First Amendment of the Bill of Rights: why Governor Brewer “got it right”

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;


Our Constitution is truly simple.  Read it again:

Congress shall make no law respecting an establishment of religionor prohibiting the free exercise thereof;

(Click on the Bill of Rights heading to read the entire 1st Amendment.)


Our Constitution is purposely understandable.  Many of you reading this may be upset, angry, disgusted, emotional, etc.

Many of you may think or urge, “WE MUST DO SOMETHING, WE MUST PUSH BACK THE LEVIATHAN” so let our State and local jurisdictions write laws to combat the Federal Government’s push to destroy our Constitutional Rights.

(Writer’s update and note:  “Don” has shown me with questions below, that I was not “clear” from the beginning with this post. More often that not, when legislatures write and pass legislation, there unforeseen and unintended consequences.  Sometimes those unintended consequences can be worse than the “ill” or wrong that was sought to be corrected or cured.  It appears to me from reading a letter signed by 11 law school professors, had the Governor signed the bill into law, the consequences would not have cured the ill that was advertised to be cured.  The 11 professors’ letter analyses and explains the effects of the law.  Apparently the supporters and opponents of Arizona’s bill were incorrectly arguing the effects of the bill and attempting to lead the Governor with incorrect legal analysis.  The professors urged the Governor to sign the bill into law.  I attempt to explain what was wrong with the bill using portions of the Professors’ analysis.  From the professors’ analysis of “the state of law” in this area, I believe the legislature should return with a new “Kansas” style bill which would truly protect an individual’s right to practice their religion with the least interference from others.  Please read, or re-read my essay and see if you agree.)

Below are excerpts from the LETTER written by 11 law school professors explaining to Governor Brewer that the critics of the bill were mis-representing the law she vetoed yesterday.

Dear Gov. Brewer:

SB1062, which amends Arizona’s Religious Freedom Restoration Act, is on your desk
for signature. The bill has been egregiously misrepresented by many of its critics. We write
because we believe that you should make your decision on the basis of accurate

Some of us are Republicans; some of us are Democrats. Some of us are religious; some
of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the
eleven signers of this letter believe that you should sign the bill; two are unsure. But all of
us believe that many criticisms of the Arizona bill are deeply misleading.

The federal government and eighteen states have Religious Freedom Restoration Acts
(RFRAs). Another twelve or thirteen states interpret their state constitutions to provide
similar protections. These laws enact a uniform standard to be interpreted and applied to
individual cases by courts. They say that before the government can burden a person’s
religious exercise, the government has to show a compelling justification.

That standard makes sense. . . .

The bolded language is KEY; These professors are saying the Government can enact a law which prohibits the “free exercise” of religion.  The professors are advocating a “standard” be enacted to be used by the Courts against individuals exercising their religious rights.  The law professors are arguing the Government and Courts are above the Constitution when Courts, Judges, or Juries decide it is.  The professors go on to explain the standards the federal courts use to weigh, or balance, the rights of the Individual versus a “compelling” governmental interest.

SB1062 would amend the Arizona RFRA to address two ambiguities that have been
the subject of litigation under other RFRAs. It would provide that people are covered when
state or local government requires them to violate their religion in the conduct of their
business, and it would provide that people are covered when sued by a private citizen
invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person
invoking RFRA would still have to prove that he had a sincere religious belief and that
state or local government was imposing a substantial burden on his exercise of that
religious belief. And the government, or the person on the other side of the lawsuit, could
still show that compliance with the law was necessary to serve a compelling government
interest. As a business gets bigger and more impersonal, courts will become more skeptical
about claims of substantial burden on the owner’s exercise of religion. And as a business
gets bigger, the government’s claim of compelling interest will become stronger.

The bill would still allow lawsuits which allows Judges and/or Juries to decide whether some arguable “governmental interest” outweighs the individual’s GOD-GIVEN right, recognized by our Bill of Rights, to every individual’s right of freedom of religion.  The professors go on to explain by comparing and contrasting with Kansas’ law, a law the professors deem is a “bad law”.

All of this is fundamentally different from the Kansas bill that has gotten so much
publicity (HB2453). The Kansas bill does not enact a broadly applicable standard, give
each side a chance to prove its case, and leave decisions to the courts. It enacts a specific
rule about religious objections to same-sex marriages and civil unions, and it says the
religious objector always wins, no matter what.

According to these professors the Kansas rule says “the religious objector always wins, no matter what.”  Also notice the law is bad because it doesn’t;

“leave decisions to the courts.”

Let us review all American’s God-given rights as recognized by our Bill of Rights once more:


Congress shall make no law respecting an establishment of religionor prohibiting the free exercise thereof;


Did Kansas’ legislature, or Arizona’s Legislature, “get it right”?

