License to Discriminate? Religious freedom, discrimination, Elane Photography, and S.B. 1062
Would these result in a “license to discriminate”? Well, it’s complicated. Here goes.
Let’s start with the initial anti-discrimination backdrop.
On the one hand, workplaces and businesses discriminate all the time, for a variety of reasons. We make choices about who to hire, or who to serve at the restaurant. A policy of “no shirt, no shoes, no service” is a policy that discriminates against people who don’t want to wear shoes. As a threshold matter, it’s generally okay for businesses to differentiate between categories of people, based on any of a number of criteria.
The major exceptions to this policy are the anti-discrimination laws. Under these laws, businesses can’t discriminate if the discrimination is based on certain impermissible criteria. These criteria may show up in federal law: Businesses are largely barred from making decisions based on race, gender, religion, and some other categories, under the 1964 Civil Rights Act and related statutes. Additional protections may also exist in state law: A variety of states, such as California, New York, and New Mexico, prohibit many kinds of discrimination based on sexual orientation. (Importantly, federal anti-discrimination statutes do _not_ prohibit discrimination based on sexual orientation).
And finally, there are exceptions to those anti-discrimination rules. For instance, it’s okay to discriminate on the basis of religion when hiring a new Rabbi or parish priest, even if it’s not okay to discriminate when hiring a paralegal or an electrician or a nurse.
One important set of these exemptions comes in the form of state-level RFRA laws. Following the U.S. Supreme Court decision in Employment Division v. Smith (the religious peyote case), and the subsequent back-and-forth between Congress (passing RFRA) and the Court (striking it down), a number of states passed state-level statutes intending to protect religious freedom. These laws require strict scrutiny in actions that burden religion.
First, it would change the state-action requirement in the Arizona RFRA. That is, Arizona’s RFRA is drafted to protect against government action. SB 1062 proponents want to expand this.
This portion of the bill is a direct reaction to court rulings in the Elane Photography case. In Elane Photography, the defendants asserted that they were protected by the New Mexico state RFRA. The state court ruled against them, saying that RFRA applied only to government actions. Because Elane Photography involved a private complaint, New Mexico’s state RFRA was not triggered. (There was some controversy over this holding.) SB 1062 would change that aspect of Arizona’s RFRA.
The second change that SB 1062 would make is that it would significantly expand the set of _types of protected entity_. Right now, the state RFRA applies to religious organizations. A church can discriminate in hiring a pastor, but an electrician can’t discriminate in hiring a worker. The proposed bill would in effect allow religious individuals, and their businesses, to claim the right to be treated like religious institutions. It would effectively turn everyone into potential one-person mini-churches.
This portion of the bill is a direct response to cases like Elane Photography and _Hobby Lobby_, in which owners of businesses seek inclusion within religion-based exemptions on freedom of religion grounds.
Would this prong of SB 1062 result in a right to discriminate (and in particular, to discriminate against LGBT people)? Well, sort of.
On the one hand, by expanding the religious exemption from antidiscrimination laws, this bill would allow a large number of people to claim these exemptions. It’s a huge expansion of the exemption. And by exempting individuals, it would in effect give them license to discriminate.
However, it’s a little disingenuous to label this as a new license to discriminate, because as an initial backdrop, anti-gay discrimination is _already_ legal in many contexts in Arizona. SB 1062 wouldn’t change that.
As noted earlier, sexual orientation is not a protected category under Federal law. So it will only be a protected category in a jurisdiction if there is some other legal basis. And Arizona does not have such a law at the state level. That is, unlike California or New York or New Mexico, Arizona _already_ allows anti-gay discrimination in many contexts, since there is no state-law statute protecting sexual orientation as a category. Or to put it in the context of Elane Photography, it’s _already_ perfectly legal under Arizona state law to say in many cases, “my photography business will not photograph gay people.”
In that sense, the public claims by bill proponents about how this bill would protect against gay-rights lawsuits are perhaps missing the point. Without anti-discrimination laws in place, there can be no such lawsuits in the first place. They would have no legal basis. New Mexico had such a law, which was the basis of the Elane Photography case. Arizona doesn’t.
There’s an additional wrinkle, however. Despite the fact that Arizona has no statewide statute that prohibits anti-LGBT discrimination, there is a choppy patchwork of some protections, by executive order or by municipal ordinances in some Arizona cities (like Phoenix, Scottsdale, and Tucson).
Thus, the proposed bill _would_ potentially affect LGBT rights in those cities, where people might bring legal actions based on those municipal codes. However, in most cities in Arizona, this isn’t going to change LGBT rights any because it’s already legal to discriminate on the basis of sexual orientation.
Ironically, then, this bill would mostly end up affecting the rights of _other_ minority groups. It may be aimed at LGBT rights, but since anti-gay discrimination in Arizona is already legal in many instances, this bill might have only a limited effect on LGBT rights, while creating much larger effects in other areas. The ACLU and ADL note,
But what the legislation actually does, according to the Arizona branch of the Anti-Defamation League, is establish an exemption for businesses to discriminate – not just against gays and lesbians, but for any religious reason whatsoever. Under Arizona’s law, the ADL says, a business owner could refuse to hire someone of a different religion, an employer could refuse to pay men and women an equal wage, or a cab driver could refuse a fare to a house of worship different from their own, as long as they say doing so would “substantially burden” their excercise of their religious faith. Alessandra Soler of the ACLU of Arizona said in a statement that “These bills are totally unnecessary – they offer a fix for a nonexistent problem. Arizona already has strong laws preventing interference with religious belief and practice.”
It seems like a potentially problematic can of worms to open. Allowing each individual to operate as a stand-alone religion could have far-reaching impact. And it’s especially odd given that Elane Photography isn’t going to happen anyway under very non-gay-friendly Arizona state laws.