No, Arizona’s SB 1062 was not “egregiously misrepresented” by critics

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.

If critics of SB1062 were so off-base, then why was even Newt Gingrich against it?

If critics of SB1062 were so off-base, then why was even Newt Gingrich against it?

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.

David Delmar is a third-year student at Harvard Law School, with experience in both civil and criminal public interest law. His interests include law, politics, culture and society, philosophy, religion, and great fiction. David particularly likes to write about issues affecting human rights and civil liberties.

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114 Responses to “No, Arizona’s SB 1062 was not “egregiously misrepresented” by critics”

  1. ace8842 says:

    Gays have above average incomes, jobs, and housing in America, yet most are drama queens content to whine about how mistreated they are.

  2. ace8842 says:

    Chick Fil A is a business with Christian origins. They are many Christian private businesspeople who do not want anything to do with gay marriage ceremonies. Catholic adoption agencies were forced to shut down because of you.

  3. Stev84 says:

    They read the constitution like they read the bible.

  4. mackenzie wunderlich says:

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  5. Anonymous says:

    Lots of adjectives and very little substance. We’re going to go back to talking about the actual extremist laws that you apparently wanted to sweep under the rug. See ya!

  6. Anonymous says:

    That’s funny. So rightists can never be fascist? What about religious people? I guess Hitler was totally justified..maybe he was standing his ground?

  7. Anonymous says:

    2 problems with your very trite argument: a) Black people always vote for Dems in high numbers, so 90+% is not a very high increase, b) There are a lot of Americans that are actually financing radicals in other countries, and actually want to bring extremist religious laws to America. If you think that Republican extremists (wingnuts) aren’t trying to upend our Constitution on a daily basis, you’re very naive.

  8. Anonymous says:

    Catholics themselves interpret the Bible literally. They don’t know the rules of their own religion anymore. That’s the problem these days.

  9. Anonymous says:

    Whenever someone is proven wrong it’s always considered a “disagreement” by the losing party. In reality, it’s just a weak argument. If you can’t understand the holes in your argument (for example, the flaws in a broad and subjective piece of legislature), you’re not fit for a debate

  10. Anonymous says:

    Just for the sake of argument…how does taking the high road accomplish anything? Would people need to protest if their concerns were acknowledged? People won’t consider the needs of others unless there’s some sort of boycott or strike. That’s what’s wrong with our society. NOT the fact that people don’t play nice and hold hands like you want them to.

  11. Anonymous says:

    They are not intelligent but they are very tiring. Like arguing with a much more energetic 5 year old.

  12. Moderator3 says:

    I looked at the thread. No one said anything to her about being banned. Maybe something else is wrong. I usually try to say:


  13. Mike_in_the_Tundra says:

    Have you had your head buried in the sand? President Obama came out for gay marriage more than a year ago.

    You’ll need someone who is more savvy about the law to explain this. Apparently, it’s something like this: Political views do not represent a protected class. Political views are not an inborn trait.

  14. Pamela Fitzsimmons says:

    we only want people to comment here who agree with us.

  15. Pamela Fitzsimmons says:

    The people who are beneath two-sided discussion are those who resort to name-calling.

  16. Pamela Fitzsimmons says:

    “Step back everyone, this guy knows some gay people. I guess he
    wins the argument.”

    Actually, the person you are directing your comment to is female. She has been unable to reply to any of the several comments directed her way by the gay bashers (yes, it’s gays who now do the bashing) because the moderator has blocked her. What are you folks afraid of? Can’t handle debate?

    I guess this is supposed to be progress. I call it the New McCarthyism. Bash away gay people! Show the straights you are no better than they are.

  17. cole3244 says:

    wow, you are unnerved, sorry i should have been more sensitive to the hater feelings since they can dish it out but definitely can’t take it, my bad.

  18. cole3244 says:

    the truth does hurt now doesn’t it, you need not answer your response is all the answer i need.

  19. Putinov says:

    Here’s some news from the NY daily news:

    New Mexico Gov. Susana Martinez needs a new hairdresser — or a new stance on gay marriage.
    Martinez was recently dropped by her hair stylist, Antonio Darden, who is gay.
    Darden told a local news station that he cut the governor’s hair three times, but won’t do it again as long as she continues to oppose gay marriage.

