The Truth about Arizona's Religious Freedom Bill

Now that the dust has settled on the hysteria surrounding SB 1062, Arizona’s failed religious freedom bill (widely dubbed the “anti-gay bill” by the press), Ramesh Ponnuru clarifies the controversy:

Political journalists tend to accept social liberals’ framing of issues, their terminology, and their claims, and to believe the worst about social conservatives. In the Arizona debate, these tendencies manifested in widespread reports that the bill authorized businesses to refuse to serve gay people who wanted to be their customers and in the labeling of the legislation as “anti-gay.”

Headlines in the New York Times, the Washington Post, USA Today, and many other outlets either used that label or repeated that claim. In their limited defense, the proximate reason for the legislation does have to do with homosexuality: Conservatives were concerned that without the law, business owners who object to same-sex marriage might be forced to take actions they regard as participating in, facilitating, or condoning it. They were moved by cases such as one in neighboring New Mexico, where a wedding photographer was punished for refusing to serve a same-sex commitment ceremony.

The legislation itself, however, did not mention gays, homosexuality, or same-sex marriage, and largely tracked the federal Religious Freedom Restoration Act (RFRA): a law that was enacted by large bipartisan majorities that included many liberals and was signed by President Clinton in 1993 [and was not prompted by a situation dealing with sexual orientation]. It would not have authorized business owners to turn away gay customers—which, by the way, is something Arizona law already allows but that businesses have not been eager to do. It would not even have authorized bakers to refuse to make a cake for a same-sex wedding, which is a scenario both sides of the debate often mentioned. It would have given those bakers a claim in court but not guaranteed their success with it.

It’s a significant point to say that sexual orientation in Arizona is not a protected category. In other words, it’s currently not illegal to discriminate against a person because of his or her sexual orientation. This means that the nightmare picture people were painting of the “Jim Crow” situation this bill would create was ridiculous. As Brandon McGinley put it:

That dystopian Arizona with LGBT folks sitting at different lunch counters and forced out of jobs en masse and booted from retail stores? You know, the one promised by LGBT activists, and then by Marriott and Intel and Yelp, and then, implicitly, by John McCain and Mitt Romney and Laura Ingraham? Under Arizona law, that could exist right now. And yet it doesn’t. Because Arizona isn’t full of hordes of cackling Christians plotting an LGBT apartheid state.

Further, in situations such as that of the photographer mentioned above, people aren’t refusing to serve people because of their sexual orientation, they’re refusing to participate in an event that goes against their conscience (see “Refusing to Photograph a Gay Wedding Isn’t Hateful” in The Atlantic).

So what did the bill actually do?

The Arizona bill differed from the federal law [RFRA], and clarified previous state law, in two ways. It explicitly allowed businesses, not just individuals, to make conscience claims in court, and it explicitly allowed the claims to be used against private litigants. Whether the federal law applies in these cases is disputed.

Neither difference would seem to justify labeling the Arizona bill as “anti-gay,” given that almost nobody labels the federal law that way.

During the height of the controversy, 11 law professors (liberals and conservatives) tried to cut through the “anti-gay” rhetoric to explain the bill to Gov. Jan Brewer, but the pressure from the media’s spin on the bill proved to be too much to overcome, and it was vetoed.

Legislation like SB 1062 will come up again, so hopefully we can learn from this situation and help people think about it more clearly next time.

Comments

[John Moore]

We can discuss the legal fine points forever, but Christians should abstain from all appearance of bigotry. And it's not merely the letter of the law that counts, but most certainly the spirit of the law. You wouldn't want to be called a Pharisee, would you?

[c]

How is it bigotry to warn folks of their eternal damnation by remaining in sin?

Would it be bigotry if you tried to save a family from a car careening wildly toward a cliff? I think not...

[Mike Westfall]

> learn from this situation and help people think
> about it more clearly next time.

Bigots don't want people thinking clearly about this issue.

They just want to scream, "COEXIST!" but they don't wanna do it themselves.

[brgulker]

To get to the truth, just read the bill. It is rather short and easy to comprehend.

