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The Heritage, Conception, Life, and Death of Arizona’s S.B. 1062. And Why It’s Important

In Constitutional Law, Federal Law, First Amendment on April 23, 2014 at 9:57 AM

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On February 19, 2014, Arizona’s two houses of legislature passed S.B. 1062. Though the bill does not explicitly mention homosexuality or Christianity, it became both a lightning rod and a rally flag, depending on which side of the culture war onlookers identified themselves. Facing intense pressure from businesses, professional sports organizations, and national politicos, Governor Jan Brewer vetoed the bill.

Objective observers of S.B. 1062 would probably agree that the dialogue surrounding the bill generated more heat than light. One need only glance at the “comments” section of almost any article covering the bill to see the belligerents calling each other names and impugning each other’s motives. For example, one commentator on a Powerline article suggested those opposed to S.B. 1062 were “agents of intolerance, hatred and darkness.” http://www.powerlineblog.com/archives/2014/02/no-this-is-not-jim-crow-for-gays-understanding-arizona-s-b-1062.php.

On the other side of the debate, one well respected news reporter let his anger cloud his logic so much that he blatantly contradicted himself in less than a minute’s time. In a news piece titled “Keeping Them Honest,” CNN’s Anderson Cooper first accused one of the interest groups that helped draft the bill of acting strange for not coming on his show since “they were not keeping [their role] secret” and then, less than a minute later in his monologue ominously suggested that what was wrong with the groups’ activity was not their activism but that they were keeping their role a secret. See http://mediamatters.org/blog/2014/02/28/cnn-and-msnbc-expose-the-anti-gay-group-behind/198280, first posted clip at 1:30 to the end.

Another gay-rights activist described the controversial bill as “a wretched, conceived-in-hate piece of trash.” http://americablog.com/2014/03/arizonas-sb-1062-egregiously-misrepresented-critics.html. Actually, instead of “hate,” the controversial bill’s conception is intertwined with First Amendment jurisprudence and historical legislative (both federal and state) reactions to that jurisprudence.

The First Amendment

Ratified in 1791, the First Amendment forbids Congress from prohibiting the free exercise of religion. Since that time, courts have struggled to find a correct balance between an individual’s freedom of religion and society’s demands of each individual. For example, at one extreme, although a worshipper of Moloch might feel religiously compelled to offer her child as a burnt sacrifice to the ancient Ammonite god, Texas Penal Code §19.03 defines such conduct as capital murder, punishable by death or life imprisonment without parole. Does Texas Penal Code § 19.03, therefore, “prohibit[] the free exercise of” religion? The answer is easy, and must be an emphatic “no.” Otherwise, the First Amendment “would . . . make the professed doctrines of religious belief superior to the law of the land, and, in effect . . . permit every citizen to become a law unto himself.” Reynolds v. United States, 98 U.S. 145, 167 (1878). President Lincoln (though not in reference to freedom of religion but as justification for firing on Fort Sumpter) framed the dilemma as follows: “Must a government, of necessity, be too strong for the liberties  of its own people, or too weak to maintain its own existence?” See Minersville School Dist. v. Gobitis, 310 U.S. 586, 596 (1940).

As history attests, drawing the line of demarcation using clear legal standards that adequately balance both the individual’s First Amendment interests and society’s demands of each individual, can be challenging.

Where To Draw the Line?

Early Supreme Court decisions, lacking the balancing tools of the later-promulgated levels-of-scrutiny constitutional jurisprudence, drew a severe line, limiting religious freedom’s scope to protecting belief but not action. For example, the Reynolds Court, when faced with the issue of whether a law prohibiting plural marriage violated a 19th-century polygamous Mormon’s First Amendment rights, ruled that “Congress [is] deprived of all legislative power over mere opinion, but [is] left free to reach actions.” Id. at 164 (emphasis added). In other words, because Mr. Reynolds’ sentence to two years’ hard labor was based on his actually marrying a second wife instead of merely holding the opinion that doing so would be morally right, the Court found his First Amendment rights to remain intact despite the sentence. The same Court, however (likely fearing a Pandora’s box that would lead to anarchy, especially if the Court granted a First Amendment right to participate in what “has always been odious among the northern and western nations of Europe”) ignored the thorny fact that the First Amendment protects “free exercise of religion,” not mere opinion. Id.; U.S. Const. amend. I.

The Reynolds bright line began to blur in 1943 with West Virginia State Board of Education v. Barnette, in which the Court ruled that a state could not compel a Jehovah’s Witness school child to pledge allegiance to the flag. 319 U.S. 624. Though the Court packaged the ruling with a consciousness of the Reynolds language (claiming that making a symbol and stating a vow was intimately linked with belief) the holding nonetheless undoubtedly weakened Reynolds’ assertion that “legislative power . . . [is] left free to reach actions.” Reynolds, 164.

