What if Kim Davis were a County Clerk in Arizona?
By now, we all know the story of Kim Davis, the County Clerk in Kentucky who refuses to issue marriage licenses based on her “sincerely held” religious beliefs. But are we likely to see such a spectacle play out in Arizona? Well, we almost did.
During the 2014 Arizona legislative session, State Representative, Steve Montenegro (R-13), introduced a bill referred to as “Arizona’s First Freedom Act” (officially titled “religious beliefs; solemnization of
marriage”). The bill, HB 2481, had a total of 35 sponsors.
When the religious right pushes a bill that would have the effect of enshrining religious dogmas into secular civil law, they know well that they must publicly sell it with secular arguments, rather than overt appeals to their religious texts and traditions, and, at least on the surface, HB 2481 followed this playbook perfectly. The bill summary stated “HB 2481 prohibits government from requiring a minister to solemnize a marriage that is inconsistent with the minister’s sincerely held religious beliefs.”
The Secular Coalition for Arizona (Secular AZ) fully supports religious ministers and clergy acting in the capacity of their religious duties within their religious place of worship and religious doctrine. This right and freedom given by the First Amendment is not in doubt.
However, HB 2481 went further than that, as it attempted to inclusively define ministers as any individual who is authorized to solemnize a marriage pursuant to A.R.S. § 25-124. This statute includes a long list of secular state employees such as justices of the peace and judges. Such an all-encompassing definition of minister was well beyond any religious definition and it didn’t take much effort to expose the bills true motivations: to give public officials the right to discriminate.
A.R.S. § 25-124 lists the following as the individuals who would have been counted as ministers and who would, therefore, have been free, had HB2481 passed, to deny solemnization of marriage based on their own personal religious beliefs (note: 2 – 9 are all public officials):
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created by an act of Congress if the judges are entitled to hold office during good behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals
Thankfully, HB 2481 was stopped and did not become law, in part due to Secular AZ's behind-the-scenes lobbying efforts. Another attempt was made in 2015 to bring the bill back but it was not introduced, thanks to the Arizona Supreme Court Judicial Ethics Advisory Committee Opinion 15-01, which states that judges may not decline to perform same-sex wedding ceremonies if the judge chooses to perform opposite-sex wedding ceremonies. The performance of marriage by a judge is considered a “discretionary function,” however, so a judge could decide not to perform any marriage ceremonies.
With same-sex marriage now the law of the land, we see the media spotlighting many unhappy actors, such as Kim Davis, not taking this constitutionally protected right seriously, and instead are using their public positions to deny rights to others.
Arizona’s upcoming legislative session begins in January, and we are anticipating an onslaught of new bills designed by the religious rights fundamentalists to undermine the Supreme Courts same-sex marriage decision. Secular AZ will be watchfully waiting and ready to respond to all threats to the secular public policy that ensures equal freedom for all Arizonans.