Conservative backers of Arizona bill SB 1062 had two choices following Gov. Jan Brewer’s veto of the right-to-discriminate bill. They could defend the bill on its merits. Or, they could distort the contents of the bill and attack anyone who disagreed with them as a legal Luddite and hysteric. Sadly, they chose the latter.
Conservatives fanned out to claim that the bill was a big nothingburger. Anyone who was upset about it was exaggerating its potential impact. It’s already legal to discriminate against gays in Arizona, so they don’t even need the law, they claimed.
Wait. If there is no need for the law, then why are they lobbying for it in the first place? Perhaps it’s because the Arizona legal system isn’t quite the anti-gay free-for-all they describe. A third of the state’s population (Flagstaff, Tucson, and Phoenix) is covered by local nondiscrimination ordinances, which also apply in the public accommodations context. So SB 1062 actually does significantly alter the legal landscape for Arizonans who want to discriminate.
Not so, said Jonah Goldberg in the National Review. Echoing the line that SB 1062 was just an innocuous amendment that doesn’t even merit a second glance, he wrote, "Arizona’s proposed SB 1062 would have amended the state’s 15-year-old Religious Freedom Restoration Act in a minor way so as to cover businesses.”
How is adding the entire marketplace “minor”?
He continued: “[SB 1062] would have allowed small businesses to decline work that violated their consciences, unless the government could show a compelling reason why such refusal was unreasonable or unjust.” Whether one agrees or disagrees that this is a necessary amendment, it is absurd to describe giving small businesses the right to discriminate against certain customers as a minor change.
Conservative groups circulated a letter from a group of law professors who support SB 1062 that was supposed to prove that the Arizona law just made some piddling tweaks to the existing state Religious Freedom Restoration Act. Backers of the bill pretended that these were the only legal experts in America who have a view on the law. Anyone who disagreed with their interpretation was—in the words of these professors—“egregiously misrepresenting the law.” Ross Douthat wrote in The New York Times that the media coverage of the bill was “mendacious” and “hysterical.” Linking to the professors’ letter, he claimed critics of the bill “have no familiarity with the legal issues.” Never mind that several legal groups, including the ACLU and the Anti-Defamation League, have blasted the Arizona bill.
So what exactly did the professors say? They wrote, “SB 1062 does not say that businesses can discriminate for religious reasons. The proposed amendments provided a defense for a business owner or allowed a business owner to file a lawsuit to enforce RFRA protection.” So, by their own account, the bill gives a business owner who has discriminated against someone based on religious belief a legal defense that they previously did not have. This is exactly what critics of the bill are protesting. (The professors also expressed disapproval of the Kansas right-to-discriminate bill, but conservatives seem to believe these professors are only the last word on the Arizona law. Not so for Kansas.)
First Amendment expert Floyd Abrams, a strong backer of the federal RFRA, told me, “The letter seeks to transform a major issue of social policy into a trivial one of statutory draftsmanship. The real issue is whether the statute was drafted to afford more protection for those who discriminate or those who are the victims of discrimination. There can be no doubt that the former is true.
“There is no doubt that, if adopted, the Arizona legislation would have made it easier for those who engage in discrimination to seek to avoid penalties for doing so,” said Abrams. “That was the only purpose of the statute, not the resolution of some arcane statutory ambiguities—as the letter states. Once they focus in on whether someone is acting out of genuine religious belief, the transgressor is half way home. It’s true that the statute itself would not require the absolution of those who engage in discriminatory conduct from legal sanctions, but it certainly would—and was meant to—make it more likely that those who did so would escape those sanctions.”
The law professors further claimed that the changes to the Arizona RFRA merely brought it into line with the federal RFRA, a favored line of conservatives. This was presented as settled law, which it is not. Conservatives argue that the federal RFRA provides a defense for a citizen when sued by another citizen, when in fact this issue is far from settled. Many legal experts believe the federal RFRA only provides a defense for citizens who have had their religious freedom infringed upon by the government.
Rather than acknowledging that there are smart legal scholars on both sides of this debate, conservatives claim that anyone who disagrees with them is intentionally distorting the law or just too stupid to understand it. Or as The Federalist’s Mollie Hemingway put it: They are “dumb, uneducated, and eager to deceive.”
Conservatives have also twisted themselves in knots to present themselves as victims of a smear campaign. In a widely circulated Politico column, Rich Lowry wrote that it was “jarring to read the coverage of the new ‘anti-gay bill.’” Since the word “gay” didn’t appear in the legislation, Lowry asserted that, “There was nothing anti-gay about Arizona’s anti-gay bill.”
