- STATUTES PROHIBITING DISCRIMINATION BASED ON RELIGION.. 2
- STATUTES RELATED TO RELIGIOUS PRACTICES OF SPECIFIC RELIGIOUS SECTS. 6
- GOVERNMENT ENTANGLEMENT IN RELIGION AND VICE VERSA.. 8
- USE OF “GOD” LANGUAGE IN OATH OR EXEMPTION FOR “ACT OF GOD.”. 13
- EXEMPTIONS GIVEN TO RELIGIOUS ORGANIZATIONS OR PEOPLE. 15
- DISCRIMINATION ALLOWED BY RELIGIOUS ORGANIZATIONS AND PEOPLE. 26
- OTHER FAVORITISM GIVEN TO RELIGIOUS GROUPS OR PEOPLE. 31
- NEUTRAL PROVISIONS. 53
In 2020 using the search terms “religion”, “religious,” “god,” “church,” or “faith-based” the number of statutes with those words was 230. In 2022, we included “worship,” “clergy,” and changed “faith-based” to “faith but not good faith, bad faith, or full faith.” The new total was 309.
The U.S. Supreme Court has made significant changes interpreting the Free Exercise and Establishment clauses in 2022, including:
- Tax money can be given to religious schools (Carson v. Makin, No. 20-1088 (June 21, 2022)) (Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.) The only solution is to have no voucher type programs at all.
- Football coach can say prayers at public school but only privately and with no mandate to participate. (Kennedy v. Bremerton School Dist., 21-418 (June 27, 2022)) (Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, while the coach did his prayers very publicly and with coercion, the court ignored the facts to achieve their result.)
- Women have no federal constitutional right to abortion (Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022)) (The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.)
All three of these cases have much broader implications. Carson may invalidate the Arizona constitution’s prohibition on government money going to sectarian education. The Blaine amendments that are in many state constitutions will no doubt be challenged. Kennedy completely reinterprets the Establishment Clause. Kennedy says that all Establishment Clause cases should be interpreted according to history and tradition, not the previously used Lemon test. If government was entangled with religion in the past, it can continue today. Dobbs calls into question other privacy rights the Court had previously declared fundamental, including contraception, marriage, and what consenting adults do in the privacy of their home.
As of August 17, 2023, the Supreme Court has issued two more cases regarding the freedom of religion:
• Groff v. DeJoy held that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The plaintiff here sued over having to work on Sundays.
• 303 Creative LLC v. Elenis held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs for same-sex marriages. This was the first time in history that the court granted a business open to the public a constitutional right to refuse to serve members of a protected class. Previously, religious objections to gay marriage did not allow business owners and other actors to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
Comments about the following Arizona statutory provisions are in italics after the actual provision.
These provisions usually include a list of categories (race, color, religion, sex, national origin) that may not be discriminated against and do not present any issues for separation of church and state, the establishment clause, or the free expression clause. The Secular Coalition for Arizona supports ending discrimination and full inclusion of all peoples.
Article II Declaration of Rights Section 12. No public money or property shall be appropriated
for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.
TITLE 1 General provisions
A.R.S. §1-501 – eligibility for federal benefits
A.R.S. §1-502 – eligibility for state and local benefits
TITLE 8 Child Safety
A.R.S. §8-530(A)(13) – foster parent right to nondiscrimination based on religion, but have no right of action
But c.f. A.R.S. §8-921 faith-based adoption and foster care agencies are allowed to discriminate based on religion as to who they deem appropriate parents and do have a right of action. Also see Fulton v. City of Phila., 141 S. Ct. 1868 (2021) that was decided on narrow grounds allowing a foster care agency to discriminate. Three other cases are in different federal courts.
TITLE 12 Courts and Civil Proceedings
A.R.S. §12-2201 – a person shall not be incompetent to testify because of that person’s religious belief or lack of belief. See also State Constitution II (12)
TITLE 15 Education
A.R.S. §15-232 – adult education
A.R.S. §15-535 – public school teachers are prohibited from giving sectarian instruction
A.R.S. §15-843(M) – discipline of students shall not be based on religion.
A.R.S. §15-1105 – lease of school property – Can’t deny or charge different rate based on religion.
A.R.S. §15-1342 – admissions to School for Deaf and Blind
A.R.S. §15-1825 – prohibited financial assistance to undocumented people
A.R.S. §15-1896 – Faculty employment decisions; religious and political beliefs; definition
TITLE 20 Insurance
A.R.S. §20-1631(C) – cancellation or refusal to renew vehicle policy
A.R.S. §20-1632.01 – cancellation for nonpayment of vehicle policy
A.R.S. §20-1652 – transfer of non- vehicle policy to other insurer
A.R.S. §20-1654 – notice of non-renewal; transfer of non- vehicle policy to other insurer
A.R.S. §20-2110 – reasons for adverse underwriting can’t be religion
TITLE 31 Prisoners and Prisoners
A.R.S. §31-474 – contracts RE: interstate compact (however note that the list of categories does not include sex.)
TITLE 32 Professions and Occupations
A.S.R. §32-2107.01 – recorded disclaimer in every county regarding deeds – All discriminatory covenants and restrictions are declared invalid
TITLE 33 Property
A.S.R. §33-1261 – Flag display; political signs
Condominium association must allow certain flags including Gadsden (Don’t Tread on Me) and can prohibit political signs that discriminate based on religion.
In 2023: the legislature added (A) (8) that says: 8. ANY HISTORIC VERSION OF THE AMERICAN FLAG, INCLUDING THE BETSY ROSS FLAG, WITHOUT REGARD TO HOW THE STARS AND STRIPES ARE ARRANGED ON THE FLAG.
It is feared that this opens the door to confederate flags and other divisive flags.
A.S.R. §33-1808 – Flag display; political signs
Homeowners’ association must allow certain flags including Gadsden (Don’t Tread on Me) and can prohibit political signs that discriminate based on religion.
TITLE 36 Public Health and Safety
A.R.S. §36-791 – Crisis standards of care plan; crisis guidelines or standards
A.R.S. §36-2858(I) – Marijuana establishments, marijuana testing facilities and dual licensees that are subject to applicable federal or state antidiscrimination laws may not pay their employees differently based solely on a protected class status such as sex, race, color
A.R.S. §36-3005(B) No money for domestic violence shelters that discriminate based on religion et al.
A.R.S. §36-3103(B) No money for sexual violence service provider that discriminates based on religion et al.
TITLE 41 State Government
A.R.S. §41-742(B)(5) – State personnel system
A.R.S. §41-1402 – powers and duties of civil rights division
A.R.S. §41-1421 – voting rights definitions
A.R.S. §41-1442 – public accommodation
Mirrors Title II of Civil Rights Act of 1964 but includes discrimination based on sex.
Since Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the federal definition of sex discrimination includes sexual orientation and gender identity. Some businesses have refused to make cakes or invitations and the like for gay weddings. The federal Religious Freedom Restoration Act (RFRA) or state Free Exercise of Religion Act (FERA) may be invoked to get around the non-discrimination law. The right to freedom of religion currently trumps the right to non-discrimination and equal protection, even though equal protection is also enshrined in the Constitution. The current Supreme Court has elevated freedom of religion above other rights without justification.
The local case Brush & NIB Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019), based on a city ordinance and entertaining a hypothetical refusal to make same sex wedding invitations, somewhat sidestepped the issue due to the custom design nature of the work, under the compelled speech doctrine. Studio owners could not be compelled to design art that violated their religious beliefs.
A.R.S. §41-1461 – discrimination, unlawful practices, definition (14) “Religion” means all aspects of religious observance and practice, as well as belief. Unlawful practices as prohibited by this article include practices with respect to religion unless an employer demonstrates that the employer is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
A.R.S. §41-1463 – unlawful practices in employment, Mirrors Title VII of the 1964 Civil Rights Act
A.R.S. §41-1464 – other unlawful practices in employment – whistleblower, job advertising, age discrimination
A.R.S. §41-1481(G) – To file a civil rights suit under this section, the person’s adverse employment issue must be based on race, color, religion, sex, age, disability or national origin or a violation of section A.R.S. §41-1464.
A.R.S. §41-1491.05 – appraisal, fair housing
A.R.S. §41-1491.14 – sales or rentals
A.R.S. §41-1491.15 – publication of sales or rentals
A.R.S. §41-1491.16 – inspection of dwelling
A.R.S. §41-1491.17 – entry into neighborhood
A.R.S. §41-1491.20 – residential real estate transactions
A.R.S. §41-1491.21 – brokerage services
A.R.S. §41-1750 – Department of Public Safety central state repository, hate crimes information
A.R.S. §41-1822 – peace officer training and certification
TITLE 46 Welfare
A.R.S. §46-140.01 – verifying applicants for public benefits
A.R.S. §46-803 – eligibility for childcare assistance
STATE CONSTITUTION ARTICLE XX Ordinance Second. Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state.
TITLE 3 Agriculture
A.R.S. §3-2016 – an exception is made for the humane slaughtering of animals for those of the Jewish faith or any other religious faith that prescribes death by severance of the carotid arteries.
TITLE 4 Alcoholic Beverages
A.R.S. §4-244 – person under 21 can have alcohol in body if consumed pursuant to religious exercise
A.R.S. §4-249 – can serve alcohol to minors during religious rituals
TITLE 8 Child Safety
A.R.S. §8-201 (15)(b) – Christian Science treatment is not abuse so long as it doesn’t include the conditions described above such as having no parent, destitute, unfit, under eight-years-of-age and committing crimes, or incompetent.
Christian Scientists are not the only practitioners of faith healing. So are Pentecostals, Charismatic Christians, and Native American medicine men and shamans. These statutes unfairly elevate one religious group over others.
A.R.S. § 8-201.01(A)(1) A child who in good faith is being furnished Christian Science treatment by a duly accredited practitioner shall not, for that reason alone, be considered to be an abused, neglected or dependent child.
A.R.S. §8-531.01 – Just because child is treated with Christian Science does not mean the child is abused.
TITLE 13 Criminal Code
A.R.S. §13-3402 – it’s a defense to the possession of peyote that it’s in connection with a religious belief so long as it doesn’t harm the public.
A.R.S. §13-3622 – the prohibition of furnishing tobacco to a minor does not apply if it’s in connection with a bona fide practice of a religious belief and as an integral part of a religious or ceremonial exercise.
Government is going to decide whether your religious practice is “bona fide” which signals a great deal of “entanglement.”
A.R.S. §13-3623.01 – a church that looks like a church may be a “safe haven” for an abandoned newborn infant.
Christian-normative language; does not include, mosque, temple, synagogue.
TITLE 15 Education
A.R.S. §15-347 – can wear religious or cultural head coverings or hairpieces.
A.R.S. §15-717.01 – Bible elective course (only bible, not other religious texts)
Ensuring that the course complies with the U.S. Constitution will be very difficult. In 2013, Mark Chancey, a religious studies professor at Southern Methodist University, surveyed courses in sixty districts around Texas. Only 11 displayed academic rigor and a constitutionally sound approach. Religious scholars agree that most books of the bible were not written by the people whose names are on them, most are filled with discrepancies large and small, and that the bible itself is bad history and even worse theology.
Any such course must limit itself to the concepts outlined in Section F of the statute and must follow applicable law and all federal and state guidelines in maintaining religious neutrality and accommodating the diverse religious or nonreligious views, traditions, and perspectives of pupils. Under Section G of the statute, students may not be required to use a specific translation of the old or new testament since there are dozens of different versions, all with different stories, thus limiting its utility.
Section F says it can’t violate the U.S. or Arizona constitutions. We believe it violates the U.S. Constitution.
“Since Everson v. Board of Education, this Court has adhered to the principle, clearly manifested in the history and logic of the Establishment Clause, that no State can “pass laws which aid one religion” or that “prefer one religion over another.” This principle of denominational neutrality has been restated on many occasions. In Zorach v. Clauson, we said that “[t]he government must be neutral when it comes to competition between sects.” In Epperson v. Arkansas, we stated unambiguously: “The First Amendment mandates governmental neutrality between religion and religion . . . . The State may not adopt programs or practices . . . which `aid or oppose’ any religion. . . . This prohibition is absolute.” Justice Goldberg cogently articulated the relationship between the Establishment Clause and the Free Exercise Clause when he said that “[t]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects . . . and that it work deterrence of no religious belief.” Abington School District… In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.” Larson v. Valente, 456 U.S. 228, 246 (1982) To pass strict scrutiny there must be a compelling government interest in teaching the bible in public schools.
A.R.S. §15-801(B) – Christmas, a specifically Christian event, can be a school holiday and governing board may declare a recess up to two weeks.
TITLE 32 PROFESSIONS AND OCCUPATIONS
A.R.S. §32-3271(A)(11) Exemption from behavioral health license requirement if person is a Christian Science practitioner if all of the following are true:(a) The person is not providing psychotherapy, (b) The activities and services the person performs are within the scope of the performance of the regular or specialized duties of a Christian Science practitioner, (c) The person remains accountable to the established authority of the practitioner’s church.
TITLE 41 State Government
A.R.S. §41-844(B)(2) – notice of archeological finds that are human remains shall be given to groups that may have a cultural or religious affinity (groups meaning tribes)
Preamble: We the people of the State of Arizona, grateful to Almighty God for our liberties, do ordain this Constitution.
