1. As we now know, Governor Brewer vetoed AZ SB1062, the so-called “religious freedom” bill that was widely (and accurately) interpreted as support for discrimination against gays. In the previous post, I suggested that her delay in doing so sent a message that was as hostile to gays as the law itself: if she felt the law was ethically wrong, then she should have and would have announced that she would not sign the bill long ago. Instead, she waited to see how much economic damage the law would do to the state, and then vetoed it, not because this was the right ting to do, but because it was the pragmatic thing to do. (As the satiric Borowitz Report put it, “The state of Arizona found itself in the middle of a conundrum today as it awoke to the awkward realization that gay people have money and buy stuff.”) USA Today noted that, to the contrary,”Some political insiders believe Brewer has allowed furor over the legislation to build to thwart social conservatives’ attempts to push a similar bill later.” I doubt it, but if so, Brewer allowed her state and her fellow Republicans to be represented nationally as homophobic for as long as possible to spare herself the inconvenience of vetoing a second bill.
2. Despite the extravagant debate over the bill, almost no commentators actually published the bill’s text in the commentary. The reason appears to be that since the bill is really an amendment of an existing law, it takes a modicum of intelligence to figure out what’s going on. Here it is (the original law is in black; the new text is in blue; what has been removed in the amended version is struck through):
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 41-1493, Arizona Revised Statutes, is amended to read:
In this article, unless the context otherwise requires:
1. “Demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
2. “Exercise of religion” means the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
3. “Government” includes this state and any agency or political subdivision of this state.
4. “Nonreligious assembly or institution” includes all membership organizations, theaters, cultural centers, dance halls, fraternal orders, amphitheaters and places of public assembly regardless of size that a government or political subdivision allows to meet in a zoning district by code or ordinance or by practice.
5. “Person” includes
a religious assembly or institutionANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION OR OTHER BUSINESS ORGANIZATION.
6. “Political subdivision” includes any county, city, including a charter city, town, school district, municipal corporation or special district, any board, commission or agency of a county, city, including a charter city, town, school district, municipal corporation or special district or any other local public agency.
7. “Religion‑neutral zoning standards”:
(a) Means numerically definable standards such as maximum occupancy codes, height restrictions, setbacks, fire codes, parking space requirements, sewer capacity limitations and traffic congestion limitations.
(b) Does not include:
(i) Synergy with uses that a government holds as more desirable.
(ii) The ability to raise tax revenues.
8. “Suitable alternate property” means a financially feasible property considering the person’s revenue sources and other financial obligations with respect to the person’s exercise of religion and with relation to spending that is in the same zoning district or in a contiguous area that the person finds acceptable for conducting the person’s religious mission and that is large enough to fully accommodate the current and projected seating capacity requirements of the person in a manner that the person deems suitable for the person’s religious mission.
9. “Unreasonable burden” means that a person is prevented from using the person’s property in a manner that the person finds satisfactory to fulfill the person’s religious mission.
Sec. 2. Section 41-1493.01, Arizona Revised Statutes, is amended to read:
41-1493.01.Free exercise of religion protected; definition
A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B. Except as provided in subsection C,
governmentOF THIS SECTION, STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
GovernmentSTATE ACTION may substantially burden a person’s exercise of religion only if itTHE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both:
1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest.
D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding,
and obtain appropriate relief against a governmentREGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.
E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH ALL OF THE FOLLOWING:
1. THAT THE PERSON’S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A RELIGIOUS BELIEF.
2. THAT THE PERSON’S RELIGIOUS BELIEF IS SINCERELY HELD.
3. THAT THE STATE ACTION SUBSTANTIALLY BURDENS THE EXERCISE OF THE PERSON’S RELIGIOUS BELIEFS.
F. THE PERSON ASSERTING A CLAIM OR DEFENSE UNDER SUBSECTION D OF THIS SECTION MAY OBTAIN INJUNCTIVE AND DECLARATORY RELIEF. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
E.G. InFOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
H. FOR THE PURPOSES OF THIS SECTION, “STATE ACTION” MEANS ANY ACTION, EXCEPT FOR THE REQUIREMENTS PRESCRIBED BY SECTION 41-1493.04, BY THE GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.
I plead guilty to commenting on the bill myself without showing the text; at the time, I didn’t realize how few news and commentary sources included the bill they were writing about. It’s just poor journalism.
3. Note that there isn’t a single mention of “gay” or “gays” in the bill, a feature that has been disingenuously trumpeted by the bill’s defenders, glossing over the fact the that the bill was unapologetically drafted in response to the August decision by the New Mexico Supreme Court asserting that a photographer had no right to refuse services to a gay couple who wanted him to photograph a gay marriage ceremony. The only likely applications of the law would be in the realm of refusing services to gays. Yes, it is an anti-gay law, was intended to send an anti-gay message, and did.
4. This is exactly the kind of situation that demonstrates how the “disparate impact” approach to discrimination is sometimes justified and necessary. The law will mostly affect gays negatively, and is intended to do so, even though it is written as if it is not targeting gays.
