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.
“Another reason why the motivation is so transparent is because today the law is completely unnecessary.”
This is what Vermont said about “civil unions” back in 2000. That “it was not going to lead to marriage, and that it wasn’t about that.” I think everybody can agree that this was not the case.
I really believe this is about removing tax exempt status for churches that don’t want to participate, after all that would be “discrimination.” Saying that there won’t be a lawsuit is kind of like saying there won’t be a lawsuit against photographers who don’t want to go to gay weddings because of religious conviction. So I think in light of events, saying that a law is not needed is quite facetious.Report
@phill-k — Wait, what is the law needed for?Report
I really believe this is about removing tax exempt status for churches that don’t want to participate, after all that would be “discrimination.”
Not to mention that it was really a leftist plot to make Sharia the law of the land in AZ. Because you know, that would have been one of the ways the law worked.Report
I personally consider it inevitable that there will be gay couples that will sue so that they can get married into the Catholic Church. I think there already have been. There will be activists that demand that tax-exemption be put into jeopardy for anti-gay discrimination in ceremonies. There already are (though nobody with significant influence).
But they’ll lose. There has been a long-established right to receive service and not be discriminated against on various bases. There hasn’t been a right to get married at any church you want to. That has always been at the discretion of the individual churches. It’s an uphill climb that simply doesn’t matter to a lot of proponents of SSM and that many SSM proponents (like myself) are actively against.
For it to ever happen, you’d have to have such an overwhelming consensus of opposition any and all non-discrimination against gays that if such a consensus occurs this law would be ignored or repealed anyway.Report
I’m no lawyer, but as I understand it even race hasn’t breached that barrier (for example, the World Church of the Creator couldn’t be forced to conduct an interracial marriage). I’d say the worry that pastors will be forced to officiate over cermonies they don’t support is quite overblown.Report
Never happen. EVER. For you to even think that “One day someone will sue to make the Catholic Church marry them” — in America, shows basically a total lack of understanding of the 1st Amendment.
Now sue and get tossed out of the first court it comes up in? Sure.
But sue with a chance of success? Not unless the 1st Amendment is overturned.
No court is EVER going to dictate to a religion who it must and must not marry. The entire “gay marriage” debate is ENTIRELY about secular marriage, and always has been!
Just as an example: Some Christian churches were happily marrying gay couples well before Vermont passed it’s civil union bill. Nobody sued to stop it for the same reason.Report
I never realized that conviction outside of the actual impairment of the practice of religion was constitutionally protected. Religious freedom gets mixed up with exercise when people believe their conscience rights alone warrant the same level of protection.
Also at the point that sexual orientation is included under federal anti discrimination law, these kinds of laws are dead on arrival.Report
Interestingly, Brewer said ” Religious freedom is an American value, and so is non-discrimination.” So at least she thought that discrimination trumps religious freedom.
Her decision is also interesting given that some AZ CCers were arguing that the bill wasn’t discriminatory since it didn’t include any references to sexual orientation or gays. Apparently she thought that dog wasn’t gonna hunt.Report
conviction outside of the actual impairment of the practice of religion was constitutionally protected
Can you explain this too, so that I can share in this realization?Report
“I don’t want to do X because I find it offends my sensibilities.”
“Hard cheese, pal.”
“I don’t want to do X because, um… hey, yeah. ‘God’ says he doesn’t like X.”
“You make an interesting argument.”Report
Who are you going to trust? God, or some non-God guy?Report
Who are you going to trust? God, or some non-God guy?
Lemme check the money in my wallet…
Yep, goin’ with God.Report
Can you explain this too, so that I can share in this realization
Jaybird nailed it.
My reading of the exercise language in SB 1062 is that it expanded the definition of free exercise to the point where a violation of one’s rights of conscience were given equal footing with the violation of the right to practice religion.
As I understand free exercise jurisprudence and the Sherbert test, the fact that something places a burden on one’s religious belief is not sufficient enough to win a free exercise case if there is no burden on practice. It appears to me AZ law would extend beyond that, and I think it’s pretty clear why since one having a conscience issue about baking a wedding cake won’t prevent them from personal prayer, Bible study, church and other ways to practice faith.Report
It’s exactly the principle that forces churches to perform Muslim weddings.Report
Yes, there will be a lawsuit. I’m sure there’ve already been lawsuits. Any such lawsuits will lose massively under heavily settled precedent. First, so far as I’m aware, religious organizations have never been considered as “public accommodations” for purposes of their religious services – there’s a reason, for instance, the Mormon church has no problem whatsoever prohibiting non-Mormons from entering its temples without being subject to liability for discrimination on the basis of religion.
Additionally, there’s a universally recognized First Amendment doctrine called the “ministerial exception,” which was recently not just reaffirmed, but actually expanded, by unanimous opinion of the Supreme Court. That doctrine prohibits courts from even considering employment discrimination lawsuits by people deemed religious “ministers,” which can be a fairly broad category (in the recent case, it was enough that the employee spent a few minutes a week giving religious instruction even though she spent the rest of her time teaching secular subjects). While people getting married isn’t the same thing as people who are ministers, the rationale for the doctrine is binding and uncontroversial precedent that clearly applies equally to marriages and other religious ceremonies: the Court, quoting longstanding precedent, wrote that religious organizations must have “power to decide for themselves, free from state interference, matters of church government, as well as those of faith and doctrine.” Hosanna-Tabor v. EEOC. In such cases, the Court has long held, there can’t even be an inquiry into whether the court followed its own procedures – if something involves a church’s internal governance, or is a matter of determining its own faith or doctrine, even asking whether the Church acted consistent with its doctrine is impermissible. Basically, religious organizations have immunity from any challenges to the validity of their doctrine or to purely internal church matters. It’s only to the extent that they’re engaging in secular activity that they become subject to various laws. In other words, just a mail room clerk for Catholic Charities may be able to sue for discrimination, while a defrocked priest most definitely cannot, a religious shelter for the homeless open to the public cannot turn away people because of their race, but a church can restrict its internal religious ceremonies to whomever it wishes.
For all the fears of churches being forced to marry gays, where are the fears that churches who refuse to will be forced to marry interfaith couples? It’s not as if interfaith couples haven’t been around forever and haven’t had ample time to challenge such restrictions. Or, for that matter, couples on their second marriage barred from marrying in the church.
Fact is, churches have lots of rules about who may and may not marry in them which otherwise violate discrimination laws. Why would same sex couples be able to change that in a way that others have historically been unable to?Report
I guess some other states are geared up to try it:
http://abcnews.go.com/Politics/arizona-states-anti-gay-laws/story?id=22696419&singlePage=true
I mean, clearly we are winning and they are desperate. But still, it is sad to see such hatred.Report
clearly we are winning and they are desperate. But still, it is sad to see such hatred.
Yes. But I think we can take heart that the last desperate measures don’t look anything like the resistance to segregation. And in AZ the big business sector was all over this one. I think that’s probably the primary reason Brewer vetoed it. Her bit about non-discrimination being a value, I doubt she personally feels that in anything like the way we do, but that was her cover. And that she had to use our talking point as cover means that talking point has more power than their hatred.Report
I mean, clearly we are winning and they are desperate. But still, it is sad to see such hatred.
When I got myself mixed up in a few “discussions”, what I noticed about the bigots (and they were clearly bigots) is that it didn’t matter how many times you told them to self fornicate. It didn’t matter how good my arguments were (they ignored them). They just kept coming with the same crap over and over and over. It was like hitting a punching bag. At some point I decided it was more worth getting taunted by a two-bit asshole for not addressing his points than it was beating on him more than I did.
Thankfully, we don’t get that here.Report
There’s an element of some sort of ‘divine’ knowledge here; and all the reasons/justifications, etc. are simply marketing tools to be used and discarded based on their success at reinforcing this deeply-held divine insight.
For example, google sermons that were used to justify slavery in the South. There was a clear deep thread of ‘perfecting the black race for God,’ and being preached. And this included, ‘when the race is perfected, God will end slavery.”
You will notice that this did not carry over; we did not have the south stepping forward and embracing a race now perfected after slavery’s end.Report
It is my understanding (gleaned from numbers if internet sources) that virtually all of AZ’s business community opposed the law.
One of the sponsors begged the governor to Veto it.
And that the once citizens began considering it in terms of other, non-Christian religions (a Muslim cab driver, unwilling to give rides to an unescorted woman was pretty common), the majority of AZ citizens didn’t like the law.
It was a pretty safe veto.Report
I think that this is a large reason it was veteod. The Chamber of Commerce came out against it.Report
And the NFL!!!Report
The threat of having the Superbowl removed probably helped decide to veto. And just because her speechwriters put something in a statement does not mean she believes in it.Report
Would you be happier if she said she made the decision based on pragmatics and political expediency? Something like
“I sincerely believe that (the anti-gay bill) has the potential to create more problems than it purports to solve. It could divide Arizona in ways that no one could imagine,”Report
Potentially yes.Report
Andrew Sullivan ran a story yesterday about a guy who called up various bakeries that refused to serve gay couples and justified it on their Christian background. The guy called up with other groups that should be objectionable: celebrating the birth of a second child out of wedlock and pagans celebrating solstice. Both times the bakery owners started giving quotes and options without demurring the reason for the request.
I think this says something.
There was a lot of justification for Jim Crow done on religious grounds with racist interpretations of the New Testament. Those did not succeed legally during civil rights and arguments against gay marriage should not succeed either. My prediction is that fifty years from now gay marriage will be legal in all 50 states, sexual orientation and gender non-conformity will be added to the Civil Rights Act or have separate legislation like EDNA, and it will illegal to refuse service based on sexual orientation. However, there will still be a vocal minority that insists there should be a right to discriminate and there will be media stories with politicians making gaffes on the issue.Report
I’m glad the law was vetoed, but I don’t think this line is helpful:
“other groups that should be objectionable”
I’m not comfortable with people telling other people what their faith “should” mean. That’s actually giving ammunition to the (so-called) defenders of religious liberty.
It’s a minor point, and the apparent double standard is interesting, but the specific wording is troublesome.Report
I read it as “other groups one would think they should [find] objectionable”. Or just append, “from their perspective.” to the original.
How accurate Sullivan’s assessment of what should and shouldn’t be doctrinally objectionable is a separate question. A “congrats on your divorce!” cake would likely rile some conservative Catholics I would think.Report
I imagine that was what ND meant, Rod, and that’s fine. However, there are people who have opinions about what other people’s faith should mean and how it should apply to public policy. If one doesn’t want to be so dictatorial about people’s faith, then one should (generally) be careful with language.Report
I agree that we shouldn’t be running around telling other people what their faith means. However, I don’t think that necessarily precludes pointing out obvious hypocrisy, like when their faith loudly proclaims A and B but they only talk about A because A is something like gay sex that doesn’t directly affect them and B is something like addressing poverty which might hit their wallet.Report
I’m with Rod here. There is a certain amount of eyebrow raising to be done.Report
But Rod, when you say “their faith loudly proclaims A and B”, you’re making a decision about what their faith proclaims. You can make the argument that the organized religion to which they belong claims A and B, and you can make that argument that your reading of their holy book claims A and B, but those are significantly different things (and ignores that there is a lot of internal debate within religions and congregations).
Again, I agree that it’s worth pointing out the appearance of hypocrisy, but we’re not always in a position to definitively state that there is hypocrisy.Report
That being said.
Cooler heads have prevailed so far but I am afraid this is going to get worse before it gets better and we are going to see more outright massive resistance legislation over this and other hot-button cultural issues. I think one state is going to pass the legislation and need to see it struck down in courts before the madness stops. If anything can stop it.
We seem to be in an era where both the left and right are getting more polarized and strident and bold.Report
You know the realignment Tod sort of predicted yesterday?
One potential is the banding together of relgious fundamentalists; each to be able to violate civil-rights laws based on religious conscience. So, yeah, marry your daughter off to the highest bidder, polygamy, Sharia Law, all sorts of things. All these little tribes doing their thing.
If you haven’t read it, this would be an excellent time to read Iain Banks’ book, Whit.Report
You might not be far off:
http://dish.andrewsullivan.com/2014/02/27/when-will-the-christianists-embrace-the-islamists/Report
TNR compared the religious conscious laws with Stand Your Ground laws that I can’t find right now.
We are heading into what I suspect will be a very frought time filled with social strife.Report
I think there are all sorts of way marginalized coalitions could realign. It’s inevitable, but none of them can be predicted, it seems to me.
Not too long ago there was a big push for a libertarian/left liberal coalition that failed miserably. More recently another faction of the marginalized left tried to form a coalition with Rover Norquist. That also crashed and burned pretty quickly.
Seems to me that coalition building will occur spontaneously given a context and persist insofar that effort yields success. The decline of unions is a case in point. As the Democratic base expanded to include coalitions who’s interests conflicted with union goals, Democrats fought less for those goals and union support for Dems has declined (with a correlated decline in union presence and power).Report
Muslims were very much on the GOP’s radar prior to 9-11.Report
One potential is the banding together of relgious fundamentalists
On a friend’s Facebook page, I saw an awful lot of social conservatives appealing to libertarian sensibilities for support. “Hey, it’s live and let live…you agree with this sort of thing.”
In a way I’m not surprised because libertarians would rather see freedom of association as a guiding rule of business (I believe this although this isn’t a hill I’m dying on).
However, seeing the social conservatives pull the freedom, liberty and live and let live card after spending the last ten years or so doing everything but live and let live to gays seeking marriage equality was too much to bear.
The second one did it to me on the basis of stopping the “homofascists”, the gloves came off. When the libertarians started throwing the “statist” card my way for not sticking to doctrinaire principles, things got worse…much worse. I can understand principles, but I also get hostile when people can’t see the big picture, especially when it involves them getting played.Report
@stillwater
IIRC the left-libertarian coalition failed because the libertarians wanted the liberals/lefties to give up all their economic ideas that were critical of capitalism/free market.Report
@newdealer While I agree on the economic issues, I think justice plays as much a part.
One of the big flaws I see in Libertarian thought is responsibility. Without rules and laws defining the responsibilities of corporations in free markets, it falls to the judiciary to settle things; it requires an activist judiciary.
