To understand these points, it first helps to understand the history of RFRA.
RFRA was first a federal law, passed by Congress in 1993, in response to a U.S. Supreme Court decision,
Employment Division vs. Smith (1989). In that case, the Court did not protect the religious freedom of a member of the Native American Church who used peyote, a hallucinogenic, as part of a religious ceremony. The state did not violate Smith's religious freedom, the Court concluded in an opinion written by Justice Antonin Scalia, because the law making illegal the use of the hallucinogenic applied to people of all faiths, not just the Native American Church.
Many were deeply concerned about what that decision would mean for religious freedom in the United States. In practice the decision meant that if a government policy interferes with a person's right to freely practice their religion, that is acceptable as long as the policy was not specifically designed to do so.
A broad coalition of both conservatives and liberals came together, therefore, in support of the federal Religious Freedom Restoration Act. This law would tell the courts that the state may only violate someone's religious freedom under certain conditions (more on these later), and it is up to the government to show those conditions are met. Plus, having a law that is generally applicable (applies to all faiths and those with no faith), is not sufficient reason to deny someone religious freedom.
The law was passed by an overwhelming majority, a unanimous vote in the House and a 97 to three vote in the Senate, and signed by a Democratic president - Bill Clinton.
Later, though, the U.S. Supreme Court would rule, in
Boerne vs. Flores (1996), that RFRA cannot be applied to state laws. States would have to pass their own RFRA if they wanted it to apply to their state and local laws, the Court said. So, many states did exactly that. Arizona was one of those states.
The bill passed Thursday by the Arizona legislature modifies that existing law. More specifically, it more precisely spells out what RFRA was always understood to mean. Arizona legislators believed a few points needed to be clarified mainly for two reasons,
[COLOR=#093d72]according to Arizona State Representative John Kavanagh[/COLOR].
First, the Obama administration's birth control mandate raised the question of whether RFRA applies to a person's religious freedom when they own a business. The U.S. Supreme Court will decide that question next Summer. Two Christian owned businesses, Hobby Lobby and Conestoga Woods Specialties, sued the government over the mandate, saying it violated their religious freedom.
Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, was instrumental in helping get the federal RFRA passed. He points out for a Feb. 19
[COLOR=#093d72]ScotusBlog post[/COLOR] that RFRA was always understood to protect corporations, including for-profit corporations. The birth control mandate cases, though, demonstrate the possibility that judges may not see it that way, even though that was the intent of the legislators who passed those laws.
Second, in a case involving a wedding photographer who refused to work at a gay wedding based upon her religious beliefs, the New Mexico Supreme Court ruled that the state's RFRA law only applies when the government is a party in the case. RFRA was never understood to mean that by the legislators who passed it, but that case demonstrated the need to make the Arizona state law more specific.
Given that, here are some of the main changes the Arizona bill would make:
- Those covered by RFRA would include "any individual, association, partnership, corporation, church, religious assembly or institution or other business organization."
- A religious freedom violation can be asserted "regardless of whether the government is a party to the proceeding."
- The person asserting a religious freedom violation must show three things: "1. That the person's action or refusal to act is motivated by a religious belief. 2. That the person's religious belief is sincerely held. 3. That the state action substantially burdens the exercise of the person's religious beliefs."
.
