Seven Stupid Things About Arizona's SB 1062

Back in the 1980s, two counselors at an Oregon drug rehabilitation clinic were fired and denied unemployment benefits because they consumed a small amount of peyote during a religious ceremony. The case reached the United States Supreme Court as Employment Division v. Smith (1990). The court found that because Oregon’s prohibition of peyote was a “neutral law of general applicability,” the burden on religious expression in the case did not need to be justified by a “compelling governmental interest.” Religious use of peyote is not protected by the US Constitution.

In response to that ruling, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 which required courts to apply strict scrutiny to all laws (even neutral laws) which substantially burden a person’s religious expression. But in 1997 the US Supreme Court ruled that the RFRA could not be applied to the states. To remedy the inapplicability of the RFRA at the state level, eighteen states, including Arizona and New Mexico, passed their own versions of the RFRA.

In addition to having its own RFRA, New Mexico also has a Human Rights Act which forbids any business open to the public from refusing to offer its services to any person based on sexual orientation (NMSA § 28-1-7). And it was in New Mexico, in 2006, that Vanessa Willock tried to hire Elane Photography, which is owned by Elaine Huguenin and her husband, to photograph her wedding. Huguenin refused, stating that she only photographed “traditional weddings,” which she later clarified to mean that they “do not photograph same-sex weddings.” Willock filed a complaint with the New Mexico Human Rights Commission. The commission found that Elane Photography had unlawfully discriminated on the basis of sexual orientation and awarded Willock attorneys' fees (which Willock waived).

Elane Photography appealed the commission’s findings, and the case was eventually reviewed by the New Mexico Supreme Court as Elane Photography, LLC v. Vanessa Willock (2013). The court rejected all of Elane Photography’s arguments and affirmed the district court’s summary ruling for Willock, concluding that “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”

The court didn’t question, however, that the Huguenins “believed that creating photographs telling the story of that event [a same-sex wedding] would express a message contrary to their sincerely held beliefs, and that doing so would disobey God.” So why didn’t New Mexico’s RFRA protect Huguenin in abiding by her religious convictions which (apparently) are such that they don’t allow her to express same-sex wedding ceremonies in photographic form? Because it was a private dispute between Willock and Elane Photography, and the NM Supreme Court held with the appellate court that “the New Mexico Religious Freedom Restoration Act is inapplicable to disputes in which a government agency is not a party.” Elane Photography has petitioned the US Supreme Court to review the case (reusing one of the same arguments the New Mexico court found unconvincing). We’ll see how that goes. [Update: the petition was denied.]

When Arizona’s Republican lawmakers saw New Mexico dictating how Christian owners must conduct their business, they sprang to action and passed a bill to patch their own version of the RFRA. That bill, SB 1062, consisted of only a few short amendments which would have made two significant changes to the existing code:

  1. The definition of “Person” would have been expanded to include any “individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity”.

  2. It would allow a person (now including a business as above) to claim a defense based on their right to express their religious beliefs without substantial burden “regardless of whether the government is a party to the proceeding.”

For a more informed telling of the SB 1062 story, see Scott Bomboy’s article, “Arizona’s religious freedom debate and the Sherbert test.”

SB 1062 passed the Arizona legislative process on February 20, 2014, and was vetoed by the governor on February 26th. In between there was a fair amount of local and national backlash. So I’m late to the controversy. But it is never too late to enumerate the ways in which everybody is wrong about everything:

  1. As is evidenced in the Elane Photography case, homosexual acts and relationships are taboo among many Christians. It is a taboo which is propagated in two ways:

    1. Most Christians who adhere to (or seek to enforce) the taboo accept the teleological reasoning in the style of Paul and Thomas Aquinas which turns to natural law for guidance: sex and marriage are found to have generative and procreative purposes, and homosexual acts or inclinations are therefore “unnatural” and contrary to the perfection of those purposes.

