Why Jan Brewer Should Veto Arizona's 'Religious Freedom' Bill

An overly broad law and its most problematic backers

In Arizona, there is a state legislator named Don Shooter. A few years ago, he co-sponsored a bill, HB 2582, that sought to prevent the imposition of Islamic law in his state, during a misguided sharia panic that had taken hold among some conservatives. The bill's text called out "any statute, tenet or body of law evolving within and binding a specific religious sect or tribe," adding that sectarian law includes "sharia law, canon law, Halacha and karma," but doesn't include "any law of the United States or the individual states based on Anglo-American legal tradition."

It seems to me that Don Shooter represents what's wrong with the Republican Party today. To explain why, we'll have to discuss another Arizona bill that he supports.

The Arizona GOP has been pushing a piece of legislation, SB 1062/HB 2153, that would ostensibly protect religious liberty by allowing businesses owners to refuse service to anyone for religious reasons. Opponents characterize the bill as a thinly veiled pretext to discriminate against gays and lesbians. It was prompted in part by a legal case involving a Christian photographer who was taken to the New Mexico Supreme Court for refusing to shoot a same-sex wedding. She lost there, and is appealing to the U.S. Supreme Court.

To me, the photographer should have prevailed in that case, at least if you believe that portraying a wedding entails personal investment and artistic speech.

As Eugene Volokh and Michael Thomas, both same-sex-marriage supporters, wrote in an elegantly argued amicus brief to the Supreme Court, "photographers, artists, singers, writers, and other creators of expression have a First Amendment right to choose which expression they want to create," and protecting free expression "would not block the enforcement of anti-discrimination law when it comes to discriminatory denials of service by caterers, hotels that rent out space for weddings, limousine service operators, and the like."*

If Arizona was pondering a narrow law meant to rescue any creative professional who objected to any aspect of any wedding from being compelled to invest energy in it, I'd conclude that it was a prudent compromise in a thorny legal area.

That isn't what the state is pondering.

There are two strong objections to their actual effort:

1) The actual text is extraordinarily broad, and would grant religious believers (or people posing as religious believers) far too much special power to thwart all sorts of laws.

Noah Millman adeptly raises this point at The American Conservative:

A properly worded statute not invidiously aimed at stigmatizing gay couples by singling them out would need to allow for general discrimination against any individual whose declared conduct or identity poses a religious objection to the proprietor or service-provider.

This is roughly what Arizona did. Actually, Arizona went considerably further, making an asserted “substantive burden” on an individual’s religious freedom a legitimate defense against individual violations of any state law, regardless of whether it is generally and neutrally applicable. If I understand the law correctly, not only would it legalize a wide variety of types of private discrimination, not limited to my examples above, but would do much more. It would legalize polygamy and marriage with underage girls (both sanctioned by so-called fundamentalist Mormon groups). It would permit public school teachers to explicitly proselytize to their students (I’m quite certain you could find fringe Protestant groups or individuals who hold that such witnessing is mandatory at all times). I’m not sure, but I think if you founded a Church of Nude Defecation, and declared that God told you the Arizona state legislature was your temple, the state of Arizona could not expel you for practicing your faith in the place that God had designated.

Even if the law isn’t quite as nuts as that, it’s pretty nuts. Most people don’t actually want to repeal the process of balancing different interests by making one principle an absolute trump card. They just want to adjust the balance slightly when they don’t like a particular result. Which is completely fine—continual readjustment is exactly what that balancing act requires.

The Economist raises similar points.

2) The second objection is the suspicion that, even though this bill doesn't mention gays or homosexuality, it wouldn't exist but for a desire to discriminate against gays particularly—that backers of the bill, which should be seen in the context of bills in other states targeted at gays, seemingly care about religious liberty only insofar as it protects Christians and permits them this type of discrimination.

There my verdict is mixed—what motivates a bill is a complicated question. For some backers, general protections for religious liberty in all situations really is a priority.

And then there's Don Shooter and Arizonans who support his particular set of beliefs. He is, you'll recall, the state legislator whose previous stance on religious liberty was to single out certain faiths in hopes of ensuring that their tenets were specifically excluded from public policy. Don't try to cite a conscientious objection under sharia law to him! Yet the roll call says Shooter also voted for SB 1062.

It appears that his views on religious liberty, faith-based beliefs, and their place in public affairs depend upon whether Christians or Muslims are exercising them. To me, he represents a faction of Republicans that grew used to traditional Christianity's privileged place in American politics—a faction that is now intent on shoring up that influence, even if it means a panicked assault on sharia law at one time and a sweeping attempt to exempt religious believers from secular laws soon later.

We should guard against their biases becoming entrenched in law.

A pluralistic society is always going to face very difficult questions at the intersection of religious freedom, non-discrimination law, and individual liberty. As yet, it isn't clear which mix of policies will wind up prevailing in the United States. Right now, a subset of Christians see non-discrimination law as a threat to their faith. I suspect that, in time, they'll see it as a protection they invoke themselves.


*They go on to explain the problematic precedent that the New Mexico Supreme Court set:

Creating expression—whether writing (even just writing a press release), painting, singing, acting, or photographing an event—involves innumerable intellectual and artistic decisions. It also, for many creators who want to “live not by lies,” requires sympathy with the intellectual or emotional message that the expression conveys, or at least absence of disagreement with such a message. Requiring people to actually produce speech is even more intrusive than requiring them to be a “conduit” for such speech. As Solzhenitsyn noted, a person can rightfully insist that she should never “depict, foster or broadcast a single idea which [she] can see is false or a distortion of the truth, whether it be in painting, sculpture, [or] photography,” Solzhenitsyn, supra—just as she can rightfully insist that she should never “take into hand nor raise into the air a poster or slogan which [she] does not completely accept,” 

Consider for instance the very sort of public accommodations discrimination law involved in this case. If this law is interpreted as the Court of Appeals interpreted it, then it would apply not just to photographers but also to other contractors, such as freelance writers, singers, and painters. And it would apply not just to weddings, but also to political and religious events.

Thus, for instance, a freelance writer who thinks Scientology is a fraud would be violating New Mexico law (which bans religious discrimination as well as sexual orientation discrimination) if he refused to write a press release announcing a Scientologist event. And an actor would be violating the law if he refused to perform in a commercial for a religious organization of which he disapproves.