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View Diary: Rachel, Jed Lewison are mischaracterizing SB1062 (241 comments)

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  •  It's not my area either (3+ / 0-)
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    Jay C, HeyMikey, sfbob

    So consider this just speculation.

    I don't think that the city would claim that it is exerting a federal constitutional right against the state law.  The Arizona bill, and those like it, don't explicitly preempt anything.  If Tucson has an anti-discrimination ordinance for LGBT citizens, it's still in force, just limited by purported "free exercise."

    Once someone is sued for violating it, though, the defendant would have the opportunity to say that its violation was only because the ordinance represented a substantial burden on its religious belief.  This could be overcome if the city or the plaintiff could claim that the ordinance was a narrowly-tailored implementation of a compelling city interest.

    Cities have a lot of interests.  Protection of citizens from discrimination is one.  So is marketing their city as an open-minded place to attract business.  It's fairly vague to say whether or not any of these are compelling, but there are cases saying that combating employment discrimination is compelling, for race and sex but also things like pregnancy.

    Since it's a government interest, though, the government is free to disclaim it.  The EEOC can't protect LGBTQIA workers because the government has refused to express an interest in protecting them.  

    •  It's ultimately a state constitutional law issue (2+ / 0-)
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      HeyMikey, Jay C

      Similar to the relationship between the federal government and state governments, most state constitutions provide that state law is the supreme law of the land.  Under this circumstance, the city ordinance would have to yield to this state law.  

      •  Right (1+ / 0-)
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        Jay C


        But I think the point here is that the city ordinance and the state law are ultimately compatible.  The state could strike the city's laws wholesale, but it doesn't.  It just says that the city can't do anything to burden free exercise without a compelling interest.

        The state doesn't say what is or isn't a compelling interest, so the city's free to assert that it's anti-discrimination aims are compelling, and it could win.

        Then the legislature could re-convene and pass a bill saying that preventing discrimination against LGBT Arizonans is not compelling, and it would prevail under the state constitution.

        But the Supreme Court has struck down such laws in the past, finding them to be based on nothing more than illegal animus towards certain disfavored groups.

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