    2. A few Christians dissatisfied with both philosophy and orthodoxy instead look directly to their canon where they find the proscription of homosexuality in the nationalist purity codes of the ancient Hebrews. These Christians then manage to internalize the taboo as somehow important to their personal lives and applicable to the organization of society today.

    Because they reinforce each other, I’m not sure whether the appeal to nature or to dogma is the historically primary motivation for the taboo on homosexuality; both are pretty stupid.

  2. Jesus and Paul were both unmarried and taught against marriage, while Jesus several times rejected or deemphasized the importance of family. So for Christians to cling to Family as if it were important, while condemning other people’s (nearly identical) forms of family as immoral or unnatural, is inconsistent from the beginning.

  3. In the Elane case, Willock was able to find a different photographer in time for her ceremony. Because wedding photography is both nonessential and rather competitive, I agree with some of Richard Epstein’s comments on Elane: forcing small studios to violate their sincere religious convictions to serve customers who have other options readily available to them is a bit stupid. As Tamara Tabo pointed out in her comments on the case, such public accommodation requirements might simply result in discriminatory companies operating as private clubs or being openly unwelcome to some customers while still complying with the letter of the law.

  4. Given the above point, a more sensible response to Elane might be to amend public accommodation requirements to allow for more freedom to discriminate on religious grounds in clearly competitive and nonessential industries. Instead, Arizona’s Republicans passed a broad bill which would have allowed even monopolistic companies to refuse important services to anyone based on sexual orientation.

  5. What’s more, unlike New Mexico’s Human Rights Act, Arizona’s statutes do not prevent discrimination based on sexual orientation in places of public accommodation even without SB 1062. So passing SB 1062 was apparently nothing but a prophylactic move to stay ahead of potential measures which might protect sexual minorities in the future.

    One of the more compelling arguments in favor of republican restriction on democracy is that it protects minorities against the tyranny of the majority. Rather than moving to protect a minority population which is known to be subject to exclusion, Arizona’s lawmakers moved the opposite direction and passed a bill to ensure that the continued exclusion of that group remained possible. A republic which can’t even protect its large sexual minorities is a stupid republic.

  6. Governor Brewer faced overwhelming pressure from the business community to veto SB 1062, including pressure from many large corporations with national and multinational presences such as American Express, Apple, Delta, Intel, JPMorgan Chase, the NFL, Southwest Airlines, and Wells Fargo (to name only a few). None of those corporations are democratically organized or operated (Southwest probably comes the closest with 13-15 percent of its stock owned by employees). The level of influence corporations apparently had in preventing SB 1062 from becoming law, even after it was passed by Arizona’s lawmakers, is an example of why it is stupid to expect that democratic Legislatures are possible without democratic workplaces.

  7. All of Arizona’s largest cities (Glendale, Mesa, Phoenix, Scottsdale, Tempe, and Tucson) have implemented ordinances targeted at the homeless which make it illegal to sleep, camp, and/or sit down in public places.[1] Like the rest of the nation, the number of Arizona’s homeless youth who identify as gay or trans* is disproportionately high.[2]

    Elane Photography was a case about a stupid photographer who didn’t want to photograph a stupid wedding; the customers in that case were protected by New Mexico’s human rights law. If it had become law, SB 1062 would have offended enough people that business in Arizona would have suffered; there was loud nation-wide outrage and the bill was vetoed. But when businesses (including the same Arizona businesses who opposed SB 1062) seek laws which perpetuate actual human rights abuses against the (disproportionately LGBT) propertyless, there is no such outrage, there is no letter from Apple, inc. nor tweet from Senator McCain.

The good news is that the religious use of peyote is now legal in Oregon.

1. Homes Not Handcuffs: The Criminalization of Homelessness in U.S. Cities, a 2009 report by The National Law Center on Homelessness & Poverty and The National Coalition for the Homeless
2. Data collected by the Housing Arizona Youth Project found that approximately 20% of homeless and at-risk youth identify as LGBT: Homelessness in Arizona: Efforts to Prevent and Alleviate Homelessness 2010 Annual Report


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