TITLE 8 Child Safety
A.R.S. §8-105 (F) – information about prospective adoptive parents should include religious background
A.R.S. §8-459(B)(14) – a faith-based organization should be on advisory committee
A.R.S.§8-481(B)(3) – healthy family program push for involvement in religion
A.R.S. §8-816 – a faith-based representative should be on family builders committee
A.R.S. §8-829 (A)(6) – child in care to attend chosen religious services
A.R.S. §8-1151(B)(1) – faith-based representative should be on childhood development committee
A.R.S. §8-1162 – a representative of the faith community must be on the regional partnership.
TITLE 10 Corporations and Associations
A.R.S. §10-11901 religious organizations can be established and hold property
A.R.S.§10-11902 – a person with property titles or deeds for a religious or scientific institution can record them with corporation commission and county recorder
A.R.S. §10-11907 – if said person dies, the title does not pass to her heirs but is held in abeyance until successor is chosen.
Thus in spite of the common proclamation that governments cannot interfere in the internal working of religious institutions, they do – to protect the church but not to hold it accountable.
TITLE 13 Criminal Code
A.R.S. §13-1504, Criminal Trespass in first degree: (5) Entering or remaining unlawfully on the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property.
A.R.S. §13-1604 Aggravated criminal damage: (1) Defacing, damaging or in any way changing the appearance of any building, structure, personal property or place used for worship or any religious purpose.
TITLE 15 Education
Article II Declaration of Rights Section 12. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.
No public money for the support of any religious establishment is probably unconstitutional since Carson v. Makin, supra.
A.R.S.§15-102 – a parent can object to material or activity on sex, morals, or religious beliefs, parents must be told about right to be excused for religious purposes.
A.R.S. §15-191.01 – Family literacy program participants are required to engage in community service activities in exchange for benefits received from the program. They choose from a variety of community and faith-based service providers that are under contract with the department to provide community service opportunities or program services.
A faith-based service provider need not provide program services; it can sign up to provide “community service opportunities.” Instead of the state being reimbursed for its programs via community service, the state is basically donating labor to a faith-based organization.
A.R.S. §15-806 – right to be excused from school for religious purposes.
This is a violation of the establishment clause because secular public education time is being reduced to provide time for private religious instruction. While the attendance at such instruction is “voluntary” that does not make it constitutional because those who do not “volunteer” suffer bullying, rejection, or a waste of time that could be spent in public education thus diminishing their educational experience.
A.R.S. §15-1871 – definition of qualified withdrawal from the family college savings program includes for private or religious school
TITLE 20 Insurance
A.R.S. §20-1802(B)(8) – to apply for a life care contract, one must state if they are with a religious group
A.R.S. §20-2301(A)(6)(b) – creditable coverage can be a church plan as defined in the employee retirement income security act (ERISA) of 1974.
TITLE 23 Labor
A.R.S. § 23 1061.01 – treatment by prayer or spiritual means for workers compensation injury is allowed and the patient shall not lose any benefits.
This is not evidence-based or scientific practice, and the benefits are paid for at least partially by taxpayer monies. Thus taxpayers are forced to pay for religious treatment that they disagree with.
A.R.S. 23 §1062.03 requires treatment for worker’s injury to be evidence-based “where appropriate.” Workers’ compensation funds, like most insurance programs, come from a pooling of resources. It is contractual in nature, so it should include a duty to mitigate damages, which means to actually try to get off it by receiving evidence-based treatment. There’s an economic incentive for the state to not cover people who refuse treatment.
TITLE 25 Marital and Domestic Relations
A.R.S. §25-401 – legal decision making includes religion
This has caused conflicts in divorce among parents of different faiths.
A.R.S. §25-403.02 (C )(2) – parenting plans shall include decisions in religious training.
This has resulted in legal battles where the parents were of different faiths.
TITLE 32 Professions and Occupations
A.R.S. §32-1373 A contract for funeral goods and services must include certain costs including clergy honorarium.
TITLE 36 Public Health and Safety
A.R.S. §36-104 (22) – faith-based organizations can receive monies for methamphetamine education.
A.R.S. §36-114 – Nothing in this title shall authorize the department or any of its officers or representatives to impose on any person against his will any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person. Nothing in this title shall authorize the department or any of its officers or representatives to impose on any person contrary to his religious concepts any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person.
The refusal of certain sects to follow face mask orders in the COVID pandemic illustrates the problem inherent in this provision. It puts the rest of society in danger, costs the individual and the state more, and prolongs the pandemic.
A.R.S. § 36-198: Drug overdose fatality review team must include someone from the governor’s office of youth, faith, and family.
A.R.S. §36-446.02(B)(3) – a representative from a non-profit or faith-based skilled nursing facility has to be on the board of examiners
Faith-based institutions that rely on prayer and spiritual means are not regulated under the chapter (A.R.S. 36-446(9)(b)), yet they receive monies and can sit on board to regulate others, hence a double standard.
A.R.S. §36-596.56 (H) The client’s individual program plan shall include provisions relating to the client’s burial arrangements, including a choice of cremation or burial and instructions regarding religious services, if any.
A.R.S. §36-697 (C) 5 – encourages involvement in religious organizations by participants of health start
This is most assuredly a violation of the establishment clause for a state law to encourage involvement in a religious organization.
A.R.S. §36-1631 – places of worship are public buildings and must adhere to safety glazing regulations for glass
A.R.S. §36-1641 – churches and other public buildings must have doors that open out, and windows must be easy to open from the inside; it is a class 2 misdemeanor to allow use of building not meeting these requirements
TITLE 41 State Government
A.R.S. §41-109 – prevention of child abuse funds provision is run by governor’s office of youth, faith and family.
A.R.S. §41-151.10 – Historical records – The state library shall: 1. Collect from the files of old newspapers, court records, church records, private collections and other sources, data pertaining to the history of this state.
Church records are singled out as important to history. Why aren’t other non-profits, labor unions, fine arts, educational institutions, women’s groups, BIPOC groups important? Also, churches are exempt from releasing most of their records and can always show themselves in the best (not historically accurate) light.
A.R.S. §41-163 – Address confidentiality program for victims of domestic violence, sexual assault, or stalking – evidence that a person fits criteria can be supplied by religious organization where person has sought help
A.R.S. §41-1966.02 – the project intervention program is funded by tax monies, but to receive it, the program must be affiliated with five of the six listed categories one of which is a religious organization though the organization may not provide sectarian programs or worship using the money.
A.R.S. §41-2513(A) For the purpose of procuring the services of clergy, (and some other professions) any state governmental unit may act as a purchasing agency and contract on its own behalf for such services, subject to this chapter and rules adopted by the director.
The word “clergy” is Christian-normative. Merriam-Webster 1st definition- pertains only to Christians. The second definition includes other faiths such as “Buddhist clergy.” This is not what Buddhists call their religious leaders. This behavior is Christians forcing others into a Christian structure. It presumes a hierarchical structure for all religious organizations which is not true e.g. Quakers.
A.R.S. §41-2804.01 Juvenile corrections – establishes a 9-person religious services advisory committee to minister to youth in care.
The committee members are not paid, but the chaplains are.
Religious organizations do not pay taxes; yet they receive government tax dollars that they have not contributed to. Program monies should be distributed to organizations using evidence-based programs that are proven to be effective; not faith-based programs that have no scientific evidence to show their efficacy. Abstinence for example has been proven to be completely ineffective and therefore no tax dollars should go to such programs. Including the opinions of the faith-based in these government programs gives too much weight to their opinion that is not grounded in science but instead is grounded in a belief system that many people do not adhere to. Further, it elevates the opinion of a religious institution over the average Arizonans as 26% of Americans and 28% of Arizonans say they have no religious affiliation. Therefore, giving weight to religious opinion over non-religious opinion in these committees and groups and programs is to establish religion in violation of the Constitution both state and federal.
Article II. Declaration of Rights
Section 7. The mode of administering an oath, or affirmation, shall be such as shall be most consistent with and binding upon the conscience of the person to whom such oath, or affirmation, may be administered.
A.R.S. §22-224. Oath of jury (justice court and municipal civil cases) – When the jury has been selected, the justice of the peace shall administer to it substantially the following oath: “Do you swear or affirm that you will give careful attention to the proceedings, abide by the court’s instructions and render a verdict in accordance with the law and evidence presented to you, so help you God”.
A.R.S. §22-322. Oath of jury (justice court and municipal criminal cases) – When the jury has been selected, the justice of the peace shall administer to it substantially the following oath: “Do you swear or affirm that you will give careful attention to the proceedings, abide by the court’s instructions and render a verdict in accordance with the law and evidence presented to you, so help you God”.
A.R.S. §38-231. Officers and employees required to take loyalty oath; form; classification; definition
I, _____________________(type or print name)
do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of ______________________ (name of office) ________________________ according to the best of my ability, so help me God (or so I do affirm).
In all situations, it should be clear to the person who has to swear that they can “affirm” and do not need to refer to a god at all.
Act of God – the following statutes all have provisions that allow exemption or qualification due to so-called “acts of god.”
A.R.S. §3-162. Arizona registry of heritage agriculture; qualifying criteria; definition -The property can qualify regardless of “Acts of God.”
A.R.S. §16-411. Designation of election precincts and polling places; voting centers; electioneering; wait times – (I) (1) – the county recorder can declare a location a polling place if an act of God renders a previous place not useable
A.R.S. §28-6995. Preferences – In spending money from the highway fund, roads destroyed by acts of God shall be given preference.
A.R.S. §33-801. Definitions – 6. “Force majeure” means an act of God or of nature, a superior or overpowering force or an event or effect that cannot reasonably be anticipated or controlled and that prevents access to the sale location for conduct of a sale.
A.R.S. §33-993. Procedure to perfect lien; notice and claim of lien; service; recording; definitions – In defining cessation of labor more than 60 days, it does not count if the cessation was due to acts of God.
A.R.S. §35-192. Authorization for declaration of disaster; authorization for liabilities and expenses; priorities and limitations; review and report of expenditures – includes acts of god.
A.R.S. §41-1609. Agreements with federal or private agencies and institutions; contract review; emergency contracts – E. The director may declare an emergency for acts of God, natural catastrophes, prison riots and overcrowding.
A.R.S. §42-12107. Penalties- No penalty if: 2. If the historic property is destroyed by fire or act of God unless the fire was the result of an intentional act by the owner or by an agent of the owner acting on the owner’s behalf.
A.R.S. §42-12152. Criteria for classification of property used for agricultural purposes; exception; affidavit – if property has been inactive for more than 12 months as a result of an act of god, it can still qualify.
A.R.S. §42-15101 – county assessor can be 30 days late mailing out notices if due to act of god
A.R.S. §44-1698. Security freeze on credit reports and credit scores; fees prohibited; definitions – a consumer reporting agency has to remove a freeze within 15 minutes unless it is prohibited by an act of god or other disaster.
A.R.S. §44-6702. Prohibited acts of supplier – A refusal to deliver timely is excused due to an act of God.
A.R.S. §49-283. Responsible party liability exemptions; definitions – The person is not responsible for release of a hazardous substance if it was an act of god.
“Act of god” should be removed completely and replaced with “force majeure” as defined in A.R.S. §33-801 as – of nature, a superior or overpowering force or an event or effect that cannot reasonably be anticipated or controlled.
Article 2, Section 13. Equal privileges and immunities
No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.
Article 9, Section 2: Property Tax Exemptions for Churches
Exempts churches from property tax payments. (2) Property of educational, charitable and religious associations or institutions not used or held for profit may be exempt from taxation by law.
Educational and charitable organizations that are exempt from taxes have to file annual tax forms showing income and outgo. Churches do not. There are many places in the law that grant privileges to religious corporations but not other corporations, even other non-profit organizations.
TITLE 3 Agriculture
A.R.S. §3-2162(A)(2) – persons dealing with poultry are exempted from the poultry chapter by recognized religious dietary laws.
TITLE 4 Alcoholic beverages
A.R.S. §4-226 – exemption for use of wine in religious services
A.R.S. §4-244 (41) In prosecuting someone under twenty-one for having alcohol in their system, it is defense if the alcohol was consumed in connection with a bona fide practice of a religious belief or an integral part of religious exercise and not dangerous to public health or safety.
A.R.S. §4-249 -minors may consume alcohol in a religious service
TITLE 6 Banks and Financial Institutions
A.R.S.§6-702 – exempts religious organizations from this chapter related to debt management companies offering services only to their members.
TITLE 10 Corporations and Associations
A.R.S. §10-1501(D) – foreign corporations are exempted from rules to transact business in this state if they are only lending money to religious organizations, non-profits
A.R.S. §10-3621 – exempted from Rules regarding termination, expulsion, and suspension of members
One could argue such exemptions are necessary to avoid unnecessary entanglement and to let religious organizations run their cult as they see fit.
A.R.S. §10-3702 – exempt from special meetings rules
A.R.S. §10-3720 – religious organization can exempt themselves from the requirement to show members lists for meetings. (F) The articles of incorporation or bylaws of a corporation organized primarily for religious purposes may limit or abolish the rights of a member under this section to inspect and copy any corporate record.
People who donate significant amounts of money to their churches have no right to see how that money is being spent. This is an invitation for fraud and mismanagement.
