Skip to main content

View Diary: Why the AZ "anti-gay" law is a lot worse than you think (47 comments)

Comment Preferences

  •  Reynolds clearly applies since the AZ bill (2+ / 0-)
    Recommended by:
    PSzymeczek, misterwade

    concerns individuals using their religious beliefs to justify violating a generally applicable law (ie, the non-discrimination ordinance in Phoenix).

    Moreover the AZ bill is written so broadly that it would allow government actors to use the same excuse ("any person"), and thus would be subject to heightened scrutiny.

    And regarding your comparison to private discrimination on the basis of gender, the AZ public accommodation law does indeed prohibit that.

    But note that sexual orientation isn't protected under AZ state law, only under local ordinances in certain cities like Phoenix.   The proposed law is intended to subvert those ordinances in much the same way that Colorado's Amendment 2 was intended to subvert local non-discrimination ordinances.....that's why Romer v Evans is the rather obvious precedent.

    •  Remember, public accommodation laws (2+ / 0-)
      Recommended by:
      VClib, HeyMikey

      generally don't apply to individuals offering services like a photographer.  

      And my point is not that if you passed a law prohibiting discrimination against same sex couples by individuals, that constitutionally, the First Amendment gives them a right to violate that law.  It may not.  My point is whether a law violating discrimination against same-sex couples by individuals would be constitutional in the first place.  If (like the Civil Rights laws) government had evidence that same sex couples did not have reasonable access to services like photography for their wedding (if, like in the case I linked to, they had routinely (even in urban areas) had to travel a hundred miles or more to find someone who would service them, then a law banning individuals from declining to provide services to same-sex couples might be constitutional.  If there was no such evidence, but the law was passed based on a notion by government that the religious belief that same-sex couples were sinners and/or immoral was a bad and unacceptable religious  belief, and was intended to prevent people from acting on that religious belief, that would almost certainly be UNconstitutional.  

      It's all about what authorizes the government to act, especially when you are talking about the federal government.  If there's a non-religious, non-moral, commerce based reason for enacting a law, that's a legitimate area for government to regulate. That's why all the silly examples like "I'm a cannibal" or "my religion requires me to kill people" don't make sense.  When the religious belief actually physically or financially hurts others (like stealing or physical assault), government has a legitimate interest in protecting other people from you.  On the other hand, if the basis for enacting the law is because government disapproves of a particular religious belief and so wants to discourage people from acting in accordance with that religious belief, that's almost per se unconstitutional.  Government absolutely cannot pass laws designed to burden the free exercise of religious beliefs because those religious beliefs are unacceptable.   Government does not have a legitimate interest in protecting you from religious beliefs with which you disagree.  Others can't impose their religious beliefs on you, but you have no right to force them to act in a way contrary to their religious beliefs if, as Jefferson said, their religious beliefs neither "picks my pocket nor breaks my leg."

      •  Here's what the NM supreme court said unanimously (1+ / 0-)
        Recommended by:
        misterwade

        in the Elane Photography case when she claimed both her religious views and "artistic expression" were excuses to violate NM's public accommodations law:

        Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation.
        •  But, of course, a cert petition (2+ / 0-)
          Recommended by:
          VClib, HeyMikey

          was filed at the SCOTUS.  See the briefing here.

          So, the New Mexico Supreme Court may not be the final word on that case.  

          •  Ummm...so what? They're free to whine and file (1+ / 0-)
            Recommended by:
            misterwade

            whatever they like with the court, but I rather doubt cert will be granted given that the NM court already addressed that specific issue and explained based on a wide variety of SCOTUS precedent why the defendant was flat wrong.

            Moreover, for SCOTUS to find otherwise would essentially gut all public accommodation laws.   The NM court alluded to this when they noted:

            Therefore, 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.
            I also suggest that you the concurring opinion in this case as it discusses the importance of public accommodation laws to a civil society.
            •  Actually, here's the relevant section on how (1+ / 0-)
              Recommended by:
              misterwade

              public accommodation laws would be gutted:

              However, adoption of Elane Photography’s argument would allow a photographer who was a Klan member to refuse to photograph an African-American customer’s wedding, graduation, newborn child, or other event if the photographer felt that the photographs would cast African-Americans in a positive light or be interpreted as the photographer’s endorsement of African-Americans. A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.
              •  My point is that you can't say the (2+ / 0-)
                Recommended by:
                VClib, HeyMikey

                NM case ends the discussion completely.  Not at this point,.  If -- and only if -- the SCOTUS doesn't take the case, it ends the discussion as to New Mexico.  Other state supreme courts may rule the same, or they may rule differently.  No other state is bound by what the NM Supreme Court says.

