How is Arizona’s Bill 1062 Not Discrimination Against Gays?


REPUBLICANS HAVE AN extraordinary talent at crafting eye-grabbing viral legislation, and in recent years they’ve been upping the bar in the field of contentious law and law-making. My standing pick for sheer legislative chutzpah is North Carolina’s Motorcyle Abortion Bill, but it won’t be long before this triumph is surpassed. The GOP is playing a game of Neknominate, only using the country’s institutions and laws. Neklegislate, I guess you’d call it.

Arizona’s Senate Bill 1062 doesn’t match the North Carolina standard, in my estimation; however, Arizona is among the top five Neklegislate contenders, no question about it. Their latest submission, now being considered by Governor Jan Brewer, amends the State Religious Freedom Restoration Act to protect the exercise of religion. If passed, a “person” will have the legal right in Arizona to deny services to a customer if:

• The person’s action or refusal to act is motivated by a religious belief
• The person’s religious belief is sincerely held
• The state action substantially burdens the exercise of the person’s religious beliefs

Person is defined within the bill as “any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity.” SB 1062 therefore is a bill to prevent litigation of actions that are grounded in strong religious conviction. Defenders of the bill say it is about protecting freedom.

Cathi Herrod, President of the Center for Arizona Policy, says “it’s a shame that we even need a bill like this in America, but growing hostility against freedom in our nation, and the increasing use of government to threaten and punish its own citizens, has made it necessary.” Kellie Fiedorek, an attorney for the Alliance Defending Freedom, urges that “this bill has nothing to do with discrimination. It’s protecting basic freedoms that belong to everyone.” For example, she says, the law would protect a gay photographer who refused to work for Westboro Baptist Church. Great example, Kellie! This happens all the time.

Let’s be clear and candid. Arizona legislators are not rushing to the defense of gay photographers. Also, we can rest in the comfort of knowing that the Westboro Baptist Church will do all of the heavy lifting in the above moral dilemma, by never asking a gay person to capture their precious moment in the first place. In fact the law came about when a lesbian couple approached a Christian photographer, Elaine Huguenin (proprietor of Elane Photography) to hire her for their commitment ceremony. Elaine has explained that she gladly serves gays and lesbians if they want, say, a portrait; but she can’t lend her work to an expression of anything that conflicts with her religious beliefs. I guess that means if you’ll be reclining pool-side with a Cosmo, yes; but reclining in an emphatically unbiblical fashion, no. The couple took to the courts, and the courts ruled that Elane Photography didn’t have the right to refuse services in this way.

The principle of economic freedom appeals greatly to me. It’s one of my beliefs, if you like. So I’ve tried to put myself in Elaine’s position to explore how this principle applies to folks with my appalling, profane politics. I imagine that I run a flag store and that some Nazis drop by to order 100 swastikas for a swell rally in the Jewish quarter. I say “No,” and then the Nazis get sad and change their ways because they suddenly realize they’re doing really bad things. (You’re awesome, Imagination!) The courts back me on this, and it’s three cheers for Freedom. The problem here is that being against Nazis is nothing like being against lesbians. (All together now: “THAT’S RIGHT”). So I imagine instead that I am running a flag store and that some Christians come in to order a flag reading “Homosexual marriage is a sin against God.” Do I print up the flag? No, I don’t think so. But even here I feel the need to say that two people loving one another doesn’t seem like something to get worked up about. I’m missing something, and I guess that would be the sincere religious faith thing, init?

People are going to debate this law every which way, and chase a lot of fine points down a lot of fascinating side avenues. For me, when you dig down to the bottom of this issue you end up with a question:

Are the beliefs being defended by this law reasonable, rational, defensible and based in evidence and cogent reasoning?

That’s a good question, don’t you think? If sincere belief is so critically important, shouldn’t the beliefs themselves receive some critical attention? Don’t ask me to respect this line of argument: “Well, I believe in this and it’s my personal faith, so you don’t get to question it. You have to respect my religious beliefs.” Like hell I do. Let’s talk about Christian sexual moral teachings. About 90% is derived from a few sentences in the New Testament, attributed to the fanatical Christian-killing epileptic Saul of Tarsus. He had a seizure on the way to Damascus,  and this led to his becoming the principal saint of Protestantism. Paul didn’t care much for homosexuals, and this prejudice determined their fate. Much of the other ten percent of Christian morality is derived from St Augustine and the many celibate old men who over the centuries tweaked and refined and institutionalized his repressed and loathsome views of sex and the human body.