    A few years ago in New Mexico, a photo studio turned down gay clients who wanted them to photograph their commitment ceremony. The couple sued, and it was determined to be a violation of New Mexico law for the studio to have turned away their business just because the studio owners didn’t approve of gay marriage.

    How then can this gay business owner turn away the governor as a customer simply because he doesn’t like HER opinion of gay marriage?

    Even Obama, no one’s idea of a right-wing ideologue, doesn’t approve of gay marriage.

    Is Obama a Bigot too???

    2. If Gov. Martinez would have dismissed her because she was gay,it would have been called discrimination. Why isn’t discrimination if she quits because her client doesn’t approve of gay marriage? Ye old double standard!

    Whatever happened to “settled law?”

  20. Moderator3 says:

    I think your trolling day has ended. Bye.

  21. Mike_in_the_Tundra says:

    Apparently you have problems with punctuation. My first question was asking why your comments were set on private (that worked, didn’t it?). You can recognize questions by the question mark at the end.

  22. Jerry S says:

    The Democrats nation wide have shown themselves enemies of the Constitution and the 2nd Amendment especially. They would ban guns, they would subvert the IRS for political criminality, they will promote scams like Solyandra for their friends, they will run guns to criminals in Mexico and cause murders, they will start wars and bypass Congress, and they have been caught in voter fraud repeatedly.
    The take over from within is an old Communist technique and its been used with the Democrats. The whole party is a party of intolerance, racist bile and
    criminality and they are getting arrogant and much worse every day.

    See? You leftists are not beyond description. Not at all.

  23. Jerry S says:

    “Extremist like you.”
    “religious fanatics”
    I see you’ve read Alinsky’s rules.
    * RULE 12: Pick the target, freeze it, personalize it, and polarize it.”
    BTW, if I remember correctly, Stalin and Hitler were not very religious. What did they use to spread their message of hate and intolerance?
    Oh yes, the same vehicles all the leftists use, propaganda via the leftist press.

    “ps – yes i am a lefty, you on the other hand are beyond description.”
    Consumed and blinded by hate, as a typical leftist usually is, no wonder you find it difficult to describe the opposition.

  24. Jerry S says:

    Don’t remember reading in the constitution about “protected classes…”

  25. Jerry S says:

    “Your bigotry seems to be directed at both African Americans and Muslims.”

    Funny you should say that. African Americans and Muslims are amongst the most bigoted people in the world. That fact transcends the voting booth (I voted for Obama because he’s black, like me, and so did 99% of my peeps) and the Mosque (The Quran contains at least 109 verses that call Muslims to war with nonbelievers for the sake of Islamic rule. Some are quite graphic, with commands to chop off heads and fingers and kill infidels wherever they may be hiding. Muslims who do not join the fight are called ‘hypocrites’ and warned that Allah will send them to Hell if they do not join the slaughter.

    I don’t hate them any more than they hate me, and you can choose to understand my words any way you want.

    By the way, are you not aware of the fate of Homosexuals in Muslim countries? Iran for instance? Or did you choose to forget?

    In response to your first question: Settled law? Really? Didn’t Eric Holder recently declare in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory???
    “Engaging in that process and making that determination is something
    that’s appropriate for an attorney general to do,” Mr. Holder said.

    Hey, Whatever happened to “Settled law?”

  26. Mike_in_the_Tundra says:

    The answer is they must do that if they are open to the public. That’s settled law. Personally, I would figure their money spends just as well an any other money.

    Why do you have your comments set on private? Are there comments that may show your bigotry? Well, there’s a way around everything. Your bigotry seems to be directed at both African Americans and Muslims. This is one of your comments about an African American woman: “You know what they be sayin’: You can take the ape out of the jungle… ‘n sheet.” Nice, real nice! Are you planning on adding gays to your hate list? Using the term “gay married” sort of says yes to that.

    If you’re going to use the term “gay married”, then we need to start using “straight married” or “bigot married” (that one is for you).

  27. Stev84 says:

    Political beliefs or affiliation are not a protected class. Sexual orientation is in some states.