In 1968, that line blurred to breaking, when the Court addressed the issue of whether a Seventh-Day Adventist could be required to accept work on Saturdays to receive unemployment benefits. Sherbert v. Verner, 374 U.S. 398. The Court ruled in favor of the Seventh-Day Adventist. The Court wholly discarded the Reynolds bright line rule and instead analyzed the issue through the constitutional “levels of judicial scrutiny,” created by United States v. Carolene Products Company, 304 U.S. 134 (1938). The Court examined the law with strict scrutiny, further stating that “only the gravest abuses [of religious exercise] give occasion for permissible limitation” by the state. Sherbert at 406.

 Religious Freedom Restoration Act

In 1990, with Employment Division v. Smith, the Supreme Court again demonstrated the precariousness of the balance between individual religious liberty and public safety, peace, and order. 494 U.S. 872. There, the Court decided whether a user of an illicit drug could seek First-Amendment refuge from criminal prosecution. In Smith, the Court returned to a more Reynolds-like position, expressly rejecting the compelling interest requirement for government actions that burdened the exercise of religion. Id. at 888-889. The Court held that if the religious conduct burdened (in this case, smoking peyote) is prohibited by law (whereas in Sherbert observing a Saturday Sabbath was not prohibited by law, a distinction the Court was careful to note), then no heightened scrutiny applies. The only question for reviewing courts in such situations is whether the law is “generally applicable” (the inverse being whether the State is specifically targeting or exempting a religion) and whether the law in question has a rational basis.

It is perhaps no coincidence that the three decades preceding Smith saw not only a rising crime rate but also a rising drug-related crime rate. Thus, it is quite possible that the Court’s sudden jerking back of the religious freedom reins was informed by the same fear that informed Reynolds: “every citizen . . . a law unto himself.”

Although it is only arguable that Smith was a reaction to three decades of increasing lawlessness, there is no question that the Religious Freedom Restoration Act was passed in reaction to Smith. See City of Boerne v. Flores, 521 U.S. 507, 513 (U.S. 1997). In effect, Congress said to the Court, “if you will not find stronger protections of religious exercise in the Constitution, we will craft our own statutory protections.” In 1993, the Democrat-controlled House and Senate passed (with only three total dissenting votes) and President Clinton signed, the Religious Freedom Restoration Act (“RFRA”). Among other things, RFRA restored strict scrutiny as the lens through which Courts must evaluate religion-burdening state actions. The Court, however, soon made clear that RFRA had not once and for all settled the balance.

Supreme Court Strikes Down RFRA As To States

In 1997, in City of Boerne v. Flores, the Supreme Court struck down much of RFRA, holding that the Constitution did not grant Congress the authority to impose RFRA’s requirements on the states, though RFRA’s restrictions continued to apply to the federal government. 521 U.S. 507.

In response, many states passed their own version of RFRA. One of those states was Arizona. Arizona’s RFRA was a precursor to S.B. 1062. Events in other states led Arizona legislators to believe that additional RFRA protections and an expansion of the Arizona RFRA were required.

In 2013, the Supreme Court of New Mexico upheld a fine imposed on a photographer by the New Mexico Human Rights Commission (NMHRS) for refusing to photograph a gay “commitment ceremony.” Elane Photography, LLC v. Willock, 2013-NMSC-040, 8 (N.M. 2013). The NMHRS based its fine on the New Mexico Human Rights Act of 2007, which prohibits public accommodations from discriminating against people based on their sexual orientation. That same year, bakeries in Oregon and Colorado were subject to fines for refusing, on religious grounds, to bake a wedding cake for a gay couple. The Oregon bakery faces the possibility of hundreds of thousands of dollars in fines, and the state’s Labor Commissioner has spoken of a desire to “rehabilitate” the bakery.

In reaction to these cases, and to protect orthodox Christians from being forced to participate in activities contrary to their beliefs, many states moved to enact their own RFRA or broaden the RFRA they currently had. Arizona was one such state. Arizona’s S.B. 1062 attempted to broaden its RFRA so as to extend the Act’s protections to not only churches but also individuals and legal entities. S.B. 1062 would also have allowed use of the new RFRA in a lawsuit as a claim or defense regardless of whether the government was a party to the proceeding.

The rest is history. When both houses of legislature passed the bill, a media firestorm erupted, decrying the bill as something intended to legalize discrimination against homosexuals in places of public accommodation (something that was already legal in Arizona, by the way). Almost everyone in the public sphere had something to say about the bill—from the National Football League to two failed Republican presidential nominees—most weighing in against passage. In an unprecedented turn of events, three legislators who voted for the bill shortly thereafter publicly expressed regret for their vote.

