by Richard W. Painter, the S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
Arizona Governor Jan Brewer has listened to the concerns of a wide range of pro-business Republicans, Democrats and Independents who want Arizona to be open for business to everybody.
Senate Bill 1062 would have legalized discrimination on religious grounds by changing the definition of a “person” entitled to assert religious freedom as a defense in a discrimination lawsuit:
a religious assembly or institution ANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION, ESTATE, TRUST, FOUNDATION OR OTHER LEGAL ENTITY."
The existing statutory language - crossed out above and replaced in Senate Bill 1062 with the now vetoed language in ALL CAPS - remains the law in Arizona. This existing law allows a Christian Church to tell a fifteen year old Jewish girl that she cannot take communion without, among other things, affirming the divinity of Christ. The existing statute, however, does not give a Christian flower shop owner an excuse to refuse to sell the girl flowers for her bat mitzvah, and later an excuse not to sell her flowers for her wedding.
The objective of this bill was to legalize religiously motivated discrimination against gays rather than against Jews or other religious minorities. The language, however, is extremely broad, presumably because singling out discrimination against gays for a statutory discrimination safe harbor would have raised even more constitutional problems than the text of the legislation as it was written.