SB 1062, the Arizona bill that would have made it easier to discriminate against gays and lesbians (and other people), was vetoed last week by Gov. Jan Brewer. But some social conservatives won’t let the subject go.
They’re making two (related) arguments: that critics of the bill who denounced it as “anti-gay” hadn’t really read the legislation and that, if they had, they would have realized that it was simply a state variation on the Religious Freedom Restoration Act overwhelmingly passed by Congress in 1993 and signed by President Clinton.
Let’s take the arguments in reverse order.
Ross Douthat, a columnist for the New York Times, wrote on Sunday that media coverage of SB 1062 was “mendacious and hysterical -- evincing no familiarity with the legal issues." In the online version of his column, the phrase “no familiarity with the legal issues” linked to a letter by a group of legal scholars to Brewer contesting what they considered misrepresentations of the bill.
But the letter makes it clear that SB 1062 was not just a restatement of the federal legislation. The academics wrote: “SB 1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen.”
The first change is the important one. As the Los Angeles Times pointed out in an editorial, SB 1062 would redefine a "person" able to raise a religious-freedom defense to include a partnership, corporation or "other business organization."
Whether for-profit businesses are “persons” protected by the federal Religious Freedom Restoration Act is an issue in litigation in connection with the contraceptive mandate in Obamacare. The Supreme Court will have the final word on the meaning of federal law, but the sponsors of SB 1062 wanted to make sure that businesses in Arizona would be able to invoke a religious reason for discrimination. That’s no minor tweak.
I have read SB 1062 as well as the federal Religious Freedom Restoration Act. A lot of people who opposed SB 1062 read neither. I’ll go further than that: I will concede that a lot of the bill’s opponents wrongly thought that it specifically mentioned gays and lesbians. Does that disqualify them from commenting on the bill? I don’t think so.
Ideally every citizen who expressed an opinion on a controversial bill would read it -- especially because legislation is now easily accessible online. Certainly legislators who vote for or against a bill should do so. But sometimes they don’t.
One of the snarkiest segments in Michael Moore’s documentary “Fahrenheit 911” takes aim at members of Congress who voted for the Patriot Act without having read that controversial legislation. That sequence bothered me because the same question could be raised about members of Congress who voted for the 1964 Civil Rights Act. How many voted for it because civil rights leaders wanted it or because President Lyndon B. Johnson dangled goodies in exchange for their votes?
SB 1062 existed both as a text with precise legal prescriptions and as a political initiative. And the genesis of the political initiative was a fear by some Arizona legislators that their constituents would have to cater or take photographs at same-sex celebrations. (Never mind that gay marriage is illegal in Arizona and that there is no statewide ban on discrimination on the basis of sexual orientation.)
The word “gay” may not have appeared in the text of the bill but the context was clear. And it was the context that inspired opposition not just from gay-rights groups but from the business community. The opponents of the bill didn’t need to read it to know why it was proposed or what it would do to Arizona’s image.
Twitter: @MichaelMcGough3Copyright © 2015, Los Angeles Times