Yesterday, Arizona Governor Jan Brewer vetoed a bill that would have made clear
that the state’s Religious Freedom Restoration Act (RFRA) applied not just as a
defense to a lawsuit brought by a government entity, but also as a defense to
lawsuits brought by a private party under a state statute, or using a cause of
action created by state law. Under RFRA, no government action
(including a damage award in a lawsuit) can “substantially burden” religious
freedom unless it is “the least restrictive means” to further a “compelling
interest.” The bill hardly seems like a radical change, since damage awards in
private lawsuits already constitute “state action” for purposes of the First
Amendment, under the Supreme Court’s decisions in Snyder v. Phelps and New York Times v. Sullivan. The bill just applies the
same principle to RFRA, and, indeed, the bill’s enactment might merely have
given the state’s RFRA the same meaning that other jurisdictions’ RFRA’s
already have by judicial construction. The bill did not even mention sexual
orientation, did not single out gays, and probably would have had its greatest
effect in other areas.....To Read More.....
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