There is also no question about the motivation for the bill,even if the text of the bill doesn't explicitly state it. The bill was proposed to ensure that religious people be free to deny services and goods to people if they could establish a sincere religious belief for doing so.

The bill would not have been proposed if gay couples hadn't taken Christians to court, so in that sense, it is indisputably about gay rights. Saying otherwise is nothing short of bearing false witness.

[KWM]

We can discuss the legal fine points forever

Translation: Let’s not talk about the legal fine points or the reality of the legal nature of the bill.

Christians should abstain from all appearance of bigotry.

Translation: It doesn’t matter if you’re a bigot or not. If we can call you a bigot, then you can appear to be a bigot. You should avoid that.

And it's not merely the letter of the law that counts, but most certainly the spirit of the law.

Translation: It’s not what the law really intends to protect (religious freedom) that matters if we can call you a bigot. The spirit of this law is directly related to our justification to call you a bigot. So you should respect that.

You wouldn’t want to be called a Pharisee, would you?

Translation: I'm good at name calling. Bigot, Pharisee, I have others.

[TC]

I am surprised, actually, that someone hasn't tried to hire a gay publicist for a family-values campaign or a pro-choice advocate for a pro-life campaign or a black publicist for a white power rally to see if they get refused service.

You may get enough out of the suit to pay for the campaign.

[Amy]

Christians should abstain from all appearance of bigotry. And it's not merely the letter of the law that counts, but most certainly the spirit of the law. You wouldn't want to be called a Pharisee, would you?

John, it’s not a question of what people should do, it’s a question of whether or not people should be allowed to do what they think is right (or not forced to do what they think is wrong). If everyone agreed about the first, there would be no need for protection of the second. But that’s the beauty of this country—it’s been a value of ours to protect people whose speech and religions are different.

If you only support the religious freedom of the people you agree with, then you’re not for religious freedom.

[Amy]

The bill would not have been proposed if gay couples hadn't taken Christians to court, so in that sense, it is indisputably about gay rights.

brgulker, RFRA (the federal religious freedom legislation) was proposed because Native Americans were being denied peyote, but that didn’t make the bill indisputably about peyote rights. The peyote situation at the time revealed the fact that there were inadequate legal protections for religious liberty, so the law was passed to correct it. And since then, RFRA has been used in many different situations.

In the same way, a situation now has revealed a deficiency in the law that ought to be corrected. Or rather, I should say situations, since the question of whether or not businesses can be forced to provide birth control and/or abortifacients to their employees is just as much in the news as anything about wedding service people (look up “Little Sisters of the Poor,” for example).

But the fact that specific instances of infringement on religious freedom caused people to recognize the need for the bill doesn’t change the fact that, in the end, it’s about religious freedom.

[Amy]

TC, check out "Why Bakers Should Be Free to Discriminate."

National Review wanted to find out what happens when you ask a bakery for a sugary tribute to an institution just about nobody likes. Would bakeries be willing to make a cake with a Nazi swastika on it?

[Sam]

brgulker, RFRA (the federal religious freedom legislation) was proposed because Native Americans were being denied peyote, but that didn’t make the bill indisputably about peyote rights.

Amy makes a good point. I was just reading the bill here:

http://www.azleg.gov/legtext/51leg/2r/bills/sb1062p.pdf

It seems like a good bill to me, even if what gave rise to it was the incident with the photographers not wanting to work a gay weddings.

It seems to me that it's possible for two values we all hold to to come into conflict in some situations, and we have to choose the greater good (or lesser evil). Suppose we agree that there's nothing wrong with gay marriage, and it really is a matter of equal rights.

We all agree (at least prima facie) that equals rights is a good thing.

We also all agree that religious freedom is a good thing.

So what happens when these two things come into conflict in some situation in which it's not possible to maintain both? Why should somebody's freedom of religion trump somebody else's equal right? Or why should somebody else's equal right trump somebody else's religious freedom?

Don't we need a third principle to adjudicate these situations? Or maybe we have to take it on a case by case basis because some equal rights are more important than some religious freedoms, and some religious freedoms are more important than some equal rights.

