About all of that wailing and gnashing of teeth about Arizona...

[Adam]

The usual whine-fest has been cranked up to eleven over Arizona's (quite correct and logical) response to the gay mafia's attempts to put out of business people who don't embrace the gay lifestyle. Arizona SB1060 has caused everyone from the NFL to American Airlines to PetSmart, of all people, to, of course, the typical sycophants in the White House to squeal with horror at the notion that people in this country have a right to not be forced by the government (any government) to engage in commerce to which they have a religious opposition. Nevermind the fact that this liberty is very clearly and unambiguously enshrined in the First Amendment; the howler monkeys are flinging poo as quickly as they can frump up a handful.

Central to the claims about what Arizona SB1060 will do is the rather absurd notion that somehow Woolworth's stores in Tempe will put up signs at their lunch counters that read "hetero only" and there will be separate water fountains labeled "gay" and "straight." This, as usual, is complete and utter bullshit.

Arizona SB1060 actually only makes very minor changes to existing Arizona law. That's right: the religious liberty of individuals in Arizona are already protected by law, and have been for more than fifteen years. And yet somehow after all this time with that law on the books, lunch counters are not segregated, gay people are not made to sit in the back of the bus or use different bathrooms, and indeed they aren't even forbidden from getting a cake at a bakery.

How is that possible? Why, these laws allegedly enshrine state-sanctioned beatings in the streets of gay people, for cryin' out loud! I know, because it said so on slate.com and thinkmoonbat.org! They can't put anything on the internet that isn't true, after all. Abraham Lincoln signed that legislation back in 1863.

Well, it turns out that it's a lot of manufactured hand-wringing, thanks pretty much entirely to the Leftist media in this country. Everyone act surprised!


SB1060 modifies two parts of the existing code: 41-1493, which is a series of definitions for the rest of the law, and 41-1493.1, which is one small part of the law itself.


Here is the current 41-1493, the set of definitions:

41-1493. Definitions
In this article, unless the context otherwise requires:
1. "Demonstrates" means meets the burdens of going forward with the evidence and of persuasion.
2. "Exercise of religion" means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
3. "Government" includes this state and any agency or political subdivision of this state.
4. "Nonreligious assembly or institution" includes all membership organizations, theaters, cultural centers, dance halls, fraternal orders, amphitheaters and places of public assembly regardless of size that a government or political subdivision allows to meet in a zoning district by code or ordinance or by practice.
5. "Person" includes a religious assembly or institution.
6. "Political subdivision" includes any county, city, including a charter city, town, school district, municipal corporation or special district, any board, commission or agency of a county, city, including a charter city, town, school district, municipal corporation or special district or any other local public agency.
7. "Religion-neutral zoning standards":
(a) Means numerically definable standards such as maximum occupancy codes, height restrictions, setbacks, fire codes, parking space requirements, sewer capacity limitations and traffic congestion limitations.
(b) Does not include:
(i) Synergy with uses that a government holds as more desirable.
(ii) The ability to raise tax revenues.
8. "Suitable alternate property" means a financially feasible property considering the person's revenue sources and other financial obligations with respect to the person's exercise of religion and with relation to spending that is in the same zoning district or in a contiguous area that the person finds acceptable for conducting the person's religious mission and that is large enough to fully accommodate the current and projected seating capacity requirements of the person in a manner that the person deems suitable for the person's religious mission.
9. "Unreasonable burden" means that a person is prevented from using the person's property in a manner that the person finds satisfactory to fulfill the person's religious mission.

And here is the current specific legislation protecting religious liberty:

41-1493.01. Free exercise of religion protected
A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B. Except as provided in subsection C, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
C. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:
1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest.
D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
E. In this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

Ironically enough, the part of the law that everyone is so bent out of shape about, the part where the law says that the government can't force you to do something against your religion, isn't directly touched by SB1060:

41-1493.04. Free exercise of religion; professional or occupational license; certificate or registration; appointments to governmental offices; definition
A. Government shall not deny, revoke or suspend a person's professional or occupational license, certificate or registration for any of the following and the following are not unprofessional conduct:
1. Declining to provide or participate in providing any service that violates the person's sincerely held religious beliefs except performing the duties of a peace officer.
2. Refusing to affirm a statement or oath that is contrary to the person's sincerely held religious beliefs.
3. Expressing sincerely held religious beliefs in any context, including a professional context as long as the services provided otherwise meet the current standard of care or practice for the profession.
4. Providing faith-based services that otherwise meet the current standard of care or practice for the profession.
5. Making business related decisions in accordance with sincerely held religious beliefs such as:
(a) Employment decisions, unless otherwise prohibited by state or federal law.
(b) Client selection decisions.
(c) Financial decisions.
B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person's exercise of religion.
C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.
D. This section does not authorize any person to engage in conduct that is prohibited under the Constitution of the United States or of this state or section 15-535.
E. This section does not authorize any person to engage in conduct that violates the emergency medical treatment and active labor act (P.L. 99-272; 100 Stat. 164; 42 United States Code section 1395dd) or the religious land use and institutionalized persons act (P.L. 106-274; 114 Stat. 803; 42 United States Code section 2000CC-1) as of the effective date of this section.
F. For the purposes of this section, "government" includes all courts and administrative bodies or entities under the jurisdiction of the Arizona supreme court.

