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View Diary: Rachel, Jed Lewison are mischaracterizing SB1062 (241 comments)

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  •  State vs. local laws (1+ / 0-)
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    HeyMikey

    SB 1062, as it appears to me [obligatory IANAL disclaimer!], would supercede or override/overrule any local (town or county) which might enact any sort of anti-discrimination ordinance on its own. Maybe a more legal-savvy Kossack can explain it to me, but I had thought that this sort of thing was exactly the sort of law (States prohibiting political subdivisions to enact anti-discrimination laws/rules) which was struck down by the SC in Romer v. Evans in 1996? Or would Romer not apply?

    I'm sure that SB 1062 has more than its share of Constitutional flaws - not that ever stopped Republicans from enacting crap like it - but this one would appear to be the most blatant....

    •  Good question. My guess at an answer. (3+ / 0-)
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      Jay C, eztempo, sfbob

      I actually am a lawyer, though I don't practice Constitutional or discrimination law. So THIS IS NOT LEGAL ADVICE. But my guess is:

      These laws supposedly are not limited to anti-gay actions, but cover any actions that offend a businessperson's conscience. E.g., suppose you walk into a camera store and say, "I'd like to buy a video camera to shoot a porno video. Only straight married couples will appear in the video." The owner could still say, "I think porn is sinful, I'm not going to sell you the camera." Or if you said, "I'd like to buy a knife suitable for slaughtering chickens," the business owner could say, "Eating meat is sinful, I'm not going to sell you the knife." (As I noted above, business owners ALREADY have this right.) Thus the states can claim the laws are not motivated by anti-gay animus, which was a critical factor in Romer v. Evans.

      "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 Wed Feb 26, 2014 at 07:45:14 AM PST

      [ Parent ]

      •  I'll add (2+ / 0-)
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        Jay C, sfbob

        To make this two Mikey lawyers in a row not giving legal advice, that it's possible that local antidiscrimination laws would still apply.  The city would need to establish that preventing discrimination is its compelling interest, and there's some well-regarded precedent supporting that position.

        •  implications? (2+ / 0-)
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          Jay C, Mikey

          Suppose a city could establish that a "compelling interest"--I suppose a federal Constitutional right that the city is asserting on behalf of LGBTQIA citizens?--trumps a state constitution that generally allows state laws to trump local laws.

          Wouldn't that mean that the same compelling interest would allow LGBTQIA citizens to sue the EEOC, to require enforcement against discrimination based on LGBTQIA status, same as race-religion-color-sex-national origin? In other words, effectively amending Title VII of the Civil Rights Act via the courts?

          In other words--I doubt a court would go that far. But as I noted above, this isn't my area, so I could be missing something.

          "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 Wed Feb 26, 2014 at 08:10:29 AM PST

          [ Parent ]

          •  It's not my area either (3+ / 0-)
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            Jay C, HeyMikey, sfbob

            So consider this just speculation.

            I don't think that the city would claim that it is exerting a federal constitutional right against the state law.  The Arizona bill, and those like it, don't explicitly preempt anything.  If Tucson has an anti-discrimination ordinance for LGBT citizens, it's still in force, just limited by purported "free exercise."

            Once someone is sued for violating it, though, the defendant would have the opportunity to say that its violation was only because the ordinance represented a substantial burden on its religious belief.  This could be overcome if the city or the plaintiff could claim that the ordinance was a narrowly-tailored implementation of a compelling city interest.

            Cities have a lot of interests.  Protection of citizens from discrimination is one.  So is marketing their city as an open-minded place to attract business.  It's fairly vague to say whether or not any of these are compelling, but there are cases saying that combating employment discrimination is compelling, for race and sex but also things like pregnancy.

            Since it's a government interest, though, the government is free to disclaim it.  The EEOC can't protect LGBTQIA workers because the government has refused to express an interest in protecting them.  

            •  It's ultimately a state constitutional law issue (2+ / 0-)
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              HeyMikey, Jay C

              Similar to the relationship between the federal government and state governments, most state constitutions provide that state law is the supreme law of the land.  Under this circumstance, the city ordinance would have to yield to this state law.  

              •  Right (1+ / 0-)
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                Jay C

                Generally.

                But I think the point here is that the city ordinance and the state law are ultimately compatible.  The state could strike the city's laws wholesale, but it doesn't.  It just says that the city can't do anything to burden free exercise without a compelling interest.

                The state doesn't say what is or isn't a compelling interest, so the city's free to assert that it's anti-discrimination aims are compelling, and it could win.

                Then the legislature could re-convene and pass a bill saying that preventing discrimination against LGBT Arizonans is not compelling, and it would prevail under the state constitution.

                But the Supreme Court has struck down such laws in the past, finding them to be based on nothing more than illegal animus towards certain disfavored groups.

    •  In essence, this law (4+ / 0-)
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      HeyMikey, sfbob, Cassandra Waites, Jay C

      would provide a defense to an anti-discrimination claim based upon sexual orientation.  The local anti-discrimination law is not overturned, but its efficacy is severely curtailed.  For example, you still could not discriminate on the basis of sexual orientation in Phoenix, unless you claim the reason for the discrimination is religious belief.

    •  As I understand it (4+ / 0-)

      Romer indicated that it is constitutionally impermissible to create a class of people for the express purpose of denying equal protection of the law to that class.

      The reason the current crop of laws is being written without specifying a targeted class is by way of trying to get around Romer. The problem with this sort of approach is that it is so vague that it would lead to all sorts of interdenominational conflict. There is the implicit and very much mistaken assumption that all religious people (or at any rate all Christians) hold to the same views on a variety of topics. Implicitly it enshrines a particular viewpoint or sets of viewpoints on these issues into law and gives them the sort of privilege which the Establishment Clause abhors.

      •  I dunno... (0+ / 0-)

        See the Religious Freedom Restoration Act (federal). If that's valid, then these state laws may be valid, too.

        http://en.wikipedia.org/...

        "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 Wed Feb 26, 2014 at 03:16:45 PM PST

        [ Parent ]

        •  It's a big "if" (1+ / 0-)
          Recommended by:
          HeyMikey

          since the law was partially overturned.

          It doesn't appear that there has been a test as to how the law might or might not be applied to the competing claims of various religions.

          I do think a law supporting the "free exercise of religion" would be on shaky ground if a case arose pertaining to religiously-sponsored behavior directed at non-members. There's the whole "we don't have to marry people who aren't members of our church" aspect, but that doesn't really appear to address how RFRA might be applied outside the church doors. I do think that the entire wording of the AZ bill is a gross overreach since it redefines "person" and "religion" in ways which, as far as I can tell, go far beyond even Citizens United.

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