License to Discriminate? Religious freedom, discrimination, Elane Photography, and S.B. 1062

Critics are calling it a “license to discriminate.” Arizona proposed bill S.B. 1062 would build in significant new religious carve-outs in state antidiscrimination law.

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.

How does SB 1062 fit into the mix? It would expand Arizona’s state RFRA, in the process significantly altering the exemptions to anti-discrimination law. It has two major effects.

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.

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19 Responses

  1. Jennifer Hendricks says:

    I think it’s useful to take a longer view of the backdrop. At common law, businesses offering services to the public were obliged to do so in a non-discriminatory manner. You could certainly throw a drunk (or someone without shoes) out of your pub, but you had no general “right to refuse service to anyone.” This general duty was repealed after the Civil War in states that wanted to authorize discrimination on the basis of race. Modern non-discrimination laws can be seen as a very slow, piece-by-piece effort towards reinstating the general duty.

    As I recall, California has held that the list of prohibited bases for discrimination in the state fair housing law is “illustrative,” thereby fully reinstating the common law rule against unwarranted discrimination.

  2. Zoe Brain says:

    I think it’s far more broad than you realise, and quite contrary to expressed legislative intent.

    41-1493.01. Free exercise of religion protected; definition
    A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

    B. Except as provided in subsection C, government of this section, state action shall not substantially burden a person’s exercise of religion –>>*even if the burden results from a rule of general applicability.*<>in this particular instance<>compelling<>least restrictive means<>a judicial proceeding<>state and local laws<<–, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made or attempted to be made by the government or nongovernmental persons.

    I'm certain that wasn't the intent, but the law is so broadly drafted that a judge going by the words alone might be compelled to find a "religious belief" defence in a criminal trial at least arguable. The trial would then have to delve into matters of "compelling interest" and "least restrictive means" in criminal law as opposed to civil cases. The law says "a judicial proceeding".and mentions "state or local laws", no restriction to civil matters.

    While the state has an interest in preventing the murder of children in general – is that interest *compelling*? Does it have a *compelling* interest in forcing parents to get life-saving medical treatment for one particular child? How about sacrificing them to Moloch? What if the human sacrifice to Huitzilopochtli is entirely voluntary?

    • Zoe Brain says:

      41-1493.01. Free exercise of religion protected; definition
      A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
      B. Except as provided in subsection C, government of this section, state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
      C. Government State action may substantially burden a person’s exercise of religion only if it the opposing party demonstrates that application of the burden to the person person’s exercise of religion in this particular instance is both:
      1. In furtherance of a compelling governmental interest.
      2. The least restrictive means of furthering that compelling governmental interest.
      D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government regardless of whether the government is a party to the proceeding. The person asserting such a claim or defense may obtain appropriate relief. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
      E. In For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
      F. For the purposes of this section, “state action” means any action by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made or attempted to be made by the government or nongovernmental persons.

      Those are the words. If the legislature intended something different, they should have said so.

  3. Brett Bellmore says:

    Freedom is always problematic, opening a can of worms, to anybody who wants to control what other people do.

    The problem here, that this law is meant to address, is that “public accommodation” law has metastasized far beyond any reasonable application, if it applies to individuals.

    The original concept was not unreasonable: You didn’t want somebody to show up in a town with only one restaurant, and have to go hungry because it wouldn’t serve them, get stranded in a town with one hotel, and have to sleep under a bridge because it wouldn’t give them a room. There was a real problem to be solved.

    However, the terror of not being able to hire the specific wedding photographer you want, even though they don’t want to photograph YOU, is not quite so obvious.

    Let me ask: Exactly what do you think is objectionable about involuntary servitude? Does this seem a horrible question? I think it is an obvious question to ask, when somebody defends it. And, what else do you think public accommodation laws are, when applied to the individual worker, if not involuntary servitude? Sure, you can expect to get paid, even if the government declares you to be a “public accommodation”, but you don’t have a choice about doing the service. It’s involuntary.

    Sure, lawsuits and fines, not whips and chains. Still, it’s involuntary.

    I’ve heard the response: “You didn’t have to be an “X”, you could have chosen a job which wasn’t subject to public accommodation law.” As though public accommodation law were static, as it it didn’t cover more and more jobs all the time, as though you didn’t have a RIGHT to chose to do “X”.

    Nietzsche famously said, “He who hunts dragons must beware, lest he become a dragon himself.” Perhaps the civil rights community should pause in their hunt for a moment, and inspect their own razor talons, bat-like wings, and fiery breath, and reflect on that aphorism.

    • Joe says:

      “You didn’t want somebody to show up in a town with only one restaurant”

      There was no “if there were five, three can discriminate” rule to my knowledge.

      Elane Photography is a corporation. It is not merely a single ‘individual’ though if a single person runs a store, they aren’t allowed not to serve black people — even if there are five stores — any way. Yes, the rules weren’t “static” here. In 1950, more businesses were allowed not to serve black people.

      It is not “involuntary servitude” either since the person (unlike actual involuntary servitude or slavery) isn’t required to open the store in the first place. Once you do, there are certain requirements. It is also not “involuntary servitude” if you run a business and you have to install safety devices (which requires labor) etc.

      It is noted it would not be terrible to allow corporate wedding services — that is, businesses that get benefits from the state but want to not serve various types of people of said state — to deny service since it is not a necessary service or something. I wonder how this works. As noted, there are more than one business in most places where you can get various goods. Would it be fine (he asks rhetorically) to let them not serve blacks? It is not essential for blacks to get various goods at a certain store.

      Yes, freedom is complicated — especially when the people are giving a business special privileges like immunity from certain liabilities, a business owner (who unlike a slave has a choice to operate a certain place) has certain obligations, such as serving the general public.

