With RFRA being in the news again as the Supreme Court recently heard arguments on the Hobby Lobby and Conestoga Wood Specialties case, my mind drifted back to the last time it was in the news: when Jan Brewer vetoed SB 1062. Now with a similar bill on tap in Mississippi here we are yet again. With this fresh in my mind, I thought it would be prudent to present some of the rest of the story; the story often overlooked by most of the coverage it received. Indeed, if all an observer had to watch was the media coverage of the bill, it would seem that the State of Arizona was trying to drive the country back into the dark days of Jim Crow laws and legalized racism. They were on the cusp of letting businesses all over the state throw gays and anyone else with whom they disagreed on religious grounds out of their stores. Why, it wouldn’t be too great a leap to think that a whole new series of religious wars à la 17th century Europe were going to break out afresh. With this epic victory, we stand ready to ride the tide of history to equal protection under the law for every person without distinctions…or something like that.
The truth, though, is rather different. But for the tremendously biased media coverage and political pressure, Brewer would have in all likelihood signed the bill. Here’s what that would have changed in the State of Arizona: nothing.
SB 1062 was not going to grant a new right for businesses to discriminate against gays. It wasn’t going to do that because such a right already existed in most cities and towns in Arizona. For that matter, such poor business practices are legal in most cities and towns across the country. The reason no laws prohibit this is because it doesn’t happen. In fact, given the current cultural waters, I pity the business that would do such a thing, but it would be a legally protected decision all the same…and with no help from SB 1062 at all. Businesses were not discriminating against gays not because of fear of government reprisal, but for an entirely more selfish reason: they like to make money and they generally don’t care too much about the source of that money. Why even the now infamous Colorado and Oregon bakers, the Washington florist, and the New Mexico photographer didn’t discriminate against gays. They served them all the time. They simply didn’t want to be part of celebrating that lifestyle by being a part of a gay wedding ceremony. No discrimination there.
Neither was SB 1062 going to thrust us back into the dark days of Jim Crow laws. Jim Crow laws were state enacted regulations that told businesses who they could and couldn’t serve whether they agreed or not. Say a Christian business owner in Montgomery, Alabama in the 1940s wanted to serve all people equally because of a religious conviction that all people are created equal. Because of Jim Crow laws he would not have been able to do this without the state fining him or even threatening to shut him down. SB 1062 would have done the exact opposite. It would have said: “You can run your business in line with your religious convictions without fear of interference from us. If you choose to not serve gays because of some misplaced religious belief, so be it. We won’t bother you…but you’ll probably go out of business because the culture won’t tolerate it. Oh, and if someone does sue you, good luck defending your claim.” This would have actually served to get the government out of the way, instead letting the free-market and the culture, which are both very pro-gay right now, determine who a business will and won’t serve.
Here’s what SB 1062 would have actually done. It would have updated the State’s version of RFRA such that it applied more broadly. But, this would have not given any kind of a license for discrimination. RFRA doesn’t have anything to say about what individuals or businesses can do. Instead, it makes it such that the government can’t restrict religious liberty without a very good reason to do so. In the end, SB 1062 would have likely made it harder for a business to discriminate based on some imagined religious reason than it is under current law. It would have done this by putting the onus on individuals and businesses to justify the grounds for their religiously-motivated business decisions. Does anyone want to take a guess at how many successful justifications there would have been had a business truly sought to defend a genuine act of discrimination against gay customers?
So then, was SB 1062 the devastatingly horrible law that the media coverage before hand and the loud celebrations since have made it seem? It sure doesn’t appear so when all the facts are in place. But then, if all you saw were the media coverage and post-victory parties, you probably wouldn’t know it. Discrimination is wrong on multiple counts. But, discriminating and choosing not to take part in celebrating are not the same thing. SB 1062 would have clarified and protected this distinction.