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Jo Beaudry holds up a sign as she joins nearly 250 gay rights supporters protesting SB1062 at the Arizona Capitol, Friday, Feb. 21, 2014, in Phoenix. The protesters gathered demanding Gov. Jan Brewer veto legislation that would allow business owners to refuse to serve gays by citing their religious beliefs. (Ross D. Franklin/AP)

Is anyone surprised by SB1062, the latest Arizona law to shock Americans-who-thought-we’d-gotten-over-all-that? Last time it was the Support Our Law Enforcement and Safe Neighborhoods Act, a.k.a. SB1070, which allowed police to stop anyone believed to be an illegal immigrant and demand their papers. The law was decried for effectively making Latino appearance a reasonable basis of suspicion and creating a license for police harassment.

This time it’s a bill that, if signed by Gov. Jan Brewer, would allow business owners to discriminate against gays and lesbians if homosexuality is an affront to their religious beliefs. Well — not quite. That is how the law is being portrayed in the media, but it is both worse than that and not quite so bad.

It is worse because it affirms a right to discriminate against anyone, not just those of non-traditional sexual orientation, on the basis of religious belief.

this legislation is an attempt to anticipate ‘other federal laws that may burden religious freedom.’

Yet it also is not so bad because it actually confers no new rights to discriminate. “In essence, the new law would not [change] much,” Robert Volk, professor of law at Boston University, told me. Even today, “anyone can discriminate against an individual based on sexual orientation in Arizona.”

This may come as a surprise. You might think that if you can’t bar a black man from your lunch counter, you can’t bar a gay one either. But sexual orientation, unlike race, is not protected under federal civil rights law, so it’s every state for itself.

This does not mean that Arizona’s law, should it make it past Governor Brewer’s desk, is entirely without consequence. It would supersede local non-discrimination ordinances. For example, the city of Tucson currently bars private companies — though not private clubs, such as, presumably, the many golf clubs that pock the desert with green — from discriminating on the basis of sexual orientation. If the new law takes effect, Tucson’s stronger protections will be dashed.

At its heart, though, this law is not about municipal ordinances, and it is certainly not symbolic — a spasm of indignation of the sort we’ve come to expect from, say, Tea Party-aligned members of the House of Representatives who have voted dozens of times to repeal the Affordable Care Act.

According to Toni Massaro, professor of law at the University of Arizona, this legislation is an attempt to anticipate “other federal laws that may burden religious freedom.” These include provisions of the ACA, which mandate that employer-subsidized health insurance cover contraceptives. Retailer Hobby Lobby and cabinetmaker Conestoga Wood Specialties Corp. have advanced legal cases against those provisions, arguing that private companies owned by religious proprietors should be allowed to seek exemption from the mandate.

It all boils down to whether for-profit companies can engage in religious practice and take advantage of the constitutionally protected freedom of religious exercise. The legal questions are almost numbingly complicated and still unsolved. The Supreme Court will take up the Hobby Lobby and Conestoga cases this term.

But, looking into the future, what if these businesses succeed? What if the court agrees that free enterprise should be allowed to claim free exercise, just as Arizona’s legislature has now determined that the possession of sincerely held religious beliefs should allow business operators to claim exemptions from non-discrimination rules, such as Tucson’s?

Arizona Gov. Jan Brewer has been urged to veto a bill that would allow business owners to refuse service to gays or other groups that offend their religious beliefs. (Ross D. Franklin/AP)

Arizona Gov. Jan Brewer has been urged to veto a bill that would allow business owners to refuse service to gays or other groups that offend their religious beliefs. (Ross D. Franklin/AP)

Massaro has a solution in mind: require businesses that discriminate to disclose this fact. After all, exemption from anti-discrimination laws would be no secret: when the object of their discrimination comes a’calling, the businesses would have to announce their position to spurned customers. Disclosure would help unwanted patrons to avoid humiliation and wasted time.

As Massaro well understands — she defends her recommendation in an as-yet unpublished paper — a disclosure mandate would face its own legal challenges. Any time the government compels speech, free expression concerns arise.

A scenario in which businesses are allowed to discriminate without notice — a real possibility — may seem intractable, but, even then, there is room for citizen action. Armed with social media and wiki-style crowd sourcing, it would be simple for opponents of discrimination to compile and publish lists of offending businesses, to subject them to criticism, and to locate targets for boycotts.

Whether for-profit companies should be allowed religious exemptions from non-discrimination laws in the first place, and whether the conferral of such exemptions should compel disclosure — these are hard questions that must be given thoughtful attention in a pluralistic society that allows room for differences of opinion.

But for those who reject discrimination, the course is clear.  TWEET If exemptions eventually are granted, punish with your wallet.

