Arizona's Religious Freedom Restoration Act has been on the books since 1999 and has not been updated during that time. In light of increasing threats to religious liberty at all levels of government, the strike-everything amendment to SB 1178 makes important clarifications to ensure religious liberty is further protected in our state.
Our nation and state have a rich heritage of religious freedom. The Arizona Constitution specifically protects each citizen’s liberty of conscience, and the Legislature has passed laws to affirm religious freedom in specific contexts.
In 1990, the U.S. Supreme Court ruled that a law that burdened the free exercise of religion was not unconstitutional if it was a neutral law of general applicability.[i] Previously, the Court had required a burden on religious exercise to pass the strict scrutiny test,[ii] so the Smith decision was a weakening of protection for religious beliefs. Strict scrutiny is the highest standard for evaluating government infringement of a constitutional right. The test asks whether the government has a compelling interest in restricting the religious exercise and whether the restriction the government has placed on the religious exercise is the least restrictive means of accomplishing that interest.
After Smith, Congress responded by passing the federal Religious Freedom Restoration Act (“RFRA”), reinstating the strict scrutiny test for all infringement of religious exercise by the government.[iii] However, the Supreme Court struck down the federal RFRA as applied to the states, on the grounds that Congress had acted beyond the scope of its powers under the Constitution.[iv] In response, most states, including Arizona, passed state-level Religious Freedom Restoration Acts, applying the strict scrutiny test to all government action by the state and its political subdivisions.[v]
In recent years, the Arizona Legislature has added specific applications of religious freedom to the law, including protection for religious land use and protection for professional licensees.[vi] However, the core of Arizona’s RFRA has not been updated since its enactment in 1999.
SB 1178 will provide two much-needed updates to Arizona’s RFRA statute. The bill clarifies that a person may assert a RFRA claim if it is likely that an impending state action will substantially burden his/her religious exercise. The bill also ensures that a government enactment is not permitted to infringe on religious belief merely because the enactment allows for enforcement by a private individual.
Arizona's RFRA needs to be updated because of the increasing threats to religious liberty in our country and in the state.
The critical need for this law came to light in a case argued before the New Mexico Supreme Court on March 11, 2013. The New Mexico Court of Appeals ruled in Elane Photography v. Willock, that the state’s RFRA did not apply in a case where a private party sought to enforce a state law against another private party.[vii] New Mexico’s RFRA is similar to Arizona’s, and Arizona’s law includes the same deficiency that was revealed by the Elane Photography case. SB 1178 seeks to ensure that state laws that violate the religious liberty of private persons cannot be enforced simply because the government is not technically a party to the case.
Furthermore, in recent years, America and Arizona specifically have witnessed organizations like the Freedom From Religion Foundation attempt to undermine our nation’s first freedom, religious liberty. In order to better protect against the frivolous lawsuits brought by this out-of-state organization, it is essential that Arizona strengthen the state RFRA.
- Arizona’s Religious Freedom Restoration Act needs to be updated. Due to the growing hostility towards religious freedom in our nation, it is vital that Arizona law clearly protects the religious liberty of every citizen.
- Participation in religious communities should be celebrated, not penalized. Persecuting individuals or groups for their religious beliefs creates second-class citizens who are seen as less valuable because of their faith.
- This law clarifies and strengthens existing law protecting religious freedom. In recent years, Arizona has taken significant steps to ensure the religious freedom rights of every individual, updating the state’s RFRA is an important piece of this effort.
SB 1178 is necessary to update Arizona’s Religious Freedom Restoration Act and to close loopholes that might jeopardize a person’s free exercise of religion in Arizona.