What "Freedom of Religion" Does Not Mean

Free enterprise appears to have rescued free government in Arizona. Business interests, mortified at the prospect of losing nearly all interstate commerce as a result of bizarre anti-gay legislation, pressured Governor Jan Brewer to veto SB 1062, thereby providing the public cushion she needed to act without political fallout.

Governor Jan Brewer, AZ

The real story here, though, is the continuing confusion of some Americans over what the First Amendment and its attendant principles mean. 

The proposed law defined "the exercise of religion" as the practice of or observance of religion, including 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."  In other words, "freedom of religion" is the right to do whatever one wants or to refuse to do what one does not want, so long as one attaches the word "religion" to it. 

Those endowed with such expansive rights include "any individual, association, partnership, corporation, church, religious assembly, or institution, estate, trust, foundation or other legal entity." So, Coca-Cola Corporation or Philip Morris would have, for the first time in American legal history, freedom or religion. While tax collection is explicitly exempted, the state could not enforce any requirement that did not further a "compelling state interest." So, not only would the law allow the exclusion of service to gay people, it would also exempt people from smoking bans. Muslim taxi drivers could refuse to pick up single women. Atheists could refuse to accept US currency. 

Of course, this is nonsense. The First Amendment takes religion much more seriously that this law. By defining religious practice so loosely, Arizona legislators essentially defined it out of existence. What means everything means nothing.

One group of law professors, including Mary Ann Glendon of Harvard, defended the act with the argument that  "The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger."

But this defense is only in the context of a much worse Kansas law, that the professors acknowledge as being grossly one-sided and unfair.

Professor Mary Ann Glendon

Glendon and the others would like to expand the area of operation of religion in our discourse. Fair enough. But the law is still so vast and vague that even they should not defend it. If they really do want to encourage the application of religious principle, they should take "religious" and "principle" more seriously.