Wednesday, February 26, 2014

Arizona already has a 'religious freedom' law. So does Pennsylvania.

Much of the hoopla over Arizona's proposed "religious freedom" bill seems to suppose that it's something wholly new, that religious believers in the state would receive protections they've never had before. It turns out, however, that the measure would amend an enlisting law:

Under current Arizona law, if a business wanted to discriminate against gays, they would not need this bill to be passed to do so. It is not currently illegal for a business to deny service to someone because they are gay. Some cities in Arizona have ordinances against it but there is no state law against it. If business owners in Arizona wanted to deny service to gays, they could do so in most of the state under current law.

That's from an outfit called the Christian Post. I read their whole analysis, and found it interesting; objective, too, even though the Post makes no bones about which side it's on

The history of the topic is fascinating: Who would have expected religious conservatives and civil libertarians to find common cause in the right of a Native American to smoke peyote? 

But the bottom line is, the legal potential for "gay Jim Crow" already exists in Arizona. In Pennsylvania, too! The commonwealth passed its Religious Freedom Protection Act in 2002. Here's a bit of it: 

Section 4. Free exercise of religion protected.
Section 4. Free exercise of religion protected.
 (a) General rule.--Except as provided in subsection (b), an  agency shall not substantially burden a person's free exercise of religion, including any burden which results from a rule of general applicability.
 (b) Exceptions.--An agency may substantially burden a person's free exercise of religion if the agency proves, by a preponderance of the evidence, that the burden is all of the following:
 (1) In furtherance of a compelling interest of the agency.
 (2) The least restrictive means of furthering the compelling interest.
 Section 5. Actions.
 (a) Claim or defense.--A person whose free exercise of  religion has been burdened or likely will be burdened in violation of section 4 may assert that violation against an  agency as a claim or defense in any judicial or administrative
Subsection (b) would appear to give the state a lot of wiggle room to argue a "compelling interest" in enforcing anti-discrimination law. On the other hand, the law quoted above refers the definition of "free exercise" to Article 1, Section 3 of the state constitution, which states in part that "no human authority can, in any case whatever, control or interfere with the rights of conscience." To me, "in any case whatever" sounds like it beats "in furtherance of a compelling interest." 

I have no idea what case law there is on this, and a layman's judgement is about the worst tool you can use for evaluating how laws are applied. Still, on the face of it, it looks as though you could argue that Rep. Gordon Denlinger's proposed bill would be superfluous. 

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