UPDATE: The Arizona governor has vetoed the bill.
This bill was passed by the Arizona Legislature and, this Monday, sent to the Governor for signature:
A. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person’s exercise of religion.
B. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person’s refusal to affirm a statement that is contrary to the person’s sincerely held moral or religious beliefs, regardless of whether those beliefs are specifically espoused by a recognized church or religious body.
C. A person’s exercise of religion is not unprofessional conduct.
D. Government shall not deny a person a position on a board, commission, committee or public body based on the person’s religious beliefs or exercise of religion.
E. This section does not authorize any person to engage in [any sexual conduct proscribed by the person's licensing board or agency, not including religious expression or beliefs,] or any criminal conduct. Criminal conduct does not include religious expression or beliefs.
The section would be added to the Arizona version of the Religious Freedom Restoration Act, and the RFRA defines “exercise of religion” as “the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” (Despite the somewhat confusing reference to “the ability to act,” this has been interpreted as basically meaning “religiously motivated action or religiously motivated refusal to act.”) So this doesn’t just protect religious speech, or the holding of religious beliefs. Rather, it creates a religious exemption from generally applicable licensing and professional discipline conditions.
But what a religious exemption! Other religious exemption regimes generally fit two molds. Some are focused on exemptions from specific obligations (e.g., the conscientious objector exemption from the draft, or the clergy-penitent) privilege. Others apply to a broad range of laws, but provide a qualified exemption that can be overcome by a showing that granting the exemption would pose an “undue hardship” (that’s the Title VII standard for religious accommodation in employment) or would unavoidably undermine a compelling government interest (that’s the RFRA standard, the Free Exercise Clause standard from 1963 to 1990, and the constitutional standard under some state constitutions). In practice, the “compelling government interest” test has been applied fairly weakly here, and understandably so: Even supporters of religious exemptions recognize that there are many laws that need to be applied to people notwithstanding their religious objections. (For more on the subject, see my A Common-Law Model for Religious Exemptions article.)
Here, though, the exemption applies to all licensing and professional discipline laws (with the exception of those imposing discipline for criminal conduct or sexual misconduct), with no opportunity for the government to justify the denial of an exemption, however important its interest might be. It thus seems like, just to give a few examples:
- A lawyer or psychotherapist who betrays client confidences because he feels a religious motivation to do so would be free from professional discipline.
- A doctor who feels a religious motivation to affirmatively omit to tell a patient that one of her therapeutic options is an abortion — even when the patient is unaware that the doctor takes this approach, and thus is unaware that an abortion might even be a possibly helpful option — would be free from professional discipline.
- Even a doctor who feels a religious motivation to affirmatively lie to a patient to prevent an abortion — on the theory that lying is religiously justified when necessary to prevent murder — would be free from professional discipline, unless this somehow fits in the category of criminal fraud (which I doubt).
- A person who engages in racial, religious, or sexual orientation discrimination in his own business, based on a felt religious obligation to do so — even when his action is in violation of the law, because a court has held that the religious obligation doesn’t suffice to give him a legal immunity from antidiscrimination laws — couldn’t be denied a seat on a board that enforces antidiscrimination laws.
- Likewise, a lawyer, psychotherapist, or a doctor couldn’t be denied a seat on an official professional regulatory body on the grounds that he has engaged in behavior noted in items 1 and 2.
And all this assumes that subsection E means that the section doesn’t prohibit discipline for criminal conduct. If the subsection simply means what it says, which is that it “does not authorize any person to engage in … criminal conduct,” then the list of possible problems would be even greater.
Of course, if one thinks that licensing and occupational discipline rules are a bad idea, and that all forms of professional misconduct should be dealt with only through the criminal and civil justice systems, then the examples above might not be so troublesome. But Arizona law rests on the assumption that such discipline rules are important tools for protecting clients, and sometimes third parties. Does it make sense to give absolute exemptions from such rules to religious objectors, or to religious and conscientious objectors? (Nonreligious conscientious objectors might be covered if “religious” is interpreted to include deeply felt nonreligious moral beliefs, though it’s possible that it might not be, given the inclusion of “moral … beliefs” in paragraph B but not the other paragraphs.)
Of course, this is just a statute, so perhaps the legislature thinks that it could deal with this by creating new statutory exceptions as problems come up. But that strikes me as a rather inefficient and dangerous option. I would think that if such broad exemption regimes are created, courts should have some way of recognizing that some professional regulations are important enough that they must be applied to everyone, and that simply having a religious objection can’t immunize one from professional discipline. Or am I missing some important limitations on this statute, or some important arguments for why the statute is nonetheless a sound idea?
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.