Friday, 21 February 2014

An Oopsie in Arizona.

HB2153 was supposed only to target GLBT people. But the way it's been drafted means it goes rather further than that.

Sec. 2.  Section 41-1493.01, Arizona Revised Statutes, is amended to read:
41-1493.01.  Free exercise of religion protected; definition
A.  Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B.  Except as provided in subsection C, government of this section, state action shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
C.  Government State action may substantially burden a person's exercise of religion only if it the opposing party demonstrates that application of the burden to the person person's exercise of religion in this particular instance is both:
1.  In furtherance of a compelling governmental interest.
2.  The least restrictive means of furthering that compelling governmental interest.
D.  A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government regardless of whether the government is a party to the proceeding.  The person asserting such a claim or defense may obtain appropriate relief.  A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
E.  In For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
F.  For the purposes of this section, "state action" means any action by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made or attempted to be made by the government or nongovernmental persons.

While the government has a compelling interest in preventing murder in general, it's arguable that there is no compelling interest in preventing the murder of gays, just as there is no compelling interest in preventing them from being arbitrarily fired. The state often sanctions killing, by police in the course of their duties, or execution. There are thus obvious exceptions to the general rule.

Similarly, while the the state has a compelling interest in preventing the murder of children in general, does it have a compelling interest in preventing the sacrifice of a particular child by the child's parent?

This bill is so broad in its exemptions that such cases are at least arguable, and I think, the defendant would succeed on the wording if not the intent.

It's not just *an* interest, it's a *compelling* interest the government must have, in that particular case and those particular circumstances, not in general. And the law must not be over-broad, it has to be the minimum needed to satisfy the *compelling* interest. Exceptions are allowed.

So yes, they have just legalised human sacrifice, if it's done in the name of religion. In fact, all laws unless very narrowly drafted as the minimum to accomplish a goal that is of *compelling* interest no longer apply, if religious belief is invoked as a defence.

That apparently wasn't the intent, but judges have to interpret the law as written.


Zimbel said...

"Compelling interest" is a fairly well-defined legal term, mostly by case law. It's used in the strict scrutiny test, which I'm guessing this is supposed to model.

I think the intended effect is to roll back large portions of Civil Rights laws. I am skeptical that much of the application of this law would hold up in Court, if passed.

Joseph said...

Of course, by the standard of FIW the right not to do things is unconditional.

Anonymous said...

One person's rights stop where the next begins. You can not force people to be nice. You can stop physical harm be not mental harm.
Perceptions are different for each individual. The way a free trade system works is that both parties agree. If you force trade it is no longer free.

Joseph said...

Set the Wayback machine to 1993. We've had this debate before. There is no reason to change the 1993 conclusion.

Zoe Brain said...

Joseph - Because the RFRA allows for specific religions to obtain rights beyond the rights given to regular citizens, he concludes the act must consequently go beyond simple freedom of religion, since it establishes special provisions for religious groups. Stevens uses the case of Wallace v. Jaffree as a precedent for this line of thought and concludes that "governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment."