Odd Arizona Court of Appeals Decision

Fortunately it’s unpublished, and the defendant likely deserved to lose on this claim, but I was still surprised by the court’s analysis. The case is State v. Merrick (Ariz. Ct. App. Oct. 30, 2012), and the relevant portion reads:

Defendant also contends that the court abused its discretion by granting the State’s motion in limine which precluded him from presenting a freedom of religion defense pursuant to A.R.S. § 41-1493.01 (West 2012).

Section 41-1493.01 is part of Title 41, article 9, entitled “free exercise of religion protected.” Section 41-1493.01 provides that one has a fundamental right to free exercise of religion, and applies while a person is employed by the state or other governmental entity.

Although the statutory free exercise of religion provision protects employees of state government, it is not a defense to criminal conduct. The legislature did not make the free exercise of religion a defense in Title 13 of the Arizona Revised Statutes. And, Defendant has not cited to any case where § 41-1493.01 has been presented as a defense in a criminal case, and we have not discovered one. Consequently, the trial court did not err by granting the State’s motion in limine.

But, as I read § 41-1493.01,

  1. It never mentions “employees of state government.”
  2. It provides that it can be raised as a “defense in a judicial proceeding,” and 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,” with no exceptions for criminal laws.
  3. It has indeed been presented as a defense in a criminal case, and discussed extensively by the Arizona Supreme Court in such a case, State v. Hardesty (Ariz. 2009). The Arizona Supreme Court ultimately rejected the defendant’s argument in that case, but only because it concluded that the application of the particular criminal law in that case to that defendant was “In furtherance of a compelling governmental interest” and “The least restrictive means of furthering that compelling governmental interest,” as required by § 41-1493.01.
  4. Indeed, Hardesty specifically discusses the fact that § 41-1493.01 is potentially applicable in criminal cases, and notes that criminal defendants might sometimes prevail under this section: “Because Hardesty is asserting a FERA defense to criminal charges, the issue is whether a less restrictive statute or regulation would have excused the conduct for which he was convicted. For example, apart from the specific statutory exemption under A.R.S. § 13-3402(B), a member of the Native American Church charged with possession of peyote might be able to assert that a less restrictive governmental regulation than a total ban would serve the government’s interest. The analysis would be different, however, if the charged criminal use occurred while the defendant was driving a school bus.”
  5. § 41-1493.01 is essentially a state Religious Freedom Restoration Act, created to apply to state laws the religious exemption test pioneered by Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972). That religious exemption test has long been understood as potentially applicable in criminal cases (though it won’t always cause a criminal defendant to prevail). Indeed, Yoder was a criminal case.

As I mentioned, the defendant in this case likely deserved to lose in any case, since it seems from the opinion that he likely didn’t have any sincere religious objection to the law, and, even if he did, the application to him of the relevant criminal laws (the laws banning conspiracy to tamper with witnesses, conspiracy to commit perjury, and obstructing an investigation or prosecution) would pass the strict scrutiny required by § 41-1493.01. But while the result is right, the reasoning does not seem sound. Or am I missing something here?