A.R.S. §10-3810 – religious organizations can exempt themselves from removal of directors for cause
A.R.S. §10-311202 – religious organization exempt from regulations on who can acquire assets they’re getting rid of, and how that happens
A.R.S. §10-11430 – religious organizations can exempt themselves from the requirements for judicial dissolution
A.R.S.§10-11602(E) – religious organizations can exempt themselves allowing inspection of records
A.R.S. §10-11620 – a religious organization can exempt themselves from furnishing financial statements
These exemptions regarding members, removal of directors, dissolution, inspection of records and financial statements could open the door to wide ranging fraud. The attorney general’s office has litigated cases against religious institutions that engaged in such fraud and harmed many citizens e.g. the Baptist Foundation of Arizona in 2006. The desire not to meddle in the affairs of a religious organization must be tempered with the need to ensure that religious sects are not defrauding innocent or gullible members or the public.
TITLE 12 Courts and Civil Proceedings
A.R.S. §12-515 Religious institutions are immune from liability during a pandemic unless willful misconduct or gross negligence.
So is just about everybody else – businesses, government, healthcare, property owner, schools, non-profits.
A.R.S. §12-2233 Clergyman or priest and penitent: In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs.
Because of the widespread abuse of children known to exist in churches, this provision only increases the harm to children and allows the abuser to escape accountability. A bill was introduced in 2020 and 2022 to rectify this situation but did not pass. It should be introduced again and passed. In addition, “Clergyman or priest” sounds like it applies only to male Protestant and Catholic religious leaders. What about a female rabbi?
TITLE 13 Criminal Code
A.R.S. §13-3620 – A member of the clergy, a Christian Science practitioner or a priest who has received a confidential communication or a confession in that person’s role as a member of the clergy, as a Christian Science practitioner or as a priest in the course of the discipline enjoined by the church to which the member of the clergy, the Christian Science practitioner or the priest belongs, may withhold reporting of the communication or confession if the member of the clergy, the Christian Science practitioner or the priest determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations that the member of the clergy, the Christian Science practitioner or the priest may otherwise make of the minor.
Appears to apply only to Christians. Other religions do not refer to their leaders as clergy, so even if it is meant to include other religions, it’s a Christian-normative construct. Would priest include a voodoo priestess?
2023: HB 2516 added in subsection I that forensic interviews may be performed. No changes were made to the exemption rules.
A.R.S. §13-4062 makes any confession to a clergyman or priest confidential without the consent of the speaker.
See also A.R.S. 8-805 that applies to abused children and A.R.S. §46-453 that applies to vulnerable adults. These laws exempt the clergy from mandatory reporting of known child abuse. Because of the widespread abuse of children known to exist in churches, this provision only increases the harm to children and allows the abuser to escape accountability. Driven by the revelation of the priest in Bisbee for whom the diocese covered up for decades, two bills were introduced in 2020 and one in 2022 to rectify this situation. They should be re-introduced and passed.
Title 16 Elections and Electors
A.R.S. §16-922 – Religious assembly, institution; charitable organization; registration exemption: Religious assemblies or institutions are not required to register as a political committee if they don’t spend a substantial amount of time or assets on influencing any federal, state or local legislation, referendum, initiative or constitutional amendment.
How much is a substantial amount? If they let someone come in and hold a political rally and charge them for the use of the premises, is that all right because they didn’t spend anything? Are they allowed to be political if it doesn’t cost them? Under I.R.S. laws they are not allowed to spend any money or resources endorsing a candiate.
TITLE 23 Labor
A.R.S. §23-206 – If an employee has religious objections to COVID-19 vaccination, the employer shall provide a reasonable accommodation unless the accommodation would pose an undue hardship and more than a de minimus cost to the operation of the employer’s business.
A.R.S. §23-617(10). Services done for a religious organization do not count as employment to determine if the organization is an “employer” under the legal definition so long as certain requirements apply.
A.R.S. §23-1603 (D) (2) Qualified Marketplace Contractors – services done for a religious organization does not qualify to make one covered as an independent contractor.
TITLE 26 Emergency and Military Affairs
A.R.S. §26-121 Members of clergy are exempt from serving in state militia.
A.R.S. §26-125 A. The county recorder shall take under oath the statement of any person claiming exemption from service under the provisions of section 26-121, and shall employ means he deems necessary to establish the exemption. The recorder shall, if satisfied the person is exempt, enter his name on the rolls and opposite the name make the notation “Exempt.” B. Determination of exemption by a county recorder or other enrolling officer is subject to review by the adjutant general, and his decision shall be final.
TITLE 28 Transportation
A.R.S. §28-3174 (D) Class G Driver License: On a restricted license, the person can drive to a sanctioned religious activity. All they need is a letter from the parent or a representative of the religious institution.
This introduces obvious discrimination. What if the person wants to drive to a Humanist meeting or an LGBTQ support group or a Narcotics Anonymous group or even to a meeting of Cancer Survivors or Parents of Murdered Children? Religious groups should not get specific permission when other groups that serve similar purposes and are non-religious civic or community groups do not.
Courts have generally found Alcoholics Anonymous (and by extension, all other fellowships that use the same 12 steps) to be a religious program, ruling that governments can’t force people to attend them. So a person might be able to attend any of those legally.
A.R.S. §28-3309 If a judge orders a license suspension for prohibition of serving minors alcohol, that does not apply for a religious service or ceremony.
A.R.S. §28-5432 (C ) – Exemption for gross weight fee – A motor vehicle, trailer or semitrailer that is owned and operated by a religious institution and that is used exclusively for the transportation of property produced and distributed for charitable purposes without compensation is not covered. But “religious institution” means a recognized organization that has an established place of meeting for religious worship and that holds regular meetings for that purpose at least once each week in at least five cities or towns in this state.
This shows obvious favoritism to established religions or those with large followings and sufficient monies to have vehicles and physical buildings. The Salvation Army holds worship services and their donation trucks would qualify.
TITLE 32 Professions and Occupations
A.R.S. §32-1421 – The chapter applies to medicine and surgery but not to: 3. The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance.
A.R.S. §32-1631 – The chapter applies to nursing. It does not prohibit: 6. Caring for the sick in connection with the practice of religion or treatment by prayer.
A.R.S.§32-2123 – application for broker or sales license, if for religious reasons, a person doesn’t want to get a social security card, they can use a tax ID number.
A.R.S. §32-2194 – This chapter regarding real estate does not apply to religious organizations at all. It exempts any religious corporation, church, religious society or denomination, and any cemetery organized, controlled, and operated by them to be exempt from regulation.
Obviously, this could be a public health and safety problem if not managed correctly.
A.R.S. §32-2523(E) Physician’s assistant can be late in renewing their license if on a religious mission.
A.R.S. §32-2911 – The chapter covers homeopathic physicians and does not cover: The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance.
Why is one pseudoscience (homeopathy) regulated and not another (religion)? This favors religious belief over other types of pseudoscientific belief.
A.R.S. §32-3022 – Religious institutions do not need to get a license to grant degrees.
Allowing a religious institution to grant degrees without having to be licensed has led to fraud. In 2018 the courts granted a $25 million dollar judgment against Trump University that was an unlicensed university. Many of the for-profit colleges have gone bankrupt and left students with huge debts but without education e.g. Corinthian in 2015, ITT Technical in 2016, ECA and Golf Academy in 2018, Argosy in 2019 and more. Some of these had campuses in Arizona. The state should protect the students not the institutions.
A.R.S. §32-3102 – the chapter covers the regulation of health professions and exempts the practice of religion or any kind of treatment by prayer.
A problem with the many provisions exempting “treatment” by prayer or laying on of hand is that – If a person wants to be treated with a religious rite, prayer, or laying on of hands, that person should be able to do that, but that person then must also accept the consequences of their choices.
They cannot expect to use this method that is not evidence-based or scientific in a facility that receives any public benefits or use any public resources including police or ambulance when said method does not work and they are then in need of allopathic medicine. If they refuse known preventative measures (e.g. COVID or measles or polio shots), when they become sick, they should go to the back of the line for medical services and not occupy spaces that are needed by those who took precautions for themselves and society. It is not the provision of health care at all and not a profession or occupation.
A.R.S. §32-3221 – the chapter covers health professionals and says: B. Unless an entity has a sincerely held religious or moral belief, the entity may not restrict a health professional who is an employee of or affiliated or contracted with the entity for making a patient aware of or educating or advising a patient about lawful health care services, including the off-label use of health care services, or health care-related research or data. 4. Sincerely held religious or moral belief does not include a belief that restricts the access by a patient to a lawful health care service based on the cost of the lawful health care service for that patient.
The section has at least two problems. Entities do not have religious or moral beliefs. Entities are not humans and do not have beliefs at all. Therefore no entity can tell an employee that they cannot educate and advise their patient in the way the health care professional sees fit. No abstract entity should be directing the health care of anyone. The health care professional has laws and ethical codes that regulate their behavior.
The hidden purpose here is to cover any Catholic hospital or any other hospital that abides by the Catholic Ethical and Religious Directives document rather than medical standards of practice. https://www.usccb.org/resources/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06_3.pdf. The Catholic Church, when it wants to sell a hospital, typically requires the purchaser to continue following the directives even if it was a secular institution. This is an immoral denial of medical care to patients against the Hippocratic Oath. More data: https://www.communitycatalyst.org/resources/publications/document/2020-Cath-Hosp-Report-2020-31.pdf
The second problem is that the patient is entitled to the best care. That care includes the caregiver telling the patient of all options and possible repercussions so the patient can make the most informed choice. Failure to give complete information means the patient is not giving informed consent. No person should be licensed unless that person is going to give complete information to a patient. If the person does not want to do the procedure or action, they can refer to others, but they should not be able to withhold information from a patient, thus potentially harming the patient and prohibiting informed consent.
If it is free speech to be able to yell “murderer” outside an abortion clinic, then it should be “free speech” to give correct medical advice within. If it is free speech to send pregnant women to fake pregnancy centers that give inaccurate information, then it should be free speech to tell women about legitimate clinics and accurate information.
A third issue is that the health care “professional” is violating their own ethics code.
A.R.S.§32-3271 – behavioral health practitioner license exemptions – the chapter on licensure does not apply to 3. A rabbi, priest, minister or member of the clergy of any religious denomination or sect if the activities and services that person performs are within the scope of the performance of the regular or specialized ministerial duties of an established and legally recognizable church, denomination or sect and the person performing the services remains accountable to the established authority of the church, denomination or sect.
It also does not apply to a Christian Science practitioner with certain conditions (A) (11) including the person being accountable to the church.
This is discrimination against other sects. It “establishes” one set of churches – those legally recognizable and established. That would be exactly counter to the function of the freedom of religion to allow everyone to believe and practice as s/he wishes. That the practitioner is accountable to the church is scant hope for the person harmed. This includes a behavioral health diagnosis of demonic possession and authorizes performing exorcisms during which many people have been abused physically and sexually. The church is not required to disclose anything about it.
TITLE 33 Property
A.R.S. §33-1308 – Excluded from the chapter (Arizona Residential Landlord and Tenant Act): 1. Residence at an institution, public or private, if incidental to detention, the provision of medical, educational, counseling or religious services or the provision of a social service program that is provided by a social service provider.
A.R.S. §33-1310(6) – Housing assistance payment does not include any payment made by a faith-based organization, a community action agency program or a nonprofit entity.
TITLE 36 Public Health and Safety
A.R.S. §36-184( C) – county health department cannot insist on any treatment or exam or test the person objects to due to religion
Due to low measles vaccination, Arizona now has a measles outbreak. In New York, after fifty years, they have a polio outbreak for the same reason.
A.R.S. §36-402 – Assisted living facilities, nursing homes, hospices – those which rely on prayer and spiritual treatment are exempt from licensure, supervisor, regulation, and control.
A.R.S. §36-446 – likewise a nursing care institution relying on prayer and spiritual treatment does not come under the definition of institutions that can be regulated
A.R.S.§36-734 – treatment for tuberculosis, exemption, a person is not required to undergo treatment if that person depends exclusively on prayer or spiritual means and practices of a recognized church or religious denomination and claims an exemption on that ground. The person can be excluded with tuberculosis if the person is a substantial danger. The person cannot be forced to go to a treatment facility if s/he can be treated or quarantined in the home.
A.R.S. §36-787 – in a state of emergency or war, the state cannot impose treatment against a person’s will so long as sanitary or preventive and quarantine laws are complied with. Unfortunately it also says the department cannot impose any treatment on a person who claims it violates his/her religious concepts again provided that sanitary and preventive and quarantine laws are complied with.
A.R.S. §36-883(C) Day care centers: Any rule that relates to educational activities, physical examination, medical treatment or immunization shall include appropriate exemptions for children whose parents object on the ground that it conflicts with the tenets and practices of a recognized church or religious denomination of which the parent or child is an adherent or member.
These provisions elevate the religious belief above public safety and put the public at risk, especially vulnerable persons. It also “establishes” religion by determining which churches will be recognized.
A.R.S. §36-884- The chapter covers day care centers and does not apply to: 2. A religious institution conducting a nursery in conjunction with its religious services or conducting parent-supervised occasional drop-in care.
A.R.S. §36-897.04 – The chapter covers childcare programs and group home services but does not cover: 2. A religious institution conducting a nursery in conjunction with its religious services.
A.R.S. §36-1971 (C ) 2. An interpreter who provides interpreting services for the deaf and hard of hearing at religious activities is exempt from licensing
A.R.S. §36-2208 (B) – law enforcement, public agency or member of a fire department can offer on-site emergency medical care but if the patient objects on religious ground, that patient shall not be administered any medical treatment or be transported to a hospital or an emergency receiving facility.
