A Very Brief Postmortem on Arizona’s SB 1062
Arizona Governor Jan Brewer vetoed SB 1062 yesterday. For anyone not familiar with it, it was a controversial bill that would have allowed business owners to assert its religious beliefs and deny service to people based on those grounds. While proponents believed this was necessary for the cause for religious liberty, opponents believed that the law would allow people of faith to invoke their religious beliefs to justify discriminating against individuals, with the mostly likely targets being gay individuals and couples.
While the statute itself did not refer to gays or sexual orientation, it doesn’t take a rocket scientist to figure out the motive behind the bill.. As Burt Likko stated in his excellent post on the Elaine Photography case in New Mexico:
One of the “nightmare scenarios” invoked in the rear-guard action against same-sex marriage is that private businesses who refuse to participate in same-sex marriages will be subject to suit. This is not a bogeyman, it’s quite real.
Burt’s post summarizes Elaine Photography’s arguments and why they failed. It is no coincidence that the text of the SB 1062 addressed every failing. In addition, the bill’s “exercise of religion” was not limited to “practice” but also expanded to include “observance” guaranteeing that someone can argue that a mere burden on one’s beliefs constitutes a burden one’s exercise of religion. This seems to go far beyond Free Exercise jurisprudence at the federal level.
Another reason why the motivation is so transparent is because today the law is completely unnecessary. Arizona does not legally recognize same sex marriage and state anti-discrimination laws do not protect on the basis of sexual orientation. This law only becomes substantive if current marriage and anti-discrimination laws change, which is what I think opponents are betting on.
The clash between religious liberty and anti-discrimination law was discussed briefly at the League back in 2009. Perhaps it’s time to revisit that. This isn’t going to go away.