I trust you’re familiar by now with this country’s recent hissy fit over a relatively mundane addition to an Arizona religious freedom bill, which somehow got turned into “Jim Crow for gays.” Chances are, if you’re familiar with it, you’ve been radically misinformed about it by the media. To listen to the media on this was to expect societal end-game if it wasn’t vetoed. America was going to look like a Hieronymus Bosch painting if Arizona governor Jan Brewer didn’t kill the bill with fire. Brewer ended up vetoing it, my guess is to subdue all the screaming, if for no other reason. It’s obvious now that no one doing the writhing and howling – mainly the media – read the (two-page) bill. Or they read it and they’re intellectual defects, because to compare Arizona’s SB 1062 to Jim Crow is stunningly obtuse and ahistorical. As Jonah Goldberg explained:
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. Arizona’s religious-freedom statute was modeled on a similar federal law signed by Bill Clinton after passing with large bipartisan majorities in both houses. It 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.
The federal law signed by Clinton was supported by Ted Kennedy and Chuck Schumer, by the way, among other “bigots.” Brandon McGinley goes into more detail:
In 1990, the Supreme Court’s decision in Employment Division v. Smith established that a “neutral law of general applicability” could impinge on religious practice without violating the First Amendment. Alarmed at this erosion of traditional religious liberty protections, Congress responded by passing nearly unanimously the Religious Freedom Restoration Act (RFRA), which applies the highest level of judicial scrutiny to laws which restrict religious practice. RFRA, however, has been held only to apply to federal laws. In 1999, Arizona passed its own, nearly identical version of RFRA in order to afford religious practice in that state the same protections afforded federally. Any law which “substantially burdens” the exercise of religion must further a “compelling government interest” and be the “least restrictive means” of furthering that interest. There are ambiguities, however, in Arizona’s RFRA that have been sources of litigation, mostly about whom, exactly, these laws protect and in what circumstances. SB 1062 would have resolved these ambiguities in ways that define RFRA’s protections broadly and that are consistent with federal religious liberty jurisprudence. SB 1062 provided a) that RFRA protects corporations just the same as natural persons, b) that RFRA can be used as a defense in court against a suit by a private citizen, and c) that RFRA claims can be brought not just against the state government, but against all municipalities and “state actors” in Arizona. That, you may be surprised to learn, is it. Corporations, as legal persons, get religious liberty protection. Religious liberty can be used as a defense if you’re sued by a private citizen. Religious liberty protections apply at all levels of Arizona government. Crucially, SB 1062 does not, under any conceivable definition, affirm a “right to discriminate.” All that it does is expand the circumstances under which religious liberty claims can be heard in court; it does not (unlike the recent, equally controversial Kansas law) prescribe the outcomes of those hearings…It took me five minutes to find and to read the State of Arizona’s synopsis of SB 1062, and only a few minutes more to digest some basic legal analysis…If SB 1062 was unacceptable, then no substantive religious liberty protections will ever be acceptable. SB 1062—nothing more than a clarification and slight broadening of Arizona’s RFRA in line with federal standards—was the bare minimum.
(Above emphasis mine). You can find legal analysis of the bill (mostly from pro-gay marriage lawyers) here, here, here and here. In case you didn’t understand the above, Doug Laycock (the latter link) explains it well, too:
SB1062, which would have amended Arizona’s Religious Freedom Restoration Act, has been egregiously misrepresented both before and after the veto. The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard — substantial burden and compelling interest — to be interpreted and applied to individual cases by courts. They rest on the sound premise that we should not punish people for practicing their religion unless we have a very good reason. These laws have produced surprisingly few cases, on gay rights or any other issue; before the current litigation on contraception, most people had never heard of the federal RFRA. SB1062 would have amended the Arizona RFRA to address two ambiguities that have been the subject of litigation elsewhere. It would have provided that people are covered when state or local government requires them to violate their religion in the conduct of their business, and that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion. But nothing in the amendment would have said who wins in either of these cases. SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, in any kind of case (discrimination cases were not even mentioned, although they would have been included), that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision.
