Expansion of Religious Freedoms or Justification for Discrimination?

Expansion of Religious Freedoms or Justification for Discrimination?

Katherine Reeves

For the past few weeks, the United States’ media has yet again focused on laws presented by the Arizona Legislature.  Senate Bill 1062[1] has created uproar across the nation, and many cite to this media coverage as the reasoning behind Governor Jan Brewer’s veto of the bill.[2]  Supporters say the bill is solely about religious liberty while those in opposition contend the bill is directly “anti-gay” legislation although there is no mention of sexuality in the text.[3]

As the wave of “gay rights” sweeps our nation, the question of the extent of religious freedom has again come to the forefront as a hot political issue in our society. It is important that we take time to look back at the history of both religious freedom and same-sex couples’ rights in American laws.  Additionally, other areas of civil liberty have offered to limit the scope of religious freedom. The Supreme Court has acted as a referee in many of these cases and offers some guidance as to the stance of the Federal Government on the balance between civil and religious liberty.

The proponents of Senate bill focus on the importance of legal protection for religious beliefs in the United States. The concept of religious freedom dates back to the colonial times of the future United States and was so credited as one of the reasons for the break from the English government.[4]  Although the country was primarily Christian, the framers of the United States Constitution formed the “free exercise” clause under the First Amendment broadly to include all religion.[5]  The Supreme Court has interpreted the free exercise clause on many occasions beginning with deeming it a strict scrutiny Constitutional issue. In Sherbert v. Verner.[6] In 1990, however, the Court denied religious exemptions from “neutral laws of general applicability.”[7] Many states reacted to this decision by enacting laws offering expanded protections for freedom of religion.[8]  Additionally, Congress took action by passing the Religious Freedom Restoration Act of 1993[9] but this legislation was short lived as the Supreme Court ruled it unconstitutional under the Fourteenth Amendment.[10] The limited protection offered by the Federal Government makes state protections more important.[11]

Turning to the opposition’s view of the bill, we must look to the history of laws relating to homosexuals.  The “gay rights movement”[12] has gained significant attention on the topic of marriage equality, but how did we get to this point? Although there have never been explicit laws against being gay, related laws caused legal recourse for being homosexual.[13] Stoumen v. Reilly, in 1951 spurred the beginning of restricting state discrimination of homosexuals where the Court said that a liquor license could not be withheld simply because the business served homosexuals.[14] Fast forward nearly half of a century (during which our system evolved dramatically), the Supreme Court ruled a Colorado constitutional amendment banning any anti-discrimination laws protecting homosexuals as unconstitutional.[15] That decision paved the way for subsequent Supreme Court cases which invalidated many sodomy laws and struck down Section 3 of the Defense of Marriage Act.[16]

The gay rights at odds with religious freedoms covered in the recent Arizona bill are more closely related to the topic of discrimination in private business.  Religious freedom in business ownership and operation has recently been in the spotlight due to contraceptive coverage in mandated health coverage for full time employees. Currently pending before the Supreme Court, is a case challenging this portion of health coverage based on the religious beliefs and practices of the Hobby Lobby Corporation.[17] The question presented under this case is whether the federal government’s mandate of contraceptive coverage violated the Religious Freedom Restoration Act of 1993 (RFRA)[18] that states that the government “shall not substantially burden a person’s exercise of religion.”[19] There is a distinct separation between the recent Arizona bill and this case: the Hobby Lobby case is regarding federal legislation effecting religious freedom. This case may offer guidance, however, in evaluating the fallen bill because the supporters of the vetoed Arizona bill claim that the broad wording of the bill was aimed at preventing issues of the state forcing businesses to participate in practices that may infringe on their religious beliefs.

