From Hubersberger v. State, decided yesterday by Arizona Court of Appeals (Division 2) Judge Eppich, joined by Judge Vásquez and Chief Judge Staring:
In November 2023, Appellants, motivated by their sincerely held religious beliefs, participated in a protest against Raytheon because of its role as a weapons supplier to Israel and the bombings occurring in Gaza. Appellants' demonstration occurred on private property, and their stated purpose was to disrupt Raytheon's daily operations by blocking Raytheon workers from entering the facility. The morning of the protest, Pima County Sheriff's deputies arrived and informed Appellants that they were trespassing. Appellants refused to move, and they were arrested….
Appellants moved to dismiss the [criminal trespass] complaints against them pursuant to FERA [the Arizona Free Exercise of Religion Act], arguing that because their protest was motivated by their religious faith, their arrest and prosecution substantially burdened their free exercise of religion….
FERA protects Arizonans' fundamental right to freely exercise their religion without undue government interference "even if laws, rules or other government actions are facially neutral." Under FERA, the government cannot substantially burden a person's exercise of religion unless it demonstrates that the burden both (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest. This statute may be asserted in a judicial proceeding as a claim or a defense. It parallels the federal Religious Freedom Restoration Act (RFRA).
Appellants do not dispute on appeal that the government had a compelling interest to protect the peace and Raytheon's private property rights. We therefore only address the second prong of the FERA analysis: whether the arrest and prosecution of Appellants was the least restrictive means in which the government could have furthered its interests in this case…. To show it used the least restrictive means to further its interest, the state need not prove that the means used were the least restrictive means "conceivable," only that it used the least restrictive means available and that any proposed alternative is "ineffective or impractical."
