Governon Jan Brewer recently vetoed a “religious freedom” law that would have allowed public accomodation businesses to discriminate against gay people on the grounds of First Amendment religious liberties.
As one might expect, gay rights advocates vehemently opposed the bill – although what probably killed it in the end was the opposition of business interests that feared a backlash against Arizona that would cost them money, especially from tourism.
In order to understand what is actually in play here, one needs to be aware of the bigger picture.
In the first place, this is not, as anti-gay social conservatives are portraying it, a matter of religious liberty:
(From the majority opinion written by Justice Antonin Scalia)
We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis,310 U.S. 586, 594-595 (1940):
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States,98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said,
are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Second, this is being framed around the issue of gay marriage, but the effects of such laws would extend far beyond religious objections to gay marriage – which is rapidly becoming a moot issue anyway. Here’s why:
The thrust of this law was to create a “religious freedom constitutional exception” to public accomodation laws. It would cover far more than the photography business that doesn’t want to snap pictures of a gay wedding. It would also cover those who don’t wish to hire gay people, or educate them, or rent or sell housing to them, and a host of other public accomodations practices that are currently prohibited by federal (and some state) civil rights laws.
Social conservatives understand that they have lost the gay marriage issue, just as they lost on the issue of the criminalizing gay sexual practices. But in approximately 29 states, those engaged in the provision of public accomodations may still practice discrimination against gays on the grounds of their sexual orientations. This is what the social conservatives are now digging in their heels to preserve.
And these states – or a federal amending of the Civil Rights Acts to include sexual orientation as protected – will be the next, and final, legal and political battleground on which the remnants of the religious war against homosexuality will be waged and, likely, eventually won.
This is also why gay rights activists will move strongly to prevent any new precedents being established that would provide a religious expemption to public accomodation laws that permit anti-gay discrimination on religious liberty grounds.
Not to mention that the larger precedent itself is horrendous: It brings us back to the Scalia cite:
To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
There are, indeed, many religious people who do believe exactly that, and even some of the nont-necessarily-religious: Various flavors of anarchism also partake of the sovereign individual. I admit to some slight leanings in that direction myself – but for the fact that such anarchy has never brought anything but misery wherever it has been tried – in other words, it is as big a failure in the real world (and for much the same reasons) that communism is.
There is also the problem that under First Amendment law you cannot single out any single religion for favoritism – so we would end up with a situation in which any religion which wishes to assert any exception to the law would be permitted to do so on the basis of religious liberty.
At which point Muslims would legally be able to keep human slaves, (and turn women into defacto animals/slaves) Satanists would be able to sacrifice children, and other such atrocities. Yes, I employ hyperbole for effect here, although I’m by no means certain that the Muslim examples are actually hyperbolic. They certainly aren’t in other parts of the world.
The upshot of all this is that you should keep in mind when thinking about these seemingly small or unimportant individual confrontations: They are merely skirmishes in a much larger war that is still proceeding all across America.