- Posted February 25, 2014 by
This iReport is part of an assignment:
Arizona's 'religious freedom' bill vetoed
Establishing a Judicial Standard Not Picking Winners and Losers
Religious liberty is the first liberty codified in the First Amendment to Our Constitution. It is preeminent among our liberties and foundational to our form of government. When I say "people of faith," I mean that in the most broad sense. The question is how to balance governments interest in preventing unlawful discrimination against the rights of individuals to exercise their faith in the community. Again, strict scrutiny should be applied in such circumstances so that government narrowly tailors its actions to accomplish a compelling interest. The AZ law, like the Federal RFRA, merely directs courts to apply strict scrutiny when balancing government laws and policies and the rights of the people to freely exercise their faith. However, it does not dictate who wins or loses as the media has erroneously reported.
Free exercise allows American Indians, Muslims, liberal Christians, conservative Christians and every other expression of faith to be believed and lived out in society without government interference unless the government has a compelling interest and the government narrowly tailors it's actions to accomplish that interest.
The U.S. Supreme Court, when applying strict scrutiny, has already said unequivocally that the Government has a fundamental, overriding and compelling interest in eradicating discrimination and that such an interest substantially outweighs whatever burden enforcing ant-discrimination laws may have on a person's free exercise rights. See Bob Jones University v. U.S., 461 U.S. 574, 604 (1983). There has not been one case under a state RFRA that has permitted a person to unlawfully discriminate against any protected class of persons based on deeply help religious beliefs and the free exercise thereof.
While most will agree that free exercise of faith is a foundational right, I think many might disagree on what constitutes a compelling governmental interest and how that interest should be weighed against the rights of those exercising their faith. I think that is a good and healthy part of this debate. I don't disagree that there is the potential that a christian business, such as a photographer or a baker, might be permitted to refuse to serve gay couples based on their sincerely held religious convictions about sexuality and marriage. However, in analyzing such cases, I believe that strict scrutiny should be applied to the government's law restricting the exercise of faith. Whether the religious baker or the photographer win their case is not of as much concern to me and others as the judicial standard used to restrict their liberty.
Here is the actual text of the AZ legislation:
Notice that the bill articulates a standard and that it does not mandate a result.