The AZ religious liberty bill does not provide you a right to discriminate against gays

27 Feb

Is the media misrepresenting the religious liberty legislation recently vetoed by the AZ governor?  Here is a letter from law professors on both left and right, some who support gay marriage some who do not, urging the Governor of AZ to sign the religious liberty bill. Here’s their argument: http://www.azpolicy.org/media-uploads/pdfs/Letter_to_Gov_Brewer_re_Arizona_RFRA.pdf

“So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.”

So the legislation allows businesses to make a claim, not the right to discriminate.  That claim must show that their religious liberty has been substantially burdened.  It is customary for constitutional rights and the legislation seeking to help clarify them to use rather vague language so that courts and future policymakers may use discretion when applying them to particular cases and circumstances.  That’s just the nature of rights based law.

But there are other observations I want to make:

First, one must note the irony.  The irony behind this legislation is thick, but missing in the media.  So here you go. This bill is simply a state-level application of current federal law (The Religious Freedom Restoration Act of 1993). That act was enacted in response to Justice Antonin Scalia’s opinion in the Smith case, which was systematically dismissive of free exercise claims. So dismissive was the “Smith test” that religious liberty advocates throughout the country and in the halls of Congress responded quickly and aggressively with legislation that was seen as progressive then, but backwards now.  The irony is that the act was bipartisan, passed by a Democratically controlled Congress, driven by concerns for the religious liberty of minority religions (brought from the left). Scalia was protested by progressives everywhere for the Smith test and pushed for Congress to respond with this legislation (catch the irony yet?). So they did. But the part of the act that applied to states was declared unconstitutional by the Supreme Court shortly thereafter, but it still applies to all federal law not explicitly listed as exempted from it. It was left to states to enforce the act if they choose (or apparently pass virtually identical legislation themselves). Again, the irony is that what was in the 1990s an act with support especially from the left in response to a decision from a conservative justice is now seen by the same group as evil, backwards, etc. Kinda funny at one level, but not so at another.

Second, it must be said that this issue is simply not as cut and dry as many think.  It will usually be inappropriate to deny business services to folks and the act itself acknowledges that.  But consider the following examples:

Should a Jewish food caterer be forced to provide catering services for a KKK rally? (borrowed from Al Mohler)

Should a Nevada Christian photographer be forced to take pictures of acts of legal prostitution though it violates his religious convictions? (borrowed from Frank Beckwith)

Should a gay, liberal party planner be forced to help set up and attend a bris if he believes circumcision is morally repugnant? (borrowed from Andrew Quinn)

Should a traditional Muslim cleaning lady be forced to spend hours cleaning inside of an Adult Video and Book store? (mine)

This isn’t a simple issue people.

Al Mohler in his address to BYU, recently argued that America’s “first freedom” (as the founders understood it) of religious liberty has been replaced by a new freedom (less clearly seen in the constitution), “erotic freedom.”  He may be on to something.

Finally, it is important to note how far we have come away from the doctrine of self-government.  The founders saw what they were doing as an “experiment in self-government” wherein most activities and problems were private, social affairs.  They thought that this arrangement was necessary to prevent the rise of a nanny-state such as they had seen in European systems.  People would make un-coerced decisions in their capacities as consumers, producers, religionists, parents, school teachers, neighbors, etc.  They would not always make wise or moral decisions, but the doctrine of self-government insists that by and large those decisions and their consequences remain free from state action.  A man who cheats in business, will lose his reputation and business.  A man who cheats at marriage, will lose his reputation and marriage.  A man who cheats his employer will lose his job.  A man who is a fraud in the pulpit will lose his ministry.  A man who gets educated will rise to leadership, and so on.  The state is there as a last resort, if and only if there is a systematic and severe pattern of disorder and injustice that only the state is capable of addressing.  That is, it is used if and only if no private alternative means, however imperfect, of resolving the problem is available.  It is not there to legislate against any behavior or private choice we find repugnant.  Essentially, the founders envisioned a society where people self-govern, work things out for themselves, balance different claims and rights and freedoms without having the heavy-hand of the state make choices for them or without being rescued by the state for every consequence of those choices.  Indeed, the whole notion of state coercion, forcing behavior, enforced conformity, was at one time vehemently and passionately opposed by liberals.  Things…they change.

And what of using the state to prevent immoral choices?  I thought that was a conservative tendency?  Take this example: When some conservatives years ago were pushing for censorship of television programming, the simple response from the left (liberals and libertarians) was “just change the channel.”  Embedded in that response is the notion that one ought not use government to solve a problem they could solve themselves with an act of personal choice.  Umm, where is that sentiment now?  Are there no other wedding cake makers or photographers?

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  1. The AZ religious liberty bill does not provide you a right to discriminate against gays - March 2, 2014

    […] Presbyterian Church (PCA) with his wife, Natalie, and three children, Caleb, Noah, and Sarah Ann. This article first appeared on his blog, The Reformed Mind, and is used with […]

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