Why Not Repeal RFRA?

The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.

Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.

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2 responses to “Why Not Repeal RFRA?

  1. Well, there’s that thing that the state law would have reversed municipal ordinances covering about 1/3 of Arizona’s population.

  2. That point is wrong. It would not have reversed any such ordinances. Which ordinances did you have in mind? What did they say? The changes in this bill are as I have stated them.

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