I would love to see (and hope someone here might point me to) a libertarian vision of free markets where this is not the case. I am a social libertarian, and spent a long, long time trying to reconcile this. I could not.Report
@zic
That is partially what I meant by economic values.
I think most liberals would consider themselves to be social libertarians.Report
@newdealer
And because the liberals weren’t willing to give up anything at all.
Kind of like the congressional Tea Partiers, no?Report
@james-hanley have you looked at the regulatory roll backs in the Obama administration? They don’t receive much press, just like the deficit shrinking doesn’t get much press. (And I know, ACA created a whole new layer.)
But, I don’t think what you’re suggesting is quite accurate.Report
ND,
the christianists (dominionists) need some OTHER to hate.
Now that they’re cool with da Jewz (AIPAC),
they gotta hate someone.
We libs ain’t weird enough for them.Report
@james-hanley
I will concur that liberals would need to give up some of their economic views to make a liberal-libertarian alliance work. What those things given up should be are another question? I don’t think it should be on universal healthcare, public education, unions, environmental regs, or other safety net issues. I can concede to upzoning and other changes to building regulations. Perhaps some licensing deregulation. Also anti-discrimination law is still very important.
Which free market/libertarian economic ideals do you think libertarians should compromise or concede on to create a successful left-liberal alliance?Report
I feel like an idiot on this issue, but is it not still true that Arizona allows discrimination based on political views and affiliations? Can’t businesses discriminate against gays simply for holding pro gay-rights views? Or is a “political affiliation” very narrowly defined under the law?Report
I imagine that private businesses can generally discriminate on almost any basis not prohibited by law unless there’s some other extenuating factor (e.g., the business offers something of vital necessity not easily attainable by elsewhere).Report
@trizzlor This is correct.Report
@tod-kelly : So, just to be clear, the conservative claims that without this law Jewish photographers will be forced to work Nazi rallies and such (CATO; NRO) are irrelevant. And liberal claims that this law opens the door to discrimination against gays are premature, at least until Arizona allows gay marriage or establishes sexual orientation as a protected class (as Dave points out in the post).
Is it just me or has there been a glut of misinformation on this whole issue? Anyway, thanks for clearing it up.Report
Um, no. You don’t need to be married to be gay. The bill was aimed at religious objections to gay people [i]in general[i/], not restricted to married gays.Report
@trizzlor That is correct: no one is given extra protection under this law, nor is protection taken away from anyone. This bill does little (and probably nothing) other than signal to voters in a very cynical way.
(Or at least I hope that it was cynical. The thought that a majority of legislators in any state that didn’t understand why the law would not have any effect frightens me far more than pols trying to cynically red-meat their way to reelection.)Report
@morat20 I think what triz’ is saying is simply that the passage of the law would not have created additional abilities for Arizona citizens to discriminate against people because on the basis of sexual orientation, and he is correct.
Arizona citizens already have a legal right to that type of discrimination; SB 1062 would have granted no additional right(s) to discriminate against LGBTs that do not already exist in that state, regardless of one’s religious beliefs.Report
@trizzlor
The difficulty would be determining the person’s political views. Sexual orientation does not map 1-to-1 with political views. There are conservative gays. There are gays who were opposed to SSM (or, perhaps more accurately put, didn’t support the pro-SSM movement as it was constructed).
This is part of what I find so baffling about the intent of these laws. Would these people deny service to a chaste gay man who just wanted to enjoy a cake on his lonesome? I bet they’d like to. Would they deny service to a guy whose sexual orientation they didn’t explicitly know but who came into the store doing his very best Bruno impersonation? Again, I bet they’d like to.
I may be wrong… but I’m pretty sure I’m not. Which tells me these laws are exactly about what they are portrayed as by their critics: homophobic attempts to deny the most basic rights to gays. They are not about freedom of conscience or association or religion. They’re about, “Ewww! Icky gays!”Report
People will go to any length to obscure their bigotry — well, except a final step to shed their bigotry. That step they won’t take.Report
I’m not sure who said it but I like it:
If patriotism is the last refuge of the scoundrel, then religion is the last refuge of the bigot.Report
http://www.jstor.org/discover/10.2307/2378688?uid=3739920&uid=2&uid=4&uid=3739256&sid=21103612424513Report
Piety is the refuge of the scoundrel. Patriotism is but one form of piety.Report
@chris
Frank Knight taught Friedman and Buchanan. Stigler, too, I think. And is considered the founder of the Chicago school of economic thought.
I like the company you keep. 😉Report
James, yeah, I mostly know of him, rather than his specific views, through references, but “last refuge of the bigot” reminded me of that title, which I’d come across researching something else.Report
This is part of what I find so baffling about the intent of these laws. Would these people deny service to a chaste gay man who just wanted to enjoy a cake on his lonesome? I bet they’d like to.
Some of them, no doubt. But I’ll bet there are a lot of people who want nothing to do with a gay wedding but who would not object to conducting a transaction with a gay person under normal circumstances.