He goes onto explain how the AZ bill is different than the Kansas bill (which also got a lot of publicity). Anyway, McGinley continues:
Despite hysterical claims that SB 1062 would have “legalized discrimination” in Arizona, you may be surprised to learn that sexual orientation and gender identity are not protected classes in Arizona. Which is to say, except in Phoenix, Flagstaff, and Tucson, which include those traits in local ordinances, it’s already legal to discriminate on the basis of sexual orientation and gender identity in Arizona. That dystopian Arizona with LGBT folks sitting at different lunch counters and forced out of jobs en masse and booted from retail stores? Under Arizona law, that could exist right now. And yet it doesn’t. Because Arizona isn’t full of hordes of cackling Christians plotting an LGBT apartheid state.
Jim Crow was government-MANDATED segregation, and businesses that wanted to serve blacks could be prosecuted. This is NOT that. If this is the way things are now – the Left and the media are so intellectually dishonest (and hypocritical, but we’ll get to that later) and the citizenry is so incapable of basic critical thinking that the media can whip up mass hysteria if they can just manage to label something “anti-gay” – then we really are done as an intelligent, free-thinking society. But reading takes some time and thinking is hard. It’s easier and more fun to join the mob, stick your fingers in your ears and yell, “La, la, la, I can’t hear you BIGOT.” Merely suggesting on social media that people actually, you know, READ THE BILL and maybe even briefly consider their opponents’ position before moralizing publicly, resulted in me being called a bigot. And I’m a supporter of gay marriage (although, as a thinking person, there are a couple of arguments against it that I think are worth reflection and debate). Personally, I would like it better if the government got out of the marriage business altogether, but I recognize that’s probably never going to happen. As National Review‘s Goldberg put it in his column, which you should read and which I wholeheartedly agree with:
Now lest you get the wrong impression, I am no opponent of gay marriage. I would have preferred a compromise on civil unions, but that ship sailed. The country, never mind the institution of marriage, has far bigger problems than gays settling down, filing joint tax returns, and arguing about whose turn it is to do the dishes. By my lights it’s progress that gay activists and left-wingers are celebrating the institution of marriage as essential. Though I do wish they’d say that more often about heterosexual marriage, too.
The problem is that people have trouble understanding that you can support the underlying principle (in this case individual liberty, religious freedom, property rights, freedom of association) without endorsing the specific scenario (Christian refusing to bake a cake for a gay couple). I might think it’s silly for this baker to make such a fuss over baking a cake, but if you don’t support freedom of religion/association when you think the doctrine/practice is wrong/silly then you don’t support freedom of religion/association. But I guess that’s too much thinking for most people. And, anyway, what do I know? I’m a liberty “extremist” who thinks any private business owner should be able to refuse service to any person for any reason. My issue is with the government interfering and telling businesses who they must serve. If I don’t want to cater a wedding for the Westboro Baptist Church or photograph a KKK rally, I shouldn’t have to (and I have a hard time imagining the Left would reject my right to refuse, which is where the earlier mentioned hypocrisy comes in). The Holocaust survivor shouldn’t be forced by the government to make t-shirts for the local Nazi rally. There are plenty of cake bakers. Gays and lesbians can take their business elsewhere and the baker’s business will likely suffer because of his/her decision not to service part of the population. In fact, according to a friend of mine who lives in Oregon, the baker that sparked all of this madness has actually shuttered her shop due to loss of business. Civil society and customer pressure are the way to solve these problems, not through legislation and courts. Fortunately there are some very smart people, like Kevin Williamson, who agree with me. Check out this Williamson piece.
