purpose of the NPQ? To promote one side of certain controversial issues without any responsibility to provide balance? How does this article, placed prominently at the top of your email and website, provide a valuable service to all of us out here working in the trenches for nonprofits in our communities? I’m not saying it’s not a legitimate story; it just doesn’t deserve top billing here.

  • Keith Oberg

    Given the interest of the non-profit community in promoting human rights and the public interest, this is an appropriate topic for NPQ consideration. And it is a thoughtful contribution providing as it does, the original draft of the legislation. Most disturbing, but unsurprising to me, is the mindset of the original legislative author…note the consistent use of “government”, implying some over-arching monster threatening to take away one’s “rights”, when what is really being targeted is the PUBLIC INTEREST in a democratic society where all individuals’ rights should and must be respected. Complaints from the right about “government” interference are often more a reaction against standards imposed (admittedly sometimes imperfectly) by the democratic process and the public interest.

    One last observation–I love the NPQ author’s ironic reference to the legislative text in effect permitting what Christian conservatives most fear–a conservative Islamic entrepreneur’s “right” to refuse to serve women unaccompanied by a male, or failing to wear a head covering, etc.

  • Jason Hoobler

    While I advocated against this legislation – it was because, not despite, the lgbt etc etc “alliances” deserve = protection under law, not moral protection. Therefore, the real problem is legislators acting as moral arbiters of who can and cannot be served by those who seek public credentialing (DBA in AZ, eg, or work permits etc) as a discriminant of those served while publicly credentialed. I think this will backfire, but may be useful anyway — mostly because it presents the rare opportunity to develop standards around piercing public debate with empowerment and misusable categoric labels. I suspect though, that it will not be used that way.

  • Darius

    Obviously NP Quarterly has an extreme anti-Christian bias. This story has absolutely nothing to do with the nonprofit industry. People have the right to believe what they want and should not be forced by the government to participate in things they feel are wrong.

  • Darius

    How is being anti-Christian worse than being “anti-gay”??

  • Sharon Charters

    so glad that wiser heads prevailed and this terrible piece of legislation was vetoed.

  • Robert Ashcraft

    Arizona’s governor vetoed the bill so SB1062 is not a law in Arizona. In fact, even some senators who supported the bill initially as it made its way through the legislature ended up asking the Governor to veto the very bill they initially supported. Among every national media outlet reporting the veto, here is the one from the Washington Post, complete with video: For an interesting treatment of the issue, read Sarah Garrecht Gassen’s article in today’s Arizona Daily Star

  • Rick Cohen

    Dear Robert: we also covered the veto today in the NPQ Newswire.