Think about it this way: Most gay people aren’t married. Of the minority who are, the vast majority of their commercial transactions over the past few years have been entirely unrelated to their weddings. If all or even most of the people who refused to perform services for gay weddings refused to serve gay people generally, we’d be seeing hundreds of such complaints for every wedding-related complaints.
Is this the case? I don’t know for sure, but I don’t think so.Report
@kazzy I think I’m in agreement with Brandon. I think your assertion assumes a greater degree of bigotry and malice than most people hold.Report
@jonathan-mcleod , I don’t know about that. I heard a caller to a radio show the other day. Said her young daughter was really into some kind of rainbow themed toy/cartoon thing. Probably involving unicorns or something. Went to a cake shop and asked for a rainbow-colored birthday cake. The shop refused because they were convinced it had to be for something gay.Report
A fair counter, @brandon-berg .
I’ll push back, at least somewhat.
1.) Most people don’t know who is or isn’t gay. A wedding ceremony confirms knowledge. It might be that people haven’t tried to discriminate against gays/lesbians in other transactions because they didn’t know they were gay or lesbian.
2.) There have been other attempts to exclude gays and lesbians from participating in parts of society unrelated to marriage. The Boys and Girls Scouts spring immediately to mind.
I may be overstating just how widespread the bigotry is, but I also think you may be understating it. The truth is probably somewhere in the middle: some people will gladly serve gays at weddings and everywhere else; some have a sincere religious objection to participating in gay marriage ceremonies; and some would rather never interact with anyone gay or gay-seeming and have no bones about using the power of law and/or religious justification to pursue that end.Report
@rod I’m not suggesting no one would do such things, just that Kazzy’s (blanket) statement overstated the number of people who would do such things (as Kazzy has clarified in a subsequent comment).Report
@rod
Was it Lady Rainicorn? http://sophiemcdonald.com/wp-content/uploads/2013/08/Lady-Rainicorn.png
Mayo ended up with a stuffed one he got from his aunt (she works for the parent company of the television studio and got it free). He loves it but even I have to admit it’s pretty freakin’ gay. :-pReport
Kazzy:
Fair enough, and a good point about the scouting organizations. I do think there’s a fairly large number of people who want to discriminate against homosexuals, just that that group doesn’t contain all people who don’t want gay-wedding-related business.
As I understand it, most states do not actually have laws banning discrimination on the basis of sexual orientation, so people who want to do in fact have the opportunity. I wonder if people put up “THIS IS A GAY-FREE ZONE” signs in their shops.Report
I just see a horse. You need to lay off the acid, Kazzy.Report
One of the problems with this law was that while its intent was anti-gay, it’s application could have spread far beyond.
For instance, it would have allowed a distinct form of racial discrimination against native tribes based on potential religious grounds. No Hopi served because they might subscribe to the Hopi Religion and eat peyote, and this is a Christian joint.
Another concern would be for the rights of women in fundamentalist religions of all sorts; particular women younger then 18.Report
No Hopi served because they might subscribe to the Hopi Religion and eat peyote, and this is a Christian joint.
Are Christian joints made from pot irrigated with holy water and fertilized with communion wafers?Report
Holy Smokes!Report
Could be, @brandon-berg
Is that the only meaning of joint now? No bend in the usage around this place?Report
@zic Is that the only meaning of joint now?
[Spike Lee angrily tweets the Chiefs of Staff]Report
Point of fact, I could be asked to leave any business in MA simply for being trans. In fact, it happened to a pair of trans women (last year I believe) at a restaurant in Central Mass. The Mass TPC has been working on public accommodation laws that would prohibit this sort of thing.
Needless to say I support such laws.
The cities of Boston and Cambridge have local ordinances that protect me.Report
For a small fee, you, too can be certified as a Christian Herbalist
There’s Pink Slime Marketing™, wrapping cheeper products in pink for your inner feminista.
There’s Full Camo Marketing™ for those looking to Stand their Ground.
And I’d missed it before, but there’s also a thriving market in Holy Smokes Marketing™ for all your spiritual needs.Report
@veronica-dire
How would the business determine your trans status? I mean, do they leave that thing up to the eye test? Good god.Report
@brandon-berg
“I do think there’s a fairly large number of people who want to discriminate against homosexuals, just that that group doesn’t contain all people who don’t want gay-wedding-related business.”
That is what I should have said from the get-go.Report
@kazzy — For some of us it is obvious. Would they kick out Janet Mock (do an image search). I doubt it. But maybe if they picked it up from something she said.
There are some cis women, typically large, muscular, who get clocked as trans and have to deal with that shit. There are trans women who pass with ease.Report
@veronica-dire
Eash. Obviously (well, I hope it’s obvious), I oppose discrimination due to gender identity. But supposing we were going to accept it, the idea of it being based upon an eye test is even more appalling.
