SB1062: A History

"An enlightened citizenry is indispensable for the proper functioning of a republic." -Thomas Jefferson

Thomas Jefferson

Today, Jefferson's quote is my guide post. My goal is to make myself more of an informed citizen and if you want to join me on that quest, you are welcome to come along for the ride.

I'm a knee-jerker. I often read one article, feel like I have the gist of the situation, and then proceed to form a staunch position on the subject. It's embarrassing, but I have a hunch that I'm not alone in this folly. After reading about Arizona's amendment to their Religious Freedom Restoration Act, I began to consider where I stood on the issue and how I would present my opinion to others. However, as is so often the case, the more I looked into the issue, the more I realized that my knowledge of the law in this instance was insufficient. The purpose of this post is to explain, as best I can, the legal history behind religious freedom that preceded Arizona's SB1062. I can't cover everything, but what I can do is try to summarize the important issues at stake.

For the sake of clarity, I am going to write this blog chronologically. I can't possibly cover everything and I am going to try and be both thorough and concise. However, I am going to link to as many sources as I can and if you find information that you think deserves consideration, let me know.

History of Religious Freedom:

The First Amendment grants Americans five basic freedoms: religion, speech, press, assembly, and petition. Out of the five, the protection of religious liberty is given the longest treatment. This protection is made up of two clauses:

1. Establishment Clause- "Congress shall make no law respecting an establishment of religion."
2. Free-Exercise Clause- "Congress shall make no law...prohibiting the free exercise thereof"

While there are a host of current debates surrounding the Establishment Clause, our current concern is the Free-Exercise Clause. Congress can't pass a law that limits the free exercise of religion. What in the world does that mean? The following examples are just a small sample of the types of questions that arise in an attempt to define the Free-Exercise Clause:

• Can a state pass a law that requires students to recite the pledge allegiance even if their religion prohibits that type of action? - West Virginia State Board of Education v. Barnette (1943)
• Can a state deny unemployment benefits to a citizen who was fired in relation to her religious beliefs?- Sherbert v. Verner (1963)
• Can Congress pass a law requiring businesses to provide health coverage that includes services religiously opposed by the employer? - Sebelius v. Hobby Lobby Stores, Inc. (2014)

For decades, the Supreme Court case Sherbert v. Verner was the standard and it provided an interpretational framework by which Congress and the states could determine whether or not their laws infringed upon someone's religious liberty.

Sherbert v. Verner (1963)

Adele Sherbert

In Sherbert, the Supreme Court acknowledged that sometimes government must infringe upon a person's religious freedoms. However, the Court set forth very stringent guidelines as to when that action was acceptable. In what became known as the "Sherbert Test" the Supreme Court stated that only "the gravest abuses, endangering paramount interests, give occasion for permissible limitation."

Furthermore, the Court stated that the government would have to demonstrate a "compelling interest" if they were to limit the free exercise of their citizen's religious beliefs. In this case, the Court ruled that denying Adele Sherbert benefits because she was fired from a job due to religious reasons was a violation of her First Amendment freedoms as it forced her to choose between practicing her religion and receiving state benefits.

This standard imposed a very strict test upon the laws passed by Congress and the states and was the established precedent until 1990.

Employment Division v. Smith (1990)

In this case, Smith and Black, Native Americans, were fired from their job at a drug rehabilitation clinic because they ingested peyote, a hallucinogenic substance, during a religious ceremony.  They applied for unemployment benefits through the state of Oregon and were denied due to the nature of their termination. They sued the state of Oregon and won. The Supreme Court's ruling greatly backtracked on the Sherbert ruling. Writing for the majority, Antonin Scalia stated that while the government cannot ban an action based solely on religious considerations, but:

Antonin Scalia

The [Free Exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

Furthermore:

The [Sherbert] test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. 

In short, as long as a law is not directed specifically to a religious practice, the law is valid even if it requires a citizen to act in a way that is contrary to their religious belief.

Sources:

Cornell Law

Oyez.com

Congress Responds and is Rebuffed

Following Smith, the United States Congress passed the Religious Freedom Restoration Act. The vote was unanimous in the House of Representatives and was opposed by only 3 Senators. President Clinton signed the bill into law on November 16, 1993. Specifically, the law refuted Scalia's claim that religiously neutral laws did not deny a person's religious liberty. The law reinstated the Sherbert Test for both federal and state government.

In 1997, the Supreme Court struck down the provision in the RFRA that applied to the states and in response, many states, including Arizona, passed their own version of the RFRA. SB1062 is a revision to Arizona's RFRA law that was passed in 1999.

Sources

City of Boerne v. Flores- 1996

The Difference Between "Is" and "Ought"

Of course just because something is a certain way, doesn't mean that it ought to be that way. I'll stop my history lesson here and I hope to have my personal perspective on SB1062 published soon. In the meantime, feel free to leave comments and feedback!

Sources and Recommended Reading

Supreme Court Cases on Religious Liberty- Find Law
Arizona's Religious Freedom Debate and the Sherbert Test- Constitution Daily
Was Vetoed Arizona Bill Misrepresented? What Constitutional Scholars Say- CSMonitor