Ted Simons: There is much speculation as to what Senate Bill 1062 might actually do if it becomes law. Here to sort through some of the legal issues is ASU law professor Zachary Kramer. Good to have you here.
Zachary Kramer: Good to be here.
Ted Simons: I've got a lot of questions.
Zachary Kramer: Let's do it.
Ted Simons: What does this bill call for? What does it change?
Zachary Kramer: So that's a great question. I think it's a question you don't see a lot in the coverage of it, because the bill is getting a lot of attention and there's a lot of stuff focused on is it a license to discriminate. The first thing I'll say is I don't think people are reading the bill. I would encourage everyone to read both the original bill and then the -- I'm sorry, the original law and then the bill that is proposed to amend it. When you read them you can see the differences. I think the best way to answer is what is the law on the books, and then you can see the proposed legislation, how it changes it. The law on the books now, the Arizona Religious Freedom Restoration Act, it applies to government actions that burden the practice of religion. So it's public lawsuits, whether you're bringing the lawsuit against the government or the government's bringing it against you and you're raising it as a defense. Classic example would be a prisoner who claims that the Department of Corrections is not giving them a meal that's consistent with their religious beliefs. There was a case in Arizona where a man was arrested for having marijuana. He claimed that was his religious practice. In both of those instances you're dealing with government action.
Ted Simons: Yes.
Zachary Kramer: 1062 is taking away the idea that there has to be government action in order to raise a religious freedom claim. Effectively the bill creates a defense to a discrimination claim. The substance of the defense is, I have religious freedom, I took an act based on my faith and therefore I have the freedom to do it. Does that make sense?
Ted Simons: It does. With that in mind, how much are religious liberties protected?
Zachary Kramer: Under the current law or the proposed law?
Ted Simons: Current, yes.
Zachary Kramer: The law has been on the books, has been in place since 1999. I did a little looking this morning. I found 10 reported cases that raised this statute. One scholar thinks it's possible that not enough people know about the law. In those 10 cases I don't think anyone in Arizona has ever won a claim under the existing law.
Ted Simons: Because they couldn't show a compelling interest?
Zachary Kramer: It's because the government had a compelling interest. It's hard to show that you can overcome that compelling interest. Whether that means religious freedom is protected or not I think is a different question. But it's certainly the case that under the proposed law there would be much more room to argue that you have a claim to religious freedom. It expands the law drastically.
Ted Simons: Okay. With that in mind, scenario.
Zachary Kramer: Okay.
Ted Simons: Muslim cab driver refuses to drop a rider off at a synagogue, allowed under 1062?
Zachary Kramer: Possibly.
Ted Simons: Allowed without 1062?
Zachary Kramer: No.
Ted Simons: Scenario Christian construction worker refuses to build or help build a mosque. Allowed 1062?
Zachary Kramer: Possibly.
Ted Simons: How about current law?
Zachary Kramer: No.
Ted Simons: One more.
Zachary Kramer: Love it.
Ted Simons: Two men holding hands walk into a restaurant and they are refused service. Allowed under 1062?
Zachary Kramer: Yes.
Ted Simons: Current law?
Zachary Kramer: Yes.
Ted Simons: Interesting.
Zachary Kramer: I know. It depends on where it is. So the mayor was here a second ago and he was talking about Phoenix has an ordinance protecting on the basis of sexual orientation. In Phoenix would that be allowed? Probably not. The protection is against public accommodations. It's a business making itself available to the public, a store, a bank, a hotel, anything that says public come in and do business with my establishment. In some municipalities, Phoenix, Tucson, Flagstaff, the business would not be able to say I refuse to serve a same-sex couple or a person just because they are gay. The rest of Arizona, that would be perfectly legal because Arizona does not protect against discrimination on the basis of sexual orientation.
Ted Simons: When we had the mayor on, he was saying the state law would impact the ordinance to some degree.
Zachary Kramer: That's right.
Ted Simons: But you're saying not to this degree.
Zachary Kramer: To which degree?
Ted Simons: The two guys walking into a restaurant in Phoenix?
Zachary Kramer: Phoenix can't discriminate. If you left Phoenix you could.
Ted Simons: Even with 1062?
Zachary Kramer: I believe 1062…
Ted Simons: It doesn't supersede?
Zachary Kramer: In the situation that you've raised, let's make it tangible. The couple comes in and say we'd like to be served. The restaurant says we don't serve same-sex couples. In Phoenix the couples would have a discrimination claim. What 1062 does is gives the restaurant a defense to that claim saying that my reason to not serve you was grounded in religious freedom.
Ted Simons: So when the supporters of this say that nothing that is already illegal becomes legal with 1062, are they right?
Zachary Kramer: I don't believe they are.
Ted Simons: How come?
Zachary Kramer: Exactly for the reason we just said. The supporters of the law have been saying it's a minor change to the existing law. It's not a minor change because of distinction between government action and private action is really quite large. One of the things we have to figure out -- and it's not entirely clear to me -- when you leave the category of sexual orientation, how 1062 is going to affect other forms of discrimination. It's the anniversary of the Civil Rights Act year, the 50th anniversary. It's possible that would create a defense to a race discrimination claim grounded in religious freedom.
Ted Simons: Right. Back to the cab driver and back to the construction worker.
Zachary Kramer: Exactly.
Ted Simons: Again, the construction worker, fundamentalist, whatever religion you want and they are helping build a gay church. They say they cant to it, 1062 says that’s ok?
Zachary Kramer: I think so, yeah. There's a lot of Hispanic population here because we don't have a lot to go on. The law doesn't say very much. So it would seem to me that in that instance you're bidding two religious convictions against one another. It would seem to me then that the defendant in that case would be allowed to raise a religious freedom defense. One proponent who had been arguing pretty aggressively about -- in support of has given an example very similar to that, using the example of a bakery. If the fundamentalist church came in and said, we would like you to make us a cake and we would like the cake to say no fags, would the Bakery be obligated to make the cake. Their argument is that 1062 gives a defense to the Bakery when the person buying the cake sues for discrimination.
Ted Simons: Okay. So along that particular line, if I open Ted's Hamburger Hamlet or the Bakery opens or the flower shop, they become part of the public square, they take advantage of public infrastructure, the social contract is in place. How much are they required to serve the public regardless of who the public is?
Zachary Kramer: It's almost -- let me back up. So generally in this country you are free if you own a business to refuse service to someone if you don't want to serve them. The only real limitation on that are antidiscrimination laws, civil rights laws. They say you can't discriminate on the basis of race, color, national origin, religious, disability, some say sexual orientation, most don't. Once you open your business you are subject to those laws because the civil rights act demanded it and the state's civil rights acts added on to it.
Ted Simons: All right. We have to stop right there, it's fascinating stuff. Probably moot if the governor vetoes it. Good to have you here, thanks for joining us.
Zachary Kramer: Thanks for having me.
Ted Simons: That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.