I mean, suppose a business tried to exclude you and you said, “Oh, no. I’m a dude. I just dress this way.” Would they have to admit you? Or could they insist otherwise?
Ugh. I can’t even imagine. I’m glad you at least have some local cities offering better protection. (Speaking of, we may be returning to the greater Boston area; might need to talk with you behind the scenes on that.)Report
@kazzy — Well, I’m not sure how the “I’m just dressed this way” would work compared to “I’m trans,” when facing a bigot. In my experience they begin with “faggot” and it goes downhill from there.
That said, a bet a lot of business owners are actually unaware of the fact they can throw me out, given this is MA and we did get a very visible workplace protection law a few years back (yay!), and we have school bathroom policies statewide (double yay!), so “trans folks have rights” is in the air. I expect lots of folks assume we are protected.
I’ve had a number of store clerks express obvious discomfort when I went to use the fitting rooms. But when I confront them with “I’m a woman,” they’ve always backed down.
I have trans friends who assume we are protected. I only know about this ’cause I asked a woman from the MTPC about it and she explained.Report
@veronica-dire
I won’t pretend to know all the in’s and out’s of the various laws involved. But as I understand it, a MA business could refuse you service because you are trans but they could not refuse a cis male for wearing nail polish. Or maybe they could? I don’t know. As you note, none of that changes the way in which you might be made to feel uncomfortable or unwelcome, harassed, or worse. Bigots are going to bigot.
It just strikes me as odd that the “eye test” would be codified into the law.
That said, I’m glad to hear that things are at least starting to change.Report
@kazzy — The way I understand it, they can throw you out for any reason that is not a protected category. So they cannot kick out a black person for being black, nor a gay person for being gay. Likewise, gender is a protected class, so they cannot refuse to serve women. (Well, certainly a restaurant could not. I don’t know the boundaries.) But trans status is not covered. Neither, I suppose, is nail polish on a dude.
However, in recent years there have been a number of suites filed (nationwide, not necessarily in MA) where the plaintiff claimed that transphobic discrimination should properly be considered gender discrimination. I know that some of those cases have been successful.
So we might win that way. I’d rather have an explicit law.Report
If this bill had been signed into law, would it have permitted as a matter of state law a business owner to discriminate for religious reasons on the basis of race? I realize that wouldn’t necessarily matter because such discrimination would violate federal law.Report
People should be careful what they ask for. Let’s say I’m the owner of a customer-facing business where religious sensibilities may come into play. A pharmacy, for example. Joe Smith applies to work as a pharmacist. I’m gonna google him and check him out on FB and so on. When it turns up that he’s an actively pro-life evangelical, I’m pretty sure I can dream up a reason not to hire him that won’t run afoul of EEOC.
People that dream uo this crap never imagine it could land on them.Report
Buh buh buh buh but… we’re a Christian nation! These laws are to protect Christians… and Christians only!Report
If I don’t want to have to hire an actively pro-life evangelical for my business, I shouldn’t have to.
Or is the argument that I need to pretend to find a reason like “team chemistry” to not hire someone rather than “this person has a lifestyle that won’t mesh with my attempts to make money, money, more money, ah money money money”?Report
No. It’s a bit more subtle than that. As it stands, religion is a protected class thing. In general, I support non-discrimination laws, although religion doesn’t seem like an immutable characteristic along the lines of race to me. In any case, it is what it is.
So I’m just trying to be a good corporate citizen and I base my hiring strictly on credentials in accordance with EEOC rules. I hire a guy that turns out to be a conservative Catholic and refuses to dispense contraceptives. I find that unacceptable, so what do I do? If I can the guy am I discriminating against his religion?
Anticipating this problem, I’m likely to not be terribly enthused about hiring him in the first place, even though otherwise I have no issues with an employee’s faith.
It’s like hiring a Muslim butcher. No pork chops today!Report
Rod: The law requires you to make ‘reasonable allowances’ for religious observations as an employer. It’s a fuzzy area in practice — things like slight modifications to dress codes to allow head coverings, etc are easy to determine — others are hard.
However, fundamental inability to do the job (or refusal to do it) is generally acceptable. If your religion forbids the eating of meat and extends to even handling meat, taking a job working for a burger joint is just going to get you fired and no lawsuit is gonna get your job back.Report
Is “he’s going to throw away all the emergency contraceptives” insufficient?Report
If Congress would pass ENDA the way a significant majority of Americans think it either should or already has, then charades like this one from Arizona would be mooted.Report
Did anyone actually read the bill? This part deeply troubled me:
“22 E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH
23 ALL OF THE FOLLOWING:
24 1. THAT THE PERSON’S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A
25 RELIGIOUS BELIEF.
26 2. THAT THE PERSON’S RELIGIOUS BELIEF IS SINCERELY HELD.”
