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Arizona Republicans fail to make their case in support of religious freedom

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Last Thursday, Feb. 20, the Arizona legislature passed a bill intended to protect Arizona businesses from discrimination lawsuits arising form the exercise of religious beliefs, as reported by CNN here. Predictably, Democrats and their left-wing base have gone into hysterics in opposing the law, labeling the religious freedom measure as an "anti-gay law."

The bill was written and promoted by lobbyist groups in response to a recent lawsuit in New Mexico and operates by amending Arizona's current free exercise of religion law. One promoter of the Bill has complained that the intent has been misrepresented by the opposition. "The attacks on SB1062 show politics at its absolute worse. They represent precisely why so many people are sick of the modern political debate. Instead of having an honest discussion about the true meaning of religious liberty, opponents of the bill have hijacked this discussion through lies, personal attacks, and irresponsible reporting," said Cathi Herrod, president of the Center for Arizona Policy.

The new law does not permit blanket discrimination.

Ms. Herrod is correct that opponents of the law have completely misrepresented the potential effects. In order for someone to be able to refuse service to LGBT persons under this law and not get sued, there would first need to be an anti-discrimination law to violate. LGBT persons are not a protected for purposes of discrimination laws in Arizona state-wide, but they are protected under federal law. Then one would need to prove that enforcing those laws either (1) does not promote a compelling government interest or (2) that the law was not the least restrictive means to achieve that interest. If they can get past those hurdles, then they still must prove that complying with the law would constitute an "unreasonable burden," which only occurs if "a person is prevented from using the person's property in a manner that the person finds satisfactory to fulfill the person's religious mission."

In simpler terms, not only does the amendment not permit blanket discrimination, it would most likely not have protected the defendant in the New Mexico case that inspired the law. While Arizona's prohibition against same-sex marriage may have protected him, it is hard to imagine that the use of a photographer's camera was part of fulfilling the photographer's religious mission. It may be possible to imagine a scenario where the amendment would protect someone who discriminates against a LGBT person from a lawsuit, but it certainly will not allow Arizona businesses to establish discriminatory policies based on religion.

Republican law makers failed to get their message across

Consequently, we have another story of Republican law makers trying to live up to their principles, but failing utterly to make their message clear to the public. Arizona Republicans rushed this bill in reaction to the New Mexico case and failed to make any effort to make their case to the public before or after. They should have been shouting from the figurative roof tops that the law does not allow discrimination, both to warn Arizona businesses before they decided to adopt discriminatory policy and to prevent the opposition from controlling the narrative. Now, some Arizona lawmakers have been forced to reverse course and asked Governor Jan Brewer to veto the bill. The Governor has until Saturday to decide.

At least Governor Brewer seems to have a more reasoned approach. "I don't know that it needs to be statutory. In my life and in my businesses, if I don't want to do business or if I don't want to deal with a particular company or person or whatever, I'm not interested. That's America. That's freedom."

UPDATE: Citing the negative consequences to the State of Arizona if the bill was signed into law, Governor Brewer has vetoed the SB1062.

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