Arizona has a talent for scandalizing the nation, demonstrated this week by its state senate’s passing a law protecting religious bakers from legal prosecution should they decline to accept an order for a gay wedding. State senator Steve Gallardo, a Phoenix Democrat, protested that “the bill opens the door for discrimination against gays and lesbians”…The question that needs answering is: Should that discrimination be a crime?…It is a mark of the moral illiteracy of our times that it even has to be argued that suffering the indignity of having a baker refuse to service your wedding because he holds ideas about marriage that were shared by, among others, Barack Obama until the day before yesterday, may be painful, even humiliating, but it is an experience that is not very much like being a member of a captive race that was held in slavery for centuries and then systematically subjugated for another century. Try turning the moral math around as a thought experiment: Imagine you are the gay owner of a restaurant in Chelsea, a member in good standing of the National Gay and Lesbian Chamber of Commerce, rainbow flag flying out front — and the cretins from the Westboro Baptist Church decide that they want to rent your party room for their annual “God Hates Fags” Sunday brunch. Shouldn’t you have the right to refuse? There is in this sad world such a thing as a Ku Klux Klan wedding— should the management of Harlem’s famous Sylvia’s Restaurant be prosecuted under civil-rights law if the establishment should decline to cater such a wedding? It is impossible for me to imagine that that should be the case…The situation in which black Americans were suffering in the 1950s and 1960s is a unique one, and it almost certainly was the case that federal action was required to change it. But religious traditionalists who do not wish to be involved in gay nuptials are not Bull Connor, and nobody said that hewing to a heterosexual model of marriage was the equivalent of Jim Crow when Barack Obama was the one making that case. It is not 1964. If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures. There is, after all, an almost infinite gradation of moral distinction between the views of well-intentioned people who do not wish to cater a gay wedding because of religious considerations and the odious, malicious position of Westboro Baptist et al. The courts and legislatures are poorly equipped to make those fine distinctions, but civil society has the ability to distinguish between an honorable disagreement and ill will. Americans are generous and good-hearted people who give every indication of being well-disposed toward letting their gay neighbors go about their private affairs with liberty and dignity, independent of what their policy preferences are in terms of marriage and related issues. I trust Americans at large to make the necessary distinctions much more than I trust the political institutions to do so.
Williamson’s point is borne out here:
Shunning gay customers is an expression, however unsavory, of free association rights that has never been abridged in the Copper state, and needs no encouragement on the part of lawmakers. In response, a Tucson pizzeria is exercising its free association rights in a much more praise-worthy way: by telling state legislators to take their hunger, and business, elsewhere.
I’ve had some argue with me that the Nazi, Westboro Baptist and KKK examples aren’t useful because those are legitimate “hate groups.” Not wanting to service those groups is entirely understandable. Not wanting to serve homosexuals, who haven’t harmed anyone, is a silly, stupid attitude, they argue. Well, first I would say that offense is subjective. There isn’t a standard definition of what is “offensive” (though must of us can agree that there are certainly different degrees of offense and Nazis are much higher on the scale for the vast majority of people than homosexuals). But the larger point I would make is what I said earlier. The underlying principle is what’s at stake here. That’s what matters, not the specific situation. For example, I love shooting as a sport. Let’s say I go into a bakery and request a cake in the shape of an AR-15 for my birthday party. The owner of the bakery is a sincere gun-control, anti-“assault weapon” supporter. She says it offends her to bake a gun cake. To me this is a “silly” thing to be offended by. But do I want her to be forced against her will to bake my gun cake? Do I want her to be punished if she doesn’t? No. I’ll go find a baker who thinks my idea is so awesome that he/she wants to build me a fucking MACHINE GUN CAKE, BABY! Maybe if the anti-gun baker was especially rude to me, I’ll feel annoyed enough to go on the internet and give her bakery a negative review. I don’t want to live in a country in which that woman gets in trouble for her beliefs. I sincerely believe that the free market (especially in an age of social media) will destroy bigotry in business faster than laws and government coercion will. Ben Demonech has an excellent piece on why society should take care of this and not government.
The reality is that discrimination on the basis of sex in public accommodation and in numerous other ways is for the most part totally legal at the state level. Yes, this crazy Jim Crow reality that has been fearmongered to death is already the law in most states. Most people think it’s illegal, but it isn’t – last night I heard a sports radio host describing America as a place where “no one has any right to deny anyone any service any time for any reason”, which is pretty much the opposite of freedom of association. But while it is legal, it rarely comes up – because it is so infrequently an issue! It turns out most Southern Baptists are perfectly happy to take gay couples’ money and bake them a cake. The pursuit of a positive Yelp review can be a powerful motivator. But – and here’s the real focal point of this issue – they should be free to choose not to. And those who favor human liberty should be in favor of defending this status quo…Elevating emotion (even understandable emotion) over reason is precisely what statists do and have done for centuries, and something libertarians (and too few conservatives) rightfully decry. The end point of overreaching government is a reality where believers are forced to bake a cake to celebrate an act they view as sinful, but under no circumstances can they serve unlimited brunch. If you believe markets work, if you believe people work, then you should have faith that legitimate bigotry will be punished by the marketplace. So Hobby Lobby and Chick Fil A and all the cakemakers who only make heteronormative cake will see their business drop because they were anti-women or anti-gay or what have you. Giving the government the power to punish them – which really amounts to giving elite trial lawyers that power – is madness if you believe in people and markets. Decisions made by free people within markets will sort themselves out better than giving courts and government and bureaucrats the power to do the sorting. No one will shop at the Nazi store without being judged for shopping at the Nazi store, so we don’t need government to ban the Nazi store.
