Arizona Eagletarian

Arizona Eagletarian

Tuesday, February 25, 2014

Even if Brewer vetoes SB1062, the fight is not over. HB2481 to hit the fan today?

HB2481, which "may be cited as 'Arizona's First Freedom Act'" is apparently going to be the very next piece of vexatious legislation to hit the fan in Arizona.

A source told the Arizona Eagletarian on Monday evening that the bill, which would add language to A.R.S. § 41-1493 to provide that
GOVERNMENT MAY NOT REQUIRE A MINISTER TO SOLEMNIZE A MARRIAGE THAT IS INCONSISTENT WITH THE MINISTER'S SINCERELY HELD RELIGIOUS BELIEFS.
will be heard in the House caucuses today and likely also subject to floor debate (Committee of the Whole) and Third Read all this afternoon.

But you say that government ALREADY may not demand a minister to do anything inconsistent with the minister's "sincerely held religious beliefs." Well, WHO is a minister? To that same section of statute (41-1493) language is added defining a minister thus,
"MINISTER" MEANS AN INDIVIDUAL WHO IS AUTHORIZED TO SOLEMNIZE A MARRIAGE PURSUANT TO SECTION 25‑124.
So, who now becomes a minister for purposes of this new provision?
     A. The following are authorized to solemnize marriages between persons who are authorized to marry:
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created by an act of Congress if the judges are entitled to hold office during good behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals. 
This could parallel prior year legislation authorizing pharmacists to refuse to fill prescriptions for the Morning After Pill.

What else does HB2481 do? It adds language to A.R.S. § 41-1442 regarding where discrimination is prohibited, and exceptions thereof.
F.  THIS SECTION DOES NOT REQUIRE A CHURCH TO ECUMENICALLY RECOGNIZE, FACILITATE OR SOLEMNIZE A MARRIAGE THAT IS INCONSISTENT WITH THE SINCERELY HELD RELIGIOUS BELIEF, DOCTRINE OR TENET OF THE CHURCH.
G.  FOR THE PURPOSES OF THIS SECTION, "CHURCH" MEANS A RELIGIOUS ASSEMBLY OR INSTITUTION AND DOES NOT INCLUDE A HOSPITAL, HOTEL, RESTAURANT, RETAIL OR SERVICE BUSINESS OR ANY OTHER TRADITIONAL PLACE OF ACCOMMODATION.
In other words, in the statute specifying that discrimination may not take place in places of public accommodation, "because of race, color, religion, sex, national origin or ancestry" and noting EXCEPTIONS to that rule, our legislature wants to again sneak in language that DOES allow discrimination on the basis of "sincerely held religious belief, doctrine or tenet" of any given church.

So, take a guess as to whom OTHER THAN on the basis of race, color, religion, sex, national origin or ancestry, they are targeting. Okay, so "sex" might include "sexual preference" or "same-sex marriages." But we'd have to check the case law to know for sure, since they didn't include language to disambiguate (I learned that word by reading Wikipedia) that particular term.

Now, what makes anyone (including Cathi Herrod) think any government is going to try to compel any church to do anything contrary to the doctrines and tenets of that church? I can't answer that.

However, isn't it nice of Ms. Herrod to specify that they don't mean to discriminate against same sex couples in hospitals, hotels, restaurants, retail or service businesses or any other traditional place of accommodation?

But really, could this be anything other than a preemptive strike against a citizen initiative to amend the Arizona Constitution to allow same-sex marriages? It might, but that's the first thing that comes to my mind.

The vociferous protestations she and her ilk (and the most vocal state lawmakers taking up her cause, like Al Melvin and John Kavanagh) that SB1062 was ONLY about protecting the religious beliefs of certain people have rung hollow for the last several days.

But in this case, it ALMOST makes sense.

We have the Establishment Clause and the Free Exercise Clause of First Amendment to the U.S. Constitution and Article 2, Section 12 of the Arizona Constitution. From Wikipedia (on the Free Exercise Clause),
In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."
And from the Arizona Constitution,
The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state...
Here's where the, "I'm not a lawyer" thing comes in again. There appears to be plenty of ambiguity such that if a ballot measure were to be approved by Arizona voters (or a U.S. Supreme Court ruling, for that matter) authorizing same-sex marriages, then hypothetically, I could see how Herrod and her ilk might fear for their eternal lives because they might be compelled to marry two guys.

Well, maybe that's just a little bit tongue-in-cheek. But in this case, I see how their imaginations can conjure up a plausible scenario where they might feel a need to have their religious beliefs (practices) protected.

Ultimately, this is still about Cathi Herrod's Culture War. How far it might be appropriate to let her get with it is something I'm not prepared to offer an opinion at this time. But it is coming up right on the heels of the firestorm of controversy over SB1062.

1 comment:

  1. As a nation, we have a long history of not compelling a minister/priest/rabbi/imam/etc of any particular faith to officiate weddings/marriages that do not comport with their particular faith's practices.

    However, we also have a long history of requiring that public servants (including clergy in the military) to set aside their religious beliefs in furtherance of "equal protection under the law". That is why it is scary to see 2 through 9, all servants of the public, being exempted from "equal protection under the law" under the guise of "religious freedom".

    Why do Cathi Herrod and her Republican minions in the AZ Legislature hate gays and lesbians, such as myself, so much that they will fight tooth and nail to deny us equality and happiness? And for that matter, why is there so much hatred around the nation toward gays and lesbians?

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