TITLE 38 Public Officers and Employees
A.R.S. §38-797.07 – In the long-term disability (LTD) program (under Arizona State Retirement System) a member can rely on treatment by prayer through spiritual means in accordance with the tenets and practice of a recognized church, religious denomination or Native American traditional medicine by a duly accredited practitioner of the church, denomination or Native American traditional medicine without suffering reduction or suspension of the member’s monthly LTD program benefits.
Two problems surface here. First it “establishes” a religion by determining which religious sects will be acceptable. It also means that a person who is receiving taxpayer dollars can rely on treatment that is not evidence-based or scientific. They should not expect to use this method that is not evidence-based or scientific in a facility that receives any public benefits or use any public resources including police or ambulance when said method does not work and they are then in need of allopathic medical care.
Also, disability must be established by objective evidence, but elsewhere in the law a person has the right to refuse any exam or test for religious reasons. They can remain on LTD indefinitely by refusing treatment due to religious reason or by relying only on prayer. Thus everyone else in the State Retirement System is forced to pay for religious believes that they do not adhere to.
TITLE 41 State Government
A.R.S. §41-1462 – This article (Ch. 9 Civil Rights Art. 4 employment discrimination) does not apply to an employer with respect to the employment of aliens outside any state or to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.
The recent Supreme Court decision in St James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru unfortunately ruled that the ministerial exception applies to nearly everyone who works for a religious organization and thus the ability to sue based on discrimination has been very restricted.
A.R.S. §41-1491.03 – Religious organization and private club exemption from fair housing laws:
Religious organizations can discriminate based on religion.
A.R.S. §41-1492.07 – The chapter covers public accommodations and unfortunately makes: 1. Private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 (42 United States Code section 2000(a)(e)) or to religious organizations or entities controlled by religious organizations, including places of worship.
TITLE 42 Taxation
A.R.S. §42-5069 – commercial leasing – does not include leasing or renting spaces to religious groups if used for worship
Presumes that worship of one or more deities is a necessary part of religion. Buddhism has taken on many cultural flavors, but in its basic form does not worship any deity. What if the property is leased to a secular humanist group?
A.R.S. §42-5070 – the transient lodging definition does not include religious lodging regarding taxation
A.R.S. §42-5073 – The amusement classification does not include activities or projects of religious institutions.
While other 501(c)3 organizations also get these breaks, they must turn in 990s annually identifying their donors, income, and expenditures; churches do not. Churches get the benefit automatically without identifying donors.
A.R.S. §42-11109 – A. Property or buildings that are used or held primarily for religious worship, including land, improvements, furniture and equipment, are exempt from taxation if the property is not used or held for profit.
2023: SB1230 added that religious organizations must file an affidavit when initially claiming the exemption. Interestingly it says that they must file proof of their 501(c)3 status from the IRS. Most churches are not 501(c)3 so it will be interesting to see how they can comply.
A.R.S. §42-11129 – exemption for fraternal societies under 501(c) 8 if they devote the funds to religious or other nonprofit
A.R.S. §42-11132 – B. Property, buildings and fixtures that are owned by an educational, a religious or a charitable organization, institution or association and leased to a nonprofit educational organization, institution or association are exempt from taxation if the property is used for educational instruction in any grade or program through grade twelve.
A.R.S. §42-11132.01 A. Property, buildings and fixtures that are leased to a nonprofit church, religious assembly or religious institution and that are primarily used for religious worship are classified as class nine property pursuant (tax rate is 1%.)
B. Property, buildings and fixtures that are owned by an educational, religious or charitable organization, institution or association, that are leased to a nonprofit church, religious assembly or religious institution and that are primarily used for religious worship are exempt from taxation.
C. If the organization provides evidence to the county assessor of its 501(c )(3) status plus an affidavit that it is primarily used for worship, it is exempt from filing future affidavits.
The assumption is that religious groups gather for purposes of worship. That’s only what the dominant religions do. There can be rituals and ceremonies and meditations that are legitimate gatherings for religious purposes but don’t involve worship. It also grants a privilege to religious organizations that is not available to other nonprofit corporations.
Further, while religious corporations do not pay taxes, under the new Supreme Court cases they can receive tax monies in school vouchers system, playground resurfacing etc.
A.R.S. §41-11154 – nonprofit organizations must have a letter of determination issued by the IRS which means they have filled out extensive documentation and must file annual reports, but a church, synagogue, temple, mosque or similar organization does not have to provide a letter of determination from the IRS.
The obvious response from some groups has been and will continue to be to become a church and claim this status to receive all the tax breaks and other exemptions from the law.
A.R.S. §42-12002 – class 2 property, religious property is a subclass unless the financial benefit is for the religion and then not.
An analysis done by Secular Communities in 2019 showed that approximately $1 million of tax revenue is lost annually because of these exemption provisions. At the same time, churches often violate the IRS provision against campaigning for a political candidate and yet continue to benefit from the provisions and pay no taxes. In 2019, a complaint was filed against Calvary Chapel in Mesa for hosting a political rally for Trump and in 2020 a complaint was filed against the Dream City Church for hosting a Trump rally in the middle of a pandemic while violating mask and social distancing provisions. In 2022, four complaints have been filed thus far. If they are going to get the benefits, they should follow the same rules.
TITLE 44 Trade and Commerce
A.R.S. §44-1843 (A)(6): Securities issued by religious organizations are exempt from the investment company definition as are other non-profits.
TITLE 8 Child Safety
A.R.S. §8-921 – no one may take any discriminatory action against a person that advertises, provides or facilitates adoption or foster care services on the basis that the person has provided or declines to provide adoption or foster care services based on the person’s religious belief or exercise of religion.
Religious discrimination now means that religions can discriminate under the free exercise clause, and if an entity chooses not to do business with them because of this discrimination, the entity is engaging in discrimination based on religion. Upheld on narrow grounds by Supreme Court in Fulton v. City of Phila., 141 S. Ct. 1868 (2021). In fact, the entity (the employer, who is not allowed to discriminate based on religion) must do business with a service provider who discriminates based on religion if it meets all the other requirements.
This flies in the face of the long-established principle that what a government cannot do directly, it cannot do indirectly. Norwood v. Harrison, 413 U.S. 455, 465 (1973) (“ Racial discrimination in state-operated schools is barred by the Constitution and “[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Lee v. Macon County Board of Education, 267 F. Supp. 458, 475-476 (MD Ala. 1967).”)
c.f. 8-529(A)(6) foster child has right to be raised in religion of his/her choice if it’s not too inconvenient (but not because the foster parent disagrees with their choice).
TITLE 15 Education
A.R.S. §15-806 – students can be excused for religious reasons.
A.R.S. §15-2404 – state agencies cannot exercise any control over nonpublic schools and they “shall not be required to alter its creed, practices, admission policy or curriculum, to take state money from empowerment scholarship accounts. In a legal action, the burden of proof is on the state that the law is necessary and does not impose undue burden.”
This is very clearly discrimination for religious schools to take taxpayer money while establishing religion. Unfortunately, in a series of bad decisions from 1999 in Kotterman v. Killian to Niehaus v. Huppenthal in 2013, Arizona citizens lost their ability to prohibit tax monies from going to religious schools. The recent case of Espinoza v. Montana (2020) at the Supreme Court makes it national. If there are going to be vouchers, the religious schools will get the money. The solution is no vouchers. Carson v. Makin, supra, also affirmed tax money going to religious schools. In 2022 a bill was passed making vouchers available to every K-12 student in the state. Newspaper articles have shown that 75% of those applying never went to public schools i.e. could afford private schools before the vouchers. Also the article researched what items were purchased with the vouchers and it included exercise equipment, trips, cooking classes, and worst of all highly unscientific religious based books that denied evolution and other scientific facts.
TITLE 20 Insurance
A.R.S. §20-826 Hospital and medical service corporations (employer contracting with an insurer for coverage for its employees)
(Z) A religiously affiliated employer may require that the corporation provide a contract without coverage for specific items or services required under subsection Y of this section (contraception) because providing or paying for coverage is contrary to the religious beliefs of the religiously affiliated employer offering the plan.
(CC)(3) “religiously affiliated employer” means either: (a) An entity for which all of the following apply: (i) The entity primarily employs persons who share the religious tenets of the entity. (ii) The entity primarily serves persons who share the religious tenets of the entity. (iii) the entity is a nonprofit organization under IRS rules; (b) An entity whose articles of incorporation clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization’s operating principles.
See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)the case doesn’t seem to fit this definition of religious employer but that didn’t matter to the Supreme Court. Hobby Lobby is a for-profit corporation privately held by people allegedly with strong religious views. Corporation stock was invested in the very birth control company they refused their employees to have. It was a statutory decision not one based on the Constitution.
A.R.S. §20-1057.08 – Prescription contraceptive drugs and devices, definition (B) a religiously affiliated employer may opt out of certain items. See below. (C ) If the prescription for contraception is for something else, then it’s all right. The definition of such employer is below.
A.R.S. §20-1404 – a religiously affiliated employer with a blanket disability policy can opt out of specific coverage claiming its “contrary to the religious beliefs of the religiously affiliated employer offering the plan.” If prescription coverage for contraceptives is for something other than contraception, that’s all right though additional steps are required. “Religiously affiliated employer” has same definition as A.R.S. §20-826, supra.
A.R.S. §20-2329 – prescriptions for contraception drugs & devices. (B) allows a religiously affiliated employer to opt out of certain items as above. (C ) contraception prescribed for something other than contraception is allowed. The definition is the same as above. (F) . “Religiously affiliated employer” has same definition as A.R.S. §20-826, supra.
These provisions make it clear that the so-called religious institutions don’t object to the medication but to the fact that a woman can get pregnant. Thus she is being punished for her biology by an employer. That is prohibited and constitutes discrimination against her. Unfortunately, the U.S. Supreme Court has not seen fit to protect women’s constitutional rights in the Little Sisters case supra. They made it perfectly clear in Dobbs v. Jackson Women’s Health that women do not exist under the Constitution.
Under the definition, all an organization must do is say in its incorporation documents that it’s religiously motivated and central to operating principles. That opens the door wide to fraud and abuse.
TITLE 23 Labor
A.R.S. §23-615 B. “employment” does not apply to service performed for any of the following: 1. In the employ of a church or convention or association of churches, or an organization that is operated primarily for religious purposes, including educational and childcare services that include religious instruction, and that is operated, supervised, controlled, or principally supported by a church or convention or association of churches.
2. By a duly ordained, commissioned or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by the order.
Thus the religious institutions can avoid the labor provisions that protect workers.
TITLE 32 Professions and Occupations
A.R.S. §32-3212 – umbilical cord blood – Although a health care professional must inform the patient in the second trimester or later of the cord blood options, D. This section does not impose an obligation on a health professional to inform a pregnant woman regarding the option of umbilical cord blood collection if that information conflicts with the health professional’s bona fide religious beliefs. E. A person who acts in good faith pursuant to this section is not subject to civil or criminal liability or professional discipline for those acts.
This very clearly violates the patient’s right to know and have full information on all options. She cannot give informed consent when information is being withheld. If it is free speech for fake pregnancy clinics to give incorrect information, then it must be free speech for medical professionals to give accurate information. To force medical professionals to give inaccurate information is compelled speech which is forbidden under Brush and Nib v. City of Phoenix.
TITLE 36 Public Health and Safety
A.R.S. §36-112 – a medical institution can refuse to follow the wishes of a patient regarding the umbilical cord blood so long as they tell them they are not going to abide by their wishes as soon as feasible.
While this provision requires that so-called health professional to tell the patient that they are not going to follow the law, “as soon as feasible” is not sufficient to ensure that the information will be forthcoming in a prudent manner so that the patient can make appropriate decisions. It must be immediate when the so-called health professional sees the woman so she can go elsewhere where her wishes are honored.
This clearly elevates one person’s religious belief over another person’s religious belief and over that person’s health. This is discrimination, an attack on women’s health, and a violation of informed consent.
A.R.S. §36-2154 –A hospital can refuse to admit a patient and a health care provider can refuse to participate in an abortion or contraception
The hospital, pharmacy and/or health care provider must be obligated to make this public information and tell any person seeking health care immediately and tell them of available alternatives. Otherwise they are prohibiting them from making an informed consent.
TITLE 41 State Government
A.R.S. §41-1493.01 – Free exercise of religion protected. A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral. B. Except as provided in subsection C, government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. C. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:
- In furtherance of a compelling governmental interest. 2. The least restrictive means of furthering that compelling governmental interest.
D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
E. In this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
This state version of the “Religious Freedom Restoration Act” has wide-ranging and long-standing problems. In the first place, there was no religious freedom lost that needed restoring. But legislators jumped on the bandwagon without thoroughly evaluating the issue. Now the RFRA is used as a sword to cut down other religions and non-religions when it was allegedly to be a shield to protect religion. There are federal moves to revise the federal RFRA. We should follow those moves. Fortunately, the state version has not been used much in AZ i.e. only four cases, only one of which has precedential value.
The law can be used to discriminate against LGBTQ individuals in public accommodations, such as in goods or services that won’t be sold to them (many wedding-related) because of the seller’s religious views. Free exercise trumps the Arizona Civil Rights Act (https://www.azag.gov/civil-rights/pamphlet) which specifically prohibits discrimination on the basis of sex in the sale of goods and services.
A.R.S. §41-1493.02 – Applicability -A. This article applies to all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether adopted before or after the effective date of this article.
