Arizona has second thoughts about discrimination

The big story in the United States this week has been the attempt by the Republican-controlled legislature in Arizona to expand legal protections for those who want to discriminate on religious grounds. The measure, dubbed in many circles the “anti-gay bill”, has been opposed even by many in the Republican establishment, including former presidential candidates John McCain and Mitt Romney.

Current indications are that it will be vetoed by Arizona governor Jan Brewer, also a Republican. But similar bills are being considered or proposed in a number of other states, so the issue is not likely to go away soon.

I’ve written about anti-discrimination laws before – for example, in this piece from 2006. My general view is that I don’t like them; as I put it then,

The issue is whether or not the grounds for discrimination are relevant, and that is simply not a matter of hard fact.

Like censorship, which depends on the government being exclusively able to determine the meaning of words, anti-discrimination law requires a sort of omnipotence that the law does not have. Barring extreme cases, the best option is to let people make their own choices – to discriminate on the grounds that seem relevant to them, and leave the courts out of it.

But I don’t like the Arizona bill either. That’s partly, I confess, because its authors are so transparently focused on licensing bigotry; in effect, on denying the equal humanity of disfavored groups, specifically gays. But even bigots can sometimes be right. Could this legislation nonetheless be correct in principle?

I think not, for two important reasons.

First, because the right to discriminate isn’t given to everyone: it only applies if “the person’s action or refusal to act is motivated by a religious belief.” (There are other conditions as well, but you need that to even get to first base.) But why should that matter? If discrimination is a bad thing, why should religion get a free pass? Making religion a precondition for exercising some legal power surely amounts to an establishment of religion, specifically prohibited by the US constitution.

Conversely, if it’s safe to allow religious people to discriminate, why not allow everyone? As I said when the issue came up in Australia a few years ago, “If there is no compelling interest to stop churches discriminating against women, or gays, or Muslims, there is no compelling interest in stopping anyone else either.”

Defenders of the bill are quite correct in arguing that there is nothing new about this special privilege. After the Supreme Court, in Employment Division v. Smith, ruled that religion couldn’t be used to evade anti-drug laws, Congress in 1993 passed the Religious Freedom Restoration Act, effectively setting religious reasons above other reasons. Many states did the same, Arizona among them.

The current Arizona bill, however, goes further. Instead of just being a shield against persecution of individuals, it would explicitly extend the protection to businesses. And that brings us to the second reason that this is such bad legislation: it entrenches the idea that personal belief is a legitimate reason for refusing to do your job.

If I set myself up in business – let’s say as a wedding photographer – there’s a reasonable expectation that my services are available to anyone who offers to pay my fees (and meets other obvious conditions, such as not clashing with other work). If I refuse to take a particular job on the grounds, say, that the bride is a redhead and I disapprove of redheads, then I would be behaving outrageously. In appropriate circumstances, I could be sued for breach of contract.

Of course, I could specify upfront, on my promotional material, that redheads are not welcome, but very few businesses would be willing to do that. And in fact no-one thinks that discrimination against redheads is particularly worthy of legal protection. But Arizona Republicans do think exactly that when it comes to gays.

Some versions of the measure, such as the bill passed by the lower house in Kansas (although stalled in the state senate), would clearly have the effect of extending the protection to employees. Despite the fact that they were employed to provide a service, they could refuse to perform that task when it came to gay customers, and – if the law were taken seriously – be immune from any consequences.

There’s not much chance of laws like this surviving constitutional review. They would be vulnerable to attack on numerous grounds, including establishment of religion, equal protection and impairment of contracts. And whereas Republicans once saw little political downside in at least making anti-gay gestures, they are now risking considerable damage: hence the likely veto in Arizona.

Most likely, the controversy over anti-discrimination law will now quieten down for a bit – until someone finds a new minority group to scapegoat.




5 thoughts on “Arizona has second thoughts about discrimination

  1. I realise my comment may be 8 years too late given the original article was in 2006, but I am curious about the following statement you reference from 2006:

    “Barring extreme cases, the best option is to let people make their own choices – to discriminate on the grounds that seem relevant to them, and leave the courts out of it.”

    What I’d like to understand are the bases on which you would argue it is the ‘best option’. Best for whom or what: the law, the individual, society, the economy, something else; and why?


  2. Arizona’s Republican state legislators, on a near-party-line vote, had last week passed the bill allowing businesses to discriminate against same-sex couples on religious grounds. As you probably know by now, Arizona Gov. Jan Brewer vetoed the bill. As well, the bill was opposed not only by Democrats but by Republican U.S. senators, John McCain and Jeff Flake as well as by the state’s Chamber of Commerce.

    A bill permitting restaurants, hotels and other business to deny service to gays and lesbians on religious grounds might (and perhaps should) strike many Americans as an affront to Jefferson’s founding creed “that all men are created equal,” as well as the 14th amendment’s provision of equal protection under the law.

    The issue is whether businesses can refuse service to gays and lesbians based on the businesses’ religious beliefs. To agree with this you probably have to believe that corporations are people to grant that businesses can have religious beliefs. And this is where we find the problem. The Supreme Court has recognized that corporations, as groups of people, may hold and exercise certain rights under the common law and the U.S. Constitution (They may donate money to political campaigns, for example). The key question which must be decided is: “do corporations have the right of free exercise of religion as expressed in the 1st amendment?”

    As one commentator on Brewer’s veto said today in my morning newspaper: “As patriotism can be the last refuge of scoundrels, so religion can be the last refuge of bigots.”


  3. I have to underline Wombat’s concerns in relation to the re-posted paragraphs of 6 years ago. But perhaps I misunderstand the motivation?

    In some quarters legislated boundaries, particularly when defining intolerance and acceptable behaviour, is regarded as an unnecessary interference in the affairs and rights of the individual.

    There will always be prejudice, it is a human attribute, but surly we, as a society, have moved on from having to deal with ‘sanctioned’ (for that is what it would be) prejudices?

    “Barring extreme cases”…assumes pre-determination anyway,how?

    “The best option is to let people make their own choices – to discriminate on the grounds that seem relevant to them” … this is the crux. People make their choices, the question is how those choices impact others. In the extreme, feudal and early industrial societies where land/capital ownership enabled almost absolute control, freedom of choice depended on what side of the line you stood. So where to from there?

    “Anti-discrimination law requires a sort of omnipotence that the law does not have” (An assumption of absolutes?), “Leave the courts out of it”…

    It does not require omnipotence to be effective, at least to provide a modicum of protection against excesses. How far do you go? Again extreme (figuratively); I like to drink and drive, It’s my right to drink and it’s my ‘right’ to drive. Never been caught.


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