News Flash: It’s Already Legal to Deny Service to Gays in Arizona

So Senate Bill 1062 in Arizona
is a bit of a stupid piece of nonsense, let’s get that out of the
way first of all. This “freedom of religion” legislation, passed by
the state’s legislature yesterday, is getting significant
attention by people who think the law gives Arizona businesses
the right to discriminate against gays.

Actually, Arizona’s laws already give businesses the right to
discriminate against gays. Sexual orientation is not included in
Arizona’s
public accommodation laws. Discrimination against gays is
actually legal in a lot of places in America still. What Senate
Bill 1062 does is essentially tweak the state’s existing freedom of
religion laws to say that, no really, people in Arizona have the
right to the free exercise of religion. You can read the bill
here
and see what is being changed in blue text. It’s not very much.

Note that the law does actually allow for the state to outlaw
religious-based discrimination as long as the state proves it is
advancing a compelling government interest and that it’s the least
restrictive way of achieving that interest, so anybody arguing that
bigoted firefighters will be allowed to leave gay folks to burn in
their homes is full of crap (yes, that argument has bounced around
as these types of bills have popped up in various red states).

So what the hell is going on here and why is there so much
screaming? These laws are being ginned up in response to the
current conflict over whether folks like
bakers and
photographers have the right to refuse to provide their
services for gay weddings. So as those who support using the public
accommodation laws to declare that wedding cakes and photographs
are civil liberties push, religious conservatives are now trying to
use the law to push back.

And so here we have two sides fighting to control laws to
control things that shouldn’t be controlled by laws. It should be
seen as particularly telling that folks in Arizona screaming about
this law don’t seem to realize that it’s already legal to
discriminate against gays there. That’s a sign this form of bigotry
is perhaps not particularly widespread and becoming less and less
of an issue as society has less and less of an issue with gay
people. Gay people are not starving and freezing to death on the
streets because nobody will sell them food or rent them shelter.
There are, obviously, pockets of bigoted behavior against gay
people, and we know about it because those who engage in it get
lots of negative feedback when the media and the public catch wind
of it.

People have the right to determine with whom they wish to do
business. Occasional misbegotten bigotry is the price of living in
a free society. Being an asshole is a right, while having somebody
bake you a wedding cake isn’t. It’s sad in a way, because we’d all
rather have wedding cakes than assholes, but we can’t guarantee
anything without freedom first. We have plenty of tools outside the
force of the state to respond to bigotry. We have protests, and the
media, and online reviews, and social platforms, and competition,
and so many more ways to respond to bigotry than we did back in the
days of segregation. The law should be reserved for prohibiting the
state itself from engaging in bigotry (the “compelling government
interest” exception). Once we remove the state’s role in enforcing
bigoted laws (like bans on gay marriage recognition) it’s our
responsibility to handle social discrimination through social
channels, not through terrible blunt instrument of the legal
code.