Oh, Arizona. Will you ever stop making my job so easy? Never change (as long as I don’t have to move to you).
Arizona has passed a law which, on its face, actually seems pretty progressive – appearing to be a major expansion of religious freedom. Basically, it creates an absolute exemption from professional licensing and discipline rules, if a violation of the rules was motivated by religion.
This is basically an amendment to Arizona’s version of the Religious Freedom Restoration Act. This federal law essentially requires federal courts to examine any law which burdens a person’s ability to freely exercise their religion under “strict scrutiny” – meaning that, for a law that interferes with a religious practice to be valid, it must be shown that the law advanced a compelling government interest, and that it is narrowly tailored to that end.
The Religious Freedom Restoration Act has been primarily used to protect the religious practices of Native Americans. For example, some tribes have used the law to carve out an exception to the federal law against the use of peyote, which has been used in the religious rites of some tribes for thousands of years. And I know I’m painting with a broad brush here, but these types of exemptions tend to be fairly popular with those who find themselves a bit to the left on the political spectrum, and perhaps also to certain “conservative” factions, like libertarians.
Arizona, however, is not known for its liberal tradition. And many of its policies, while very conservative, could be considered anything but libertarian. I wonder if anyone has told the Arizona Legislature that this law, as written, would also apply to Muslims. Zing! Anyway, this appears to be yet another play to the conservative base in Arizona.
So, what’s the deal with this law? Well, it appears that its purpose is to make it easier for doctors, lawyers, pharmacists, and other professionals, to refuse to provide their services when doing so would violate their religious views. This includes doctors refusing to perform abortions, or refer a patient to a doctor who will, pharmacists refusing to prescribe “the pill” or other forms of birth control. It might also extend to lawyers refusing to represent LGBT clients, without any fear of facing discipline from the relevant state licensing authority.
The sponsors of the legislation cite a proposed rule by the American College of Obstetricians and Gynecologists, which would require doctors who oppose abortion, and refuse to perform one, to refer the patient to a doctor who will.
Over the last few years, a controversy (as part of the broader “culture war”) has been brewing: to what extent should doctors, and professionals who provide essential services, be allowed to refuse their services based on their personal beliefs?
I don’t know if there’s an easy answer to this. After all, when you become a doctor, a lawyer, or a pharmacist, your right to freely exercise your religion doesn’t suddenly disappear. And it’s well accepted that, on occasions, religious exemptions to generally-applicable laws are warranted, but it’s rare that the exemptions are as absolute as the ones contained in the Arizona law.
But a state has an interest in making sure that everyone has access to essential services like medical care and legal representation, especially when it regulates those professions, ostensibly for the public good. As usual, the state has to strike a delicate balancing act.
But, once again, Arizona doesn’t seem to be very interested in balancing the religious hang-ups of individual doctors and lawyers against the public good. Instead, this seems like a pretty blatant attempt to appease a political base of social conservatives, coming down firmly on the side of protecting a professional’s “right” to engage in discrimination, over the public’s right to have access to essential services.
Interestingly, depending on how this law is applied, it might run afoul of another clause in the First Amendment. Ironically, an attempt to protect the right of a particular group of people to practice their religion, especially when it creates exceptions to generally-applicable laws, can actually run afoul of that other provision of the Constitution dealing with religious freedom: the Establishment Clause.
I should clarify. There are two distinct clauses in the 1st Amendment that deal with religion. They are the free exercise clause, and the establishment clause. It reads, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The free exercise clause is pretty clear in its meaning: everyone is free to exercise their religion in the U.S.
The meaning of the establishment clause isn’t as self-evident, however. It basically means that the government cannot adopt (or “establish”) an official state religion. This has been read to mean that the government cannot enact laws that substantially favor one religion over another. If this law is applied in a way that clearly favors Christians (or any other religious group), it could be held unconstitutional, as applied.
However, it’s written so broadly that, depending on the preferences of those in power in Arizona, it could just as easily be applied in a perfectly reasonable and constitutional manner.
Time will tell.