By Doug Barth, COO and General Counsel, Family Action Council of Tennessee (FACT)

Printed in the Knoxville News Sentinel
Saturday, March 8, 2014

A sad day occurred recently when a right guaranteed by the First Amendment and the unalienable right of liberty in the Declaration of Independence were greatly undermined. That day? The day Arizona’s governor vetoed Senate Bill 1062.

It was a simple bill. But what it would have done was quickly drowned under a deluge of misrepresentations and distortions.

In 1993 Congress passed, almost unanimously, the Religious Freedom Restoration Act. None other than liberal Sen. Ted Kennedy of Massachusetts sponsored it in the Senate, and President Bill Clinton signed it into law. Today, 18 states, including Tennessee, have their own RFRAs and at least 12 other states interpret their state constitutions similarly. These laws all say that government cannot substantially burden a person’s exercise of religion unless it can show a compelling justification.

For several years, Arizona has had its own RFRA, modeled upon the federal version. To resolve two ambiguities and bring its RFRA into conformity with federal law, Senate Bill 1062 would have done two things: (1) clarify that the law applies to businesses, and (2) provide its protections to people and businesses sued by private citizens invoking a state or local law enacted by government when the government is not a party.

That’s it. No provision allowing a business to get by with discrimination simply by asserting a “religious belief.” Not one word in the bill about homosexuals or same-sex marriage.

Importantly, under Arizona’s RFRA, the person or business being sued would still have to prove that (a) his action or refusal to act was motivated by a sincerely held religious belief, and (b) the law relied on by the party bringing the suit imposed a substantial burden upon his exercise of that belief. The winner would be decided by a judge or jury in court.

To the extent SB 1062’s provisions might apply to matters such as gay weddings, the issue was whether government should be able to force people of faith to enter into a business relationship regarding a private event that violates their sincerely held religious beliefs. The issue was not whether businesses owned by people of faith should provide services for gay weddings.

Think about the significance of SB 1062’s defeat upon the First Amendment’s “free exercise” of religion and its broader implications on the “unalienable” right of liberty in the Declaration of Independence:

  • Should a Jewish-owned catering business be forced under law by an anti-Semitic group to cater an event denouncing Judaism?
  • Is it any more right for a Christian or Muslim-owned florist to be forced by government to provide flowers for a same-sex wedding ceremony that violates their religious beliefs than for a gay-owned printing business to be forced by government to print flyers for an organization advocating the criminalization of homosexuality?

In a letter supporting the bill from 11 law professors—some Republicans, some Democrats, some from liberal bastions like Harvard and the University of Virginia—noted “the bill has been egregiously misrepresented by many of its critics.” Indeed it was.

Although the Tennessee Senate is not proceeding this year with a bill prohibiting government from forcing businesses to participate in certain activities that would violate their religious beliefs, it is likely that similar legislation will arise again. When that happens, Tennesseans hopefully will see through the misrepresentations and distortions, and stand up for the free exercise of religion and the unalienable right of liberty.