The Arizona bill SB 1062 was introduced as a generic defence of freedom against a generic threat of religious persecution, but that’s dishonest. Let’s be truthful: the issue in Arizona is that Christians are losing ground to people of other faiths, or of no faith at all. This is a bill to protect conservative Christianity against the expansion and increasing legitimacy of non-traditionalism. When you’ve ruled the domain for thousands of years, losing ground in this way feels like persecution. Also, the trope of persecution figures prominently in Christian scriptures. In North Korea, Christians are persecuted in ways and to a degree North Americans can only imagine. Let’s nonetheless agree that Christians should never be tied to fences and beaten to death in a field, as a pair of homophobes did to Matthew Shepard. I’m thoroughly against treating religious people in the theoretical and persecutory ways in which gay people are for real treated as a matter of routine.

Religion occupies a unique category of moral and epistemological practice. It contains a bunch of absolute God-given rules and eternal truths that you are supposed to believe in and not question. Religion says, ‘do this and think that, and a powerful fellow in the sky will lift you out of the ground after you’re dead and swiffer you up with a new imperishable body.’ The important thing is to believe in the proposition. Faith is to religion as peer review is to academia. Religious people want their faith to be respected and protected because they have a lot of faith in it. Faith defines them and is their identity.

Christians years ago came up with a saying: love the sinner, hate the sin. According to this clever formula, religious conservatives aren’t discriminating against anyone (cos that’s wrong!); they just don’t approve of the activities of gay people – who and how they love, who they have sex with and how, and their insistence on getting married and sharing benefits and otherwise behaving like non-gay people. But how is that not discrimination? Gay people are born gay: it’s their identity. When gay people are not doing the things (some) religious folks disapprove of, they are still gay. They don’t walk out of the bedroom and think, “I’m glad I got that out of my system. Now, for the next eight hours, it’s Hel-lo lovable hetero!” (Unless they are family values Republican congressmen, in which case they absolutely do that.) Their behaviour is who they are, not an accessory. “Love the sinner, hate the sin” really just means smile and be polite when you meet a gay person (super!) and make really hurtful laws and promote destructive bullshit like de-gaying ministries (not super!).

I have some discouraging tidings for the religious fundamentalists. We’ve been through all of this, many times over. Human history is a huge parade of religion denouncing the things its sincere faith deems sinful. Religion has launched crusades, and burned witches, and killed infidels and apostates for hundreds of heresies so arcane and absurd that they recall Gulliver’s story of the Big Endians and Little Endians. Religion has defended and justified racism and slavery and genocide. But thanks to the growth of secular humanism and rationalism, religion is running out of things to be wrong about. Over the objections of priests and pontiffs and pastors, doctors cut open human corpses and garnered the knowledge that helped cure diseases; scientists studied the fossil record and the skies to piece together the factual story of our origins and destiny; art, ethics, culture, education and science advanced. The automatic impulse of religion and the religious is to demand “No, stop!”

Sometimes the religious will be right (get it?), or will at least have a part of the truth secularists will not see but should heed. But these cases can only be decided by an application of open and rational debate, not by stubborn attachment to dogma. I know I keep coming back to the same point, but it’s important: sincerity of belief is an inadequate defense of that belief – you need to make the case for it. When I apply this to the Arizona case, however, it’s obvious that there are limitations we need to observe. For example, how you raise your children is going to be determined by your personal beliefs – and you shouldn’t have to explain these beliefs to your neighbour or government, so long as your beliefs don’t endanger your children or your neighbours. (See: “Faith healing couple sent to prison for up to seven years in the tragic death of their SECOND child from treatable pneumonia.”)

As for faith and your business, you automatically cut at least 10% of your potential clients loose by choosing not to sell them a product: but go ahead, knock yourself out. Arizona’s business leaders are telling the governor to veto the law because it’s a potential business killer, inviting boycotts and lost opportunity. For the true faithful, however, Mammon is a secondary consideration. They argue that the law is about freedom, and that freedom is the primary consideration, not business profit.

One of the common arguments I’ve encountered in favour of the Arizona law is that no one’s rights would be violated. Defenders of SB 1062 like to point out that when Elane Photography’s lesbian customers were politely turned down, the proprietor kindly provided a list of other businesses who would be happy to provide the same services for the same (or an even better!) price. It’s no biggie, they say: the gays can always get their wedding cake or Gay Pride poster elsewhere – and save some money too, thanks to the miracle of Christian Referalism. I’m not kidding: this is an actual argument. (I did make up Christian Referalism,© however.) Not only are the Christians not discriminating or inconveniencing gay people; they are providing a financial benefit when they turn you away. It’s like a bigoted version of Expedia.

It’s true, as the anti-gay-marriage polemicists argue, that the lesbian couple had plenty of options. It wasn’t the end of the world. They found other entrepreneurs who were only happy to take a photo of their ungodly and dangerous insistence upon monogamous fidelity. God bless America, the land of freedom and multiple shopping options! And a damned good thing, as Elaine Huguenin cheerily notes, that there are plenty of people in America who are not right-wing fundamentalist Christians; otherwise lesbian couples would have much bigger problems than where to get a photo taken, because they’d be living in Uganda.

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