5. A favorite pro-bill argument was that the law would also allow a gay photographer to refuse to apply his craft to a wedding of members of the gay-hating Westboro Baptist Church, so it protects gay individual rights as well. First, the law only addresses such rejections based on religion, not refusals to serve based on the fact that the business owner regards the potential customers as evil and disgusting. (Note to ignorant Republicans: being gay isn’t a religion, it’s a biological fact.) This reveals the true reasons behind the law and support of it, however, when this is offered as an analogy. Gays have good and valid reasons not to like Fred Phelps’s followers, and the authors of the bill, though they couch their rationale in religion, feel the same way about gays. They have no valid justification whatsoever. Second, citing an impossible situation as counterbalance to a very likely one is intellectually dishonest. What is the likelihood that the gay-hating Phelpsians would knowingly seek to engage a gay business for anything?
5. The fact that the law, as written, was so broadly framed disguises the fact that its main target is gay marriage, that is, to make gay marriage as difficult as possible, and to put Arizona’s government on record as disapproving it. Yet the bill’s authors didn’t have the courage or transparency to take a free speech approach to the issue, and declare that such services as floral arrangements, photographs and custom bakery are artistic and expressive in nature, and thus should never be compelled by law. That would have properly narrowed the issues, and would not have targeted gays. (I also think such a law would have had a chance of surviving legal challenges.)
6. The contention that simply selling a neutral service to an individual constitutes a violation of religious belief is absurd on its face, unethical, and suggests that discrimination is a valid religious tenet that the United States is bound to facilitate and respect. It isn’t, any more than animal sacrifices and female circumcision.
7. Nor is it reasonable to stretch the concept of “freedom of association” to the point that it works to tear asunder the societal associations required in a functioning, civilized republic. This is the Ethics Incompleteness Theorem at work. No ethical principles work all the time, and when you see that one doesn’t work in a particular anomalous situation, it doesn’t undermine the rule to accept the fact that all rules sometimes fail. Don’t be stubborn about it. Fix the problem.
8. The defenders of the law in the threads on Ethics Alarms have mostly agreed that refusing to serve gay customers was unfair, cruel, or needlessly hostile, but that citizens should have a right to do it. Laws are, in most cases, constraints on freedoms that have little utility or value to society but that harm other members of society or society itself. This is an example. You no longer have the right to harm innocent people because your religion says you should hate them. This is not a breach of religious freedom or freedom of association. This is law stepping in when substantial numbers of people refuse to be ethical.
9. The ostracizing, marginalizing and stigmatizing of gays by shunning and disparate treatment by businesses cannot be supported under any ethical system. It is a Golden Rule breach. It fails all the tests of absolutism. It leads to a malfunctioning, hateful, vindictive, segmented society, and thus fails any rational utilitarian balancing process. When asked to defend such a policy, defenders fall back on the “absolute liberty” to serve or not serve whomever you wish in your own establishment. That liberty, however, has been rejected by federal law, because of its catastrophic effects on other minorities. The ethical culture of the land has rejected it, and for good reason. If it is wrong to discriminate against blacks, it is wrong to discriminate against gays.
10. Outside of a clear gay marriage context, what is the process by which a business would be able to discriminate against gays? Who walks into a store announcing, “I am gay!” Does the law mean that a storeowner would be able to quiz customers about their sex life? Does the law mean a business can refuse people who look gay? Lisp? Walk funny? Wear rainbow T-shirts? Come in singing “YMCA”? Wouldn’t a storeowner have to be able to prove a customer was gay? How would he do that? All of which confirms my belief that the point of the law was not to provide a practical tool for discrimination, but to send a message to gays: Arizona doesn’t respect or like you. That message was sent, but eventually it will be understood a little differently: a lot of Arizona Republicans who will hold on to their destructive biases until the last dog dies (or they do) feel this way.
11. Brewer didn’t mention gays in her veto message at all. She should have; she had an obligation to do so, if she really thinks the law was ethically wrong and unjust. I see no reason to believe that she does think that. It was a bottom line, politically-driven veto, with no ethical message whatsoever. Too bad.
12. Finally, this: There are many principled and ethical positions that conservatives and others should not stop supporting, arguing and fighting for simply because the tide of popular opinion may be moving in a different direction. A balanced abortion policy is such a position; so is respect for and enforcement of our borders. It appears now that the battle to avoid yet another legal addictive and socially disruptive recreational drug to our already deadly list is all but lost—opponents should register their objections and reasons for the record, and be prepared to be proven right in the near future. There are other such issues, but the stubborn hostility to gays is not one of them. To the contrary, it undermines conservative credibility on all the rest. All traditional justifications for anti-gay bias have been thoroughly exploded by science, psychology, research, observation, common sense, experience and gays themselves. There is nothing left but intransigence, ignorance, stubbornness, and hate. Eventually, conservatives will see this too, but the damage they do to their larger mission and the nation while waiting for enlightenment to dawn may be catastrophic.