Even though I’m for marriage equality—see my Supreme Court briefs in the Prop 8 and DOMA cases, and this week I’ll be filing a brief supporting the challenge to the marriage laws of Oklahoma and Utah—I had no problem with Arizona’s SB 1062 for at least nine reasons:
1. Unlike the failed legislation in Kansas and elsewhere, which truly was anti-gay, bills like Arizona’s merely provide a (non-absolute) right to assert a religious objection to generally applicable law, with courts being the ultimate arbiters of how to reconcile competing values.
2. SB 1062 did nothing more than align state law with the federal Religious Freedom Restoration Act (RFRA, which passed the House unanimously and the Senate 97-3, and was signed by President Clinton in 1993). No government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” Understandably, this right includes being able to assert a religious objection as a defense in a lawsuit that invokes state law as the basis for a claim (whether that be an antidiscrimination law or any other kind)—but again, a judge gets to decide whether that objection should be accommodated or overruled based on the standards I just described.
3. Such laws don’t mean that people can “do whatever they want”—laws against murder would still trump religious human sacrifice—but it prevents the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category), unlike the Kansas bill, which specifically referenced and defined marriage.
4. Why should people be forced to engage in activity that violates their religious beliefs? The prototypical scenario that SB 1062 was meant to prevent is the case of the New Mexico wedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse service to gay clients, but couldn’t participate in the celebration of a gay wedding. (The Supreme Court will decide later this month whether to hear the case.) There’s also the Oregon bakery that closed rather than having to provide cakes for same-sex ceremonies. And the Washington florist who was sued by a long-time customer, and other similar examples.
5. This isn’t the Jim Crow South. There are plenty of wedding photographers—over 100 in Albuquerque alone—and bakeries who would be willing to do business regardless of sexual orientation and no state is enforcing segregation laws (or has police officers moonlighting as Klansmen).
6. It may be a different case if there’s only one photographer for hundreds of miles—let alone one restaurant or hotel—but I wonder how many gay weddings happen in such isolated hamlets. And anyway, that extreme hypothetical shouldn’t be used as the basis for establishing general principle. As they say, hard cases make bad law.
7. While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how—on religious or any other grounds. Gay photographers and bakers shouldn’t be forced to work Southern Baptist celebrations, Jews shouldn’t be forced to work Nazi rallies, environmentalists shouldn’t be forced to work job fairs in logging communities, and pacifists shouldn’t be forced to work NRA conventions.
8. Laws like SB 1062 help avoid manufactured controversies and preempt the involvement of lawyers where common sense and decency fear to tread. If somebody doesn’t want to serve you—or refuses to serve others on a basis you can’t stomach—take your custom elsewhere and encourage others to do the same. I bet plenty of Arizona businesses would see more customers if they advertised that they welcomed the LGBT community.
9. While Gov. Jan Brewer’s veto may have thrown cold water on this debate, the conflict between government mandates and civil rights (whether religious liberty, freedom of association, or anything else) will not go away. The way that the media maliciously misdescribed SB 1062 and that national politicians turned tail rather than defend inconvenient concepts may have made signing the bill politically hard, but the underlying policy principles are sound.
Let’s hope that the cases like those I described above—people who have long served gay clients but who don’t want to work same-sex ceremonies—don’t happen in Arizona. If they do, this debate will flare up again, in Phoenix and nationally.
In the meantime, I suggest that legislatures that want to protect liberty for all pursue these mini-RFRAs—patterned on the federal one that was designed by those right-wing zealots Chuck Schumer and Ted Kennedy—but only in conjunction with the extension of state marriage law to gay couples.
Tolerance, civility, and equal rights in a pluralistic society are all two-way streets.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
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