Free to Discriminate, but Against Whom?

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Protestantism.  Judaism.  Islam.  Catholicism.  Jediism?  (Yes, it’s a real religion, and the force is strong in that one.)  Buddhism.  Hinduism.  Scientology.  Pastafarianism.  The United States Constitution protects American citizens’ rights to practice each of these religions and many, many more.

Though only sixteen words long, the First Amendment exists to protect the full spectrum of widely varying religious beliefs held by the American people.  So why do Arizona state legislators fear that religious freedom is in jeopardy?

The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Together, these dual guarantees ensure that the federal government does not impose one state religion on its citizens, whose individual religious beliefs may be freely practiced.

These provisions have also been incorporated against the states through the Fourteenth Amendment.  In 1940, the Supreme Court held in Cantwell v. Connecticut that a local solicitation statute with religious restrictions violated the Free Exercise Clause.  Six years later, the Court held in Everson v. Board of Education that although the Establishment Clause applies to the states, a New Jersey statute allowing reimbursements to parents whose children took public buses to parochial schools did not violate the Clause.

Freedom of religion is one of the foremost pillars of the Bill of Rights, and of our identity as a nation.  Thomas Jefferson noted the First Amendment’s ratification reflected the citizens’ desire to build “a wall of separation between Church and State.”  Though only sixteen words long, this powerful wall exists to protect the full spectrum of widely varying religious beliefs held by the American people.

So why do Arizona state legislators fear that religious freedom is in jeopardy?

Last month, Arizona made national news when Senate Bill 1062 (pdf) (SB 1062) passed both houses of the state’s legislature.  The bill, which sought to amend Arizona’s Religious Freedom Restoration Act (RFRA) statute, was proposed largely in response to the New Mexico Supreme Court’s ruling in Elane Photography v. Willock.

Although its proponents called it “a shield for all citizens’ religious liberties,” Arizona SB 1062 was widely understood to have anti-gay undertones.

The New Mexico case involved the enforcement of a public accommodations statute between a privately owned studio and Vanessa Willock, a lesbian woman.  When the studio refused to photograph Willock’s same-sex commitment ceremony, Willock filed suit alleging sexual orientation discrimination.  The studio’s owners attempted to defend the action under New Mexico’s RFRA statute, arguing that photographing a same-sex wedding would violate their religious beliefs.

On Aug. 22, 2013, the New Mexico Supreme Court held that the RFRA statute did not apply in a case to which the government is not a party.  SB 1062 sought to guarantee there could be no similar loophole in Arizona’s law: the bill aimed “to ensure that state laws that violate the religious liberty of private parties cannot be enforced simply because the government is not technically a party.”

Although its proponents called it “a shield for all citizens’ religious liberties,” SB 1062 was widely understood to have anti-gay undertones.  In essence, the bill would have allowed business owners with “sincerely held religious beliefs” to deny service to gay and lesbian customers if they could demonstrate that requiring them to act otherwise would substantially burden the exercise of those beliefs.  SB 1062 passed 17-13 and 33-27 in the state Senate and House of Representatives, respectively.  On Feb. 20, it was sent to Gov. Jan Brewer to sign or veto.

Appealing to both sides of the fight, Gov. Jan Brewer noted, “Religious liberty is a core American and Arizona value, so is non-discrimination.”

Public response to SB 1062 was overwhelmingly negative as many national news outlets picked up the story.  Democratic and Republican Congress members from Arizona publicly opposed the bill, as did former Republican presidential nominee Mitt Romney.

.@GovBrewer: veto of #SB1062 is right.

— Mitt Romney (@MittRomney) February 25, 2014

Companies with significant business interests in the state also chimed in on the issue, with Fortune 500 companies such as Apple, American Airlines, Marriott, and Yelp urging Gov. Brewer to veto the legislation.  Speculation even arose that the National Football League might move Super Bowl XLIX, which is scheduled to play Feb. 1, 2015, in Glendale, AZ, to another location, if the bill were to become law.

On Feb. 26, following a week of intense public backlash on a national stage, SB 1062 was defeated.  Gov. Brewer said that she vetoed the “broadly worded” bill because she feared that it could “create more problems than it purports to solve” and divide the state.  Appealing to both sides of the fight, she noted, “Religious liberty is a core American and Arizona value, so is non-discrimination.”

Increasing this tension between states and the federal government, U.S. Attorney General Eric Holder recently said that attorneys general are not obligated to defend state laws banning same-sex marriage if they believe them to be discriminatory. 

Legislation like SB 1062 illustrates the growing tension between states and the federal government on the issue of same-sex marriage.  Although none has received the national attention of Arizona’s, similar bills have recently been considered in legislatures in Idaho, Kansas, Ohio, Mississippi, Georgia, Tennessee, as well as several other states.

The U.S. Supreme Court struck down the federal Defense Against Marriage Act in June 2013, but did not address the constitutionality of state laws banning same-sex marriage.  Six federal judges across the country have since struck down state same-sex marriage bans.  And on Feb. 24, 2014, U.S. Attorney General Eric Holder fueled the fire when he said that state attorneys general are not obligated to defend such laws if they believe them to be discriminatory.

“It’s become increasingly acceptable to be negative towards religious people.  It’s okay now to speak in a very negative way, especially if you can label them as haters,” said Brian Walsh, executive director of the American Religious Freedom Program.

Nevertheless, there are those who argue that discrimination is the very problem that religious freedom laws such as SB 1062 exist to rectify.  As same-sex marriage has become an increasingly political issue, those who oppose it have come under public scrutiny. “It’s become increasingly acceptable to be negative towards religious people,” said Brian Walsh, executive director of the American Religious Freedom Program and co-author of religious freedom bills in several states.  “It’s okay now to speak in a very negative way, especially if you can label them as haters.”

One of the fundamental problems with religious freedom laws is that they seem to inadvertently endorse the very thing they seek to prevent: persecution.

Walsh’s point was fervently echoed by Arizona state Sen. Al Melvin, a Republican who voted for SB 1062, when he appeared on CNN’s Anderson Cooper 360° to defend the bill.  However, despite his assertions that individuals who hold a minority opinion about same-sex marriage face religious discrimination, Melvin repeatedly dodged questions about SB 1062’s anti-gay discriminatory purpose.

One of the fundamental problems with religious freedom laws is that they seem to inadvertently endorse the very thing they seek to prevent: persecution.  Same-sex marriage is undeniably controversial, and the First Amendment to the U.S. Constitution steadfastly protects an individual’s right to personally oppose it on religious grounds, whether such an opinion is popular or not.  But in the context of policymaking, it is vital to consider who is the true object of discrimination. And, as Gov. Brewer noted, religious liberty and non-discrimination are equally American values.