The 1990 decision of the United States Supreme Court in Employment Division vs Smith was understood by almost everyone as weakening the free exercise of religion guaranteed to us by the Constitution. The Court determined that a neutral law of general applicability that puts a “burden” upon the free exercise of religion was not unconstitutional. To remedy this situation, in 1992 a bi-partisan Bill, the Religious Freedom Restoration Act, RFRA, was overwhelmingly passed by Congress and signed into law by President Bill Clinton. This law reinstated the strict scrutiny test for any perceived infringement of religious exercise by the government.
Responding to this law the Supreme Court determined that this legislation did not apply to the states because it felt Congress had acted beyond the scope of its powers under the Constitution. The result of this determination of the Supreme Court was that most states passed Religious Freedom Restoration Acts applying a strict scrutiny test to all government action by the State. Among those states enacting a RFRA law was Arizona.
Subsequent to RFRA being enacted in Arizona, the State Legislature added specific applications of religious freedom to this law regarding religious land use and the protection of professional licenses but the law was not been updated since it was first passed in 1999.
The recent turmoil regarding some new additions to the Arizona RFRA law, referred to as SB1062, passed by the Legislature and vetoed by the Governor, sought to clarify the definition of “person” in the law as referring to all types of businesses and legal entities. This was obviously in response to the national debate resulting from the Obama administration’s insistence in regard to the HHS mandate that the freedom of religion guaranteed to us by the First Amendment does not cover a person in his private business or in fact even not-for-profit religious organizations like the Little Sisters of the Poor, which employ individuals not of their particular Faith. As you know this issue will soon be before the Supreme Court in the Hobby Lobby case in which all streams of the Orthodox Jewish community including the Rabbinical Council of America and Agudath Israel, have filed an amicus brief through COLPA. What is most interesting is that Arizona law in general already defines a “person” as including corporations or business entities. SB1062 as well ensures that a government law cannot infringe upon religious beliefs merely because that law allows for its enforcement by a private individual.
I have written in the past in the Jewish Voice and Opinion regarding the ever further encroachment upon religious freedom that is occurring in the United States. A recent example of this is the unanimous ruling of the New Mexico Supreme Court in August 2013 in Elane Photography vs. Willock. In this instance the photographer refused to photograph a commitment ceremony between two women as it was against the photographer’s religious beliefs. One of the Justices in a concurring opinion wrote that the “price of citizenship” is being forced to compromise one’s religious beliefs. We Jews have heard this concept invoked throughout our history in Europe which all too often led to the persecution and, in some instances, the physical attack upon the Jewish community.
In the case of Arizona, those against the law, claimed this legislation would allow discrimination against gay individuals - retail establishments would refuse to serve them. To drum up an outcry against the passage of this bill into law, the fight for civil rights for African Americans to be served equally in retail businesses in the 1960s was cited. Even Bernie Goldberg, who in his reportage is rather conservative, a regular on Fox TV News, chanted this mantra.
The reality of the law however is quite different. It simply protected a person in business from being forced to participate in an activity that is against his/her religious beliefs. As in the case I cited in a previous article regarding a florist in Washington State who refused to provide the floral arrangements for a gay wedding, one of the gay individuals involved in the “marriage” being a long-time customer of the florist with whom he enjoyed a cordial relationship, the florist’s objection was that she did not want to participate in the preparations for that ceremony, which include being at the hall, setting the flowers on the stage, on the tables etc.
Sadly, largely because of the Obama administration’s hard line on this issue with regard to the HHS Mandate, what has always been considered a major foundational underpinning of our unique society here in the United States, one that has been of immense importance to the Jewish community – freedom of religion, is now under siege.