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.
Supporters 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.
Fast 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.
If 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.
Tags: alexx tracy-ramirez, jan brewer, lgbt, politics, the law
I am so so so so happy to see here a representative of the Rational Brigade from my beloved home state. Thank you for the excellent legal explanations, and keep fighting the good fight!
Arizona is far too wonderful of a place to be run by its current crop of bigots and ignoramuses.
What did you think of Gail Collins’s recent attempt to explain how it got there?
Hadn’t read it until just now (thanks for the the heads up!). Interesting thesis. Growing up, I always saw Arizona as having a fairly staunch libertarian streak. Goldwater was a sack of shit in many ways, but like the Collins article said, he was pragmatic. There was a pragmatism to the politics, borne of the steely considerations needed to build the nation’s sixth-largest metropolis in a hellish (yet beautiful!), arid landscape.
It was in the mid-90s that the state legislature became being known for its complete inability to get anything done. Back then, it seemed like idle idiocy. Somewhere down the line, it grew mean.
I haven’t seen the numbers, but I’ve long been curious about how the state’s retirement population influences voting. The natives I grew up with were deeply pragmatic conservatives that had kind of a “You Do Your Thing, I’ll Do Mine” stance toward social issues—or at least that’s how I remember it. I wonder if its reputation as a conservative retirement paradise invited an influx of more socially conservative elements from other states, and that tipped the balance away from pragmatic libertarianism and toward social conservatism. Like I said, I haven’t seen hard evidence of that, but I wouldn’t be surprised if that, combined with the election funding legislation mentioned in the Collins article, played a bit role in the state’s recent assholeishness.
I think there have been a lot of forces at work leading Arizona to where it is now. The 1998 law is certainly one context to explore more. Also, across the country the expansion of corporate personhood laws is another context with a lot to unpack. The so-called war on religion is another. I’m sure there are other topics escaping me at the moment, but laws like this don’t typically pop up in a vacuum and that’s one thing that fascinates about law is looking at the different contexts that give rise to laws.
There was a law proposed in California, maybe back in ’05? I could be wrong. It was setting new, stricter sexual harassment training mandates for businesses with more than 50 people. It was proposed at a time when Arnold Schwarzenegger was getting a lot of attention for allegations he sexually harassed folks. It would have been maybe not the greatest PR move to publicly oppose that bill, right?
I mean I respect your right to have long-haired cats, just don’t do it in front of me.
How will I explain long-haired cats to my children??
Everyone knows that cats choose to have long hair and that is disgusting. Long haired cats will destroy society. I am definately not secretly thinking of running my hands through that glorious, soft long hair.
WHAT IF MY CHILDREN GROW UP TO BE LONG-HAIRED CATS?? WHAT THEN???
I would like to persecute hairless cats, is that ok?
Hadn't read it until just now (thanks for the the heads up!). Interesting thesis. Growing up, I always saw Arizona as having a fairly staunch libertarian streak. Goldwater was a sack of shit in many ways, but like the Collins article said, he was pragmatic. There was a pragmatism to the politics, borne of the steely considerations needed to build the nation's sixth-largest metropolis in a hellish (yet beautiful!), arid landscape.
It was in the mid-90s that the state legislature became being known for its complete inability to get anything done. Back then, it seemed like idle idiocy. Somewhere down the line, it grew mean.
I haven't seen the numbers, but I've long been curious about how the state's retirement population influences voting. The natives I grew up with were deeply pragmatic conservatives that had kind of a "You Do Your Thing, I'll Do Mine" stance toward social issues—or at least that's how I remember it. I wonder if its reputation as a conservative retirement paradise invited an influx of more socially conservative elements from other states, and that tipped the balance away from pragmatic libertarianism and toward social conservatism. Like I said, I haven't seen hard evidence of that, but I wouldn't be surprised if that, combined with the election funding legislation mentioned in the Collins article, played a bit role in the state's recent assholeishness.
Honestly I’m pretty sure the legality/illegality (or more accurately, recognizedness/unrecognizedness) of same-sex marriage in Arizona is actually besides the point here, because same-sex couples have big expensive parties, with professional photograph and pastry cherfery, all the time in states where they can’t get the legal paperwork at the courthouse! I’m pretty sure the law’s language covers just about any extremely broad definition of same-sex marriage you could fathom, including committment ceremonies with no legal effect.
Also, I was sort of hoping this article would tell us more about the actual potential effects of the law if it had gone into effect? Like, people who favored it were all like “This law has very restrictive intent and only affects vendors who might have to deal directly with same-sex marriage ceremonies” and people who opposed it were all like “this law will literally allow doctors in public hospitals to refuse to help sick gay people.” I have my suspicions on where the law’s results would’ve fallen in practice, but it’d be nice to hear from a lawyer about it?
No one really knows what all of the effects would have been, in my opinion. Regardless of what people argued about the intent of the bill, some of the people who helped push the bill forward specifically mentioned being afraid that the Colorado and New Mexico situations would have happened in Arizona and wanted to make sure businesses would be able to turn away gay patrons in Arizona, which they already could do so again, in my opinion, the bill was unnecessary to achieve that goal.
The original law provided the religious exemption only to religious institutions where there was government action. The amendment would have given any person basically who applies or interacts with any law or even city ordinance, regardless of whether there was government action, the religious exemption.
Folks I think were rightly focused on the impact to the LGBTQ community but Jon Stewart explored some possible outcomes too like the Muslim service provider denying service to the Christians he views as infidels. Honestly, I think Brewer was right on in saying the bill was overly broad and maybe people didn’t think through all the impacts. Could it have been businesses owned by LGBTQ folks who practice Wicca refusing service to bigots because their religion supports equity among all people?
I think there would have been a number of legal battles from the law just to narrow down who is covered, who isn’t and under what circumstances. What does it really mean to be someone who applies an ordinance or regulation? How does this state law intersect with other state anti-discrimination laws, etc.
The fact that there could be so very very many possible outcomes is a great example of how a bill can be too broad and not narrowly enough tailored to accomplish its goal (regardless of what you think of the goal itself).
It sounds like they’re taking the “conscience laws” that allow pharmacists to refuse service to women, and then extending them to basically all sectors? I’m glad that we’re all angry about this iteration but let’s not forget that those anti-woman laws are totally already on the books in lots of places!
It sounds like they're taking the "conscience laws" that allow pharmacists to refuse service to women, and then extending them to basically all sectors? I'm glad that we're all angry about this iteration but let's not forget that those anti-woman laws are totally already on the books in lots of places!
Also– and I make this suggestion all the time, it’s not about this article specifically– but I would propose a rule of writing about politics on the internet that if you mention a specific bill, link to the text of the bill! Legislative nerds like me want to know.
(for the record: http://www.azleg.gov//FormatDocument.asp?inDoc=/l… )
Yes, thank you for fighting the good fight. ALWAYS LINKS.
Also– and I make this suggestion all the time, it's not about this article specifically– but I would propose a rule of writing about politics on the internet that if you mention a specific bill, link to the text of the bill! Legislative nerds like me want to know.
(for the record: http://www.azleg.gov//FormatDocument.asp?inDoc=/l… )