In 1999 Arizona became one of the many states to take the protection of religious liberties into their own hands and enacted the Free Exercise of Religion Act (FERA).[20] Senate Bill 1062 is cited as an extension of the FERA by expanding the original definitions of “exercise of religion,” “person,” and “state action.”[21] The bill intended to expand the protections for religious individuals from state action that may burden religious beliefs. Additionally, the bill provided for injunctive and declarative relief in the incident of “claim or defense in a judicial proceeding” on the basis of burden on their religious beliefs.[22] In short, this provision allows individuals to file suit when they believe any state or local laws are violating religious rights, including any anti-discrimination laws.[23]

Although Arizona does not currently have a statewide law banning discrimination on the basis of sexual orientation, several local governments have passed such laws.[24] It is due to these anti-discrimination laws, that the Arizona legislature presented Senate Bill 1062. Their actions were directly in anticipation of legal issues due to the difficult relationship “between the freedom of religion and the right not to be discriminated against on the grounds of sexual orientation.”[25] Governor Brewer indicated her opinion of the bill, in her statement after her announced veto, by saying that the bill had “the potential to create more problems than it purports to solve.”[26] Brewer was referring to the lack of conflict with the anti-discrimination laws in Arizona; however such conflict has recently occurred in other states. In August 2013, the Supreme Court of New Mexico affirmed that a photography company violated anti-discrimination laws by refusing to photograph a customer’s same-sex wedding.[27] Although the issue has not arisen in Arizona, it is important to recognize the intent of the legislature to avoid such conflict of religion and discrimination laws in the courts.

This is not an issue that the United States is unfamiliar with, as feminism presented many of the same issues.[28] It is evident that the issue of women’s rights was more socially challenged than religiously challenged; therefore, anti-discrimination laws on the basis of gender did not face freedom of religion adversity this severely. Additionally, the United States legal system has faced many issues on the topic of anti-discrimination laws on the basis of race. Although it is commonly known that discrimination based on race and gender is still common, hindsight shows us the necessity of such laws.

The issue before us is about the expansion of religious freedom’s effect on discrimination against homosexuals. The extent of power of individuals and businesses to make decisions based on their religion is not only a question in Arizona, but throughout our country.  So what do we value more as Americas: the freedom of religion or the freedom to not be discriminated against? Although there is no easy answer, Senate Bill 1062’s veto indicates the latter.


[1] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[2] See, Warren Richey, Was vetoed Arizona bill misrepresented? What constitutional scholars say., The Christian Science Moniter, Feb. 27, 2014, http://www.csmonitor.com/USA/Justice/2014/0227/Was-vetoed-Arizona-bill-misrepresented-What-constitutional-scholars-say.-video; Timothy Egan, Arizona did us all a favor, New York Times, March 1, 2014, http://www.nytimes.com/2014/03/02/opinion/sunday/egan-arizona-did-us-all-a-favor.html?hp&rref=opinion&_r=0; See also, Tammy Bruce, Why the veto of Arizona’s religious freedom bill is alarming, FoxNews.com, Feb. 28, 2014, http://www.foxnews.com/opinion/2014/02/28/why-veto-arizonas-religious-freedom-bill-is-alarming/.

[3] See, Richey, supra note 2.

[4] See generally, Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 3 (2008)

[5] U.S. Const. amend I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise.”)

[6] 374 U.S. 398 (1963).

[7] Employment Division v. Smith, 494 U.S. 872 (1990).

[8] David H.E. Becker, Free Exercise of Religion Under the New York Constitution, 84 Cornell L. Rev. 1088, 1093 (1999)

[9] Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to bb-4 (1994)), declared unconstitutional by City of Boerne v. Flores, 521 U.S. 507 (1997).

[10] Becker, supra note 8, Becker.

[11] Id.

[12] See generally, Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1553 (1993)

[13] Id at 1564-1565

[14] 234 P.2d 969 (Cal. 1951).

[15] Romer v. Evans, 517 U.S. 620 (1996).

[16] Lawrence v. Texas, 539 U.S. 558 (2008); U.S. v. Windsor, No. 12-307 (U.S. June 26,2013).

[17] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (2013) (No. 13-356, 2013 Term; renumbered No. 13-354, 2013 term)

[18] Religious Freedom Restoration Act of 1993, PL 103–141, November 16, 1993, 107 Stat 1488

[19] Id.

[20] Ariz. Rev. Stat. Ann. § 41-1493.01 (West)

[21] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[22] Id.

[23] Richey, supra note 2.

[24] Id.

[25] Megan Pearson, Religious Claims vs. Non-Discrimination Rights: Another Plea for Difficulty, 15 Rutgers J. L. & Religion 47 (2013)

[26] Richey, supra note 2.

[27] Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)

[28] See generally, Pearson, supra note 25.

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