ArizoNO: Saying NO to Misuse of Religion to Discriminate
For years, we have seen some who seek to perpetuate religious judgment and exclusion of LGBT people advance a conception of religious liberty inflated beyond all recognition. There is lofty rhetoric of simply wishing to protect religious faith. But underneath churns an invidious, targeted effort to thwart civil protections and equal rights for a group collectively deemed to be sinners.
In just the past few weeks, legislators in Idaho, South Dakota, Tennessee and Kansas took up and then rejected bills to green-light misuse of religion for commercial shunning of LGBT people after strong public outcry. But Arizona legislators sometimes can’t resist reactionary policy, despite likely adverse impacts on a state trying to rebuild its economy. And so, last week, a legislative majority plugged its ears to the national clamor against other states’ bills and swiftly sped SB1062 — a broad religion-trumps-civics bill — to Governor Jan Brewer’s desk.
This bill would extend religious protections to for-profit companies and invite individuals and businesses to refuse to serve anyone if doing so runs counter to religious beliefs of business owners, managers or employees. Federal law probably would trump this law for refusals based on race, religion, national origin or disability. But for those at risk of discrimination based on sex, an unmarried relationship, sexual orientation or gender identity, SB1062 should be scary.
Lambda Legal has been working closely with LGBT community leadership and local lawyers providing analysis to Arizona’s business leaders. We have been explaining the likely consequences of this bill, drawing on our experience opposing similar bills in other states and tackling these “religion trumps all” arguments in anti-LGBT discrimination cases and the suits against contraception coverage in the Affordable Care Act. It has taken steady unpacking of what the bill text actually means to engage the major industry and civic leaders whose voices are now rising with alarm. And well they should.
Let’s be clear, the Arizona bill lifts the lid off a Pandora’s Box of religiously motivated discrimination, much as the similar bills in Idaho, Kansas, South Dakota, Tennessee and elsewhere set out to do until those states’ legislators rethought what they were being asked to unleash. Although those bills, fortunately, have either died well-deserved deaths or at least been stalled, similar proposals are pending in Georgia, Mississippi and other states. And halted bills still could be given new life this session or in the future until this pernicious misuse of religion is thoroughly discredited.
For all these proposals, the intention to target LGBT people is explicit in the sponsors’ rhetoric. For most of them, the harms they invite in broader contexts also cannot be overstated. Arizona’s SB1062, for instance, would work a radical change in state law by treating for-profit businesses like churches and religious groups. The U.S. Supreme Court now is considering the two ACA contraception-rule challenges in which commercial enterprises ask the Court similarly to ignore decades of settled law and treat them as entities with religious beliefs that can engage in religious practices. SB1062’s supporters apparently are not confident that the Supreme Court will reject past precedent and agree that for-profit businesses should have religious rights never recognized in our Nation’s history. So they pressed the Arizona legislature to pass SB1062 quickly while the Supreme Court is still mulling.
Imagine, however, that for-profit companies do have religious rights, and those rights are deemed superior to the secular needs of society, their employees and the companies with which they do business and compete. The religious exemptions some companies will claim seem unavoidably likely to create unfair problems for neighbors and workers, to impose competitive burdens on enterprises that do not make such demands, and to inflict an endless litigation burden on state and local government.
Consider the impacts of exemptions demanded from zoning, noise, pollution, workplace safety, product safety, and wage and hours laws in a “religion trumps” world. In the ACA cases, we have asked what if the for-profit companies now objecting to birth control coverage in employee health insurance instead demand a religious right to exclude coverage for blood transfusions, antidepressants or HIV medications? If SB1062 becomes law, Arizonans may face demands by commercial businesses for religious exemptions from rules requiring safer (but more expensive) building materials, safer food preparation and professional standards of practice.
Further, of great concern to leading businesses and LGBT people alike should be the potential impact of this bill on employers’ability to discipline employees who harass or otherwise abuse co-workers and customers in the name of religion. Because SB1062 sets out to give religion greater dominance over secular interests in novel and confusing ways, it invites widespread litigation. And as it empowers religion over other interests in disputes between private parties, it promises that private businesses will bear costs usually carried by government when ideology-driven legislation has unintended consequences in the commercial sphere.
While much is unpredictable, it is clear that these changes will upset the current balance between the right of secular business owners to manage their businesses and the right of employees to refuse on religious grounds to follow company policy or management’s directions.In states like Arizona, the lack of explicit protections in state or federal law often leaves LGBT workers dependent on the diversity policies many leading companies have adopted. In effect, SB1062 would tilt the field against those policies and towards workplace proselytizers and harassers, who will feel empowered to abuse co-workers and to refuse medical care, prescriptions, meals, housing, taxi service and all sorts of other services in the name of religious liberty. Given the vulnerability of LGBT Arizonans to discrimination in the first place, this bill is an unambiguous slap in the face of the LGBT community. Any claim that SB1062 merely clarifies existing state religious protections would be laughable were the bill less threatening.
Arizona has been down this road before, repeatedly tacking hard to the right while much of the country zig-zags forward. Consider Arizona’s initial rejection of the Martin Luther King, Jr. national holiday, its “English only” initiative and the recent “papers please” anti-immigrant bill, SB1070, both of which fared poorly when finally subject to the courts’ constitutional scrutiny. And there’s the continued effort to strip health insurance from the same-sex partners of state employees, which Lambda Legal continues successfully to block.
But now, as in their Supreme Court briefing against the so-called Defense of Marriage Act last year, corporate America is speaking out against discrimination. Dozens of leading companies are urging a veto — from American Airlines and Delta Airlines; to Apple, Intel and AT&T; to Hilton, Westin and Marriott hotels; to the Arizona Hispanic Chamber of Commerce and the Greater Phoenix Economic Council. Republican U.S. Senators John McCain and Jeff Flake both warn of devastating consequences. Perhaps most tellingly, Fox News, Mitt Romney and Newt Gingrich have joined the veto chorus.
Perhaps we’re at a turning point for Arizona and this type of misguided legislation. In the spirit of the Golden Rule and savvy economic planning, Governor Brewer will support Phoenix (and the rest of Arizona) in its continued rise from the ashes of past self-inflicted legislative torchings with a veto — a simple ArizoNO to discrimination.
Lambda Legal is grateful to the Anita May Rosenstein Foundation for partially funding the work of the Law and Policy Project.