Deroy Murdock has an excellent piece on the importance of maintaining freedom of association…
What if a straight baker does not want to bake a cake for a gay couple, not because he has a religious problem with homosexuality, but because he just doesn’t care for gay marriage, even though he is an atheist? What if a gay baker decides that his thriving gay-wedding cake business is doing just fine, thank you, and he chooses not to bake wedding cakes for straight couples — not because of anything biblical, but because he wants to cater exclusively to the gay community that he knows and loves? In both cases, the bakers’ beliefs and preferences should trump those of the couples. America has (or at least had) something in the Bill of Rights called freedom of association. As the First Amendment states: “Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble.” The Ninth Amendment also applies here: “The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Cato Institute legal scholar Roger Pilon describes freedom of association as the junction of liberty, sovereignty, and personal autonomy. As he wrote in the American University Law Review: “The freedom in ‘freedom of association’ is the freedom to be left alone, not the ‘freedom’ to force oneself on another.” So long as private parties act on private property, it should be none of the government’s damn business for whom someone bakes cakes, takes photos, or pours drinks — or does not do so. If people object on religious grounds, fine. If people just don’t want to associate with people for whatever reason, that is fine, too. Period.
I’m an atheist. Super Catholic wedding ceremonies are unbearable to me. They’re long and boring and I don’t believe in any of it, so it’s extra annoying to me. Let’s say I’m a wedding photographer and I decide, based on the above reasons, that I don’t want to work Catholic wedding ceremonies anymore. It’s not because I hate Catholics. Lots of my friends are Catholic and I love them to death. It’s just my business and I don’t want to hang out in church for hours on summer weekends. My business serves enough weddings that I’ll be fine rejecting the ones I don’t want to do. Shouldn’t I be able to do that without fear of being fined/jailed? Do we really want to live in a society where you can be jailed for refusing to bake a cake or take photographs? Because somewhere down the road, that’s where this goes. Come to think of it, I’m pretty sure Catholics are a “protected creed” so I potentially could be brought to court for refusing service to them. Think about that. Murdock then gets to one of the points I made earlier…
Those who pounded on Brewer over this measure should be careful what they wish for. Forcing people to associate with gay customers despite their objections — religious or otherwise — could boomerang on gay people. Mandatory-association laws could be used by straight people who want to horn in on gay establishments. Consider a summer camp in New Jersey called Mountain Meadow. It caters to gay parents and their children. Now, what if a heterosexual evangelical applied to become a camp counselor there? Would Mountain Meadow be required to hire that person? And what would happen if he started preaching to the young campers about what he consider the sins of their gay parents? Would his religious freedom to do so be protected? In 2010, eHarmony paid a $516,800 settlement to some 130 Californians plus $1.5 million in court costs and attorney’s fees. These plaintiffs sued because this originally heterosexual, Christian dating site did not offer services for men seeking men. eHarmony wound up establishing a gay dating website called Compatible Partners. So, what is ManMate.com going to say when a straight man complains, “What’s with all the dudes on your website? I’m a man, and I want to check out hot chicks!” This guy could use eHarmony’s precedent to sue ManMate.com and force its employees and managers to start helping boys seek girls.
Murdock then goes through a thoughtful list of the potential scenarios/unintended consequences that could unfold should the hostility towards freedom of association be taken to its logical extreme. He also wonders what I’ve been wondering…
One also wonders why a gay couple would want to harness the state’s boundless powers of coercion to make a reluctant, straight photographer document their wedding. Why pay someone to take such photos while scowling, constantly checking his watch, and taking long smoking breaks while the groom and groom enjoy their first dance and cut their cake? Can Bob and Steve sue if all of their photos are out of focus? Why not, instead, hire a photographer — straight or otherwise — who actually wants the assignment and will cheer their celebration?
