Was Arizona's Religious Freedom Bill Much Ado About Nothing?
Leading religious liberty scholar and advocate says the legislation was unnecessary.
11:45 AM, Mar 3, 2014 • By JOHN MCCORMACK
The argument that these minor clarifications would have led to the institution of Jim Crow for gay people is especially ridiculous considering that the state of Arizona does not prohibit discrimination based on sexual orientation at public accommodations. In other words, it was and still is legal in much of Arizona and 28 other states for restaurants to turn away people becasue of their sexual orientation. But you never hear of that happening. On Thursday, I asked the Human Rights Campaign, the nation's leading gay rights organization, if they could provide any examples of discrimination against gay people at public accommodations. HRC still hasn't responded.
Such discrimination doesn't commonly occur because the United States is a nation that is tolerant of gay people and intolerant of bigots. Mean-spirited actions by a business owner anywhere in the country would almost certainly be met with a major backlash and boycotts. So there's no reason to think the amendment's passage would have suddently led Arizona businesses to discriminate against gay customers as if they were African-Americans in Alabama circa 1950.
The current debate has focused on a handful of cases outside of Arizona involving religious business owners who were penalized by the government for declining to decorate or photograph same-sex weddings. A small number of conscientious objectors declining to participate commercially in same-sex weddings is quite different from the specter of Jim Crow for gay Americans--hotels and restaurants turning away gay people simply because they are gay.
Religious Freedom Restoration Acts, which are on the books in 18 states and the federal government, haven't collided yet with public accommodation laws. But what if they do? "For the most part, I think the public accommodation laws are going to win out," Stanford's Michael McConnell told me. "But I could imagine a circumstance where you have somebody renting out a bedroom in their house, and they have children they're trying to bring up in a particular way, and there would be some very specific conflict with their religion that I could imagine. If the couple could go anywhere and it's no real interference with their ability to find housing--these cases are just not all one way or the other. They depend powerfully on the particular circumstance."
It all comes back to RFRA's balancing test. It allows a person's exercise of religion to be "substantially burdened" only if the law achieves a "compelling governmental interest" in the "least restrictive means of furthering that compelling governmental interest." This balancing test is the reason why the slippery-slope arguments are wrong. The federal RFRA has been on the books since 1993, and the chaos predicted by its opponents has not occurred. Sometimes the courts have ruled in favor of religious exemptions, but other times they haven't. As Michael McConnell said, "If there were a slippery slope out there, we'd be at the bottom of it already."
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