NO LAW = means no law.  Do you see in the first amendment words such as:

  • unless,
  • except,
  • when, or
  • “compelling governmental interest” ?

The professors argue our 1st amendment does not mean what its words state:

The real problem with the Kansas bill is not that it proposes a specific rule, but that it
proposes a very one-sided and unfair rule. We agree with Congress and a clear majority of
states that government should not burden a person’s religious practice without a compelling
interest. But sometimes the government does have compelling interests, and then religious
practices must be burdened.

Notice the “emotional language” in these law professor’s letter:

“. . . a very one-sided and unfair rule. . .” 

“. . . sometimes the government does have compelling interest, and then religious practices must be burdened. “

Our Constitution was purposely written clearly and “one-sided”.  Nowhere in America’s Declaration of Independence or the Constitution adopted in 1789 is the term “fair” used.  Fair is simply not fixed standard.  Go to my post on Fair?  Is fair really fair? for further understanding why.

” …shall make no law…”  EQUALS there is NEVER a “governmental interest” that trumps the first amendment.


Arizona’s law was poorly written because it would say, Arizona recognizes the Courts and the Federal Government have power to nullify our Constitution.  However the Federal government:

  • receives it’s authority from the Constitution,
  • is controlled by,
  • is restrained by, and
  • is limited by, our Constitution.

This means the Government can never have a compelling interest to infringe upon the RIGHTS of all American Individuals religious freedom without a Constitutional Amendment which nullifies or restrains the language in the 1st Amendment of our Bill of Rights. No Government has lawful power to infringe upon the god-given rights as recognized by our Constitution.  To pass a law that purports to recognizes the Government has a compelling interest and grants power to the Courts to deny citizen’s rights in some circumstances is an illegal and Un-Constitutional law.

We should all be happy that Our Constitution was written with “bright line rules” everyone can read and understand. I thank God our Constitution is one-sided and unfair.  Liberty requires and demands equality, one law for all;  not fairness.

Rather than “recognize” or “allow” government to have power above the Constitution, Governor Brewer correctly vetoed Arizona’s proposed law.

May God bless and keep safe, America.


14 thoughts on “First Amendment of the Bill of Rights: why Governor Brewer “got it right”

  1. Hmmm,

    The Constitution constrains the FEDERAL Government with respect to an establishment (setting up of national religion, not religious entities, themselves). It does not speak to the States. I’m not sure you mentioned that here. In fact — to me — you seemed to have confused the issue with respect to the State’s right to do whatever its people wish regarding religion.

    That said, any law forcing a person or business (especially since the law considers businesses to be people) to serve someone against their will is unjust and unconstitutional. It does no matter if we call it discrimination, it still amounts to slavery. Yes, this means that people SHOULD have the ‘right’ to refuse to do business based on race, age, sexual orientation — whatever. Forcing a person to work for or contract with another against their will is indentured servitude bordering on State-sponsored slavery.

    This is a simple matter of Natural Law.

  2. You consistantly and excellently provide insight into the Constitution !!….And this is another example of that.

    To your post …… You mentioned SIMPLICITY. Well very Simply there is nothing in what you say that SIMPLY protects a Business owner from excercising his/her Religious beliefs ( especially about FUNDAMENTAL tenets of his belief)…. WITHOUT going to Court to do so because some Gay Group or activist Judge chooses to use/abuse the law to do so.

    In essence the Business owner(s) Affectively DON’T have the Protection of the Constitution any more…..what they have is the potential “remedy” of a Court Case. This is destructive to our society ( which is the Gay Agenda’s Goal….the Marxist’s Goal)……. To have us be a litigious society….and even about our Basic Natural Rights.

    My interpretation is what Brewer did and what your post seems to be advocating ( in a soft way albeit )…. is Government and especially the Federal / Circuit Courts to have power above the Constitution. Because the Denial of some of those Citizens rights HAVE occurred in some of those cases recently .

    Bottom line…… The Courts….Judges…. have NOT been protecting people’s Constitutional NOR Natural rights lately…… In fact they have been doing just the opposite……. therefore the argument of Doing Nothing….of business as usual, at this point, seems to be an argument for encouraging UN-Constitutionality. Seems we can USE the Courts and enact Laws to TAKE AWAY some people’s rights……but NOT to protect those rights.

    • Don,
      Advocating a “balancing test” with “the individual’s right” vs. “compelling governmental interest” destroys liberty. Court, Judges, or Juries deciding whether a person is truly religious or whether the Government has the ability to restrain an individual’s rights is loss of liberty and freedom. Then we are back to “fair” and a sliding standard for every different disagreement.

