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- 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."
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part 2
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: . |
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part 3
In sum, the bill would essentially make three changes for RFRA: 1) Clarify that any association, including for-profit corporations, are covered. 2) Clarify that the government does not have to be a party in the case. And, 3) to prevent frivolous RFRA claims, require that those claiming a religious freedom violation show that there is an actual religious belief behind their action, that they are sincere in their religious belief, and a state action has placed a substantial burden on their religious belief.
While the first two changes are designed to make sure that religious freedom is protected in the broadest way possible, the third change is to make sure that people are not concocting their own religion or religious belief in order to sue. If the bill is passed, those asserting a religious freedom violation would have to prove to the court that it is based upon an actual religious belief, and that they hold strongly to that religion. While the bill clarifies the broad coverage of RFRA, it also makes it more difficult to sue under RFRA. Let us assume, though, the Arizona bill is signed and becomes law, and someone is able to pass those stricter tests and is allowed to sue under RFRA. Being allowed to sue does not mean they automatically win in court. Under RFRA, government action may still violate one's religious beliefs. To do so, though, it must show there is a "compelling government interest" and the "least restrictive means" were used to further that government interest. Claiming the law is generally applicable (applies to all faiths or no faith), though, is not sufficient reason, under RFRA, to take away someone's religious freedom. This means RFRA is telling the court to balance the needs of government to accomplish its purposes against the religious freedom of its citizens. Religious freedom must be protected, unless there is an important government purpose that outweighs religious freedom and there is no other way to accomplish that purpose without violating someone's religious belief. Recent cases involving Christian vendors refusing service for gay weddings has, understandably, been part of the debate over the Arizona bill. Those recent cases, though, involving wedding photographers and wedding cake bakers, are not about discrimination against gays. The photogaphers and bakers in those cases have made clear they would gladly serve gays outside the context of a same-sex wedding. They are not refusing to serve gays, they are refusing to serve a same-sex wedding. Should the government be able to force them to violate their religious conscience? A court using RFRA would apply the balancing test: the answer is yes, only if there is a compelling governmental interest and the least restrictive means of furthering that interest were used. At this point, it should be clear why the Arizona bill would not usher in an era of "Jim Crow for gays" in that state. Even if there were a host of Arizona businesses hoping to turn away gay customers (there is not), this bill would not make that any more likely. In fact, just the opposite. Sueing under RFRA is made more difficult by the Arizona bill. This whole op is much ado about nothing |
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You want everyone to give gays some space on marriage and such? Why then are you not willing to give others some space on their religious rights? Can you see no scenario in which a Christian, Jewish, Muslim, gay business owner is justified in refusing to violate their conscience?
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Hello again, Steve:
Can you see no scenario in which a Christian, Jewish, Muslim, gay business owner is justified in refusing to violate their conscience?
excon |
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Apple Wants Arizona Governer To Veto Gay Discrimination Bill | Cult of Mac
Arizona lawmaker who voted for anti-gay bill now wants it vetoed or repealed | The Raw Story Giving lawmakers the benefit of a doubt, you cannot ignore the backlash on business and perception of citizens making their own lives more difficult, because one group thinks they can discriminate against another and be protected from legal redress in a court of law as Tom pointed out. |
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 Originally Posted by excon
Arizona 's SB 1062 is an attempt to make the State law the same as the Federal law already on the books for 20 years ! |
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Its REPUBLICAN lawmakers in Arizona using state government to make it easier to violate the rights of its some of citizens based solely on the religious beliefs of others of its citizens. In fact even religious people of good conscious don't agree with this new law and feel its WRONG.
It should be pointed out that the law was vetoed the first time it came across the governors desk. Probably will again. |
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Originally Posted by Wondergirl
As I just said, it's about using the force of government to compel others to violate their religious beliefs and values, as in FORCING a bakery owner to cater a gay wedding. FORCING a Jewish caterer to serve pork. FORCING a gay caterer to cater a "God hates fags" banquet. FORCING the black caterer to serve the KKK banquet. |
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Originally Posted by talaniman
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Originally Posted by speechlesstx
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Again, this is not about merely selling the product and traffic laws are irrelevant. It is about forced ACCEPTANCE and forced PARTICIPATION (as in the contraceptive mandate) in things that violate REASONABLE religious beliefs. The business owner is perfectly willing to accept the business consequences, so what's it to you and why would you want to use someone who is clearly uncomfortable anyway?
These people in Oregon aren't being unreasonable or rude, and in return they were harassed, intimidated and threatened and the benevolent state of Oregon was good enough to state their intent to reeducate and rehabilitate the business owners, not the militant LBGT community that shut them down. Sorry, but there's just something wrong with that picture. |
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You may have a point Speech if getting comfortable is the issue, and not just cover for denying the value of a group of people who are different than you are. I agree that something can be worked out but not a law that makes it okay to deny a group based on belief in the meantime.
That's a disturbing picture. |
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Originally Posted by talaniman
If someone categorically refuses to sell to gays under any circumstance then we can talk, but it is not unreasonable for a PRIVATE business to decline to PARTICIPATE in or FACILITATE a gay wedding, a God hates fags banquet, a KKK wedding. Or say a Christian bookstore to decline to sell the Satanic Bible, a gay T-shirt company owner decline printing anti-gay marriage messages, a gay bar refusing to host a Duck Dynasty reunion. Is it? |
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It's just as much discriminating against religious by forcing them to violate their beliefs, and you're using gay victimhood to do it. I really don't for a minute believe you can't find a scenario in which a PRIVATE business owner would be justified in declining to be a party to something that offends them.
Like I said, I don't think a law should be necessary, but apparently your side is unwilling to be reasonable, to live and let live, to respect my autonomy, choices and beliefs as you demand I not only respect yours but APPROVE. Put that shoe on the other foot as you have so many times here before, you don't like it one bit. Why should I? |
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Originally Posted by speechlesstx
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