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View Diary: Why the AZ "anti-gay" law is a lot worse than you think (47 comments)

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  •  Two things to remember about that. (3+ / 0-)
    Recommended by:
    PSzymeczek, VClib, HeyMikey

    First, there's a key part to that sentence:  

    an otherwise valid law prohibiting conduct that the state is free to regulate
    That's why the link to the SCOTUS decision upholding the Civil Rights laws is so significant.  The SCOTUS did NOT uphold the Civil Rights laws because they were based on a statement by the government that discrimination is wrong; instead, the Civil Rights Laws were found constitutional DESPITE the fact that they were, in part, based on a moral belief that discrimination is wrong.  The justification for the laws was the extensive evidence before Congress that, for example, African Americans could not travel freely because of the lack of hotels or motels that would service them.  

    That's way that part of the sentence is so, so, so very important.  If Government had evidence before it that previously-divorced couples had huge problems finding photographers that would photograph their wedding, that might be a justification for saying that photographers could not discriminate against previously-divorced couples.  That would be an "otherwise valid law prohibiting conduct that the state is free to regulate."  However, if there is no such evidence, and government says, "we believe that religious-based discrimination against previously-divorced couples is wrong, so we are going to pass a law that you can't discriminate against previously divorced couples on religious grounds," that law would be invalid on its face as in violation of the First Amendment.  It's not an "otherwise valid law regulating an area that the state is free to regulate."  The state is NOT "free to regulate" religious beliefs that it finds unacceptable.  That's a First Amendment violation.

    Second, that decision by Justice Scalia prompted the Congress to enact RFRA, which was almost unanimously passed by Congress and signed into law by President Clinton.  It basically applied a kind of "strict scrutiny" to federal laws that burden the Free Exercise of Religion.  It's why the ACA contraception cases, like the Hobby Lobby case, may be decided based on RFRA rather than the constitution -- RFRA provides a higher threshold for Congress to meet when it passes a "otherwise valid law" that burdens the Free Exercise of Religion.

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