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February 12, 1999/26 Shevat 5759, Vol. 51, No. 20
Bill set for vote Tuesday
MICHELLE ACKERMAN
Staff Writer
After listening to two hours of public testimony, an Arizona Senate committee this week postponed voting on a bill to protect the free exercise of religion as a fundamental right in Arizona.
Sen. Marc Spitzer (R-Phoenix), a primary sponsor of the bill and chairman of the Senate Judiciary Committee, which heard the bill on Feb. 9, postponed the vote until Tuesday, Feb. 16, since one senator on the committee was absent and several committee members appeared to oppose the bill.
"I wanted to at least give the proponents a chance," Spitzer said.
The bill, SB 1391, also known as the Arizona Religious Freedom Restoration Act, was proposed by the Arizona Coalition for the Free Exercise of Religion, a coalition that includes members of the Jewish Community Relations Council, the Seventh-day Adventist Church, the Church of Jesus Christ of Latter-day Saints and the Arizona Catholic Conference. It seeks to protect the rights of individuals whose religious freedoms might otherwise be substantially burdened by certain state laws or regulations.
Examples of seemingly neutral laws and government procedures that may impose upon certain individuals' religious rights are: state-mandated autopsies for accident victims, despite the religious beliefs of family members, even when there is no evidence of foul play; public school classes and events that are scheduled on Friday evenings, Saturdays, or on religious holidays; and requirements that government employees work on such days.
SB 1391 was proposed in an attempt to restore protection of the First Amendment "free exercise" of religion clause at the state level. These rights had, until 1990, been protected by a U.S. Supreme Court ruling in the 1963 case Sherbert vs. Verner, in which the court stated that the clause prohibited the government from restricting an individual's exercise of religious belief or practice unless it had "a compelling state interest." In 1990, the Supreme Court reversed its decision in Employment Division vs. Smith. In this case, the court's ruling stated that the government did not need to demonstrate a compelling interest in order to justify infringing upon religious practice with laws that are "facially neutral and generally applied."
In 1993, in response to the Smith decision, Congress passed the Religious Freedom Restoration Act (RFRA), which reinstated the more stringent Sherbert v. Verner standard. This act was in place for five years, until the issue once again was presented to the Supreme Court. This time, in Boerne v. Flores, the court ruled that Congress had exceeded its constitutional powers in enacting RFRA, and therefore struck down the law. However, the court also ruled that individual states could expand religious freedoms.
So far, Rhode Island, Connecticut, Florida, Illinois and Alabama have all passed state RFRA bills.
If Arizona's SB 1391 became law, it would:
- designate free exercise of religion as a fundamental right in Arizona;
- prohibit the state government and its political subdivisions from burdening a person's exercise of religion, even if the burden results from a law that is facially neutral and applies generally to all people in the state, unless there is a compelling state interest;
- require the state to use the least restrictive means in furthering its compelling interest;
- allow a person to use this law as a claim or a defense in a judicial proceeding;
- and require the government to pay attorney fees and costs of a party who has prevailed in a claim against the government by asserting this act.
At the hearing this week, Michael Douglas, a Seventh-day Adventist, recounted his lack of recourse when a supervisor changed his normal days off from Saturday and Sunday to Thursday and Friday, which violated his religion's mandate to honor their Friday night to Saturday night Sabbath by not doing secular work. Sen. Tom Freestone (R-Gilbert) commented, "That raises the issue of scheduling employees in 24-hour, seven-day-a-week jobs." He suggested things could get dicey in such professions if all the employees claimed they couldn't work weekends because of religious beliefs.
Adele Adams, a parent and member of the Jewish community, spoke of a field trip planned for fifth-graders at her child's school that coincided with a religious holiday and said it seemed to her to be representative of "a recurrent theme of the educational system here in Arizona," Sen. Ruth Solomon (R-Tucson), who is herself Jewish, commented that, as a product of the Arizona school system, she has always found that these problems could be worked out.
"Frankly, I see no need for this bill," she said. "It's my position that the Arizona Constitution already requires freedom of religion and the ability for people to practice that religion."
But Tami Schultz, JCRC director in Arizona, said of the measure, "What's in the Arizona state Constitution as far as religious freedom is good, and we're not saying it's not; we just don't think it goes far enough. We're not trying to reinvent the wheel here. This was a federal law since 1993. The state law is just modeled after the federal law."
Spitzer commented that "maybe we need to hear from more people in terms of letters and e-mails ... or perhaps propose amendments." Next week is the last time the Judiciary Committee will be hearing bills in this legislative session. If SB 1391 is approved in the Senate, the bill would then be passed to the House of Representatives.
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