- State laws that are adopted after the effective date of this article are subject to this article unless the law explicitly excludes application by reference to this article.
- This article shall not be construed to authorize any government to burden any religious belief.
It is clear from this wording, that the intent of the state RFRA was to change the principle that so long as a law or ordinance was neutral regarding religion i.e. applied to all and wasn’t about religion, it was acceptable, and churches had to follow it i.e. non-discrimination laws. This current language is to explicitly prohibit laws from applying to religion whenever the people belonging to that religion claim it burdens their belief. Thus we have the problem of every person being a law unto themselves by simply declaring that this or that violates his/her religious belief i.e. making wedding invitations for LGBTQ people. The court refuses to question the belief itself, only ruling on whether the belief is “sincerely held,” so a person can claim anything e.g. the man who shot his wife and her partner in Glendale said in his church, it was not only allowed, but mandated that a man had to kill his wife who committed adultery. This is where we are going, and it is a very scary place indeed.
The darling of the religious right, Justice Scalia highlighted this very principle: “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145 (1878)).
This is precisely what this section does.
A.R.S. §41-1491.03 – a religious organization can discriminate by refusing to sell a property to anyone but someone from that religion, giving preference to the same religion unless it’s restricted by race, color or national origin.
Note that sex is not included in the list of prohibited categories to discriminate against. This allows religions that devalue women to discriminate and violates a woman’s right to due process and equal protection.
Article 2 Section 13. Equal privileges and immunities: No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.
Most of this section involves privileges given to religious groups that are not given to other nonprofit corporations. One argument will be that religious freedom is enshrined in the Constitution, making not similarly situated to other nonprofits. But no one is trampling on their beliefs; these are extra privileges they get. The Constitution speaks of beliefs that belong to individuals, not institutions or corporations.
Would nonbelievers have to belong to a group such as the Humanist Society in order to get the same privileges and exemptions that religious groups get, because humanism is well-established, has known beliefs, and occupies a place in the person’s life similar to what a deity does for others? Or can we go our separate ways and have individual beliefs and not have to form an association simply to argue for a constitutional right that is already granted to us?
TITLE 4 Alcoholic Beverages
A.R.S. §4-207 Zoning restrictions within 300 feet of a church, which can be modified in certain situations
TITLE 5 Amusements and Sports
A.R.S. §5-401 (25) – a religious organization is a “qualified organization under the law” for the purposes of bingo.
A.R.S. §5-572 (E) – Of monies remaining in the state lottery fund after appropriations and deposits, Department of Economic Security can give grants to nonprofit organizations, including faith-based organizations, for homeless emergency and transition shelters and related services.
The lottery fund is state money and should be spent on government or nonprofit projects, not faith-based organizations who don’t themselves pay taxes into the government services they receive.
TITLE 8 Child Safety
A.R.S. §8-105.03 – religious organizations can work on adoption so long as no public money is used for religious purposes.
The problem is that money is fungible. So any dollar that is received from the public can replace money the organization might have had to spend for repair of the air conditioner or replacing the locks on the door which are not religious purposes. But that money they save by using public funds on that, frees up other monies to be used for religious purposes. Therefore, religion is being “established” and favoritism is being shown.
It is interesting that Christian Science is mentioned three times and that they are they singled out. The treatment of the child should be the issue not the belief of the adult. Children have rights independent of their parents or other adults including their right to life and health. Religious doctrine should not override those rights.
A.R.S. §8-805 – In a civil or criminal litigation about child abuse, a clergyman or priest may not be questioned about anything said in confession.
TITLE 9 Cities and Towns
A.R.S. §9-499.07 – F. The city or town may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals.
See discussion in Title 11 that has the same provisions below.
TITLE 10 Corporations and Associations
A.R.S. §10-3180 – religious doctrine of a religious corporation overrides Title 40 which is Public Utilities and Carriers if it is inconsistent to the extent required by the state and federal Constitutions.
A.R.S. §10-3830 (B)(4) General standards for directors of nonprofits – boards of directors can rely on religious persons statements, 4. In the case of corporations organized for religious purposes, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented.
A.R.S. §10-3842(B)(3) –outlines standards of conduct for officers of nonprofit corporations. In the case of corporations organized for religious purposes, an officer can rely on religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the officer believes justify reliance and confidence and who the officer believes to be reliable and competent in the matters presented.
A.R.S. §10-3864(B)(3)- Religious corporations not required to have a conflict-of-interest policy
The obvious problem with this is fraud e.g. the Baptist Foundation and criminal activity e.g. the many scandals in the Catholic churches and diocese. Such crimes and harms are allowed to go on longer than they would if the organizations were held to the same standard of accountability and transparency as other organizations. There clearly is no reason that religious authorities should be believed or trusted any more than other people. There is no evidence to show they are any more moral or ethical or principled. Even if there were, one must look at the individual not the class. The current provisions elevate religious people above secular people and constitute discrimination and an establishment of religion.
TITLE 11 Counties
A.R.S. §11-251.15 (E) E. The court may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals.
A.R.S. §11-459 (F) F. The sheriff may allow prisoners to be away from home detention for special purposes, including church attendance, medical appointments or funerals. The standard for review and determination of such leave is the same as that implemented to decide transportation requests for similar purposes made by prisoners who are confined in the county jail.
In these two sections and in §9-499, church attendance is prioritized over other potential events that are pro-social and could be more beneficial to a prisoner such as a child’s graduation or marriage, a family reunion, an atheist gathering, or a yoga class. There is no evidence that church attendance is superior to these other activities in prisoner rehabilitation.
A.R.S. §11-593 (E) If a person dies who was under treatment by prayer or spiritual means alone, in accordance with the tenets and practices of a well-recognized church or religious denomination, and death occurred without a physician or nurse practitioner in attendance, the death has to be reported but the external examination or autopsy can be waived.
What if it was the person’s choice but they don’t go to church? Many of these laws favor well-recognized or well-established religions. Although many people profess no religion, they still have strong beliefs and values that guide their medical choices. Freedom of association also includes freedom not to associate but no case law addresses it in this context. Laws like this favor people in majority religions over minority ones and people who choose not to associate.
TITLE 13 Criminal Code
A.R.S. §13-1422 – adult oriented business must be 300 feet from a place of worship defined as 11. a structure where persons regularly assemble for worship, ceremonies, rituals and education relating to a particular form of religious belief and which a reasonable person would conclude is a place of worship by reason of design, signs or architectural or other features.
The problem here is that it “establishes” what a place of worship must look like and discriminates against other sects that might either look different or not have enough money for a building.
A.R.S. §13-1422 For purposes of this chapter on organized crime and terrorism 9. “Material support or resources” includes money or other financial securities, financial services, lodging, sustenance, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, disguises and other physical assets but does not include medical assistance, legal assistance or religious materials.
A.R.S. §13-2930 A. A person shall not picket or engage in other protest activities, and an association or corporation shall not cause picketing or other protest activities to occur, within three hundred feet of the property line of any residence, cemetery, funeral home, church, synagogue or other establishment during or within one hour before or one hour after the conducting of a funeral or burial service at that place.
TITLE 14 Trusts, Estates and Protective Proceedings
A.R.S.S §14-5310.01(A). Nothing in this act shall be construed to mean that an adult is abused or neglected or in need of protective services for the sole reason that he relies on treatment from a recognized religious method of healing in lieu of medical treatment.
Again, a person can choose to rely on religious healing in lieu of medical treatment, but the public should not be forced to pay for the results i.e. need for emergency care, extra procedures, or other publicly funded services if a person chose to use treatment that is not evidence-based or scientific. It also favors “recognized” religions.
TITLE 15 Education
A.R.S. §15-102(A)(3) – can opt out of activities or material due to sex, morality or religion
(A)(7)(d) – can opt out of immunizations based on religion and (g) education on HIV and (n) to be excused for religious purposes;
See earlier comments regarding opting out of immunizations and being excused from school for religious purposes.
A.R.S. §15-110 Rights of students at public educational institutions; limitations; definition
A. A public educational institution shall not discriminate against students or parents on the basis of a religious viewpoint or religious expression.
B. If an assignment requires a student’s viewpoint to be expressed in coursework, artwork or other written or oral assignments, a public school shall not penalize or reward a student on the basis of religious content or a religious viewpoint. Instead, a student’s academic work that expresses a religious viewpoint shall be evaluated based on ordinary academic standards of substance and relevance to the course curriculum or requirements of the coursework or assignment.
At least science classes don’t typically ask for the student’s viewpoint. They ask for the scientific viewpoint.
C. Students in public schools may pray or engage in religious activities or religious expression before, during and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression.
D. Students in public schools may wear clothing, accessories and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories and jewelry that display messages or symbols are permitted.
Does this include Christian nationalist, white supremacist symbols and sayings? Can they wear swastikas? Several schools have dress codes prohibiting any reference to Satanism, though Satanism is a recognized religion. In N.J. v. Sonnabend, U.S.C.A. 7th, Nos. 20-C-227 and 20-C-276 (June 15, 2022) seventh graders were barred from wearing t-shirts with firearms on them. The district court ruled for the school, but the 7th circuit reversed using Tinker to say that unless the school can show that the speech would disrupt, it is allowed.
E. This section shall not be construed to authorize this state or any of its political subdivisions to do either of the following:
- Require any person to participate in prayer or in any other religious activity.
- Violate the constitutional rights of any person.
F. This section shall not be construed to limit the authority of any public educational institution to do any of the following:
- Maintain order and discipline on the campus of the public educational institution in a content and viewpoint neutral manner.
- Protect the safety of students, employees and visitors of the public educational institution.
- Adopt and enforce policies and procedures regarding student speech at school provided that the policies and procedures do not violate the rights of students as guaranteed by the United States and Arizona constitutions and laws.
- Adopt and enforce policies and procedures that prohibit students from wearing any type of clothing, accessories and jewelry that is worn with the intent to convey affiliation with a criminal street gang as defined in section 13-105.
G. A student or students must go through two levels of school administration (principal, superintendent) before they can take any legal action.
H. For the purposes of this section, “public educational institution” means. A school district, including its schools; a charter school; an accommodation school; Arizona state schools for the deaf and the blind.
The provision says that a school district shall not discriminate on the basis of religious viewpoint or expression and then proceeds to do exactly that. In (B) a student can express her viewpoint on a religious basis and though the answer may be wrong, e.g. the earth is 6,000 years old, s/he cannot be penalized for that incorrect answer. In (C ), students can pray or engage in religious activities or expression before, during and after school in the same manner as other children. In (D) they may wear clothing, jewelry or symbols that display religious messages to the same extent that others can. But the same rules do not apply to gang symbols (F)(4) which, in certain circumstances, could be meeting the same social needs as a religious sect does. In (F) no one can be forced to participate in prayer or religious practices, or their constitutional rights violated.
Public schools are supposed to be in the business of teaching facts. The parent always has the option of telling the child, “I know that’s what they teach in school, but it’s not what we believe.” The public education system should not be forced to accommodate religious beliefs that are contrary to its mission to educate. A religious viewpoint is not an alternative set of facts; it’s a belief in spite of the facts.
The Ninth circuit recently ruled in Sabra v. Maricopa Community College District Mohamed Sabra and CAIR v. MCCD and Damask, Case 2:20-cv-01080-DMF Filed 06/02/20 that just because a teacher says something the hearer considers offensive about his religion, that does not make it a violation of free exercise. The hearer’s ability to practice his religion was not interfered with. To argue that one cannot say something offensive about a religion is to bring back blasphemy laws which were thankfully abolished. A person’s “feelings” are not protected.
A.R.S. §15-541 (B) – Good and just cause to terminate a teacher does not include religious or political beliefs or affiliations unless they are in violation of the oath of the teacher.
A.R.S. §15-720 – religious clubs are allowed in 7th and 8th grade.
This is an attempt to extend the federal law that limits such clubs to 9-12 grades down to middle school. The Equal Access Act (“EAA”) is a federal law that prohibits public high schools from discriminating among student clubs. If a school receiving federal funds opens a “limited open forum,” it cannot “deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” 20 U.S.C.A. § 4071(a). This law allows student clubs to form and meet during noninstructional time. Board of Education of Westside Community Schools v. Vergens, (1990) upheld the Equal Access Act that in public secondary schools, students can form religious and other types of clubs that meet during non-instructional time but must be voluntary. Supreme Court decisions have said that younger students don’t yet have the maturity to separate their opinions from the influence of their teachers which is why the clubs should not be in middle school.
In a discussion on Sept 3, 2020 with a school district administrator in charge of sports, he said that those in middle school really have no idea how to run the clubs and the faculty and staff end up taking charge which is precisely why they are not allowed in the lower grades. The federal law prohibits faculty or staff from participating in the clubs as that is clearly an adult proselytizing a child in school.
A.R.S. §15-717 – allows schools to read or post specifically religious statements such as “in god we trust”, Ditat Deus which means “god enriches”, “under god” in the pledge of allegiance, the state constitution preamble that claims that we are grateful to almighty god for liberty, and the national anthem that explicitly condones slavery in the third stanza.
None of these provisions date back to the founding of the nation and all violate either the separation clause or the establishment clause. “In God We Trust” is not our founding motto.