The answer to this is, of course, because for the Left the bottom line is forcing everyone to do what they want. The gay rights movement started off as a libertarian-esque “we just want to be left alone” movement and has evolved, as the Left’s causes often do, into “Do what we want or we will bring the full force and power of the government down on your head.” I, like my fellow atheist libertarian, David Harsanyi, was naive to think the gay rights movement would stop at “leave us alone” because as David points out in his excellent column at The Federalist…
I trust markets and people over government to regulate bigotry and “bigotry.” The problem is that secular liberals aren’t content with coexistence. I’ve been writing pro-gay marriage posts since I became a columnist at the Denver Post a decade ago. And though I don’t believe any of those columns or interviews with many gay Coloradans made much of a difference in the world, I do realize I was exceedingly gullible in believing that any group would be content simply being “left alone.” It’s clear that coexisting doesn’t only mean having the freedom to take part in the civil institution of marriage, but it also means compelling others into participation and acceptance. As Will Cain pointed out, the Arizona bill kerfuffle soon became an excuse to hunt for homophobes — some real, most imagined. I know too many religious Americans — Catholics, Evangelicals, Lutherans, and many other denominations — whose generosity and patience have humbled me. It’s nothing more than contemptible bullying to paint entire communities, whose faith has been built on thousands of years of theological and intellectual history, as dogmatic bigots. It’s no better, in fact, than the bigotry the gay community had to deal with for decades.
Bear with me for two more important quotes that kind of sum everything up. First from Rich Lowry…
A religious freedom statute doesn’t give anyone carte blanche to do whatever he wants in the name of religion. It simply allows him to make his case in court that a law or a lawsuit substantially burdens his religion and that there is no compelling governmental interest to justify the burden. For critics of the Arizona bill, the substance was almost an afterthought. They recoiled at the very idea that someone might have moral objections to homosexuality or gay marriage. The cases that have come up relevant to the Arizona debate involve small-business people declining to provide their services to gay couples at their marriage ceremonies. A New Mexico photographer won’t take pictures. A Washington state florist won’t arrange flowers. An Oregon bakery won’t bake a wedding cake. It’s easy to see how offensive these decisions were to the gay couples involved. An entirely understandable response would be for the couple to say, “I’m sorry you’re so narrow-minded and I hope you evolve one day. In the meantime, I’ll take my business elsewhere.” The market has a ready solution for these couples: There are other bakers, photographers and florists. The wedding business is not exactly bristling with hostility to gay people. If one baker won’t make a cake for gay weddings, the baker across town can hang a shingle welcoming all couples for all types of weddings. This is how a pluralistic society would handle such disputes. Instead, in the cases mentioned above, the gay couples reported the businesses to the authorities for punishment. The question isn’t whether businesses run by people opposed to gay marriage on religious grounds should provide their services for gay weddings; it is whether they should be compelled to by government. The critics of the much-maligned Arizona bill pride themselves on their live-and-let-live open-mindedness, but they are highly moralistic in their support of gay marriage, judgmental of those who oppose it and tolerant of only one point of view on the issue — their own.
And from the Jonah Goldberg article that I linked up at the top…
In 2000, Jonathan Rauch, a (gay) brilliant intellectual and champion of gay marriage, wrote a wonderful essay on “hidden law,” which he defined as “the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.” Basically, hidden law is the unwritten legal and ethical code of civil society. Abortion, assisted suicide, and numerous other hot-button issues were once settled by people doing right as they saw it without seeking permission from the government. “Hidden law is exceptionally resilient,” Rauch observed, “until it is dragged into politics and pummeled by legalistic reformers.” That crowd believes all good things must be protected by law and all bad things must be outlawed. As society has grown more diverse (a good thing) and social trust has eroded (a bad thing), the authority of hidden law has atrophied. Once it was understood that a kid’s unlicensed lemonade stand, while technically “illegal,” was just fine. Now kids are increasingly asked, “Do you have a permit for this?” Gay activists won the battle for hidden law a long time ago. If they recognized that, the sane response would be, “You don’t want my business because I’m gay? Go to hell,” followed by a vicious review on Yelp. The baker would pay a steep price for a dumb decision, and we’d all be spared a lot of stupid talk about yellow stars.