What’s jarring is to hear the editor of the National Review call people who are accurately describing the law liars. The Arizona bill is very much about gayness. But don’t take my word for it: Let’s look at how supporters of the bill have characterized it.
The Center for Arizona Policy, a pro-(heterosexual)-family organization that lobbied for the bill, has a fact sheet on their website that says: “The critical need for [SB 1062] came to light in a case recently ruled on by the New Mexico Supreme Court… Elane Photography v. Willock.” This is the case in which a Christian wedding photographer was sued for refusing to serve a same-sex wedding. Guess who gets married in same-sex weddings? Gay people.
Lowry’s magazine, the National Review, also seems to think SB 1062 was about gay people. In an editorial defending the Arizona Law, they wrote: “In response to a number of lawsuits in which such providers of wedding-related services as bakers and photographers have been threatened with conscription into participating in same-sex ceremonies to which they object on religious grounds, Arizona’s state legislature has adopted a law under which businesses that decline to provide such services will enjoy protection.” (Notice that they say that a bill that allegedly doesn’t alter current law actually adds a legal protection.)
If the Arizona bill isn’t about gay people then it makes the National Review editorial even more curious because it went on to mock gay-rights leaders as having “oppression envy” toward black people. The editors also derided the scourge of “organized homosexuality,” which must be different from disorganized homosexuality. We’ll have to wait for clarification on that. Whatever it is, the National Review doesn’t want Christians to have to bake cakes for it.
The Baptist Press also didn’t get the memo that only screeching liberals think the law had anything to do with gay people. It reported last week, “Though the two-page bill did not mention sexuality, without it Arizona business owners such as photographers, florists, and bakers could be forced to use their creative talents in celebration of same-sex weddings and other life events that violate their conscience, [Christian leaders Russell] Moore and [Albert] Mohler said.”
The Family Research Council’s Peter Sprigg told the Washington Post that these bills are necessary because, “There is a sense of alarm within the pro-family movement and among conservative Christians that there [are] growing threats to religious liberty, and many of those threats do relate to the agenda of the sexual revolutionaries. Yes, he referred to people who want to commit to spend their lives together as “sexual revolutionaries.”
The irony here is that conservatives believe they are the ones who are on the right side of history. Jonah Goldberg complained in the National Review that, “ Future historians will likely be flummoxed by the moment we’re living in. In what amounts to less than a blink of an eye in the history of Western civilization, homosexuality has gone from a diagnosed mental disorder to something to be celebrated—or else. Indeed, the rush to mandatory celebration is so intense, refusal is now considered tantamount to a crime.”
There are so many problems here. The Diagnostic of Statistical Manual of Mental Disorders (DSM) changed its categorization of homosexuality as a mental disorder in 1981. That was 33 years ago. Imagine Goldberg in 1993 complaining that it was “less than a blink of an eye” in history since the U.S. government believed blacks were so subhuman they couldn’t legally be served next to whites, so stop getting upset with people who don’t want them in their restaurants.
Finally—and this is a big one—nobody is asking their wedding vendor to celebrate their wedding. This is the canard at the foundation of this debate: that gays and lesbians want people who disapprove of their nuptials to join in the celebration of them. Literally not one person is asking anyone to celebrate or affirm something in which they don’t believe. In fact, the only people who are demanding affirmation are the conservatives who believe a business owner should be able to segregate public services because they think their religion mandates it. They are demanding that the rest of us affirm their bad theology and codify it in the law.
For a group of people who claim that they just want to be left alone, these Christian vendors seem to have a strange compulsion to insert themselves where they have not been invited. I think it’s the same-sex couples who need to be left alone. Since when does ordering a cake or a flower arrangement give someone the right to intrude into a customer’s life in the way these Christian vendors want to? They seem to think because a same-sex couple had the misfortune of walking into the wrong bakery that they are compelled to accept without complaint being on the receiving end of judgment, humiliation, and discrimination.
Opponents of the Arizona law are asking for one simple thing: that business owners provide same-sex couples the same service that they provide to every other person who walks through the door. This is not a radical proposition. Nobody wants nor needs the “affirmation” of their baker for their wedding, or anything else. Unless the wedding vendor—or the National Review—received an invitation to the wedding, they should assume they have not been asked to “celebrate” anything.