One tragedy of American politics is the limited public discourse that follows (or erupts after) the legislative process. Bills that attract fervent attention invariably disappear, forgotten, once defeated. Sadly, so too does important public debate.
If you’re unfamiliar with SB1062, it’s the bill that has been lauded by some to be oppressive to homosexual rights and was vetoed on Wednesday the 26th of February. I’ve been reluctant to post this article in the immediate aftermath of the debate, but I think the dust has sufficiently settled to go ahead and punch the publish button.
I’ll try to avoid some of the common arguments for and against the bill for a couple of reasons. First, both arguments have been repeated ad nauseum in the press, so I won’t do anyone a service by repeating them here. Second, the emotions (on both sides) driving argument served to divert attention away from the motives for proposing SB1062 in the first place. It’s unfortunate, but the reason public discourse is often so vehement belies the fact that the public in its default state is apathetic until such time that support (or opposition) to a specific cause gains sufficient momentum before triggering a landslide of emotions, often anger, and uproar. It’s regretful, but by the time public support has thrust itself behind a particular faction, the initial catalyst of the debate is forgotten or hugely misunderstood.
I think that happened with SB1062.
What follows is my analysis. I’m a programmer, not a lawyer, so appropriate restrictions apply. Much of this analysis is peppered with opinion and should not be taken as legal recommendation. If you’re examining this post because you’re in a similar situation to any of the parties involved, please seek legal counsel.
Ultimately, understanding SB1062 and why it was proposed requires some knowledge of recent history. In particular, the events leading up to the defeat of a small photography firm in the New Mexico Supreme Court (Elane Photography, LLC v Willock) are of vital importance. Although it was superficially a case contemplating the limits (or extents) of public accommodation law, the NMSC utilized a loophole in the Religious Freedom Restoration Act which was intended, at least in part, to address limitations imposed upon religious practice by public accommodation. In the RFRA, individuals are protected from government unduly burdening religious freedom by way of law or litigation. The NMSC, however, ruled that RFRA protections did not apply in Elane Photography, LLC v Willock because both parties were private entities and therefore undue governmental burden did not apply.
Arizona’s state legislature followed the New Mexico case closely under fear that similar cases might be brought before their own courts using the New Mexico decision as precedent. Although Arizona businesses opposed the bill, claiming that they could already discriminate, it’s worth noting that Arizona’s public accommodation laws prohibit discrimination against race, national origin/ancestry, sexual orientation, religion/creed, or mental/physical disability. Such public accommodation prohibits businesses from denying or blocking entry to affected persons. I’m not precisely sure whether those businesses in opposition to SB1062 were aware of the law (I suspect they were) or whether it was politically or economically motivated (which I suspect it was).
The Elane Photography, LLC v Willock ruling, Arizona’s public accommodation law, and the inability of RFRA to protect religious business owners against private parties motivated the Arizona state legislature to amend their statutes protecting the free exercise of religion by business owners. Contrary to progressive analysis and the widespread belief that the Arizona legislature was attempting to stage a social coup in effort to reestablish segregation and discriminate against homosexuals, the bill was most certainly not motivated by prejudice beliefs. I think it would be a fair charge to suggest that the bill was drafted as a knee-jerk reaction to lawsuits that have affected business owners in other states, but I don’t think such fear was entirely unfounded either. Remember, these legislators had already witnessed a court ruling that decided against a religious business owner on the grounds of sexual discrimination through denial of service. They were keen to prevent the same from happening under Arizona law.
Bearing this in mind, it’s important to read the text of the bill as it was presented to Governor Brewer (and later vetoed). Regardless of the fiction reported by CNN and other outlets, believed to be true by many on the Left, nowhere does the bill authorize discrimination on the basis of religion. Instead, a careful reading of the bill correctly reflects prior analysis that suggested it was drafted as a direct response to New Mexico’s ruling. In particular, the language was to be changed such that religious burden may be imposed only if an opposing party (rather than the government as a sole actor) could demonstrate an interest (i.e. discrimination) whose remedy was the “least restrictive means” against the religious party. Of note, the changes would have also prevented “state action” from affecting religious persons even in cases of “general applicability”, that is, public accommodation.
To suggest that the wording of SB1062 would violate the rights of minorities is patently absurd. No one was advocating a return to segregation nor was SB1062 a power grab by the “extreme right.” Careful reading of the bill’s text would have been the only action required to establish such fact, yet it was precisely that act which the pundits avoided. Nevertheless, it should be noted that the validity of the bill and its ability to protect business owners from litigation on the assumption of sexual discrimination can only be determined by the courts. As such, the vehement reaction by pro-gay groups and progressive liberals was largely unwarranted. If the bill were used for blatant discrimination, and such could be proven in a court of law, the bill would be struck down by the judicial system.
This, ladies and gentlemen, is why we have checks and balances drafted into the most fundamental law of our government. If a bill does happen to be discriminatory, it is the power of the court to decide (and nullify) and, if necessary, strike it down. That the bill was tried and defeated by the court of public opinion is a testament to the power of negative (and inaccurate) reporting. It’s a curious state of affairs when a political faction’s agenda is capable of overriding legitimate concerns, but it’s exceptionally troubling when that same faction refuses to address these same concerns under the guise that they don’t exist or are discriminatory.
The troubling thing about the defeat of SB1062 and the public discourse that followed is that it most certainly does impact a religious business owner’s right to practice as they choose. The opinion among progressives is effectively “tough luck.” If you’re in business, you have no rights except to serve the public (even if the business is “privately” owned). Yet it could be argued that discrimination based on adequate dress (“no shirt, no shoes, no service”) places an unfair burden on the poor, of whom minorities in particular are disproportionately affected. It’s not much of a stretch then to argue that discrimination-by-dress-code is merely a subversion of public accommodation laws in effort to deny the poor–and by extension, minorities–service by wealthy white business owners who seek to impose servitude upon the underclasses.
But the other problem is the precedence this sets for other religious business owners. Should Muslims or Jews be forced to sell pork products to a particular individual who seeks to purchase them for, say, cultural reasons? It’s a question worth asking, because we have essentially established that public accommodation laws override religious protection. At the risk of invoking the “slippery slope” fallacy, I certainly do think it’s worth consideration and has already been established as fact.
One last question that comes to mind. Is is discrimination to refuse service to a gay wedding if you would otherwise happily provide service to gay people in any other context? In other words, is it discrimination to provide service to a particular venue or activity when you’d otherwise provide your services to the persons involved outside that venue or activity? Is it really any different from denying service to, say, skydiving weddings or weddings in circumstances outside your realm of expertise? Perhaps it’s splitting hairs, but I think the distinction is important. It isn’t substantially different from selling meat products–with the exception of pork–to a customer. If you’re willing to provide a service to anyone who walks inside your door with the exception of specific kinds of service counter to your convictions or capabilities, it’s a denial of specific service (“we don’t/can’t do that”) not discrimination.
Or to take it one step further. What would stop someone from using this decision as precedence to sue someone who denies service on the merit that the service sought after isn’t something they can do? Small time contractors beware! The travesty of this is the narrow-minded nature of everyone involved. It seems insignificant, superficially, but once precedence has been established, it can be used to induce a desired outcome provided the party in question has sufficient capital to continue litigation.
That point has since been lost in the public debate that erupted a couple weeks ago. I think that’s a shame. Emotion wins against rational argument because it is a stronger motivator than reasonable discourse. The other shame is the abuse of our legal system: Provided one party can out-spend the other or simply has the least to lose, a sufficiently motivated plaintiff can wreak havoc on someone else’s livelihood–or worse, freedoms.