It seems that the Governor of Arizona, Jan Brewer, is up against a wall as she is facing pressure to veto a bill that would seemingly allow business owners with strongly held religious beliefs to deny services to the LGBTQ community. Politicians, CEOs, activists, state lawmakers, and others are all calling on her to veto this bill. She isn’t returning from a meeting of governors until later today, but she has until the 28th to veto the bill, if she does nothing or signs the bill, it becomes law. Opponents to the law decry it as discriminatory, while proponents of the law call it, “a fundamental protection of the religious freedom of every Arizonan,” and lambasted the activists of the LGBT community saying, “The attacks on SB 1062 … represent precisely why so many people are sick of the modern political debate, instead of having an honest discussion about the true meaning of religious liberty, opponents of the bill have hijacked this discussion through lies, personal attacks, and irresponsible reporting.” Interesting. One side crying discrimination on the basis of sexual orientation, the other crying attack against their First Amendment rights. Who is right?
When I was a child there used to be a sign up in the Pizza Hut that we occasionally went to for dinner. This sign said, We Reserve the Right to Refuse Service. I asked my father what it meant at the time and he was pretty clear on the matter. If Pizza Hut didn’t want you in their store, they could tell you to leave, end of story, they had enacted their right to refuse. Seemed pretty reasonable to me at the time. Of course, the meaning of the right to refuse wasn’t to engage in racism or sexism, it was to remove undesirable patrons from the place of service, whether that be unruly, rude, loud, messy, etc.
As places of public accommodation (can be found in U.S. Code, Title 42, Chapter 126, Subchapter III, § 12181, point 7), private businesses are subject to federal and state anti-discrimination laws. (emphasis mine) These statutes prohibit discrimination on the basis of race, color, religion, national origin, disability, gender and sex. Some also include sexual orientation.
Thus enter the Senate Bill 1062 in Arizona. The bill revises a section of Arizona law that regulates who can claim religious freedom or exercise thereof as a defense in a lawsuit. This was penned in response to a recent case in New Mexico citing the lack of standing to invoke the Religious Freedom Restoration Act of 1993 if the federal government was not involved in the case. Again, all of this is well and dandy except for one thing.
Arizona has no public accommodation law. The bill as it sits, if not vetoed, is moot; if it is vetoed it is also moot. Arizonans can refuse to serve whomever they like and for whatever reason they want, and an Arizonan refusing service can not be sued for discrimination at the state level. The general thinking in Arizona is that if you worked hard to build a business then you ought to be able to decide who gets to use it. Now why you would want to tell people coming in with money to spend to go away, I don’t know and it doesn’t seem very good for business in general, but then again a good businessman knows that. A good businessman also knows that occasionally they are going to have to turn someone away for a number of reasons just because that patronage is unwelcome. But if sued for LGQBT or whatever perceived prejudices (public accommodation violation) at a federal level then the RFRA would apply and there need not be SB1062 in place because standing would apply as the case would be at the federal level. Remember again, an Arizonan cannot be sued at the state level for a public accommodation violation.
But wait, there is no federal law banning the right to refuse service or public accommodation refusal based on sexual orientation at the federal level, so…(yeah, I am trying to figure out just what SB1062 does since any Arizonan with deeply held religious beliefs can deny services with relative impunity).
SB1062 doesn’t change any of this in the slightest. If it passes I am sure that the LGBTQGHTYB community will find some lawyers and set forth on a mighty campaign of suing everyone to get it over turned. If it gets vetoed then they will rejoice, but I am wondering how many of them will wake up the next day or the day after that and realize that they’ve been had.
SB1062 is a dog and pony show, plain and simple. It is designed to garner attention and boy has it done a good job of it so people have been distracted. It makes an interesting discussion of just what SB1062 is a smokescreen for.
Text of SB1062