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Arizona bill raises complicated legal questions

Wednesday, February 26, 2014 | 5:22 p.m. CST; updated 7:37 p.m. CST, Wednesday, February 26, 2014
Anthony Musa, left, and Brianna Pantillione join nearly 250 gay rights supporters protesting Senate Bill 1062 at the Arizona Capitol, Friday in Phoenix. The protesters gathered to demand Gov. Jan Brewer veto legislation that would allow business owners to refuse to serve gays by citing their religious beliefs. The governor must decide either to sign or veto SB1062 by the end of next week.

PHOENIX — The bill has galvanized business leaders and gay-rights supporters nationwide, united libertarians and Christian conservatives and stirred up a passionate debate on topics like religion and discrimination.

Opponents of the legislation, Senate Bill 1062, call it state-sanctioned discrimination because it provides legal protection to business owners who refuse service to gays. But those on the other side say it's a relatively small change to an existing state law covering religious freedom.

The bill was approved by the Arizona Legislature last week and is now in the hands of Republican Gov. Jan Brewer, who is deciding whether to veto or sign the legislation.

Brewer on Wednesday vetoed the legislation. Brewer said the bill "could divide Arizona in ways we could not even imagine and no one would ever want." The bill was broadly worded and could result in unintended negative consequences, she added.

Lost in all the rhetoric over the bill on social media, on cable news and in protests at the Arizona Capitol is the fact that the legislation is actually a nuanced and complicated legal shift. Here are some questions and answers about the legislation:

What is SB1062?

The bill is an update of the state's Religious Freedom Restoration Act, which has been in place since 1999. Many states have these laws, and Arizona's mirrors a similar 1993 federal law of the same name.

The act already protects churches and religiously observant citizens from laws that substantially burden their exercise of religion. The proposal would expand the law to protect any individual, association or corporation from discrimination lawsuits if their actions are based on sincerely held religious beliefs.

Proponents say the bill before the governor is designed to give businesses the right to refuse to participate in gay marriages and other activities that run afoul of their religious beliefs.

What is the rationale for the bill?

Some states, including Oregon and New Mexico, have extended the definition of "protected classes" in their laws to include lesbians, gays, bisexuals and transgendered people. Protected classes under federal law include sex, race, national origin or religion. Those expanded laws have been used to sue small businesses whose owners refused to provide services at gay marriages.

In New Mexico, a photographer was sued amid objections over a gay couple wanting wedding pictures taken. In Oregon, a baker who refused to do a gay couple's wedding cake faced a complaint.

Arizona lawmakers who support the bill believe such legal actions are wrong. They say the wedding photographer and baker are being discriminated against because of their religion, and they want to make sure similar situations don't occur in Arizona.

What's the big deal?

Opponents say the Arizona law is so broadly written that it could allow bartenders, restaurant owners and practically any business to use it as a shield to refuse service to people whose lifestyle isn't in accordance with their beliefs. They say it will basically open the door to discrimination against gays and other groups of people.

The bill's sponsors say it is needed in case other states' extensions of protected classes under the law are adopted by Arizona. The bill would give those with strongly held religious beliefs a shield against lawsuits when they assert their First Amendment religious rights, its sponsors say.

What about the hypotheticals being debated?

The debate has produced several hypothetical scenarios. What about a kosher catering service being asked to serve pulled-pork sandwiches at an event? What about a deeply religious business owner who is opposed to interracial marriage?

Supporters of the measure dismiss the interracial scenario as a scare tactic brought up by opponents that is completely irrelevant in today's society. They say the bill doesn't change any laws barring such intolerance.

But one of the sponsors of the bill has cited the example of the Jewish catering service as a reason why the law is needed. Sen. Steve Yarbrough, R-Chandler, said that the business owner should be protected from lawsuits under that scenario.

What are some of the constitutional questions?

Christopher Lund, a law professor at Wayne State University in Detroit, said it is ultimately up to the courts to weigh the tricky constitutional questions brought on by the bill. He cites the example of the New Mexico wedding photographer who was sued.

Lund said a gay couple bringing a similar lawsuit against a wedding photographer in Arizona would have a decent chance of prevailing in court even if SB1062 were to pass. That's because a judge would have to balance the First Amendment rights of the photographer against the discrimination claim by the gay couple.

"Judges who are not sympathetic to the religious-liberty claim still have ways out," he said.


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