Nearly a dozen leading law professors from Harvard, Stanford, George Mason, Notre Dame and other top institutions across America have endorsed the controversial legislation in Arizona that would strengthen the state’s religious-rights standards.
The bill, which is pending on Gov. Jan Brewer’s desk, would bring the state’s 1999 Religious Freedom Restoration Act into conformity with federal law.
But its critics have flooded the headlines with criticism about how it would violate civil rights, discriminate against homosexuals and prompt the return of “Jim Crow laws.”
NFL officials have hinted they may pull the 2015 Super Bowl out of the state if the religious rights protections are signed into law. USA Today claims supporters “have not pointed to any instance in which a business owner has been compelled to provide a service to someone who offends the business owner’s religious beliefs.”
“The bill has been egregiously misrepresented by many of its critics,” the professors said in a letter to Brewer. “We write because we believe that you should make your decision on the basis of accurate information.”
The professors, who describe themselves in the letter as Republican, Democrat, religious, not religious, supporters of same-sex marriage and opponents of same, note that nine of their number believe the bill should be signed while two were unsure.
“But all of us believe that many criticisms of the Arizona bill are deeply misleading,” they write.
The signers are Mary Ann Glendon of Harvard, Douglas Laycock of the University of Virginia Law School, Michael W. McConnell of Stanford, Helen M. Alvare of George Mason, Thomas C. Berg of the University of St. Thomas Law School in Minnesota, Carl H. Esbeck of the University of Missouri, Richard W. Garnett of Notre Dame, Christopher C. Lund of Wayne State, Mark S. Scarberry of Pepperdine, Gregory C. Sisk of the University of St. Thomas and Robin Fretwell Wilson of the University of Illinois.
The letter was compiled and released by the Alliance Defending Freedom.
It points out that the U.S. government and 18 states already have Religious Freedom Restoration Acts and another dozen states interpret their state constitutions to provide those protections.
“They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification,” the letter explains. “That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason.”
Arizona’s law is 15 years old, the national law is more than 20 and “there have been relatively few cases.”
“If you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona,” they tell Brewer.
The current legislation, SB 1062, would provide that people are covered when their state or local government requires them to violate their religion in the conduct of their business. It would also cover anyone who is sued by a private citizen invoking state or local law to demand they violate their religion, the letter explains.
“But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden. … And the government, or the person … could still show that compliance with the law was necessary to serve a compelling government interest,” the professors wrote.
“Arizona’s RFRA, like all RFRAs, leaves resolution of these issues to the courts. … First, it is impossible for legislatures to foresee all the potential conflicts between the diverse religious practices of the many faiths practiced in Arizona … and when passions are aroused on all sides, as they have been in this case, it becomes extraordinarily difficult for legislatures to make principled decisions about whether to make exceptions for unpopular religious practices.”
They continued: “So to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case … that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them as the burden of proof of compelling government interest, and that the state courts in Arizona make the final decision.”
The professors tell Brewer: “Whatever judgment you pass on SB1062, you should not be misled by uninformed critics. … It resolves ambiguities that have been the subject of litigation elsewhere.”
Alliance Defending Freedom Senior Counsel Doug Napier said the government “has no business telling its citizens what they can’t say or what they must say, and it must be prevented from punishing its citizens for their ideas and beliefs as has occurred to people in other states.”
“That’s all SB 1062 is about,” he said.
“As these legal scholars rightly point out, the misrepresentations about the bill have been egregious,” Napier said. “It has nothing to with refusing someone a sandwich. It has everything to do with making Arizona a safe place for people to freely live out their faith. The falsehoods need to be exposed for what they are.”