      According to the law professors, Kansas’ law is bad because the individual can claim religion and the court has no power to “look into it”. Kansas’ legislature obviously understood what they were doing.

      • I think you meant Arizona Law was Bad….whereas Kansas law was Good ??

        But my point is never addressed. One’s religious Rights are subject to being allowed or disallowed by a “Judge” or State Court because some Group and/or Gay Person “feels” discriminated against…….AND must forced into court and expense to “argue” for what the Constutution /Bill of Rights is already supposed to gurantee.

        This rash of lawsuits over the Gay Agenda is ALREADY enacting a “Balancing Act”…..we are ALREADY there.

        • According to the 11 professors’ letter:

          “The Kansas bill does not enact a broadly applicable standard, give
          each side a chance to prove its case, and leave decisions to the courts. It enacts a specific
          rule about religious objections to same-sex marriages and civil unions, and it says
          the religious objector always wins, no matter what.”

          Kansas law, person says I invoke my religious protections and there no asking, “does he really mean it?” “Is the government’s interest more important than the individual’s right?”
          Think: “I invoke the 5th amendment” then, the questioner is finished asking questions, person claiming religious protection gets to go home.

          Arizona law: “The person (being sued and claiming protection due to religious beliefs)
          invoking RFRA would still have to prove that he had a sincere religious belief and that
          state or local government was imposing a substantial burden on his exercise of that
          religious belief
          . And the government, or the person on the other side of the lawsuit, could
          still show that compliance with the law was necessary to serve a compelling government

          Arizona = Bad law because there are 3 hurdles for the person claiming protection to cross in order to be successful. Allows a court to decide (1) whether the person had a sincere religious belief, and decide (2) whether the governmental interest was a substantial burden upon the person, and (3) the plaintiff could show compliance with the law was necessary to the “compelling” “governmental interest”. Plaintiff gets “3 bites at the apple.” vs. no bites after defendant says: “I invoke my religious freedom”.

  3. Constitutionally we shouldn’t be passing laws on this issue at all. But the legal system is already being used to strip Christian business people of their freedom of religion. The fact is that gay couples who want wedding services have dozens of options available to them. The Christian business is rarely a monopoly. The gay couple has lost nothing by being denied service by the Christian business. Yet, the gay couples choose to sue the Christian for not violating their beliefs. Freedom of religion is at stake everytime a court accepts one of these suits.

    So advocacy for these laws is understandable. It’s not that the Constitution is not clear. It’s that later reinterpretation of the Constitution requires correcting. The simple correction would simply be to dump all the interpretation and say there should be “no law”, but that’s not where we are today and very soon, the only way a Christian will be able to exercise true religious faith will be if they withdraw from marketplace altogether.

        • Don, the way I understand the professors’ letter, Kansas addressed the same issue in the correct way. IF the person being sued refused based upon religious principles and claims that as his reason, then the person suing them gets tossed out of court. No court determining if the person claiming religious exemption was sincere. No court determining if government’s interest is more important than the person’s religious observance. No court agreeing with the plaintiff that the defendant’s inconvenience is less than the governments interest in forcing the policy decision upon the individual… Read the letter, then re-read what I highlighted.

  4. OK…. So the Douglas Laycock et al Group for the Most Part WANTED Brewer to sign the Bill. And basically argued that the “Courts” should be given unltimate authority….. But were using Embedded Progressive language and justification ( as in “Fair) to make their Case. In Essence …. Right ?

    I was arguing FOR Brewer to sign for the Same reasons You ( and Utah ) were AGAINST her signing it …. based on trying to have our Constitutional and Bill of Rights remain in tact and excercised in the Public sphere. The Kansas Law DOES accomplish this better….which is why these 11 were against it ( because the Kansas law mostly bypasses the Courts involvement….and as such is much more in line with assuring a person(s) Religious Freedom Rights ) . I think this is mostly correct.

    Well then I have to say you are correct. And I might add VERY GOOD analysis on an argument that would have supported mu position but for the very reasons I was against in the First Place…….. Very interesting and twisted legal Tales we weave Huh !!

    Then Perhaps it was Good she vetoed….. But two things remain….. (1) I don’t think she vetoed it for the Reason’s YOU and Utah ( and I ) are in support of……and (2) the OPTICS of this fall into the hands of the Gay Agenda and the Anti-Religious and Anti-Constitution crowd. In other words her veto is seen as a WIN for Gay Marriage and a WIN for the “Living Constitution” agenda.

    But In order to be Clear …. I think You are correct in your analysis of this letter and most important of the authors of this letter’s intentions.

  5. No, Thank You for putting that up Here !!………. I don’t get the chance to read much Legal opinion , confining myself to the Back of Cereal boxes as I am want to do lately.

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