So what does all of this mean? At the end of the day, practically nothing. Two definitions are updated with more legalese:

1. "exercise of religion" gets its definition changed from "ability to act or refusal to act in a manner substantially motivated by religious belief" to "practice or observance of religion, including the act or refusal to act in a manner substantially motivated by religious belief," which is effectively a meaningless change other than to update the language to keep up with the times, and;
2. "person," which was previously defined as "a religious assembly or institution" gets re-defined to "any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation, or legal entity," which also changes nothing: every single one of those listed were considered "institutions" at the time the law was written.

The other changes to the statutory portion of the law actually make the law harder to use as a defense against claims of discrimination, and yet these loons are howling about it. Besides a few definition updates, like striking "government" for "state action" and such, the primary changes here are tightening up the restriction for the use of this law as a shield: one must demonstrate thoroughly that one is acting upon one's religious beliefs, and that person's actions must be consistent. In other words, you can't say "I refuse to serve adulterers" and then go out and pick up a hooker on the wrong side of the tracks somewhere.


Let me repeat that so that it sinks in: this law requires that if someone claims that serving someone would violate their religious tenets, they must demonstrate that this is the case to the satisfaction of the courts. You don't get to just willy-nilly say "hey, I don't feel like dealing with gay people because they creep me out."




So why, you may ask, does Arizona even have a law like this? Surely that law is somehow wrong, illegal, contrary to the Constitution, something, right?

Well, no. Actually, the Arizona law was put in place in direct response to another law. Not to counter that law, but to mirror it. This is actually very routine with state legislatures; it's the relatively boring part of being a state legislator: lots and lots of legal drudgery to keep one's laws up to date and consistent with other laws, either in the state or around the nation.

So what is this other law in question? Well, it's United States Public Law 103-141, also known as the Religious Freedom Restoration Act, introduced to the House by none other than Chuck Schumer (that would be D-NY), passed through the Judiciary Committee very easily, cleared the House, heavy with Democrats (270 to 164) on a voice vote with no objections, and then breezed through the Senate with a vote of NINETY SEVEN TO THREE, and signed into law by one William Jefferson Clinton in 1993.






So, for all you hand-wringers out there who are so bent out of shape about this bill, you are cordially invited to stick it where the sun don't shine. This whining is just absolutely, positively asinine, and you all need a punch in the face for being such whiny douchebags.

[Norm dePlume]

You gotta love a mafia that just wants to buy a cake and throw a party.

[Billy Jingo]

"person," which was previously defined as "a religious assembly or institution" gets re-defined to "any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation, or legal entity," which also changes nothing: every single one of those listed were considered "institutions" at the time the law was written.

So when the law reads "a religious assembly or institution," its intent is to separate the two? When reading it, it looks more like "a religious assembly or [religious] institution" to me.

[Billy Jingo]

BTW, I had heard somewhere that the original law was a reaction to Employment Division v Smith; an opinion written by Justice Scalia (taking bets on whether he is consistent or not once the Catholics start asking him for religious freedom to not follow the law). So this imbroglio taught me something new .... which is always cool.

[Billy Jingo]

That is a fun decision to read. You guys should do it.

Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Sweet.

[Adam]

So when the law reads "a religious assembly or institution," its intent is to separate the two? When reading it, it looks more like "a religious assembly or [religious] institution" to me.

Irrelevant. Anything can be an institution, and then the word "religious" is a modifier.

There can be (and certainly are) all sorts of religious institutions that are covered by the updated definition. The Young Mens' Christian Association, better known as the YMCA, is a religious institution. It's also an association, as the name clearly indicates. There are all sorts of corporations that are also religious institutions: Chick-fil-A, for example, is a corporation that clearly is a religious institution. The Gideons International is a non-profit corporation that is quite obviously a religious institution. Thomas Nelson Publishing is a corporation that is clearly a religious institution.

[Billy Jingo]

Irrelevant.

I disagree. It changes everything.

Anything can be an institution, and then the word "religious" is a modifier.

There can be (and certainly are) all sorts of religious institutions that are covered by the updated definition. The Young Mens' Christian Association, better known as the YMCA, is a religious institution. It's also an association, as the name clearly indicates. There are all sorts of corporations that are also religious institutions: Chick-fil-A, for example, is a corporation that clearly is a religious institution. The Gideons International is a non-profit corporation that is quite obviously a religious institution. Thomas Nelson Publishing is a corporation that is clearly a religious institution.

I am not sure where to go with that. Are you placing Chick-fil-A on the same level as the Catholic Church?

[Adam]

I disagree. It changes everything.

Only if you go through absurd contortions to claim that only very special, government-approved people get to be religious institutions. Fortunately for the rest of us, the Founders saw to that in ratifying the First Amendment.