The U.S. motto on the initial 1776 design of the Great Seal of the United States chosen by John Adams, Benjamin Franklin, and Thomas Jefferson, is E Pluribus Unum (“Of Many, One”), celebrating plurality, not theocracy. The Fugio cent, a penny authorized by Congress in 1787 and reportedly designed by Benjamin Franklin, contained the mottos “Mind Your Business” and “We Are One” – a reference to the thirteen colonies.
The statement “In God We Trust” does not appear in any Jewish Torah or Christian Bible. The phrase is literally found in two places of the Quran, in Surah 10 Yunus, as well as Surah 7 Al-A’raf. It first appeared in the U.S. in 1864 on a two-cent piece but not on paper money until 1957. It was first suggested by a pastor in PA in 1861 to make it clear that God was on the side of the Union in the Civil War. In 1863, it began to be put on coins, but legislation was necessary and that was passed in 1864.
“In God we Trust” did not become the official motto until 1956 when it was adopted by Congress and put on paper money. Like “under God” in the pledge, “In God We Trust” was a response to the Cold War with the U.S.S.R. to separate ourselves from the godless communists. The representative from Florida who introduced the bill referred to communism as the reason we needed it.
Objections to its use have been ongoing. The first case was in 1970 and then again in 1978 and 1979 with the latest in 2015. One court said the “primary purpose of the slogan was secular.” Another said it is patriotic or ceremonial and has lost all religious content. One court said the motto had no theological or ritualistic impact – so god has no theology? It never ceases to amaze that religious people do not object to the courts calling their god secular which trivializes their entire belief system.
President Theodore Roosevelt objected to the irreverence caused by putting it on coins:
“… My own feeling in the matter is due to my very firm conviction that to put such a motto on coins, or to use it in any kindred manner, not only does no good, but does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege. … Any use which tends to cheapen it, and, above all, any use which tends to secure its being treated in a spirit of levity, is from every standpoint profoundly to be regretted. … it seems to me eminently unwise to cheapen such a motto by use on coins … In all my life I have never heard any human being speak reverently of this motto on the coins or show any signs of its having appealed to any high emotion in him, but I have literally, hundreds of times, heard it used as an occasion of and incitement to … sneering … Everyone must remember the innumerable cartoons and articles based on phrases like ‘In God we trust for the 8 cents,’ … Surely, I am well within bounds when I say that a use of the phrase which invites constant levity of this type is most undesirable. …” – Theodore Roosevelt, November 1907
The Pledge of Allegiance is not a founding document. The founders of this country never heard the Pledge of Allegiance let alone wrote “under God” in it. The first pledge was drafted by Captain George Thatcher Balch, a Union Army Officer during the Civil War: We give our heads and hearts to God and our country; one country, one language, one flag! The founders who were grown men in the 1770’s were most assuredly not around in the1860s. This pledge was endorsed by the DAR until 1910 and the Grand Army of the Republic until 1923.
Today’s pledge is credited to Francis Bellamy in1892 and was adopted by Congress in 1942. Bellamy’s version did not include “under God” though he was a Baptist minister and Christian socialist. The language of the Pledge has been changed several times since Bellamy’s version. In 1923, “my flag” was changed to “the Flag of the United States” so that immigrants knew it meant their new flag, not their old one. The words “of America” were added in 1924. That new version was recognized by Congress in 1942.
The words “under God” were not added until 1954 during the Cold War when the U.S. wanted to differentiate itself from the godless communists. Several previous attempts to add that wording had failed; it was finally achieved by a joint resolution of Congress. However, some historians argue that in fact it was not the fear of godless communists that motivated the addition of “under God” but the desire to conflate Christianity and capitalism as a challenge to the New Deal legislation of President Franklin D. Roosevelt. The “prosperity gospel” of today has certainly conflated Christianity and capitalist excess.
The pledge was first used in public schools in 1892 in connection with the World’s Fair in Chicago. Five states do not require the pledge (CA, HA, IA, VT, and WY) and the U.S. Supreme Court has said that schools may not require students to do so.
Over the years, many lawsuits have been brought against mandatory recitation of the Pledge and the wording “under God.” Jehovah’s Witnesses brought many of the cases because they consider the pledge to be idolatry and against their religion. In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court said that public school students cannot be required to say the Pledge and that such ideological dogmata is antithetical to the principles of our country.
The justice concluded with: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Other objections have been that for a democratic republic built on freedom of dissent, citizens should not be required to speak, as in reciting a pledge, because it violates the First Amendment. Secondly, children who are forced to recite the Pledge are not of an age that they can consent to the speaking. Third, the addition of “under God” in 1954 violates the First Amendment protection against the establishment of religion.
In 2005, a California court ruled that forcing children to say “under God” was an endorsement of monotheism that violated the First Amendment. In 2006, a FL court ruled that requiring students to stand and pledge violated both the First and Fourteenth amendments. In that case, the student had been ridiculed by the teacher. In 2009, a mother in Maryland sued and won when a teacher berated her child and had her removed from class for refusing to say the Pledge. In 2010, the Ninth Circuit upheld the use of “under God” as a “ceremonial and patriotic nature.” In 2013, the Massachusetts Supreme Judicial Court said that the pledge does not discriminate against atheists because “under God” is patriotic not religious thus diminishing god from spirituality to a symbol. New Jersey in 2015 continued the theme of making god meaningless by saying it was historical tradition so not religious.
People who claim to be religious don’t seem to mind when the court rules that religious words and symbols mean nothing. That denigrates their faith more than maintaining the separation of church and state. It does however illustrate one of the early reasons for keeping church and state separate; to mix them, weakens both.
Under the facts and the law, neither the Pledge of Allegiance nor the saying “under God” had any connection with the founding of the nation. No one is required to say the pledge especially school children. By court decision, “under God” has been reduced to a meaningless phrase with no attachment to any notion of a Christian nation.
The law also permits posting writings, speeches, documents and proclamations of the founding fathers and the presidents of the United States and published decisions of the United States supreme court. Here are a few recommendations:
A.R.S. §15-806 – The governing board shall adopt a policy to allow students to be excused from school for religious purposes.
To allow students to be excused for religious purposes but no other is to establish religion. A student may want to be excused to go to a yoga class or photography seminar or quilting circle – none of those are less important than religion and religion should not be established.
A.R.S. §15-1184 – G. Any residential special education placement or residential education voucher issued pursuant to this article shall not be used in any private residential facility that discriminates on the basis of race, religion, creed, color, national origin or disability.
Discrimination is allowed on the basis of sex. This is clearly a bow to some religions that believe in the inferiority and separation of girls and women and discrimination against women and girls. It also establishes religion in that it honors the creed of certain sects that devalue women.
A.R.S. §15-1204 – I. Any special education institutional voucher issued pursuant to this article shall not be used in any school or institution that discriminates on the basis of race, religion, creed, color or national origin.
Discrimination is allowed on the basis of sex. See above.
A.R.S. §15- 1862 – A. A university or community college shall not discriminate against a student on the basis of the student’s religious viewpoint, expression or belief. B. A university or community college shall not adopt any policy that penalizes or punishes a student based on the student’s religious viewpoint, expression or beliefs. C. If an assignment or classroom discussion requests a student’s viewpoint in coursework, artwork or other written or oral assignments, a university or community college shall not penalize or reward a student on the basis of religious content or a religious viewpoint. In such an assignment, a student’s academic work that expresses a religious viewpoint shall be evaluated based on ordinary academic standards such as grammar, style, analysis and adherence to the instructions for the assignment. D. A university or community college shall not withhold any certificate or degree on the basis of a student’s religious viewpoint or religious expression. E. A university or community college shall not discipline or discriminate against a student in a counseling, social work or psychology program because the student refuses to counsel a client about goals that conflict with the student’s sincerely held religious belief if the student consults with the supervising instructor or professor to determine the proper course of action to avoid harm to the client.
Nearly everything about this section is problematic. Nondiscrimination is good but it cannot justify a wrong answer for a scientific fact. D means that a student could get a degree while not knowing or understanding the basic tenets of the topic, especially if it is a scientific one. This could put many people in danger in the future. E means that a student can discriminate against a client, e.g. a LGBTQ person or a woman seeking an abortion. So while it protects the religious person, it harms the nonreligious person or a person of a different religion.
The case of Ward v. Members of the Bd. of Control of Eastern Michigan Univ., 700 F.Supp.2d 803 (E.D. Mich. 2010) is another such example. There a counseling student refused to appropriately work with an LGBTQ student. When she was chastised for this, she sued claiming her religious beliefs were violated. This is the perfect example of how we have to respect their choices (whatever religious sect they choose to believe in) but they do not have to respect ours (expressing our fundamental identity let alone our health care, end of life, and reproductive choices).
A.R.S. §15-1863 – A. A university or community college that grants recognition to any student organization or group may not discriminate against or deny recognition, equal access or a fair opportunity to any student organization or group on the basis of the religious, political, philosophical or other content of the organization’s or group’s speech including worship. B. A religious or political student organization may determine that ordering the organization’s internal affairs, selecting the organization’s leaders and members, defining the organization’s doctrines and resolving the organization’s disputes are in furtherance of the organization’s religious or political mission and that only persons committed to that mission should conduct such activities. C. A university or community college may not deny recognition or any privilege or benefit to a student organization or group that exercises its rights pursuant to subsection B.
Contrary to the Equal Access Act that mandates that a religious club must allow all comers, this provision allows a college level club to deny entrance based on religion. This “establishes” religion on a college campus and discriminates on the basis of religion.
TITLE 17 Game and Fish
A.R.S. §17-602 – outdoor shooting ranges are state regulated except ranges located at least a mile from residential areas, schools, hotels, motels, hospitals or churches are exempt.
A.R.S. §17-603 – preexisting outdoor shooting ranges i.e. built prior to 2002 if rezoned and now within a mile of such places must provide noise buffers or attenuation devises.
A.R.S. §17-604 – nighttime outdoor shooting ranges are not allowed to operate from 10 p.m. through 7 a.m. in a residential area or in any other use that includes a school, hotel, motel, hospital or church.
TITLE 20 Insurance
A.R.S. §20-122 – health care sharing cooperative.
An analysis of these provisions for the 2020 legislative session showed that fraud has been a persistent problem in these cooperatives. The state should be as concerned with fraud and the failure of those who sign up to understand that this is not “insurance” and their bills may not be paid at all. Because of the ubiquitous fraud in these “coops,” Representative Huffman has introduced a bill in Congress to require disclosure of information for protection of the purchasers.
A.R.S. §20–826 (Z) – the chapter covers hospital, doctor, dental, and optometric services corporations. This section covers subscription contracts. A religiously affiliated employer can opt out of certain coverage for religious reasons. If contraceptive prescription is for something other than contraception, they cannot opt out. The definition of “religiously affiliated employer’ is the same as the earlier provisions.
One way to game the system is simply to declare in your articles of incorporation that you are religiously motivated and that is central to your operating principles. True or not, it will allow you to stop individuals from having appropriate health care.
A.R.S. §20-1241.02 – The section focuses on life insurance and annuities replacement but does not apply to a church plan under IRS code 414 or a church welfare benefit plan.
A.R.S. §20-1242.01 – This section is about annuity disclosure but does not apply to a church plan.
A.R.S. §20-1243.02 – This section is on protection in annuity transactions and does not apply to a church welfare benefit plan.
A.R.S. §20-1379 – the provision guarantees individual health care coverage under certain conditions that include a church plan as defined by ERISA.
A.R.S. §20-1402 covers Group and Blanket Disability insurance. In subsection M it has the same provisions as above to opt out of reproductive health care for women.
Unfortunately, the United States Supreme Court is allowing such discrimination in Little Sisters of the Poor v. PA (July 8, 2020). Since the ACA did not specifically order contraception to be covered, the court ruled that the government can make a rule that it is not covered. Thus AZ needs a law that specifically says that contraception is covered. Religious organizations will still argue they are exempt but at least the government can be required to provide an alternative. To allow the alleged religious entity to determine the behavior of everyone downstream (insurance company, doctor, pharmacist, patient) is to give extraordinary power to the religious entity that itself establishes religion and constitutes discrimination. Another approach would be to prohibit coverage of anything related to men’s reproductive organs i.e. prostate cancer, erectile dysfunction, vasectomy or reproductive organs of any type. As Ginsberg argued in her dissent, the law is to provide accommodation not exemption and complete capitulation to religious beliefs.
In 2022, a Texas court ruled that employers do not have to provide preventative care for HIV under the Affordable Care Act if it violates the corporations “sincerely held religious beliefs.” The case is certain to be appealed.
A.R.S. §20-3551 A religious group is eligible for a blanket travel insurance policy. A broad definition includes many other groups.
TITLE 25 Marital and domestic relations
A.R.S. §25-124 – Duly licensed or ordained clergy are the only specific group authorized to marry other than judges. However, the definition B. For the purposes of this section, “licensed or ordained clergymen” includes ministers, elders or other persons who by the customs, rules and regulations of a religious society or sect are authorized or permitted to solemnize marriages or to officiate at marriage ceremonies.
Officially this does limit the power to those from a religious sect which, for example ,Humanist Celebrants are not, though as a matter of practice, they are in fact doing it.
TITLE 28 Transportation
A.R.S. §28-2430. “In God We Trust” special plates – Special license plates with funding going to Alliance Defending Freedom (sic) whose sole goal is to establish religion.