Jan Brewer, whose own administration helped draft the legislation, exercised her veto, stating that she did not see how the bill was necessary.

The Troubling After-Taste of S.B. 1062

Reasonable people can disagree on whether S.B. 1062 was a “solution in search of a problem,” as one of the GOP legislators described the bill to justify his opposition thereto after voting to pass it. Reasonable people can also disagree on where, exactly, the balance ought to lie in protecting freedom of conscience, particularly within the developing corpus of gay rights. The troubling aspect of S.B. 1062’s life and death, however, is that instead of a principled discussion taking place regarding these issues, name-calling and outright deceit were used to attack those on the opposite side of the argument. Those supporting the bill should not be labeled hate-filled bigots by virtue of their support of the First Amendment, just as those opposed to it should not be vilified as anti-religious deviants.

Also troubling to people of faith is the question of where not only religious liberty but liberty in general stands in the wake of S.B. 1062’s demise. If such measures as S.B. 1062 become taboo, while measures like New Mexico’s NMHRA become commonplace, is there any space left for those opposed to participating in events that run contrary to their deeply held religious beliefs? If an orthodox Christian must choose between actively participating in a gay wedding and losing her livelihood, why not pass a statute forcing an Evangelical Christian to photograph a Latter-day Saint couple after a temple wedding? Why not pass a statute forcing a Muslim-owned food company to sell grape juice to a distillery whose sole function is to produce wine used at a Catholic Mass? Why not force a gay accountant to give tax advice to a Muslim mosque that teaches homosexual acts should be punished by death? The intended beneficiaries of such statutes would all belong to historically persecuted groups, and all could argue that they feel ashamed and discriminated against without these statutory protections.

But if such laws are passed and enforced, who decides who gets to force whom to do what? In other words, at one point does liberty—both of gay-rights activists as well as orthodox Christians—disappear, only to be replaced by the rule of the strong? When does a law that forces someone to choose between acting in accordance with their religious beliefs and providing for themselves and their families not “prohibit the free exercise of religion?”

Of course, as with the hypothetical child-sacrificing Moloch-worshipper discussed above, there must be some limitations to the free exercise clause. But no one would disagree that the state has a compelling interest in prohibiting child sacrifice. There is plenty of room for disagreement, however, as to whether the state has an interest strong enough to override First Amendment rights in protecting individuals from feelings of shame and embarrassment—however real those feelings might be for gay couples who are denied wedding services. Furthermore, if the state arrogates to itself the role of affirmation czar, why should it not be equally concerned with the feelings of the Christian couple who were forced to close their Oregon bakery? Surely the protests, death threats, and administrative proceedings instilled in them feelings of shame, embarrassment, and fear.

In answering these questions, we should remember religion’s great importance to America’s conception of liberty. “We have not government armed with power capable of contending with human passions unbridled by morality and religion . . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams, letter, October 11, 1798. “Americans [have historically] combined the notions of [religion] and of liberty so intimately in their minds, that it is impossible . . . to conceive the one without the other.” Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry Reeve (New York: Geroge Dearborn and Co., 1838), 287. They “are intertwined, interlinked, and interlocked so tightly that when one of them . . . is cut, the other . . . will bleed.” Jeffrey R. Holland, “Faith Family and Religious Freedom,” Clark Memorandum, Fall 2013, 29.

Texas Changes Funeral Picketing Law

In First Amendment, Texas Law on September 26, 2011 at 8:51 AM

During the 82nd regular legislative session of the Texas legislature, an amendment to the Texas Penal Code was passed that will affect the right to picket near a funeral service in the state. This law, introduced as HB 718, amends § 42.055(b) of the Texas Penal Code to further restrict the times when a person can lawfully picket a funeral.

The original provision was made effective on May 19, 2006, and made it illegal for a person to picket within “1,000 feet of a facility or cemetery being used for a funeral service” during the period beginning one hour before the service begins and ending one hour after the service is completed. As of September 1, 2011, and because of HB 718, it is a punishable offense to picket within 1,000 feet of a facility or cemetery being used for a funeral service during the period beginning three hours before the service begins and ending three hours after the service is completed. For five years, the one hour before and after a funeral service was sufficient to protect a grieving family from possible offensive picketers. What changed since 2006? Why is Texas changing the law now?

The answer: Snyder v. Phelps, 131 S.Ct. 1207 (2011), a highly controversial case decided by the Supreme Court on March 2, 2011. Matthew Snyder was an American soldier who was killed in action in Iraq. His funeral service was held in his hometown of Finksburg, Maryland. Fred Phelps, the head of the Westboro Baptist Church in Kansas, along with his fellow parishioners, decided to picket near Snyder’s funeral around the same time. The Phelps group informed local authorities in Maryland of their intent to picket near the funeral site while the funeral was taking place. They followed all local laws and restrictions, did not yell or use profanity, and were never violent.

