Top aides to Gov. Jan Brewer sought and got proponents of a “religious liberty” bill to make changes to SB 1062 more than a month before she vetoed the measure.
Documents obtained by Capitol Media Services show gubernatorial counsel Joe Sciarrotta and adviser Michael Hunter met with staffers from the Center for Arizona Policy as early as January about the legislation. The documents, mainly email exchanges before and after meetings, show the alterations made in the legislation at the behest of the Brewer advisers.
CAP President Cathi Herrod said her organization made every change sought by the administration to her proposal to expand the existing state Religious Freedom Restoration Act. She said that includes deleting phrases that concerned the governor's staff and adding provisions designed to narrow who could legally deny services to someone based on a claim of religious freedom.
Gubernatorial press aide Andrew Wilder acknowledged there were meetings over the wording of the legislation, but Wilder said there was nothing unusual about them, saying those kinds of discussion happen all the time.
And Wilder said there was “absolutely” no promise made to Herrod or anyone else that Brewer would sign the legislation if they agreed to the changes.
Herrod conceded the point.
“There are no guarantees on what she's going to do on a bill,” she said.
‘But the intent of the meetings, the purpose of the meetings, was to thoroughly vet the language, address their concerns, and make changes in the language pursuant to their concerns,” Herrod said.
She said her organization addressed every concern raised by Hunter and Sciarrotta with the idea that this year's version would not meet the same fate as a similar bill Brewer vetoed last year.
What led to this year's veto, Herrod insisted, had nothing to do with the wording of SB 1062.
“Opponents made the bill about something it was not,” she said, with Brewer reacting to the highly vocal opposition, particularly from the LGBT community, rather than the language of SB 1062.
“The governor vetoed a bill that didn't exist,” Herrod said.
The records obtained by Capitol Media Services show Herrod and Josh Kredit, CAP's legal counsel, met with Brewer staffers even before the legislative session began in January. More to the point, they ran the proposed language past Sciarrotta and Hunter and, based on ththeir responses, began making changes.
The first was to a section about protecting someone's religious freedom which would be burdened by having to do something contrary to that person's sincere religious belief.
As originally crafted, the legislation also said relief would be available to someone whose believes were “likely to be burdened.” Kredit, in an e-mail to Sciarrotta and Hunter, said that was being removed to address their concerns.
Kredit also agreed to delete language which would have allowed someone to seek legal relief not just for a violation of their religious rights but also any “impending violation.”
Two weeks later, Kredit offered to meet with Hunter to discuss other changes “and responses to many of your questions.”
Herrod said future meetings eventually led to insertion of a three-part test that someone seeking protection of the law would have to meet, language taken from a 2009 case where someone sought to use the already-existing provisions of the Religious Freedom Restoration Act to escape being prosecuted for possession of marijuana.
That test required three things:
- a person's action is “motivated by a religious belief”;
- the belief is “sincerely held.”
- the underlying requirement to serve someone “substantially burdens the exercise of the person's religious beliefs.”
“The language changes were the result of our discussion with the governor's staff,” Herrod said. “They suggested changes in the language and the amendment was drafted.”
Sen. Steve Yarbrough, R-Chandler, sponsor of the Senate version of the measure, then had those changes inserted into the bill when it came to the floor in February.
Wilder said it's a mistake for anyone to think that running a bill by the governor's office – and even making changes based on any meetings – guarantees his boss will sign it.
“It's not uncommon for gubernatorial staff to meet with proponents or opponents of legislation during the session,” he said.
“Such meetings, however, should not be construed in any way – and never are – that there is any agreed-upon support for a bill or opposition for a bill,” Wilder continued. “That decision is ultimately made by the governor when it arrives at her desk, and not before then.”
But Herrod said that still leaves her contention that Brewer's veto had nothing to do with the bill, which had been altered to deal with each and every concern her advisers had raised.
Brewer has refused to discuss her decision.
Even when the governor announced in a televised press conference last month she would veto the bill, she would not answer questions. She instead read a prepared statement saying SB 1062 does not address “a specific and present concern” about religious liberty in Arizona.
“I have not heard one example in Arizona where business owners’ religious liberty has been violated,” the governor said.
Herrod, however, said Brewer caved to pressure from opponents who wanted to “distort this bill rather than debate its merits.” She said SB 1062 had nothing to do with discrimination against gays and everything to do with religious liberty.
Last year's veto had different factors at work.
In her written message at the time, Brewer mentioned her concern that the legislation would have allowed someone to assert “likely claims” their religious freedom would be impacted rather than actual claims. That was one of the changes in this year's measure.
The governor actually vetoed a total of five bills that day and admitted her concerns had nothing to do with their content and more to do with the timing: She had warned lawmakers not to send her legislation until they had dealt with the budget and her plan to expand Medicaid.
“It is disappointing I must demonstrate the moratorium was not an idle threat,” Brewer wrote.