[Amy]

Or maybe we have to take it on a case by case basis because some equal rights are more important than some religious freedoms, and some religious freedoms are more important than some equal rights.

And I think that's another point people are missing: this bill did not guarantee that a claim of religious freedom automatically trumps everything. As Ponnuru said, "It would have given those bakers a claim in court but not guaranteed their success with it."

[RagTime]

Amy,

You may want to check out http://bit.ly/1knuWmR which looks at how some of the bakeries that are so staunchly against providing a cake to a gay wedding have looser morals when it comes to providing treats to divorce parties, unwed mother gatherings and wiccan covens.

[Amy]

RagTime, this just goes back to what I said earlier to John. It's not my job to tell people when they ought to think their cake is participation in something they think is morally wrong (and/or something they ought to take a stand on at this time). The point is that if they do think so, they shouldn't be forced to participate.

[Mike Westfall]

The First Amendment specifically protects the free exercise of religion, so any laws that force people to act against their religious convictions run afoul of that, in my opinion.

The thing that protects people from being treated unequally by businesses on the basis of sex, creed, national origin, etc is federal legislation, not the Constitution. Note also the list of protected classes doesn't include sexual orientation. There is no Right to be treated "equally" (whatever that means) by everybody in the Constitution. Civil Rights legislation constitutes an exception to the general principle of Liberty.

[Sam]

Mike, just as the freedom of speech is not absolute (you can't say "bomb" on an airplane), the freedom of religion isn't absolute either. You can't do human sacrifices, for example, because that violates people's right to life. So there are laws that restrict religious freedom, like laws against polygamy.

[Damian]

No freedom of conscience means no freedom for anyone. Given the situation in NM with photographer, one wonders what behavior one cannot be compelled to participate in. If I'm an event planner will I be sent to prison for not planning a gay pride parade? How is a behavior a right that by law compels others to participate in? This is the problem. The more basic and self evident an aspect of reality is the more coercive force required to alter it.

[Carolyn]

Some really thoughtful posts here. Damian, I liked your last sentence--so true.

And, Sam--good points! (BTW, you mentioned polygamy--I find it interesting that with this new acceptance of homosexual "marriage" we're now getting TV shows like "My Five Wives" popping up.)

[xdoc]

This whole episode generated fabulous headlines and gave politicians on both sides the chance to scream to the rafters with indignation, but was totally removed from the realities of life. Both arguments are ridiculous. Neither a new Jim Crow nor a Christian hating America are present. Move on quickly, please.

[DGFischer]

The question of possible bigotry is tragic in that it tries to derail discussions on the matter.

What of those who declare Christians as "hate-filled hypocrites?" Those who pass along this arrogant lie, isn't this bigotry? Merely disagreeing with the homosexual efforts to declare their unions as marriage status equivalent to traditional marriage (one man and one woman)is not basis for hatred, but rather concern for an institution that has been viewed as foundational to sound societies.

>> You wouldn't want to be called a Pharisee, would you?

Understand the position of the Pharisee in first century Jewish culture. It was a product of the rabbinical traditions of the second century B.C. They had developed a set of over 600 interpretations to Mosaic Law that often in practice overruled the teachings of the Torah (note Jesus' point on the "Korban" legislation trumping care for parents in Mk. 7: 11). Setting aside clear teachings of the Bible is the highpoint of insolent disregard for God. To make an issue of citing that there are ONLY six condemnations to homosexuality refuses to take God at His Word. If God would work "You shall have no other gods" into each and every verse, would that prevent the man who would follow idols of his own creation to argue with some semblance of intellectualism?

I acknowledge America is not "Christian hating" only in that perhaps bigotry is still reprehensible. And bigotry must remain a "two-way street." Gay people should be respected as people in pursuit of being happy, but not accuse others of hatred. Christians should display that happiness (called joy)that transcends the transitory labellings of "sexual orientation," and find loving methods of endorsing true life in God. To handle the "sin issue" is never to be reduced to diplomatic speech, but the Gospel of forgiveness makes no sense without Law.

And understanding this may help "sides" to understand each other.