                So, we'll have to see what happens.   It's still a work in progress.  

                •  Elane Photog case based on NEW MEXICO law. (1+ / 0-)
                  Recommended by:
                  skrekk

                  The NM Supreme Court decided Elane Photog violated NEW MEXICO'S antidiscrimination law. NOT federal law, NOT the US Constitution.

                  In other words, what Elane Photography did was perfectly legal in any state without its own state anti-discrimination law that covers sexual orientation or gender presentation.

                  "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

                  by HeyMikey on Sun Feb 23, 2014 at 12:23:08 PM PST

                  [ Parent ]

          •  Why Is This Proposd Law Unconstitutional ? (1+ / 0-)
            Recommended by:
            skrekk

            As others have pointed out to you, a claim based on the Free Exercise Clause for an exception to a neutral and generally applicable law, such as a law prohibiting race, gender, sexual or employment discrimination, will not lie.
            Emp't Div. v. Smith, 494 U.S. 872, 885-86 (1990).

            This is what's known as the Smith doctrine and since the decision has really stuck in craw of a lot of conservative ideologues.

            After Smith, it is  not possible to claim that under the Free Exercise Clause the government needs a compelling interest--or any interest at all--in order to fight off a free exercise claim concerning a neutral and generally applicable law. In Smith, as we know, a private employer fired two employees for ingesting peyote, a criminal offense in Oregon, as part of a ceremony at a Native American church of which they were members.

            There is a passage in Smith in which the SCOTUS suggested that a free exercise claim against a neutral, generally applicable law might or could be successful and that is if it involved another constitutional protection:

            "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents, acknowledged in Pierce v. Society of Sisters, to direct the education of their children."

            •  That's different from saying the law is (2+ / 0-)
              Recommended by:
              VClib, HeyMikey

              unconstitutional. To be unconstitutional, the law has to violate a provision of the Constitution.  

              What you are talking about is whether the Free Exercise Clause is a defense to a law.  As Scalia said, if the law purports to regulate and area that the government has a legitimate interest in regulating (i.e., it was not passed for the purpose of burdening a particular religious belief) and if it's facially neutral, then the Free Exercise clause is not a defense to violation of a law.  I agreed with that, and discussed it in my other comments.

              Of course, on the federal level, the Peyote opinion was addressed by RFRA, which gave individuals more leeway to use the Free Exercise Clause as a basis claiming that government could not force them to violate religious beliefs -- it applied kind of a strict scrutiny standard to federal laws that burdened the Free Exercise of religious beliefs.  It was declared invalid as to state laws as an overreach of the federal government into state lawmaking, but it remains is valid as to federal laws.  

              But that necessarily means that states can enact similar laws to RFRA giving individuals a stronger basis for claiming that certain state laws burdened the Free Exercise of Religion.  So, there's nothing unconstitutional about Arizona attempting to do just that (which is what this law seems to be).

              It may be very poorly written, and it may be a very bad idea, but what section of the United States Constitution does it violate?  

              •  You're right. What's LEGAL is absurd. (1+ / 0-)
                Recommended by:
                skrekk

                I'm a lawyer too, and this discussion reminds me of the difference between us lawyers and normal people.

                What's especially absurd about the Arizona and Kansas bills, which most non-lawyers fail to grasp, is that they would only codify what's already perfectly legal.

                If a business owner decides to fire all his/her gay employees--that does NOT violate any federal law, and in most states violates no state law.

                If a business owner decides to refuse to serve any gay customers--that does NOT violate any federal law, and in most states violates no state law.

                (This is why Congress should pass ENDA, and should add sexual orientation and gender expression to Title VII of the Civil Rights Act.)

                So the Arizona and Kansas bills would change nothing. They are a purely symbolic middle finger to LGBTQIA people, a purely symbolic pander to bigotry. A mere declaration of tribal loyalty. And that's all they are.

                "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

                by HeyMikey on Sun Feb 23, 2014 at 12:31:00 PM PST

                [ Parent ]

                •  "they would codify what's already perfectly legal" (1+ / 0-)
                  Recommended by:
                  HeyMikey

                  Exactly right.    That's why I think the real purpose for the AZ bill is primarily an appeal to the GOP base.   However, it would subvert existing non-discrimination ordinances in several AZ cities like Phoenix.    To me that smells exactly like what Colorado's Amendment 2 was intended to do.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site