I am not sure where to go with that. Are you placing Chick-fil-A on the same level as the Catholic Church?

I'm not sure what "level" either of them are. Levels aren't important. What matters is whether that particular institution has a religious belief. Chick-fil-A very clearly, very obviously has a religious (in this case Christian) basis in their business plan: it's the stated reason why they are not open on Sundays, for example. Thomas Nelson, as one of the largest printers of religious material in the world, obviously has a religious belief at the core of their business. Achmed's Halal Grocery obviously has a religious basis to their business: they serve the Muslim community specifically with religiously-appropriate foods. Schwartz's Kosher Deli obviously has a religious basis to their business.

None of these have to be the Catholic Church before they suddenly get religious liberty. Religious liberty exists for all, not for the select few who are ordained (no pun intended) by the government.

[Norm dePlume]

I am not sure where to go with that. Are you placing Chick-fil-A on the same level as the Catholic Church?

Holy cow!



If I had more time, I'd photoshop a funny hat on him, because Catholics like funny hats.

[gary m]

Only if you go through absurd contortions to claim that only very special, government-approved people get to be religious institutions. Fortunately for the rest of us, the Founders saw to that in ratifying the First Amendment.

I'm not sure what "level" either of them are. Levels aren't important. What matters is whether that particular institution has a religious belief. Chick-fil-A very clearly, very obviously has a religious (in this case Christian) basis in their business plan: it's the stated reason why they are not open on Sundays, for example. Thomas Nelson, as one of the largest printers of religious material in the world, obviously has a religious belief at the core of their business. Achmed's Halal Grocery obviously has a religious basis to their business: they serve the Muslim community specifically with religiously-appropriate foods. Schwartz's Kosher Deli obviously has a religious basis to their business.

None of these have to be the Catholic Church before they suddenly get religious liberty. Religious liberty exists for all, not for the select few who are ordained (no pun intended) by the government.

I have to disagree with you here.
Having a religious basis for a manner of operating one's business does not make the aforementioned business a religious institution and I am not sure where the leap of logic from one to the other comes from.

...have a right to not be forced by the government (any government) to engage in commerce to which they have a religious opposition.

Why does religion get a pass here? I should not be forced by any government to engage in any form of commerce (including employment) with any person or entity that I don't want to for any reason, real or imagined.
It may not make prudent business sense to not sell products to members of Group X or refuse to employ members of Group Y, but that should be my choice to make, not the government's to impose at the point of a gun.

[Norm dePlume]

By the way, it's actually SB1062.

[Norm dePlume]

So what does all of this mean? At the end of the day, practically nothing. Two definitions are updated with more legalese:

1. "exercise of religion" gets its definition changed from "ability to act or refusal to act in a manner substantially motivated by religious belief" to "practice or observance of religion, including the act or refusal to act in a manner substantially motivated by religious belief," which is effectively a meaningless change other than to update the language to keep up with the times, and;
2. "person," which was previously defined as "a religious assembly or institution" gets re-defined to "any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation, or legal entity," which also changes nothing: every single one of those listed were considered "institutions" at the time the law was written.

The new definition includes "other business organization." There was an amendment to that effect. -link-

5. "Person" includes a religious assembly or institution ANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION OR OTHER BUSINESS ORGANIZATION.

The other changes to the statutory portion of the law actually make the law harder to use as a defense against claims of discrimination, and yet these loons are howling about it. Besides a few definition updates, like striking "government" for "state action" and such, the primary changes here are tightening up the restriction for the use of this law as a shield: one must demonstrate thoroughly that one is acting upon one's religious beliefs, and that person's actions must be consistent. In other words, you can't say "I refuse to serve adulterers" and then go out and pick up a hooker on the wrong side of the tracks somewhere.

The reason "government" was changed to "state action" is to include the possibility of using the law as a defense against enforcement of an anti-discrimination lawsuit. It isn't easier to use the earlier version of the law as defense in a civil suit. It's impossible. The earlier version only applies to government actions.

B. Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

C. Government STATE ACTION may substantially burden a person's exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON'S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both:

1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.

E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH ALL OF THE FOLLOWING:

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.

[Adam]

I have to disagree with you here.
Having a religious basis for a manner of operating one's business does not make the aforementioned business a religious institution and I am not sure where the leap of logic from one to the other comes from.

I reiterate that any institution can be religious. That's the whole point. People are hanging themselves up on the notion that "religious institution" can only mean a church, which clearly is not the case.

Why does religion get a pass here? I should not be forced by any government to engage in any form of commerce (including employment) with any person or entity that I don't want to for any reason, real or imagined.
It may not make prudent business sense to not sell products to members of Group X or refuse to employ members of Group Y, but that should be my choice to make, not the government's to impose at the point of a gun.

I happen to agree with you, but the specific topic at hand is someone's specifically-protected right to free religious expression.

[Adam]

By the way, it's actually SB1062.

Thanks. I thought I had linked that in the OP, but obviously I forgot to add that link.

[Frostbit]

I reiterate that any institution can be religious.

Yup!!

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