The problem with the picketers, however, was their signs’ messages. The signs contained such statements as “God Hates the USA/Thank God for 9/11,” “America is doomed,” and “Thank God for Dead Soldiers.” Snyder’s father brought suit based on the content of the signs the picketers carried and the effect they had on him. It took a trial at the district court level, an appeal to the Fourth Circuit, and an opinion from the Supreme Court to resolve the matter. The Supreme Court concluded that Phelps and the members of his church were addressing matters of public import, on public property, in a peaceful manner, and in full compliance with the guidance of local officials. They were not liable for any harm Snyder may have suffered because their speech was protected.

While the First Amendment does afford a vast protection over free speech, states have the power to impose content-neutral time, place, and manner restrictions. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Texas’s HB 718 is an exercise of that power.

Currently forty-four states have laws restricting protests; some only restrict protests held near or around military funeral services. Of these, most states impose minimal restrictions on the distance that a picketer must keep between himself and the cemetery or funeral location, ranging from 300 to 500 feet. At the time of the Supreme Court’s decision, Maryland’s restriction only mandated that picketers stay 100 feet away; the state has since amended the law to impose a 500 feet restriction.

Texas, however, has one of the most restrictive laws regarding funeral picketing, imposing a 1,000 feet buffer between a funeral service and a picketer. This was true even before the amended law became effective on September 1. Perhaps the amendment to the funeral restriction was just a sign from the Texas legislature that, while the freedom of speech is a right so fundamental that even speech which is offensive or hurtful will be protected, states still have the power to protect their citizens during difficult times.

Response Review: Was the Rick Perry Prayer Rally Unconstitutional?

In Constitutional Law, First Amendment, Legal on August 8, 2011 at 3:45 PM


Governor Perry’s August 6th prayer rally garnered lots of media attention this past weekend. With 30,000 people in attendance, the sheer size of “The Response” was newsworthy—it was reportedly larger than any rally so far this election cycle by any other Republican presidential hopeful. Relatedly, many pundits saw the event as Governor Perry’s proverbial gauntlet throw-down, a flexing of admittedly large social conservative political muscles that have the potential to make him a top contender should he enter the presidential race. There has also been questioning as to whether Governor Perry’s key role in the event was a violation of the Establishment Clause. According to the Southern District of Texas, the short answer to this question is, it doesn’t matter. In Freedom From Religion Foundation, INC. v. Perry, Judge Gray Miller found that even if Governor Perry’s actions had been unconstitutional, plaintiff FFRF–quite possibly along with all other potential plaintiffs–had no standing to sue.

The analysis that leads to this answer follows a long and tangled path, beginning with the text of the Constitution itself, proceeding on to subsequent constitutional amendments, traversing some two hundred years of interpretive jurisprudence, and ending with Judge Miller’s decision in FFRF v. Perry. The First Amendment reads, in relevant part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” In 1947, the Supreme Court held this portion of the Bill of Rights to be enforceable against state as well as federal governments through 14th-Amendment incorporation. Governor Perry’s actions in his capacity of state governor, therefore, must conform to the mandates of the First Amendment.

Whether they do, however, is a moot question according to Judge Miller, as FFRF had no standing to sue. The three requirements for standing in such a case are: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” The court, referring heavily to a recent Seventh Circuit opinion on whether President Obama could constitutionally declare a National Day of Prayer, found that plaintiffs failed to meet the first requirement by showing there had been an “injury in fact.”

In arriving at this conclusion, the court emphasized that attendance at the rally was voluntary and that Governor Perry merely invited prayers from those not in attendance: “Governor Perry’s statements are requests, not commands, and no injury flows from a mere request.” The court explicitly held, again referring to the Seventh Circuit opinion, that nonparticipants’ resulting feelings of exclusion are not sufficient to constitute an injury because they only reflect value judgments of the excluded bystanders. Finally, the court acknowledged that its ruling might well have the effect of making it so that nobody would have standing in a case such as the one before it. Judge Miller gave this concern short shrift by simply referring back to the above-mentioned requirements for standing. “[A]bstract injury. . . is not injury in fact,” he stated.

What about the merits of the case? In other words, if FFRF did have standing, how would the court have ruled? Judge Miller gave a strong hint when he stated: “plaintiffs…seek two types of specific injunctive relief that have never been granted by a federal court: (1) an injunction barring a state governor from issuing a proclamation inviting people to pray; and (2) an injunction limiting the manner in which a state governor may participate in a religious function” (emphasis added). If the injunction in question is the type never to have been granted in federal court, it is likely that most courts would decline to extend the Establishment Clause so far as to prohibit activity of the kind in which Governor Perry engaged. It is also likely the Supreme Court would so forbear.