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Liberty versus liberty: religious freedom bills trouble gay rights supporters

Published: Tuesday, Feb. 25 2014 10:25 a.m. MST

Nearly 250 gay rights supporters protest SB1062 at the Arizona Capitol, Friday, Feb. 21, 2014, in Phoenix. The protesters gathered demanding Gov. Jan Brewer veto legislation that would allow business owners to refuse to serve gays by citing their religious beliefs. The governor must sign or veto Senate Bill 1062 by the end of this week.

Ross D. Franklin, Associated Press

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WASHINGTON — As Arizona Gov. Jan Brewer weighs a decision whether to sign a bill strengthening the state's religious liberty protections for individuals and businesses, her state is one of several wrestling with a balance between religious liberty and anti-discrimination laws.

The bill comes in the wake of a number of cases across the country in which same-sex couples complained that business owners refused service on the grounds of religious belief. In one prominent example, a New Mexico court said last year that the refusal of wedding photographer Elaine Huguenin to take pictures of a same-sex wedding was not protected under that state's version of the 1993 federal Religious Freedom Restoration Act, or RFRA, since the state was not acting to force an action.

That decision has moved legislators in several states to try to pass religious protections for their citizens. While Arizona's bill passed the Legislature, most of the others have failed in various legislative processes for reasons including political pressure, concerns over constitutional challenges and fears of public backlash.

In Kansas, for example, a bill protecting religious beliefs passed the state House of Representatives two weeks ago, but was killed in the state Senate, the Kansas City Star reported, after a flood of protests. The paper cites state Senate Vice President Jeff King, a Republican, as saying a Senate committee will re-examine religious freedom issues in March.

In Idaho, House Bill 426 would prevent state or local agencies from denying licenses to businesses that exercised their conscience. It was sent back to committee, and observers believe it won't return to the floor of the Legislature this year.

South Dakota's Senate Judiciary Committee on Tuesday squashed a bill protecting businesses that refused to serve or hire gays from lawsuits, South Dakota Public Broadcasting reported. In Tennessee, a bill allowing businesses and organizations to refuse service to same-sex couples was withdrawn from the state Senate Judiciary Committee on Tuesday as well, according to WSMV-TV in Nashville.

Liberty vs. liberty

One proponent of religious conscience exemptions maintains the Arizona measure has been misunderstood.

Joseph La Rue, an attorney with the Alliance Defending Freedom in Scottsdale, Ariz., and which bills itself as a "legal ministry that advocates for the right of people to freely live out their faith," said that state's measure, SB1062, is designed to fill in any gaps potential litigants might find in Arizona's version of RFRA, which he said has been in place since 1999.

"Twenty-eight states have RFRA or similar protection in their states," La Rue said in a telephone interview. "In none of these places has any person been denied service at a lunch counter, hotel or anywhere else and asserted RFRA as a defense. RFRA is about making sure people of faith aren't second-class citizens because the government passes laws willy-nilly infringing on religious freedom."

La Rue said opposition to the Arizona measure was misinformed: "Opponents of religious freedom have attacked it (by) manufactured mass hysteria that simply is not grounded in reality," he said.

Jennifer C. Pizer, a senior counsel for Lambda Legal who directs the gay rights advocacy group's law and policy project, maintained that religious liberty cannot be used to excuse discrimination.

"A refusal to serve a gay person for a religious reason (is) still sexual orientation discrimination," Pizer said from her Los Angeles office. "Our Constitution protects absolutely the freedom to believe that gay people are sinful and wrong, but not the freedom to exclude gay people for those reasons."

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