In ACLU of N.C. v. Tata, 742 F.3d 563 (4th Cir. 2014), the North Carolina legislature passed a law authorizing the issuance of certain specialty license plates including one that said, “Choose life.” It rejected requests to authorize a plate that said, “Respect choice.” The court held that specialty license plates are not pure government speech, because it is individuals who choose to buy the plate to show their personal viewpoint. The government cannot restrict viewpoints in private speech.
AZ has a “Choose Life” plate also. It has been upheld (Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008)) because the plate wasn’t designated by the legislature but rather applied for by a nonprofit who met all the requirements the legislature had set out when applying for a specialty plate. However, the In God We Trust plate was specifically designated by the legislature.
In Pruitt v. Wilder, 840 F. Supp 414, 1994, the guidelines for obtaining a vanity plate required that the plate include no reference to deities, or combinations which might otherwise be considered offensive. The court held that the reference to deities is a viewpoint-based regulation in a non-public forum and violates the Free Speech Clause of the First Amendment. It said that with vanity plates, the speaker is the individual who bears the plate, not the government.
Several cases have held that personalized plates, whose messages are approved by the state, cannot be offensive and must be viewpoint neutral. In Henderson v. Stalder, 112 F. Supp 589 (U.S. D.C. E.D. LA, 2000) the court held that a preliminary injunction must issue because the state engaged in viewpoint discrimination when only one side of an issue is presented. In Commissioner of the Indiana Bureau of Motor Vehicles v. Vawter, 45 N.E. 1200 (2015) the State Supreme Court held that the decisions regarding the plate language are government speech and the plate holders do not have a property interest in the personalized plate. Government speech on license plates must be viewpoint neutral (Mitchell v. Maryland Motor Vehicle Administration, 450 Md. 2982, 148 A. 3d 319 (2016).
A.R.S. 28-2439-2439.02 creates a tea party committee to be funded by the specialty “Don’t tread on me” license plate. The committee uses the money to promote the tea party principles of fiscal responsibility, limited government and free markets.
If it’s government speech, the government is allowed to take a position. But if it’s private speech, the government cannot discriminate based on viewpoint. The plate is designed by an entity who pays $32,000 to the state for the privilege, in hopes of getting money back from the fund through grants. Because of that, private speech enters the picture, and this becomes unconstitutional viewpoint discrimination. There’s no license plate promoting social welfare. The law is obviously not settled.
TITLE 31 Prisons and Prisoners
A.R.S. §31-206 prison chaplains are allowed to do as they please, but even Native American religious practitioners need permission from the director.
Therefore, religions are not being treated equally nor are religions and non-religions treated equally as there is no provision for Humanist or atheist practitioners in the prison. This constitutes direct discrimination. Unfortunately, the Supreme Court case of Dunn v. Ray (2019) by a vote of 5 to 4 allowed the prison to prohibit an imam in the execution chamber though it allowed a Christian chaplain. The policy has since been changed to allow no religious advisors in at all.
TITLE 35 Public Finances
A.R.S. §35-393 et seq – prohibits public entities, the state treasurer and state retirement systems from doing business with companies who boycott Israel and/or demands they divest themselves of any holdings from entities who boycott Israel. “Boycott” means engaging in a refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with entities doing business in Israel or in territories controlled by Israel, if those actions are taken either: (a) Based in part on the fact that the entity does business in Israel or in territories controlled by Israel. (b) In a manner that discriminates on the basis of nationality, national origin or religion and that is not based on a valid business reason.
A. R. S. § 35-393.01 A. A public entity may not enter into a contract with a value of $100,000 or more with a company to acquire or dispose of services, supplies, information technology or construction unless the contract includes a written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of goods or services from Israel. B. A public entity may not adopt a procurement, investment or other policy that has the effect of inducing or requiring a person or company to boycott Israel.
This provision violates both the First Amendment freedom of speech and right to petition our government and nondiscrimination based on religion. It prohibits the state from doing business with any companies that are boycotting or refusing to do business with Israel. The boycott is related to the political policies of Israel that many, including Jews, believe are in violation of international human rights. The boycott is not about the primary religion of Israel, it’s about state action which is a legitimate target for political expression.
But even if it were some kind of violation, if I want to boycott someone because of my “belief,” under the First Amendment, I can. If a private corporation can boycott women’s contraceptives because of their beliefs, then a private company can boycott Israel because of their beliefs. One “belief” is just as good as another. This provision not only violates the First Amendment both speech and freedom of religion, it also violates RFRA by putting a burden on other’s religious beliefs.
Double standard – a Muslim-owned business cannot boycott Israel if it wants to land any government contracts, but a Christian business owner can get all kinds of exceptions to government rules it doesn’t want to follow and can contract with the government while discriminating based on religion. Religious favoritism violates the Establishment Clause.
TITLE 36 Public Health and Safety
A.R.S. §36-407.01 – Hospitals; visitation; religious purposes: If a hospital’s visitation policy allows in-person visitation of any kind and if authorized by the patient or the patient’s representative, the hospital must facilitate the ability of clergy to visit the patient in person for religious purposes. Clergy must comply with reasonable health and safety precautions imposed by hospitals in connection with in-person visitation. If a hospital’s visitation policy does not allow in-person visitation of any kind at all times or temporarily for health and safety reasons, the hospital must facilitate a virtual clergy visit using communication technology.
Without a definition of clergy, it traditionally means Christian. What if my go-to person for sharing my troubles isn’t ordained in some fashion? Does that make them less valuable? Less trustworthy? The law elevates religious leaders to a position of respect they don’t always deserve and discriminates against patients who may prefer another person.
A.R.S. §36-514(4) – person detained for mental health evaluation has right to enjoy religious freedom and the right to continue the practice of the person’s religion in accordance with its tenets during the detainment, except that this right may not interfere with the operation of the agency.
However, mental health professionals are permitted to proselytize per A.R.S. 41-1493.04. Since Arizona constitution treats faith or no faith equally, some statutes such as this one could be worded as freedom of conscience instead of elevating religion.
A.R.S. §36-520(G). Application for evaluation (mental health statutes) – If a person is being treated by prayer or spiritual means alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner of that church or denomination, such person may not be ordered evaluated, detained or involuntarily treated unless the court has determined that the person is, as a result of mental disorder, a danger to others or to self.
This is establishment of religion by defining only recognized churches, denominations, and accredited practitioners and discrimination against those who would not meet that definition.
A.R.S. §36-601.01 B. Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following: 5. Smoking when associated with a religious ceremony practiced pursuant to the American Indian Religious Freedom Act of 1978.
A.R.S. §36-1322 – A. A person may not discriminate against a health care entity on the basis that the health care entity does not provide, assist in providing or facilitate in providing any health care item or service for the purpose of causing or assisting in causing the death of any individual, such as by assisted suicide, euthanasia or mercy killing.
There needs to be a provision that the health care entity notify every patient at the first opportunity that they will not abide by the patient’s final wishes. This is yet another example of the fact that a patient cannot discriminate against religious institutions, but they can discriminate against the patient. By saying the patient cannot discriminate against an institution that would not honor their wishes, is saying that the patient’s beliefs are not important, only the institutions beliefs. For example, if I run an ad agency and don’t want to run an ad for this group – because they refuse to follow a patient’s last wishes – that would be discrimination on my part. Or if I run a cleaning service and I don’t want to contract with this institution because they won’t honor a person’s last wishes – that would be discrimination on my part. But they can refuse to adhere to the patient’s beliefs without punishment. Thus, their beliefs have been elevated above the patients. This is establishment of religion and discrimination based on religion.
TITLE 41 State Government
A.R.S.§41-983 No monies from the Arizona commission on the arts may be spent for payment to any person or entity for use in desecrating, casting contempt on, mutilating, defacing, defiling, burning, trampling or otherwise dishonoring or causing to bring dishonor on religious objects, the flag of the United States or the flag of this state.
A.R.S.§41-986 – no monies from the arts endowment may be spent for payment to any person or entity for use in desecrating, casting contempt on, mutilating, defacing, defiling, burning, trampling or otherwise dishonoring or causing to bring dishonor on religious objects, the flag of the United States or the flag of this state.
“Among the more irritating consequences of our flagrantly religious society is the special dispensation that mainstream religions receive. We all may talk about religion as a powerful social force, but unlike other similarly powerful institutions, religion is not to be questioned, criticized or mocked. …Society bends over backward to be accommodating to religious sensibilities but not to other kinds of sensibilities,” says Richard Dawkins, an evolutionary biologist and outspoken atheist. “If I say something offensive to religious people, I’ll be universally censured, including by many atheists. But if I say something insulting about the Democrats or Republicans or the Green party, one is allowed to get away with that. Hiding behind the smoke screen of untouchability is something religions have been allowed to get away with for too long.” Confessions of a Lonely Atheist, Natalie Angier, New York Times Magazine, January 14, 2001.
Angier tells the story of a firefighter in Colorado Springs where other firefighters posted New Testament Scripture on the taxpayer financed bulletin board. He started posting other bible verses from the Old Testament like when Lot has sex with his daughters, and they get pregnant. He was attacked but ultimately prevailed.
Angier states that, “In fact, the foundations of ethical behavior not only predate the world’s major religions; they also predate the rise of Homo sapiens.” She names studies by Frans de Waal of non-human species showing sympathy, empathy, reciprocity, and a willingness to follow social rules. She quotes Mary McCarthy “religion is good for good people.” Religion should have no higher order than any other institution or belief. To do so is establishment of religion and discrimination. It also violates free speech as persons are prohibited from certain criticism.
A.R.S. §41-1493.03 Free exercise of religion; land use regulation
A. Government shall not impose or implement a land use regulation in a manner that imposes an unreasonable burden on a person’s exercise of religion, regardless of a compelling governmental interest, unless the government demonstrates one of the following:
- That the person’s exercise of religion at a particular location violates religion-neutral zoning standards enacted into the government’s laws at the time of the person’s application for a permit.
- That the person’s exercise of religion at a particular location would be hazardous due to toxic uses in adjacent properties.
- The existence of a suitable alternate property the person could use for the exercise of religion.
B. Government shall not impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution, regardless of a compelling governmental interest.
C. Government shall not impose or implement a land use regulation in a manner that discriminates against an assembly or institution on the basis of religion, regardless of a compelling governmental interest.
D. Government shall not impose or implement a land use regulation in a manner that completely excludes a religious assembly or institution from a jurisdiction or unreasonably limits religious assemblies, institutions or structures within a jurisdiction, regardless of a compelling governmental interest.
Normally when a law impinges on a fundamental right, such as freedom of religion, courts review it using the strict scrutiny standard. The laws survives only if it fulfills a compelling government interest and there is no less restrictive solution that will do the same thing. This statute has an even higher burden on the government.
A.R.S. §41-1493.04 Free exercise of religion; professional or occupational license; certificate or registration; appointments to governmental offices; definition:
A. Government shall not deny, revoke or suspend a person’s professional or occupational license, certificate or registration for any of the following and the following are not unprofessional conduct:
- Declining to provide or participate in providing any service that violates the person’s sincerely held religious beliefs except performing the duties of a peace officer.
- Refusing to affirm a statement or oath that is contrary to the person’s sincerely held religious beliefs.
- Expressing sincerely held religious beliefs in any context, including a professional context as long as the services provided otherwise meet the current standard of care or practice for the profession.
- Providing faith-based services that otherwise meet the current standard of care or practice for the profession.
- Making business related decisions in accordance with sincerely held religious beliefs such as: (a) Employment decisions, unless otherwise prohibited by state or federal law; (b) Client selection decisions; (c) Financial decisions.
B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.
C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.
D. This section does not authorize any person to engage in conduct that is prohibited under the Constitution of the United States or of this state or the prohibition on sectarian instruction in public schools.
E. This section does not authorize any person to engage in conduct that violates EMTALA (the emergency medical treatment and active labor act) or RLUIPA (the religious land use and institutionalized persons act).
F. For the purposes of this section, “government” includes all courts and administrative bodies or entities under the jurisdiction of the Arizona supreme court.
This allows professionals to proselytize in any context – caring for vulnerable adults, patients in psychiatric hospitals, while refusing to provide services to a patient due to religious beliefs, while doing your taxes, the undertaker at a funeral home. Obviously, some people can get up and leave and find a different tax preparer, but some of these contexts involve vulnerable people, people who are captive audiences, and people who could be persuaded to give money. Does a patient have a right to ask for a different doctor or nurse in a hospital to avoid being preached at? That’s certainly another aspect of freedom of religion – the right to not be preached at.
The next few statutes (A.R.S. §41-14945ff) are the codification of HB2507 which was signed into law in 2022. The following articles have already addressed issues with these laws:
The New Definition of Religious Discrimination (refers to HB2648, same bill in previous legislative session)
A.R.S. §41-14945 In this article, unless the context otherwise requires:
- “Criminal conduct” means any act, including all preparatory offenses, in violation of section of certain criminal laws, but not all of them. See https://secularaz.org/religious-freedom-on-steroids/
- “Discriminatory act” means any direct or indirect act or practice that adversely affects a religious organization, including exclusion, restriction, segregation, limitation, refusal or denial
- “Religious Organization” means: (a) a house of worship. (b) A religious group, corporation, association, educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship. (c) an officer, owner, minister, manager, religious leader, clergyperson or employee of an entity or organization described in this paragraph.
- “Religious services” means a meeting or assembly of two or more persons organized by a religious organization for the purpose of worship, training, providing educational services, conducting religious rituals or other activities that are deemed necessary by the religious organization for the exercise of religion.
