There is only one way to look at the recent attempt by a group of constitutional scholars, some of them eminent, to defend the poor, oh-so-misunderstood piece of anti-gay (and anti-everyone) legislation, SB1062, that recently died on the desk of Arizaon’s Republican governor Jan Brewer.
The scholars claim to be fighting back against the “deeply misleading” criticisms of the legislation. Just what are these harrowing deceptions?
SB 1062 does not explicitly authorize discrimination in support of religious exercise. This, they tell us, is why the media coverage, claiming otherwise, has been so “egregious.”
In fact, critics of SB 1062 cut through the facade and exposed its black and beating bigoted heart. In so doing, they captured precisely its essence. The law was an attempt to amend Arizona’s Religious Freedom Restoration Act (RFRA) to make it apply unambiguously in cases involving private entities (including businesses) who complain that the government has violated their right to free exercise of religion. By making clear that the RFRA applied in this way, SB 1062 would thus have bestowed social and legal legitimacy for, among other things, the “right” to refuse service to gays and lesbians (and, probably, to resist the Affordable Care Act’s contraceptive mandate), among others.
Technically, we should reserve some scorn for RFRA itself, since that’s the underlying law onto which the bigotry of SB 1062 was nearly superimposed. But RFRA has a number of potentially legitimate purposes, as anyone familiar with the Supreme Court’s Free Exercise Clause jurisprudence knows. By contrast, the specific purpose of SB1062 is to empower monotheist fundamentalists with the right to discriminate.
SB1062 would have disallowed a “substantial burden” by the government, even when it results from a “rule of general applicability,” on “a person’s exercise of religion,” unless that burden is in furtherance of a “compelling government interest,” and is the “least restrictive” way of advancing it. That’s a lot of language to define another legal term: strict scrutiny. The law borrows virtually the exact language of the Supreme Court’s “strict scrutiny” review standard. And under strict scrutiny, the government almost always loses. Hence, SB 1062 is a recipe for discriminatory license that is unassailable by civilized society.
And here’s the cherry-on-top of this nonsense-sundae:
“For the purposes of this subsection, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical, or de minimis infractions.”
In other words, for the purposes of SB 1062, a “substantial burden” of a person’s right to free exercise is any burden, so long as it isn’t utterly minute. This is, of course, an absurd definition of “substantial,” which makes that term far more encompassing than would any reasonable interpretation.
Regardless of what was already allowed under Arizona’s RFRA, then, we can make the following judgments of SB 1062. The law’s language can easily be read to protect the right of private entities (including business corporations) to use RFRA in defense of their free exercise rights, even when “free exercise” means “discriminating against others.”
Under the terms of the law, the discriminator would be victorious in any challenge of his conduct, so long as his free exercise was “substantially burdened” (read: at least more than trivially burdened) by whatever “rule of general applicability” that purports to forbid his discrimination, and as long as the rule fails to survive the death-trap of strict scrutiny. In other words, the discriminator would almost always win.
SB 1062, therefore, offers a highly protective legal infrastructure to bigots engaging in widespread and cruel forms of discrimination. This is the “innocuous law” that we critics have so meanly–and so “egregiously”–misrepresented.
Needless to say, powerful criticisms of laws like this, whose hateful motivations are easily gleaned from the social context in which they arise, are inevitable in a civilized society. Feeble attempts by conservative professors and their media outlets to play legal games, emphasizing the irrelevant fact that SB 1062 doesn’t explicitly say businesses can discriminate, are rightly dismissed. This is a lawyer’s trick; and lawyer’s trade on amplifying the seriousness of often trivial distinctions.
It is irresponsible for any legal intellectual to waste breath defending a wretched, conceived-in-hate piece of trash like SB 1062. What a law is meant to do, and what is authorized by its own terms, is far more important than a superficial regard for what it doesn’t do. When the underlying motivation of a law is dirty, it makes little sense to heed its seductively clean surface, even if for the purpose of seeming “neutral”–an often false posture that academics nonetheless love.
The human rights train is moving. One must get to the front or the back. SB1062 took us back, and it is thankfully dead for now – at least in Arizona.