Legal Scholars Said Arizona Law Was 'Egregiously Misrepresented' by Critics


The CNN headline screams: “VETOED: Governor says ‘no’ to anti-gay bill.”

Saying she has not heard of “one example where business owners’ religious liberties has been violated” in the state and that the bill was too broad, Arizona Governor Jan Brewer vetoed the controversial SB 1062 .

SB 1062 is that bill that would have allowed business owners to discriminate against gays and deny them service in restaurants and bakeries, right?  Have you gotten the message (from virtually every news outlet and even from the NFL) that the bill was all about — and only about — Arizona’s attempt to impose some version of Jim Crow laws on homosexuals? If so, you’ve been misled. But you’re probably not alone because the bill was so widely misrepresented.

In fact, nearly a dozen religious-liberty scholars wrote a letter to Governor Brewer prior to her veto, saying that SB 1062 “has been egregiously misrepresented by many of its critics.” The group included individuals on different sides of the same-sex marriage debate and those from a variety of religious and political perspectives. All said that “many criticisms of the Arizona bill are deeply misleading.”

The letter noted that the federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs) that require the government to have a compelling interest before burdening a person’s religious exercise. The legal scholars assert that the standard makes sense. “We should not punish people for practicing their religions unless we have a very good reason.” Arizona has had a RFRA in place for nearly fifteen years with only a handful of cases and little controversy. SB 1062 merely sought to clear up two ambiguities in the existent law:

It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. [Emphasis original]

Contrary to the widespread misreporting,  this was not an “anti-gay” bill and nothing in the text of the bill would have overtly permitted businesses to deny services or “discriminate” against anyone. It merely would have made clear that individuals and businesses could raise religious liberty as a defense in certain cases. Arizona’s current RFRA, parts of which were copied verbatim from the federal law, left some ambiguity as to when that defense would be appropriate:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.


The letter noted that defendants will assert the RFRA defense whether or not Brewer signs the bill. “Without the bill, whether RFRA applies will be an additional issue for litigation; with the bill, the answer will be clear and the parties and the court can proceed to the merits.”

Nevertheless, the misreporting continued, including this report at Fox News today:

Prominent Republicans are calling for Ariz. Gov. Jan Brewer to veto a controversial bill that would allow businesses to deny service over religious beliefs….The Arizona Legislature passed a bill last week allowing businesses whose owners cite sincerely held religious beliefs to deny service to gays.

It was simply not true to say that the bill would “allow” businesses to deny services over religious beliefs. We are generally not surprised when those on the far left misrepresent — or even outright lie — about policies with which they disagree, especially when social issues are on the line. When right-leaning organizations, including the “fair and balanced” network, get something of such cultural import so very wrong, we ought to ask some questions. The online article at Fox News noted that “the Associated Press contributed to this report.” Did Fox News just run with the AP story instead of reading what was in the bill? Was the network taking an editorial position on this issue — and misleading viewers and readers in the process? Or was this just an attempt to stir up controversy for the sake of ratings? Whatever the reason, much of the reporting on this issue, as the legal scholars noted, was “egregiously” misleading and has done a serious disservice to the country and to this debate.

The letter’s signatories, two of whom had hoped Brewer would veto the bill, asked her to consider its merits, saying she “should not be misled by uninformed critics,” but rather should make her decision based on “accurate information.”

Given the unadulterated spin characterizing this as an anti-gay hate bill, it would have taken a great deal of moral courage for Brewer to sign it. The truth was so obscured by the widespread propaganda that she would have paid an extraordinary political price. As has often happened in the debate over same-sex marriage, truth took a back seat to the meme. Unfortunately, Brewer’s constituents, who depended on her to defend their religious liberty, may now be the ones to pay the price.

Join the conversation as a VIP Member