- “State Government” means: (a) This State or a political subdivision of this State. (b) any agency of this State or of a political subdivision of this State, including a department, bureau, board, commission, council, court or public institution of higher education. (c) any person acting in an official capacity.
A.R.S. §41-1495.01 – Discriminatory action against religious organizations; prohibition
A. State government or any private person who sues under or attempts to enforce a law, rule or regulation that is adopted by this state or a political subdivision of this state may not take any discriminatory action against a religious organization on the basis that the organization: 1. Is religious. 2. operates or seeks to operate during a state of emergency. 3. Engages in the exercise of religion as protected under the First Amendment of the United States constitution.
B. During a state of emergency, religious services are DECLARED essential services and are deemed necessary and vital to the health and welfare of the public.
C. State government shall allow a religious organization to continue to operate and engage in religious services during the state of emergency to the same or greater extent than state government allows other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public to operate.
D. Religious organizations can be ordered to comply with neutral health, safety or occupancy requirements that are issued by the state or federal government and that apply to all organizations and businesses that provide essential services. State government may not enforce any health, safety or occupancy requirement that imposes a substantial burden on a religious service unless state government demonstrates that applying the burden to the religious service in that particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
One obvious problem here is that police, health inspectors and other enforcers readily enter businesses that remain open during a pandemic to ensure compliance, but they do not enter churches. For more on public health implications, see https://secularaz.org/hb2507/.
A.R.S. §41-1495.02 Enforceability
A. A religious organization may assert a violation of this article as a claim against state government in any judicial or administrative proceeding or as a defense in any judicial or administrative proceeding brought by government, a private person, or any party. There’s no requirement to exhaust administrative remedies first.
B. A religious organization that successfully asserts a claim or defense under this article against state government may recover: 1. Declaratory relief. 2. Injunctive relief. 3. Compensatory damages. 4. Reasonable attorney fees and costs. 5. Any other appropriate relief.
C. A religious organization that SUCCESSFULLY asserts a claim or defense under this article against a private person not acting in an official capacity may only recover declaratory relief and INJUNCTIVE RELIEF.
D. A government entity cannot claim sovereign immunity as a defense, and a religious organization may sue state government, except state courts, for damages allowed by subsection B of this section.
A.R.S. §41-1495.03 Rules of construction
A. This article shall be construed in favor of a broad protection of the free exercise of religion.
B. The protection of the free exercise of religion afforded by this Article is in addition to the protections provided under federal law, state law and the constitutions of the United States and Arizona. This article does not preempt or repeal any state or local law that is equally or more protective of the free exercise of religion. This article does not narrow the meaning or application of any state or local law protecting the free exercise of religion.
C. This Article applies to all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise and whether adopted before or after the effective date of this section. State laws enacted after the effective date of this section are subject to this article unless the law explicitly excludes application by reference to this article.
D. If any provision of this article or any application of the provision to any particular person or circumstance is held to be invalid under law, the remainder of this article and the application of its provisions to any other person or circumstance may not be affected.
A.R.S. §41-1495.04 Applicability
This article does not apply to a case based on criminal conduct or to a tort action brought by a victim of such criminal conduct against a religious organization or an employee or volunteer of a religious organization, including an action brought pursuant to section 12-514.
There are only specific crimes to which this article does not apply. This article can be used as a defense against a majority of crimes listed in the penal code.
A.R.S. §41-3751 – Contracts for goods and services. Public entities contracting for goods and services cannot discriminate on the basis of religious belief or exercise. Obviously, they are using public money. The religious organization in question maintains its complete freedom to do as they choose. If a person objects, the government has to provide an alternate nonreligious provider if possible. Section E says they are covered by Title VII and cannot discriminate in employment. Section F says they cannot discriminate in delivering the services. Section G says they are subject to audit but can segregate monies and only that account is so subject (H). The religious organization can sue and get attorney fees (J). No monies shall be used for sectarian worship, instruction or proselytization (K) except for chaplains hired by public bodies.
The discrimination is maddeningly clear. We cannot discriminate against religious organizations and if we do, they can sue and get their attorney fees. But they can discriminate against us simply by claiming “sincere religious belief” that will not be questioned. In refusing to do business with a religious enterprise, we will have to say that to do so violates our sincere religious belief.
TITLE 42 Taxation
A.R.S. §41-11132.01 – Property leased to a church, religious assembly or religious institution is classified as a class nine property i.e. at a lesser tax rate.
A.R.S. §42-12009 – Class nine property, property belonging to nonprofits and religious organizations is taxed at a lower rate. If the property is leased to a charter school, residential treatment and educational facility or a religious institution, the owner of the property can file an affidavit to lower the rate.
While nonprofits also gain some benefit from this provision, they have to file annual 990 tax forms disclosing donors, income and expenditures. Churches do not. Especially when their money comes from the public or at the expense of the public by lowered taxes transparency requires that the public have such knowledge as well.
TITLE 46 Welfare
A.R.S. §46-451: Definitions in adult protective services: C. Nothing in this section means that an adult is abused, neglected or in need of protective services for the sole reason that the adult relies on treatment from a recognized religious method of healing in lieu of medical treatment.
This is not evidence-based or scientific practice, and the benefits are paid for at least partially by taxpayer monies. Thus taxpayers are forced to pay for religious treatment that they do not agree with. The problem with the many provisions exempting “treatment” by prayer or laying on of hands: If a person wants to be treated with a religious rite, prayer, or laying on of hands, that person should be able to do that, but that person then must also accept the consequences of their choices. They cannot expect to use this method that is not evidence-based or scientific in a facility that receives any public benefits or use any public resources including police or ambulance when said method does not work and they then require allopathic medicine.
A.R.S. §46-453: In any civil or criminal litigation relating to a vulnerable adult, a clergyman or priest may not be questioned about any confession made.
Some provisions could be called neutral because they seem to favor no particular belief system.
TITLE 1 General provisions
A.R.S. §1-602(A)(4) – parent’s right to direct moral or religious training of the minor child
The mother is not competent to decide whether she will have the baby, yet she is competent to direct religious and moral training.
TITLE 6 Banks and Financial Institutions
A.R.S. §6-404 Corporations can donate to religious as well as other purposes.
A.R.S. §6-701(8) defines religious
TITLE 10 – Corporations and Associations
A.R.S. §10-3302 (15) – corporations can donate to religious purposes (and other nonprofits)
A.R.S. §10-11405 – if a religious corporation dissolves and does not have a plan for distribution of assets, it follows the same rules as other nonprofits.
TITLE 14 – Trusts Estates and Protective Proceedings
A.R.S. §14-10405 – A charitable trust can be set up for advancement of education, religion, or science.
TITLE 15 – Education
A.R.S. §15-117 – any survey that includes questions about clergy or religious beliefs (among other things) shall not be done without consent of the parent and kept confidential
A.R.S. §15-1046(I)(c) – student data privacy includes religious information
TITLE 20 – Insurance
A.R.S. §20-864 – purposes and powers, A society can operate for social, intellectual, educational, charitable, benevolent, moral, fraternal, patriotic or religious purposes. This benefit may also be extended to other persons.
TITLE 36 – Public Health and Safety
A.R.S. §36-831 – if there is no one to pay for a burial, a fraternal, charitable or religious organization can assume the responsibility.
This has been an issue with the Mormon church baptizing the deceased, often those of another religions. https://www.washingtonpost.com/national/on-faith/why-do-mormons-baptize-the-dead/2012/02/15/gIQAnYfOGR_story.html
A.R.S. §36-3286 – Mental health care power of attorney may list religions desires and concerns.
- RELIGION IS THE UNDERGIRDING REASON
On the other hand, some provisions do not specifically mention religion, but it is known that the religious belief of certain sects is the undergirding reason for the provision.
TITLE 15 – Education
A.R.S.§15-115 In view of the state’s strong interest in promoting childbirth and adoption over elective abortion,
A. No school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.
B. In view of the state’s strong interest in promoting childbirth and adoption over elective abortion, no school district or charter school in this state may allow any presentation during instructional time or furnish any materials to pupils as part of any instruction that does not give preference, encouragement and support to childbirth and adoption as preferred options to elective abortion.
In most cases the state’s interest is weighed against the burden it puts on someone else. The state doesn’t have a strong interest in saving the life of a genetically defective fetus over the life of its mother who is already raising four children. Further, it pushes a viewpoint that stigmatizes abortion, an already difficult decision, without considering any of the facts. And “life begins at conception” is a religious doctrine not shared by all religions.
A.R.S. §15-716 Instruction on acquired immune deficiency syndrome. The law allows schools to educate on HIV, but such education must promote abstinence which is not evidence-based and in fact has been shown to be completely ineffective. Parents may withdraw their child from such education.
A.R.S. §15-873 – exemptions, nonattendance during outbreak. A student can be admitted to school without proof of immunization simply on the word of the parent that the failure to immunize is due to personal beliefs.
This puts all other students, teachers, and staff in harm’s way based on a sectarian belief not grounded in fact or science. This is even more serious now that a COVID-19 vaccination is available. The failure of large numbers of citizens to get their vaccination will mean the pandemic will be harder to contain and will take longer injuring all of us including the most vulnerable and the economy as well. The failure of vaccinations among children has resulted in outbreaks of measles for the first time in decades and even polio has returned.
TITLE 13 – Criminal Code
A.R.S. §13-1408 Adultery – The law punishes both the married and the unmarried person for having sex outside of marriage.
TITLE 25 – Marital and Domestic Relations
A.R.S. §25-101(C) Marriage between persons of the same sex is void and prohibited.
Overruled by Obergefell v. Hodges, 135 S. Ct. 2584 (2015) which made marriage a fundamental right, implicating due process, equal protection, and individual liberty rights. On shaky ground now since Dobbs v. Jackson Women’s Health Organization, supra.
A.R.S. §25-901 Covenant Marriage
We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.
Only three states have this – AZ, LA, AR. It was pushed by Christian organizations to make divorce harder to obtain, and to bring people back to church – it requires premarital counseling by clergy or marriage counselor. Apparently, it has had very few takers – less than 1% of new marriages.
ABORTION – Arizona has 74 statutes regulating abortion. The legal status of all of them and of abortion itself is uncertain at this time. However, they all are based on a religious belief of only one church regarding when life begins. There is no agreed upon medical, scientific, religious, or philosophical agreement on that question. Yet the Supreme Court has chosen the belief of one church to inflict on the rest of us. This is most assuredly an establishment of religion in violation of the First Amendment of the Constitution.
As an example, one of the more cruel statutes is:
A.R.S. 36-2156 – 24 hours prior to having an abortion, a medical person must conduct an ultrasound and listen to the fetal heartbeat. They must then offer to have the mother look at the ultrasound, have it explained to them (“Look, there’s it’s little hand”), listen to the heart, and offer her a picture of the fetus. The woman can decline the offers. The woman must sign a form stating she has been offered all these things; otherwise according to the state, there’s no informed consent to perform the abortion.
The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….” Congress shall not establish a religion and they shall not prohibit citizens from exercising their own religions – whatever they may be. At the time of the amendment, some colonies did have established religions and even taxed all citizens to support them. If someone didn’t like that religion, they could be imprisoned, tortured or killed. After the First Amendment was adopted a period of disestablishment followed.
Jefferson’s proudest claim was the Virginia Statute for Religious Liberty that he and James Madison passed to end Virginia’s established church. The statute says:
“We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
The United States was deliberately founded so as not to be reliant on or connected to any religion. The founders all had experience in or knowledge of countries where religious differences had torn them apart, some for hundreds of years, over doctrinal disputes. Various religions already existed in the colonies and to weld all that into one country would not only take some skillful doing but require that religion could not be the weapon that tore it all apart. The founders themselves were religious but they had seen that the mixture of government and religion, both in the old country and the new, resulted in oppression and tyranny.
The Constitution contains no mention of religion except in Article VI that prohibits any religious test for public office. The founders did not want a government that could exclude people based on religion. Many of those who fought for this provision were clergy because they understood, as did James Madison, that mixing faith and government weakens both.
During the John F. Kennedy campaign, the country ran wild with fears that if Kennedy, a Catholic, won, the Pope would be running the county. In response, Kennedy said:
“I believe in an America where the separation of church and state is absolute – where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote – where no church or church school is granted any public funds or political preference – and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him. I believe in an America that is officially neither Catholic, Protestant nor Jewish – where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source – where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials – and where religious liberty is so indivisible that an act against one church is treated as an act against all.”
He was elected and none of the hysterical claims became reality in his term but today, in contrast, it appears many politicians accept instruction on public policy from their church and even brag about it in violation of Article VI.
America is special not because we are a chosen people, but because we did not organize a government based on religion. The countries that are based on religion – Iran, Saudi Arabia, Pakistan to name a few – are notorious for their violations of human rights, violence toward women, and silencing of those who disagree. Attorney and historian Andrew Seidel in The Founding Myth: Why Christian Nationalism is Un-American, lays out a brilliant argument on why the efforts of Christian nationalists to destroy the “wall of separation” between church and state is in fact traitorous. Only the separation of church and state maintains religious freedom for us all.
This review of the Arizona statutes shows clearly that if there is any “war,” it is on the nonreligious not on religion. In fact religious belief and religious institutions are given advantage after advantage from tax breaks to lack of transparency to exemption from many laws to the ability to discriminate to punishing others who attempt to act on their beliefs. We do not have neutrality on religion – we have favoritism for religion. We must even these scales.