An Arizona Lawyer Explains SB 1062 in Human Language -The Toast

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Arizona Governor Jan Brewer, after a significant pause for dramatic effect, vetoed the controversial bill SB 1062. She said in a press conference that she has not “heard of one example in Arizona where a business owner’s religious liberty has been violated.” That businesses like Apple, and American Airlines, and three Republican senators initially for the bill asked her to veto it surely had no part to play. Brewer said, “I call them like I see them, despite the cheers or boos from the crowd.” While I think it was the right call to make, I am not planning a coup to become leader of the Jan Brewer fan society. As an aside, and for transparency’s sake, she and I used to be Facebook friends, but she unfriended me a few years ago after I posted a picture of a giant inflatable smiling piranha pool float and tagged her.

220px-Jan_Brewer_by_Gage_Skidmore_3Supporters argued SB 1062 was a much needed pre-emptive protection for religious freedom. Critics of the bill argued it would have been a license for businesses to discriminate against LGBTQ patrons. Few seemed to be talking about how interesting a clash it could be for businesses to turn away bigots, citing the bill and religious freedom as justification. Also, not a lot of folks were talking about the fact that in Arizona, it’s already okay to discriminate against LGBTQ folks in all kinds of ways. Arizona does not consider sexual orientation or gender identity protected categories the way it does some other identity aspects like race, sex, and religion and it out and out bans same-sex marriage.

Contrast Arizona with New Mexico and Oregon and Colorado. As many articles on the topic of SB 1062 have pointed out, there was quite the brouhaha over the bakers in Oregon and Colorado who did not want to bake cakes for Satan/a gay wedding, and the photographer in New Mexico who did not want to take wedding pictures for a gay couple. Those states, though, do consider sexual orientation and gender identity to be protected classes in a number of contexts so the aggrieved couples had a legal basis to sue for discrimination. And since there are no gay weddings in Arizona (legally) there should be no fear of bakers being forced to sell their souls and bake illegal wedding cakes.

An article in Salon.com this week looked at one of the other problems noticeable in the bill, though: it arguably conferred personhood onto corporations. The bill expanded the definition of person saying, by “person” we mean individual people and all these things that aren’t people: “association, partnership, corporation, church, estate, trust, foundation, or other legal entity.” The article contended we have a whole other set of problems when we start thinking of corporations and people as like same diff, no biggie. The article did not mention, though, that the definition of person in the existing law already covered non-people, specifically religious institutions. So why the need for the drastic expansion from religious institution to anyone at all with a religious belief? Let’s back up and look from what circle of hell SB 1062 emerged.

SB 1062 amended an existing state law that was designed to protect religious institutions from state action hindering freedom of religion.

If you are thinking, “Okay, fine, whatever, but I thought there was like this whole US Constitution, amendment 1 thing that’s been around for a while,” you’re right. But by the time 1990 rolled around, Congress and the U.S. Supreme Court started to fear that the sacrosanct First Amendment was fading and cracking and suffering from unsightly discoloration like a priceless work of art left in someone’s musty old attic. Congress enacted the Religious Freedom Restoration Act (RFRA) to ensure the First Amendment got the revitalization and protection it so clearly needed.

urlFast forward a few years to Arizona. A series of cases had the U.S. Supreme Court deciding that the federal RFRA could not be applied to states. Arizona then passed its own state version of the RFRA to doubly extra protect the newly restored First Amendment from would-be thieves and vandals, kind of like beefing up security measures in a museum to include those funky invisible laser alarms and pressure sensitive motion triggers and such that you see in movies like The Thomas Crown Affair (90s, not ’68), Ocean’s (whatever number) and Entrapment. I am sure there are 2000’s-on references as well but since this started in the 90s, we shall keep to the 90s references.

It seemed that the legislature feared that a band of funky fabulous folks were hell-bent on hijacking the First Amendment and replacing it with some futuristic notion of equity. I can not help but hope their fear looked like a determined Catherine Zeta-Jones in Entrapment defeating high-tech anti-theft gismos by wearing a catsuit and doing fancy moves. The double extra super protection that the state had enacted in the 90s did not seem sufficient to withstand an all-out glitter bomb terrorist plot or well-planned heist.

So here we are in 2014, when Arizona’s legislature put forth a bill purportedly to grant all individuals and corporations freedom from any other individual’s or corporation’s religious beliefs. The Center for Arizona Policy, a conservative group with lobbyist Cathi Herrod as president, wrote of the need for SB 1062 in the factsheet it posted on its website. It talked about “how serious the threats to religious liberty are” and decried “the growing hostility towards religious freedom in our nation” and touted SB 1062 as a way “to better protect religious freedom for all Arizonans.” Jon Stewart asked the question on many minds, “where would Arizonans have gotten the idea that religion is under attack in this country?” He then flashed through clip after clip of “war on religion” rhetoric, mostly from Fox News segments and described it as a “constant barrage of apocalyptic paranoia and outrage.” Is it just overblown paranoia totally unconnected to the material reality most of us experience?

Anderson Cooper asked Arizona Senator Al Melvin, “Can you give me a specific example of someone in Arizona who’s been forced to do something against their religious belief, or (that was) successfully sued because of their faith?” Melvin was unable, like Brewer, to name such an incident that might justify the need for SB 1062. Melvin said the bill was pre-emptive in nature to protect folks in the future. Maybe if he had used the art theft analogies and snappy movie references I did he might have been more convincing in his gay doom is upon us tone. Maybe.

800px-Tuxedo_longhair_cat_-_SpankyIf you’re someone who believes that gay people existing and getting married and living lives like heterosexual people is an attack on religious freedom everywhere, well, I can’t help you because I think that’s about as silly as saying that because there are long-haired cats in the world, short-haired cats everywhere are under attack. And these lovely long-haired cats want to be treated like cats! Horrifying! I digress. But if you are one of those folks, I can see how the last 14 years or so since the AZ RFRA was passed would be scary. 2003 was clearly the start of the End Times when Massachusetts ruled in the Goodridge case that same-sex couples legally could be married in the state. Since then, 17 states and D.C. allow same sex marriages. A few more are in the process. Soon, half of the U.S. states will be on the path to Sodom, or so I hear. So in all this chaos of gay weddings across the land and states forcing wedding services providers to become Satan’s henchmen, we circle back to Arizona where there are no gay marriages and no Hell’s Bakeries opening anytime soon.

Travel tip: If you’re trying to avoid the fires of hell, I don’t recommend you visit Arizona in July. And if you are planning to open a Hell’s Bakery franchise in the state, consider taking the step Tucson’s local pizza joint Rocco’s did and reserve the right to refuse service to Arizona legislators. It’s legally and morally permissible to discriminate in some cases. Stupidity, after all, is not a protected class.

Alexx Tracy-Ramirez is an inactive lawyer, an active investigator, and a really active nerd. She wishes she had more time to watch cat videos and make gummy bear art.

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