There is no federal law prohibiting discrimination based on sexual orientation or gender expression, though such a law has been proposed and has failed several times. However, there are laws on the books in 17 states and the District of Columbia prohibiting discrimination on those bases. And four additional states prohibit discrimination based on sexual orientation only. As Americans, we have become used to this sort of class-specific legislation. The most famous is, of course, the Civil Rights Act which prohibits discrimination based on, among other things, race, color, religion, national origin and sex.
Some states, though, are going the other way.
On Thursday, Feb. 20, the Arizona Senate passed S.B. 1062, titled Exercise of Religion; State Action. Thankfully, late on Feb. 26, Gov. Jan Brewer, under pressure from a range of critics — Sen. John McCain, the Arizona Superbowl Committee, the ACLU, and businesses such as Apple and American Airlines — vetoed the bill.
However, the fight does not end there. The same, or similar, legislation has been introduced in Pennsylvania, Hawaii, Ohio, Kansas, Mississippi, Idaho, South Dakota, Tennessee, Oklahoma, Georgia and Oregon, among other states.
These “religious freedom” bills are ostensibly written to severely limit the action that any branch of the state government can take against someone who is freely exercising religious beliefs. However, the debate in the Arizona legislature, and in state legislatures across the country, reveal that these bills are actually designed to empower anyone in their states to deny services to an LGBT person based on a religious objection.
If these other states pass their bills into law, the list of “persons” who can legitimately deny services to an LGBT person due to a religious exception include:
Any individual, association, partnership, corporation, church, religious assembly, institution, estate, trust, foundation, or other legal entity;
I’m sure you can see the trouble here. Potentially covered under this definition are not just individuals and business owners. This bill would allow firemen, police officers, nurses and doctors, ambulance drivers, and any number of other emergency service providers to refuse to care for people, transport them to a hospital, or put out the fires in their houses because of a religious objection to homosexuality and variant gender identity.
It should be noted that frequently amendments from Democrats to make sure that everyone retained access to emergency medical, fire, and police services are soundly rejected.
Anti-gay discrimination may pass strict scrutiny, but it’s still evil
These bills rest on a legal concept called scrutiny. There are three levels of scrutiny designated to equal rights issues mandated by the Supreme Court.
The lowest bar for the government to hurdle is Rational Basis scrutiny — that there be rational relation between the regulation or law and a legitimate state interest. With very few exceptions, this means that if the government can make up any old reason at all, it wins.
To meet the middle bar, Intermediate Scrutiny, the government action must be substantially related to an important state interest. This level is mandated for cases involving discrimination based on sex.
The highest and most difficult bar for the government to meet is Strict Scrutiny. The government rarely wins cases at this level. To meet this standard, there must be a compelling state interest and the law must be narrowly tailored to affect as few people as possible. This level of scrutiny is mandated in cases involving abortion restrictions, racial discrimination, and some fundamental rights like marriage (not same-sex marriage — don’t get too excited), procreation, access to contraception, and freedom to exercise one’s religion.
This highest level of scrutiny is the hook for these “religious freedom” bills. Because of a state level enactments of the Religious Freedom Restoration Act, the government can only interfere with a person’s right to exercise his religion if it meets that Strict Scrutiny standard. I think it likely that any court will find on person’s access to emergency services a compelling reason to overcome another person’s religious objection, but that doesn’t mean that a judge will strike down the entire law. She could just partition that portion off and leave the rest alone. After all, there is no constitutional or statutory reason not to, and courts often err on the side of upholding the laws written by the duly elected members of a legislature.
This bill represents the current salvo in a fight framed by the Left as the right to discriminate and framed by the Right as the right to free exercise of religion.
Clearly animus-driven laws like S.B. 1062 are obviously evil. They play on the fears of people who feel downtrodden, trying to make them feel better by allowing them to step on the necks of others. These laws tell people, “Look, the gays are coming, and they are threatening your way of life and your religion. They want to be married like you, in your churches, and force their gay ways on you.” They allow a group of legislators to appease the middle-class voters whom they have completely abandoned without making any real change to the status quo.
If the government didn’t outlaw discrimination, who would?
The “free exercise of religion” aspect of all of this is a sham.
The right to exclude someone from your business is a property right — the same property right that allows you to exclude someone from your home. For centuries, most American states have recognized the right of a business to deny service to anyone. We have built in certain exceptions; hotels and mass transit cannot exclude anyone who can pay and isn’t a danger, and other laws forbid exclusion based on race, color, national origin, religion and sex.
But there is no need to create laws allowing businesses to exclude gays. In most states they already can! Outside of specifically named exceptions, a business owner has the right to deny service to people who are too loud, too quiet, too short, too tall, too abrasive, too gay, too effeminate, or just about anything else he can think of. (Typically it isn’t in their interest to do so.)
Bear in mind that the fight over these rights for individual classes is very real, and extremely valid. How would you, as a business owner, like to be forced to serve customers who are outwardly anti-Semitic? If you threw them out of your business, people might cheer you. Rocco’s Little Chicago Pizzeria in Tucson recently posted a sign that reads, “We Reserve the Right to Refuse Service to Arizona Legislators,” and it was lauded as an amazing response to the state’s anti-gay bill. But what if there was a law requiring that businesses service Arizona legislators? How would this pizzeria make its statement then?
I can hear you screaming at me that this is a false-equivalency, and you are right. Neither anti-Semites nor Arizona legislators, as groups, are being downtrodden or need protection. However, it should give any American pause when laws are being passed that compel business owners to extend their services to anyone that they don’t want to. Such laws represent government coercion at its most basic and should be used sparingly and with reluctance.
Of course, laws that compel behavior for the reason of outlawing discrimination have an immense power to do good. The Civil Rights Act of 1964 marked the beginning of the end for Jim Crow. The Americans with Disabilities Act allows everyone, regardless of physical condition or ability, to operate in our society with dignity and respect. Such laws have been necessary to force racial integration of businesses, colleges, public libraries, lunch counters, and swimming pools. They have afforded women the opportunity to vote, serve as police officers, become landowners and business leaders, and serve in government at every level.
Anti-discrimination laws are necessary restraints on freedom and have have been essential to change status quos against underrepresented minorities that the free market has never, and will never be able to change on its own. There is simply no financial motivation for a business owner to make that sort of change on behalf of a minority of customers. Helping to maintain the status quo of the majority, as do S.B. 1062 and its clones, is using bare coercion to codify discrimination. Laws like these that can, and should be used to afford our LGBT and gender variant citizens the equality we deserve, but they should not be used to further entrench discrimination against us.