I’m not a religious person. But the idea of the government (or some agent of the government (e.g., a judge)) determining whose religious belief is sincere and whose is not seems to be the antithesis of the 1st Amendment. This is probably another area where proponents of the bill imagined their sincerity would be assumed but the idea of empowering the government with this ability (or further empowering it, as there is already ample evidence of them doing just this) really bothers me.Report
Bill here: http://www.azcentral.com/ic/pdf/SB-1062-bill.pdfReport
This seems like the sort of judgement that would need be made for determining conscientious objector status (as opposed to just doesn’t want to go to war). Tricky.Report
I get that, practically speaking, courts often need to determine sincerity or other things like it. But further codifying into law that the government gets to say this belief counts but that belief doesn’t bothers me.
Sometimes I’m very sympathetic to the idea of eliminating any such religious exemption. If a law doesn’t explicitly target a particular system of belief or its practice, I think I’m okay saying, “These (e.g., taxes, health codes, not discriminating) are the costs of participating in a secular society. We except them to be borne by all regardless of belief.”
That probably makes me a monster of some sort.Report
This is quite tricky. you’re right that it’s kind of offensive, at the same time, it’s there for practicality.
The Supreme Court of Canada recently (maybe 5 years ago?) make such a decision. A man claimed that smoking pot was part of his religion and, thus, couldn’t be charged with drug offenses (basically). The court decided it was not a truly held religious belief.
I would guess that the court was right that the guy just wanted to smoke pot, but the decision leaves a bad aftertaste.Report
What’s offensive is that sincere belief is trumped by religious belief. A moral belief shouldn’t get more weight just because it has a religious source.Report
I’m not sure a religious belief always trumps a moral belief, however, in the case of the pot smoker, if the court were to uphold a moral belief that pot smoking was a necessary part of life, what would be the impact on law (not just pot smoking laws), in general?Report
That only picks a bad aftertaste because of the example in the field of “neutral laws of general applicability” to use a phrase from our Supreme Court Laws. There are many other examples where it wouldn’t leave a bad aftertaste. What is the guy said he believed in Moloch and needed to practice child sacrifice? Or he was a believer in the Aztec gods?
Would sentencing such a person for murder leave a bad taste in the mouth?Report
@newdealer
I agree with the sentiment of that law. I’d actually expand it and require religious orgs to pay taxes.
However, child sacrifice violates the rights of another in a way that smoking pot doesn’t. So I think it fair if they leave different tastes in peoples’ mouths.Report
if the court were to uphold a moral belief that pot smoking was a necessary part of life, what would be the impact on law (not just pot smoking laws), in general?
There are a lot of things you can swap out for “pot smoking” there that will get you thinking about the social contract in general and exactly what it is that you presumably agree with because you haven’t left already.Report
Nice of you to come over to the libertarian side, @newdealer 😉Report
There are many other examples where it wouldn’t leave a bad aftertaste. What is the guy said he believed in Moloch and needed to practice child sacrifice? Or he was a believer in the Aztec gods?
In that case, the sincerity of his religious belief would be irrelevant, because there are no religious exemptions for murder laws. The point, really, is that the government shouldn’t be in the business of making special exceptions to laws and deciding who qualifies and who doesn’t. If a law isn’t important enough to enforce despite sincere religious belief, then it should probably just be repealed.Report
If a law isn’t important enough to enforce despite sincere religious belief, then it should probably just be repealed.
This x1000Report
So we’re back to comparing casual drug use to murder and wondering why anybody would want to make an exception for things that are obviously harmful.Report
“If a law isn’t important enough to enforce despite sincere religious belief, then it should probably just be repealed.”
En fuego, @brandon-berg .Report
@kazzy
Dude. Not cool. Just because I don’t know French doesn’t mean you can use it to swear at me.Report
Another thing I’ve noticed is that marriage equality opponents and the such still use Nixon’s “silent majority” language. I can’t recall where I saw or heard this but it was the other day. Probably on a protest sign in a photo.
I imagine that the concept of a “silent majority” is going to hold sway in conservatives for a long time because it is rather powerful psychologically. In fact, it is almost impossible to beat and works as an invincible shield.Report
Interesting.
But it’s also a way to delude oneself into accepting most others see the issue as you do. For example, the early disapproval of ACA after passing included large numbers of folk like me who said they didn’t like/approve the law because it lacked a public option; yet I repeatedly saw poll numbers held up as a majority support for conservative disapproval.Report
I remember that as well.Report
What also seems to be true is that blue states are getting more liberal and red states are getting more and more conservative. Idaho legislators are pushing for a bill that would allow students to bring guns to school. At least university students. These religious liberty bills are not going to go away anytime soon despite defeat after defeat. New York is experimenting with using education to reduce the chances of criminals reoffending and Washington imposed a moratorium on the death penalty while red states seem to be getting more gleefully punitive and doing all they can to speed up the death penalty.
