Arizona Eagletarian

Arizona Eagletarian

Sunday, February 23, 2014

Let's examine SB1062, shall we?

Arizona's self-appointed Bible enforcer Cathi Herrod says all we need to do is read the bill and we will see that no discrimination is intended.

Let's test that theory.

The first change SB1062 makes to Arizona statute is, in § 41-1493 (Definitions related to the Free Exercise of Religion), to expand the definition of "exercise of religion."
2.  "Exercise of religion" means the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
On the surface, this might appear to be an insignificant change. But what does "practice or observance of religion" mean? This bill does not define the language added. THEREFORE, by definition (of how statutes get defined and clarified when the legislature introduces ambiguous language) it can ONLY be defined by a court.

Have you ever heard the expression, "it's easier to ask for forgiveness than for permission?" In this case, whoever this statute applies to will interpret the language the way he or she wants to and it will be up to a person who believes her or himself to have been wronged to take that person to court to have a judge decide who's right and who is wrong.

The next change SB1062 makes to statute is to expand the definition of "person,"
Do you recall recent controversies over campaign finance and freedom of speech? In its Citizens United ruling the U.S. Supreme Court held that corporations have the same rights as living, breathing humans. SB1062 seeks to enshrine that legal principle into Arizona civil rights statutes to say that businesses have the same religious rights as living, breathing humans.

B.  Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
C.  Government STATE ACTION may substantially burden a person's exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON'S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both:
1.  In furtherance of a compelling governmental interest.
2.  The least restrictive means of furthering that compelling governmental interest.


Instead of this statute limiting the authority of a government agency or body in Arizona from burdening a person's exercise of religion, it will now limit the right of a NONGOVERNMENTAL person to seek enforcement of a "state action." Again, the ONLY place a person can go to demand a business comply with the law (like a law granting civil rights to LGBT persons) is TO COURT.

In other words, a business (if this becomes law) cannot be compelled to honor the civil or other rights of some people (whoever it wants to discriminate against) EVEN IN COURT.

D.  A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.
E.  A person that asserts a violation of this section must establish all of the following:
1.  That the person's action or refusal to act is motivated by a religious belief.
2.  That the person's religious belief is sincerely held.
3.  That the state action substantially burdens the exercise of the person's religious beliefs.
F.  The person asserting a claim or defense under subsection D of this section may obtain injunctive and declaratory relief.  A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

First, the business that wants to get away with discriminating is now (if this becomes law) authorized to assert that his religious freedom was violated, based on any number of hypothetical situations.

Second, in order to be "protected" against the risk of losing that lawsuit, the person must establish that the discrimination was based on a sincerely held religious belief that has been "substantially burdened." The person seeking to be shielded is eligible for injunctive and declaratory relief -- FROM a judge, in a court. In other words, that's the end of the story... almost. The party who prevails SHALL recover attorney fees and costs.

That's the fail safe to minimize the risk of going to court in the first place. Whoever loses the lawsuit has to pay the other side's attorneys.

In other words, as I wrote yesterday,
Boston also said, "What legislation like this does is take a noble cause and turns it into a tool of oppression."
Anyone who doubts this (and that appears to include our friend John Kavanagh) needs to take a good hard look at the research in the Stanford Prison Study.
What happens when you put good people in an evil place? Does humanity win over evil, or does evil triumph?
The evidence is stark. The proponents of discrimination, misguided at best. Giving Herrod, Kavanagh and other proponents of lawful religious discrimination the benefit of the doubt, they are willfully ignorant of the inevitable unintended consequences.
Ultimately, regardless of whose perspective you examine the inevitable scenarios from, SB1062 sets up unavoidable conflict that will either be tolerated by those suffering violations of civil rights or provided relief from courts.

All of which, despite John Kavanagh's protestations, affirms what I have been saying from the day SB1062 was first introduced as proposed legislation -- this is about enforcement of Cathi Herrod's interpretation of the Bible, at the expense of the civil rights of anyone and everyone else.

And since Kavanagh so forcefully believes SB1062 is NOT discriminatory, and went on CNN the other day to try to make that case, I invite him to refute the argument that I made here and in my previous blog post.

Before he does, however, I must point out that the argument he made in the video explaining his vote -- that SB1062 is not discriminatory because the Arizona Republic supposedly distorted the implications of SB1070 four years ago, thereby causing a national controversy -- is all sorts of invalid. But I'm confident that Kavanagh is better equipped than I to tell us which logical fallacies he employed in his defense of SB1062.

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