Called out for the gay-bashing at the heart
of Arizona’s controversial SB
1062, advocates of the bill feign outrage and insist that all
they want is the freedom to associate or not associate based on
their religious beliefs. According to social conservative Bill
McMorris, libertarians embrace big government and make him
“participate in these new norms” by pointing out that Arizona
businesses already have the right to refuse service to
gays and lesbians and don’t require the assurance of a “we really
mean it” legislative backstop. I’m apparently especially awful for
referring to Arizona lawmakers as “homophobic pricks” and praising
a pizzeria that responded to the controversy by banning legislators
from its premises (a protection-worthy exercise of the right to
freedom of association, you might think).
But, pace McMorris, he and his social conservative comrades
aren’t broadly defending freedom of association, or even religious
liberty. Every step of the way, advocates of SB 1062 have made it
clear that the bill is meant to specifically protect the right to
shun nasty homosexuals. As he
writes at the Federalist:
[Tuccille] was referring to an updated state Religious Freedom
Restoration Act that the Arizona legislature passed this week. The
bill is designed to protect religious business owners from the
types of litigation and sanction that have seen massive fines
imposed upon Christian entrepreneurs for opting out of gay
weddings.
Joseph La Rue and Kerri Kupec of the Arizona-based Alliance
Defending Freedom explained their support for SB 1062 in the
Arizona Republic:
Elaine Huguenin, the Christian owner of Elane Photography,
declined to photograph what two women called their “commitment
ceremony.” The women had no trouble finding another photographer
because plenty of them were clamoring for their business. But the
couple sued Elaine’s business anyway, alleging that it had violated
a law banning sexual-orientation discrimination.
And, the Center for Arizona Policy
piled on, (Whoops! Just got a nasty visual.)
The critical need for this change came to light in a case
recently ruled on by the New Mexico Supreme Court. On August 22,
2013, the New Mexico Supreme Court unanimously ruled in Elane
Photography v. Willock that the state’s RFRA did not apply in
a case where a private party sought to enforce a state law against
another private party.
Got it. It’s not about gays at all—except that it really, really
is. But Arizonans already have the right to refuse service to gays
and lesbians. As Reason‘s Scott Shackford
wrote:
[S]exual 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.
And the Los Angeles Times‘s Paresh Dave
pointed out that “New Mexico law specifically bars a public
accommodation from denying services to someone based on that
person’s sexual orientation or gender identity. Twenty-one states
have similar laws, according to Human Rights Campaign. Arizona
isn’t one of them.”
So, SB 1062 is the equivalent of promoting a law protecting the
specific right to call people “fags,” just in case the free speech
protections for that right ever slip.
Could the courts ever decide to reinterpret the law in
such a way as to force people (such as social conservatives) to do
business with customers who give them the creepy crawlies (such as
gays and lesbians)? Courts have creatively rewritten the law
before, so it’s possible.
But then, why not protect everybody‘s liberty? Make it
clear that the point is to shield freedom of association and
freedom of conscience for all, in a way that would protect the
right of gay-owned businesses to chase Bill McMorris out of their
stores as it would protect his right to toss them out of his place
of business. And certainly craft it to protect the right of all of
us to turn politicians away.
But SB 1062 backers have made it clear, from the beginning, that
this is all about their dislike of one group. This isn’t about
paring back government; it’s about using legislation to slap at
gays and lesbians.
Warren Severin, chairman of the Libertarian Party of Arizona,
put it nicely when he
pointed out:
While all individuals and non-government businesses retain an
absolute right to refuse to do business with anyone (including
government) for any reason, proposing a law to that effect is not
only redundant, but unnecessarily incites argument. …The ‘bread and butter’ for the kind of politicians who would
propose such legislation is the division of the electorate. They
seek only to divide us (the American People) up into groups, pit
them against one another, and then offer to referee.
Bill McMorris says libertarians aren’t worth talking to so long
as we resist his buddies’ efforts to torment groups they don’t
like. To the contrary, McMorris and company will be worth our time
when they admit that freedom is for everybody.
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