      • Brett Bellmore says:

        Yes, you’re not required to be a wedding photographer. You’re not required to dig ditches, you’re required to perform oil changes. But you’ve got to do SOMETHING.

        The idea of declaring a person to be a “public accommodation” should be abhorent.

        This isn’t about whether it’s “fine”, it’s about whether people are free to refuse to labor for other people.That’s a heck of a principle to destroy, just to avoid somebody being offended.

        And, whether they’re incorporated shouldn’t matter. People don’t incorporate for yucks, they do it because the legal system, the government, makes doing all sorts of things legally perilous. Should the government be empowered to make you sacrifice your liberties to avoid being threatened by the government?

        • Joe says:

          If you have to work to make a living, you have various options, not all of them involving serving people in a public accommodation. An actual slave doesn’t have such options.

          The idea here is that a specific business — not “person” alone — is listed as such. Therefore, your proverbial “one store” in town might be run by one person too. One person might be the one providing the travel for the town etc. It is the business that is the “public accommodation.”

          If you CHOOSE such a business, you have certain rules you have to follow. This was always the case. It is not merely to avoid “offense.” It is because certain types of businesses that serve the PUBLIC have — always had — the duty to serve the public. The rules were less strict in some ways in the past. Therefore, blacks and Irish people, e.g., could be denied service more often. Now, the rules are somewhat more strict though gay people still are selectively protected.

          It is even more justified as to corporations. The government does not merely give people special privileges when they incorporation “for yucks.” They give them privileges because it is deemed most useful for the public interest. Again, as was always the case in this country, such privileges brought certain obligations. The public at large have to deal with the decreased liabilities of corporations, e.g., but they can regulate them more. The corporation is not given a free lunch.

          • Brett Bellmore says:

            Not being forced to work for somebody against your will is NOT a “free lunch”. It’s a basic human right.

            • Joe says:

              The “free lunch” is to get certain benefits tied to the corporation being a PUBLIC entity which reasonably can provide (as another person noted used to be a standard rule) that if you have a business that serves the public you don’t selectively not serve certain types of people based on their race, sex, sexual orientation or the like. You are not being “forced to work for somebody” — you CHOOSE to incorporate, you CHOOSE to incorporate a certain type of business (in comparison, religious institutions that incorporate have more discretion to hire and fire etc.) etc.

              You aren’t really trying to respond now. So, I’ll end there.

              • Dave says:

                The discourse here is relevatory in that “Joe’s” definition of slavery is strict, and “Brett’s” has been broadened to include any action you are compelled to perform involuntarily.

                In my opinion, I would have to agree with Brett. As Joe asserted, you can choose to incorporate, or perform a service. However, once you begin dictating the minutia of the business, such as clientele and the methods that business uses in the service of customers, it becomes a form of slavery where your government is in the role of the taskmaster. One who tells you whom to serve and how to serve them.

                We are at the tipping point. You can choose the choke-hold grip over your throat of “Joe’s” government. Where you are not free to serve whom you choose and run your business as you see fit. Or, you can choose “Brett’s” where you are free to run your business the way you want (stupidly, or otherwise), and the market will determine if your discriminatory practices will hold water.

                Which do you want, America? The boot on your neck of government imposed political correctness, or the ability to freely choose what business you’d like to work for and by from?

                • Joe says:

                  Is jury duty “slavery” since as a citizen in this country, even if you don’t want to, you have to go to jury duty? When Lincoln et. al used that word, no, that is not how he used it. It is not the normal way of using the word.

                  I did not “assert” it. You “assert” something with no backing. I noted it, since it’s true and there is clear evidence of it — you do choose to incorporate. Unlike an actual slave, you have freedom of choice here.

                  Once you incorporate or run various businesses, as was always the case in “America” (as noted by someone else — if you want an America like we had where blacks can be denied service, you can have it, I don’t want it), you have certain obligations. That’s what it is like in organized society.

  4. Joe says:

    It is a “new license” to discriminate in that it specifically privileges such a thing with a sort of underlining, putting aside as you note that there are already some protections in place that it might override, even if the protections are minor.

  5. Dianne says:

    My California attorney spouse says you are wrong and there is case law on the books that proves you are wrong about Title 7. Title VII does protect against sexual orientation discrimination.

  6. Dianne, can you give an actual citation?

    If Title VII already protects against sexual orientation discrimination, then why is there a need to pass ENDA?

    Here’s the ACLU, explaining how ENDA would fill this particular gap:

    Here’s the NYT on recent ENDA issues. ENDA has not yet passed both houses of Congress.

    I would love it if Title VII covered sexual orientation discrimination. But wishful thinking doesn’t make it true.

  7. Jennifer Hendricks, you’re absolutely right that there’s common-law history to draw on here. But since the Civil Rights struggles in the 60s, the dominant framing has been, no general duty not to discriminate. I’d love it if the common law backdrop got more attention, but I haven’t seen it happen as of yet.

  8. At the end of the day, the point is this: Exemptions from antidiscrimination law protections are kind of beside-the-point in jurisdictions where those antidiscrimination laws don’t exist in the first place.

  9. Danny says:

    You wrap up with a quote talking about sex and religion discrimination in the context of employment. Is this a legally defensible position despite Title VII protections?

  10. John says:

    “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.”

    According to Michael Dorf, there is no protection for gender. See:

  11. John says:

    Just for the record, there is no legal requirement in Arizona that a man wear a shirt in a food service establishment or anywhere else. I have checked with the Board of Health, and they have confirmed it. Thus, any exclusion based on attire is entirely a decision of the business, and there are plenty of enlightened businesses who realize, especially in the Summer, that shirtless people’s money is just as good as anyone else’s money.