Every thing seems nuts.Report
@newdealer did you see this?
http://www.nytimes.com/2014/02/28/opinion/when-may-i-shoot-a-student.html?ref=opinionReport
Yup. Thanks.Report
That NYT ed. seems highly tongue in cheek and a pointed satire.
Gun laws may be going one way, but other laws are going in the other way. It is not a simple swing either way.Report
@greginak are you suggesting that there’s balance — expansion of gay rights in law balanced by expansion of gun law?
Did you see this?
http://www.pbs.org/newshour/rundown/study-claims-violence-surges-repeal-gun-control-laws/Report
Balance?, no not really. I just don’t think we can say places are moving entirely to the right or left. Gun laws are becoming more lax (SYG, concealed carry, etc) and that does likely have some negative effects. I have seen that article, it doesn’t surprise me. But pot laws are also becoming more lax and the country is, fit fully, becoming much more comfortable with gay rights. It is more of a mixed picture then right or left.Report
Are you saying that:
While our city police chief has expressed grave concerns about allowing guns on campus, I would point out that he already has one. I’m glad that you were not intimidated by him, and did not allow him to speak at the public hearing on the bill (though I really enjoyed the 40 minutes you gave to the National Rifle Association spokesman).
was intended satirically?Report
I think this is satiric:
“I assume that if a student shoots first, I am allowed to empty my clip; but given the velocity of firearms, and my aging reflexes, I’d like to be proactive. For example, if I am working out a long equation on the board and several students try to correct me using their laser sights, am I allowed to fire a warning shot? ”
“If two armed students are arguing over who should be served next at the coffee bar and I sense escalating hostility, should I aim for the legs and remind them of the campus Shared-Values Statement (which reads, in part, “Boise State strives to provide a culture of civility and success where all feel safe and free from discrimination, harassment, threats or intimidation”)? ”
“Knee-jerk reactions from law enforcement officials and university presidents are best set aside. Ignore, for example, the lame argument that some drunken frat boys will fire their weapons in violation of best practices. This view is based on stereotypical depictions of drunken frat boys, a group whose dignity no one seems willing to defend. ”
Maybe i’m wrong…really what are the chances of that….don’t answer that. But this reads as satire to me. Perhaps we’ve become so inured to the supernova of crazy that comes out of the pie holes( check TPM for a couple choice moments of epic stupid just today) of some of our fellow citizens that we lose some ability to see things clearly.Report
ND,
http://www.dailykos.com/story/2014/02/28/1281151/-Maine-GOP-Rep-Apologizes-for-Saying-Men-Should-Get-to-Rape-Women-Because-Abortion?
*cough* I think you’re just seeing what you wanna see.Report
@greginak there’s no doubt that it’s satirical, but I’d say satirical in an effort to point out the concerns the professor has, not in any sort of pro-gun-on-campus sort of way.
So I’m curious how you thought the satire was intended to work?Report
@zic I think he is satirizing the concept of allowing guns on campus. He is mocking the idea.Report
Sorry, my question was intended as rhetorical. It’s obviously satirical and very funny.Report
Conservative support of SB 1062 is racist sure, but there are liberal racists, too. Think of that.
BSDI.Report
I mean homophobic. Oops.Report
I guess both sides make mistakes.Report
Maybe it was a Freudian slip, because racism is one of those areas where you see exactly how enlightening the above-the-fray point of view is.
There are lots of white liberals who cloister themselves away in white yuppie enclaves and send their kids to white yuppie schools all secure in the knowledge that they could not possible be racist because they vote for the blue team and have all the right SWPL opinions. Meanwhile they never stop to think about how their rather blind support for a whole host of progressive policies actually exacerbates the existing institutionalized racial disparities.
When it comes to the gays, however, I will grant that the Ds are unequivocally better. At this point in time, there really is no other way to characterize the right’s position on these issues than institutionalized homophobia. The Arizona bill was really really bad. And I say that as someone with fairly libertarian views on discrimination laws.Report
It’s good to know that liberals aren’t the real homophobes too.Report
I have to start with the assumption that you see that I’m not making the argument that you claim that I am making. Of course, it is possible that you don’t see it. Maybe you are so used to seeing that inane back and forth over which side is more racist that you don’t see what I am actually saying, which is that it doesn’t really matter which side is more racist when racism is built into the system and neither side is all that willing or able to address the present and future systemic issues.
And that is exactly the problem with hyper-partisanship, it is a stagnant conversation over yesterday’s ideological battlegrounds. It is quite simply a lack of imagination and an unwillingness to really consider a different way.
ps – this is a critique of a particular brand of hyper-partisanship, not of anyone who happens to find themselves leaning towards one direction of the other. Lots of people in both camps have the imagination to consider something different, but the conversation is presently being dominated by one side’s plaintive concerns over their own victimization and the other side’s triumphant taunts.Report