Related:

Religious Freedom Bills Rooted In Fears Of Obama Policies

Tags: Law

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  • malybos

    Seems a stretch that the right to practice your religion as outlined in the constitution would extend into the marketplace. Didn’t establishment of freedom to worship arise with the puritans, quakers etc., who came to this country to escape persecution and discrimination? How does having to bake a cake for a gay wedding interfere with ones right to practice one’s religion. It may offend or clash with your cultural and religious sect values but it doesn’t stop you from going to the church, chapel, mosque or synagogue of your choice. I think the definition of freedom as our forefathers outlined was a simple right to be able to worship without harassment from outside parties and NOT the right to harass others. It also baffles me how that Christians who profess to love Jesus would ever believe that HE would be anything but loving and full of compassion to any of his children, gay or otherwise.

  • J D

    Simon Waxman punts on the real issue, saying that “Whether for-profit companies should be allowed religious exemptions from non-discrimination laws in the first place” is a “hard question” but giving us no reason to believe him. Calling it a “hard question” without analyzing it is mere political correctness; it adds nothing to this piece. (Even if the ACA contraception issue could legitimately be considered an infringement of the free exercise of religion, it cannot count as a reason for exemptions from “non-discrimination laws.”)

    I take it Waxman avoids offering a single reason in favor of religious exemptions to non-discrimination laws because his recommendation (“punish with your wallet”) makes it clear enough that he has no problem with such exemptions: for surely the market will sort it all out under the pressure of anti-discriminatory criticism, protests, and boycotts.

    I find it astonishing that someone could so blithely relegate protection against discrimination to the whims of the free market. Such an excuse for optimism (“even then, there is room for citizen action”) could only be written in 2014 by a Northern middle- or upper-class white man who has never faced discrimination and has no sense of what LGBT men and women face in states that aren’t so overwhelmingly liberal as Massachusetts. And would you look at that: Simon Waxman is a white man who lives in Boston.

    I wonder what Simon Waxman would tell the gay and lesbian clients turned
    away from restaurants in Arizona, should such exemptions be granted. “We did our best: we tried to punish them with our wallets.”

    • Simon

      Actually, you are entirely wrong about my position as to the advisability of religious exemptions. You claim to claim to know, even though I have said nothing about that. And, no, I don’t think the market is going to produce a just outcome, another argument you ascribe to me, which I do not make. I merely am suggesting that if the courts force us to turn to market mechanisms, there are things we can try. Maybe the real reason I’m “punting” is that, in fact, from a legal standpoint, these ARE hard questions, even if they might seem to you morally simple. And while I would love to get deep into the assorted countervailing arguments, there is only so much room to discuss all these issues in an op-ed column.

      I suggest you make a good-faith effort to read what I’m writing rather than assume you know my views on things I haven’t covered.

      • J D

        Op-eds don’t exist in a vacuum. As an editor of a magazine I’m sure you know that what you don’t say matters as much as what you do. You spent 6 of 15 paragraphs talking about what could be done if religious exemptions to non-discrimination laws are upheld instead of engaging on the altogether more pressing issue of whether they ought to be upheld. What is a reader left to conclude? That you think such exemptions are justified, or that you think they have no hope of being quashed—or that you prefer to engage in purely speculative thought experiments that don’t bear on the real issue.

        Telling readers that the questions that matter are “hard” doesn’t contribute anything to the public debate: your piece doesn’t help anyone make a decision about whether to support religious exemptions to non-discrimination laws. In fact, you lend tacit support to them, because you effectively argue that things wouldn’t be so bad if such exemptions were upheld, because we’d still be able to boycott and protest. By failing to offer one sentence in criticism, and instead offering only reasons that could easily be—indeed, routinely are—parlayed into reasons for support (“just let the free market work it out”), you invite being misread.

        I did make a good-faith effort to read what you wrote: I was hoping to find careful, reasonable discussion of what’s really at stake. After all, that’s what the title of this piece says is on offer. Unfortunately that isn’t what I found, but I look forward to when you decide to go “deep.”

        • llgmak

          Not to mention, your response to a reasoned and well thought out criticism sounded petty, like a CNN Message Board troll, and not a contributor to cognoscenti.

          • J D

            @llgmak: I’m assuming you meant this reply to go to Simon rather than to me. I’m not a contributor to Cognoscenti.

          • llgmak

            Correct. I wouldn’t call it a reply as much as an add on to what you were saying. Sorry for the confusion, but good comments nonetheless.

      • Curly

        I’m afraid she’s got you Simon. It’s not a hard question at all. Businesses aren’t people so they can’t have religious beliefs, much less sincerely held ones. So disclosure isn’t an issue.

        See, that wasn’t so hard, now was it?

  • idler

    what is the quorum to qualify as a religion and be able to foist your opinions on society ? Why not have your own religion, with arbitrary tenets, and requirements, e.g. pissing on every fire hydrant, smoking in aircraft, eating dogs … not essentially different from ringing bells or burning candles…

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