AZ Senate Passes ‘Right to Discriminate’ Bill

Professor Marci A. Hamilton: This should embarrass AZ and is unconstitutional under Romer v. Evans

News Coverage:

BREAKING: AZ Senate Passes ‘Right to Discriminate’ Bill

Filed By John M. Becker

This afternoon, on a party-line 17-13 vote, Republicans in the Arizona Senate bucked the national trend and gave final approval to SB 1062, a GOP-led bill that would create a special “right” to discriminate against LGBT people on the basis of religion.

Under the bill, which was introduced by Republican State Senator Steve Yarbrough, individuals and businesses would be granted the legal right to refuse services to people or groups if they claimed that doing so would “substantially burden” their freedom of religion.

In interviews with local media, Yarbrough made it perfectly clear that the specific purpose of this bill is to legitimize discrimination against the LGBT community. But during today’s nearly two-hour-long debate, Yarbrough took a different tack, claiming that the basic rights of LGBT people victimize anti-LGBT Christians.

“This bill is not about allowing discrimination. This bill is about preventing discrimination against people who are clearly living out their faith.”

Arizona Senate Democratic Leader Anna Tovar condemned the legislation in a statement released shortly after the vote. It’s after the jump.

“SB 1062 permits discrimination under the guise of religious freedom. With the express consent of Republicans in this Legislature, many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation. This bill may also open the door to discriminate based on race, familial status, religion, sex, national origin, age or disability.

“Legislation of this kind has been attempted this year in Kansas, South Dakota, Tennessee and Idaho. Each of those attempts failed after prominent members of the business community spoke against the measures. While our state continues to recover from the public relations nightmare of SB 1070, the Republican supporters of this bill are willing to elicit the inevitable backlash and boycotts that will result from its passage.

“Arizona does not need this bill, Arizonans do not want this bill and there is no place for this bill in our modern society. We have come too far to turn back the clock with such a disgraceful assault on members of our community based on their sexual orientation.”

The language in Yarbrough’s bill is so broad that it could also potentially allow individuals and businesses to discriminate against other protected groups, including unmarried women and non-Christians.

A companion bill is pending before the Arizona House and could come up for a vote anytime. It reportedly stands a good chance of passing.

Stay tuned, folks: Arizona may soon legalize anti-LGBT discrimination. “Because Jesus” could literally become a valid excuse for refusing service to queers in the Grand Canyon State.


Bill Text:



Fifty-First Legislature, Second Regular Session




exercise of religion; state action.




Modifies the definition of exercise of religion and allows a person to assert a free exercise claim or defense in a judicial proceeding regardless of whether the government is a party to the proceeding.




The First Amendment to the United States Constitution provides in relevant part that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.  The latter portion of the provision is known as the Free Exercise Clause.  In 1990, Congress passed the Religious Freedom Restoration Act (RFRA), which instructed courts to apply strict scrutiny when government substantially burdens a person’s exercise of religion, even if the burden results from a law of general applicability.  However, the United States Supreme Court has since held that the federal RFRA may not be extended to the states and local governments (City of Boerne v. Flores, 521 U.S. 507 (1997)).


In response to City of Boerne v. Flores, Arizona enacted state-level protection from the government substantially burdening the free exercise of religion using the strict scrutiny compelling interest test (Laws 1999, Chapter 332).  Accordingly, government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest (A.R.S. § 41-1493.01).


Exercise of religion is defined as the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief  (A.R.S. § 41-1493).


There is no anticipated fiscal impact to the state General Fund associated with this legislation.




1.      Expands the definition of exercise of religion to specifically include both the practice and observance of religion.


2.      Expands the definition of person to include any individual, association, partnership, corporation, church, estate, trust, foundation or other legal entity.


3.      Changes the terminology within the prohibition of burdening a person’s exercise of religion to apply to state action instead of government.


4.      Defines state action as 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 action is made or attempted to be made by the government or nongovernmental persons.


5.      Specifies that a free exercise of religion claim or defense may be asserted in a judicial proceeding regardless of whether the government is a party to the proceeding.


6.      Makes technical and conforming changes.


7.      Becomes effective on the general effective date.


Prepared by Senate Research

January 14, 2014