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Inside SB 1062: Does it address a gap in state law?

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PHOENIX – While partisans debate whether SB 1062 would protect religious freedom or sanction discrimination against gays and other minority communities, a simple question remains:

Does the bill fill a gap in Arizona law?

SB 1062 is billed as a defense of religious freedom, ensuring that people wouldn’t have to do things that are against their sincerely held religious beliefs. It would allow parties in lawsuits to use religion as a defense for their actions even if the other party isn’t the government.

Among the groups arguing that point is the Alliance For Defending Freedom, a Scottsdale-based Christian legal organization that advocates for religious freedom.

Joe La Rue, the group’s legal counsel, said SB 1062 is a logical extension of Religious Freedom Restoration Act of 1993, a federal law that prevents burdens on a citizen’s right to practice his or her religion. Arizona enacted a similar law in 1999.

“In Arizona, everyone is free to live and work according to their faith. The very first freedom the founding fathers put into the Bill of Rights is protected religious freedoms,” La Rue said.

He said the bill, which amends the 1999 law, is an answer to a New Mexico Supreme Court decision that said a photographer was unable to turn down a lesbian couple based on the photographer’s religious beliefs.

“Courts look to each other. If Arizona ever got the question, they could look to New Mexico for precedent, and SB 1062 is Arizona’s attempt to fix this problem,” he said.

Similar legislation has been proposed in Kansas, Tennessee, South Dakota and Georgia. Arizona lawmakers are the first to approve a bill.

Zachary Kramer, a professor of antidiscrimination law and law and sexuality at Arizona State University’s Sandra Day O’Connor College of Law, said these pieces of legislation result from the tension of legally defining equality.

In the New Mexico case, for example, there were two parties wanting their rights recognized.

“There are competing definitions of what freedom looks like,” Kramer said. “What we see are those tensions playing out … You’re pitting freedom against freedom.”

The wording of the legislation could allow the defense in more than just cases involving discrimination against members of the gay, lesbian, bisexual and transgender community. But the scope would only be clear if SB 1062 becomes law, Kramer said.

He said it’s too soon to focus on whether the measure would hold up in court.

“What we do need to be thinking about is whether it’s good policy for Arizona,” Kramer said.

“It will significantly change the landscape of how discrimination law is practiced in Arizona,” he added.