Free Speech

Arizona's SB 1062 is a Homophobic Stunt, Not a Blow Against Big Government

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Gay marriage
G. dallorto

Called out for the gay-bashing at the heart of Arizona's controversial SB 1062, advocates of the bill feign outrage and insist that all they want is the freedom to associate or not associate based on their religious beliefs. According to social conservative Bill McMorris, libertarians embrace big government and make him "participate in these new norms" by pointing out that Arizona businesses already have the right to refuse service to gays and lesbians and don't require the assurance of a "we really mean it" legislative backstop. I'm apparently especially awful for referring to Arizona lawmakers as "homophobic pricks" and praising a pizzeria that responded to the controversy by banning legislators from its premises (a protection-worthy exercise of the right to freedom of association, you might think).

But, pace McMorris, he and his social conservative comrades aren't broadly defending freedom of association, or even religious liberty. Every step of the way, advocates of SB 1062 have made it clear that the bill is meant to specifically protect the right to shun nasty homosexuals. As he writes at The Federalist:

[Tuccille] was referring to an updated state Religious Freedom Restoration Act that the Arizona legislature passed this week. The bill is designed to protect religious business owners from the types of litigation and sanction that have seen massive fines imposed upon Christian entrepreneurs for opting out of gay weddings.

Joseph La Rue and Kerri Kupec of the Arizona-based Alliance Defending Freedom explained their support for SB 1062 in the Arizona Republic:

Elaine Huguenin, the Christian owner of Elane Photography, declined to photograph what two women called their "commitment ceremony." The women had no trouble finding another photographer because plenty of them were clamoring for their business. But the couple sued Elaine's business anyway, alleging that it had violated a law banning sexual-orientation discrimination.

And the Center for Arizona Policy piled on. (Whoops! Just got a nasty visual.)

The critical need for this change came to light in a case recently ruled on by the New Mexico Supreme Court. On August 22, 2013, the New Mexico Supreme Court unanimously ruled in Elane Photography v. Willock that the state's RFRA did not apply in a case where a private party sought to enforce a state law against another private party.

Got it. It's not about gays at all—except that it really, really is. But Arizonans already have the right to refuse service to gays and lesbians. As Reason's Scott Shackford wrote:

[S]exual orientation is not included in Arizona's public accommodation laws. Discrimination against gays is actually legal in a lot of places in America still. What Senate Bill 1062 does is essentially tweak the state's existing freedom of religion laws to say that, no really, people in Arizona have the right to the free exercise of religion.

And the Los Angeles Times's Paresh Dave pointed out that "New Mexico law specifically bars a public accommodation from denying services to someone based on that person's sexual orientation or gender identity. Twenty-one states have similar laws, according to Human Rights Campaign. Arizona isn't one of them."

So SB 1062 is the equivalent of promoting a law protecting the specific right to call people "fags," just in case the free speech protections for that right ever slip.

Could the courts ever decide to reinterpret the law in such a way as to force people (such as social conservatives) to do business with customers who give them the creepy crawlies (such as gays and lesbians)? Courts have creatively rewritten the law before, so it's possible.

But then, why not protect everybody's liberty? Make it clear that the point is to shield freedom of association and freedom of conscience for all, in a way that would protect the right of gay-owned businesses to chase Bill McMorris out of their stores as it would protect his right to toss them out of his place of business. And certainly craft it to protect the right of all of us to turn politicians away.

But SB 1062 backers have made it clear, from the beginning, that this is all about their dislike of one group. This isn't about paring back government; it's about using legislation to slap at gays and lesbians.

Warren Severin, chairman of the Libertarian Party of Arizona, put it nicely when he pointed out:

While all individuals and non-government businesses retain an absolute right to refuse to do business with anyone (including government) for any reason, proposing a law to that effect is not only redundant, but unnecessarily incites argument….

The 'bread and butter' for the kind of politicians who would propose such legislation is the division of the electorate. They seek only to divide us (the American People) up into groups, pit them against one another, and then offer to referee.

Bill McMorris says libertarians aren't worth talking to so long as we resist his buddies' efforts to torment groups they don't like. To the contrary, McMorris and company will be worth our time when they admit that freedom is for everybody.