  28. cole3244 says:

    i hold my position because of extremists like you who have no conception of what our constitution stands for and everyone is under that umbrella of protection.

    as usual the religious fanatics use religion to spread their message of hate and intolerance, therefore i would suggest you reevaluate your position which doesn’t begin to resemble a democratic one.

    ps – yes i am a lefty, you on the other hand are beyond description.

  29. Jerry S says:

    Should a homosexual baker be forced to make a “God Hates Fags” cake for Westboro Baptist Church, simply because its members claim to be Christian?
    Should a black printer be forced to develop and print thousands of “White Power!” flyers for a skinhead rally just because the potential customer is white?
    Should a Christian florist be compelled to create and provide black floral arrangements to a hell-bound customer for her upcoming Satanist ritual?
    Should a “progressive,” environmentalist sign-maker be required to design and manufacture “Global Warming Is a Farce” signs for a tea party rally?
    Should a Muslim photographer, commissioned by San Francisco’s “Folsom Street Fair,” be forced to document that vile event – rife with nudity and public sex – simply because the customers identify as “gay”?
    Should a “gay married” lesbian hotel owner – a card-carrying member of GLAAD – be required, under threat of incarceration, to host and cater a fundraiser for the “National Organization for Marriage,” a group that opposes so-called “marriage equality”?

    If you said no to any of the above, and you opposed Arizona’s cowardly vetoed SB1062, then you’re logically inconsistent (i”e: a leftist) and need to re-evaluate your position.

  30. 3am Mystic says:

    DOUBLESPEAK is the word. It reminds me of whenever they are sliced to ribbons by humane, intelligent arguments and their full blown racism is exposed they begin calling everyone else, especially those who sliced them up, racists. Do not be surprised when they began to accuse OTHERS of being Homophobic. When they have no answers and they sense that the rest of society is leaving them behind they can suddenly stand on their head and tell the rest of us that we are upside down. But, as I like to point out, some of them will tire of it and say, under their breath, “I’ve had enough”, and they’ll pretend to have always love their gay brothers and sisters. At least they will be moving on.

  31. Brad Eckert says:

    Arizona has a strong Mormon presence, which swayed the legislature toward the bill. Mormons see their ideology as under attack (it happened in the Civil Rights era too!) so they would rather circle the wagons than admit that their religion is w-w-w- incorrect.

    But it’s not as if the government understands the first thing about religious freedom anyway. They sure don’t mind stomping all over my religious rights, then wiping their tookus with them.

  32. richardgrabman says:

    Uh, who said anything about any religion being rational? I’d agree that sectarian beliefs are not a rational basis for law, but that’s not what I said. All I said was that “race” isn’t anything of significance in the Catholic theology, which — if anything — holds racial prejudice as a “social sin”. I could imagine Catholics claiming other prejudices (against GLBT people) being rooted in their beliefs, but not racism. Am I right in assuming the freaking book you’re talking about is the Bible? I think you’re confusing Catholics (who are not biblical literalists) with some more modern, mostly U.S. based, sects.

  33. Anonymous says:

    When you think about why the world is such a mess, think about the can’t-doers and cowards like these. If you can’t go farther in life than perpetuating bigotry in your meaningless town, you haven’t grown as a person. It’s a shame really.

  34. Anonymous says:

    Republicans have already tried to tear down the Constitution. They only care about the 2nd Amendment, and the 1st as it pertains to their foul language. Eff the rest.

  35. Anonymous says:

    Another person trying to claim religion is rational. It’s a freaking book with multiple translations. Do you really think it can’t be interpreted that way? There are statements in it arguably describing black people. I can’t stress enough that it was written 2000 years ago and is full of backwards beliefs. It should NOT be a replacement for modern laws.

  36. Anonymous says:

    I wonder what they would do to gay people citing the “nonviolent” Bible

  37. Anonymous says:

    I agree. I’m absolutely flabbergasted at the insistence that religious people are somehow more rational and “better” than the rest of us. They are actually LESS likely to be rational because they view everything through the context of their beliefs. I can’t believe there are trolls on here insisting that this law would never be misused. It reminds me of a witch hunt more than anything else. If you THINK someone’s gay, you can refuse them service legally. As disgusting as that law is in itself, and impinging on our country’s ideals, how likely is it to be reasonably used?

  38. Anonymous says:

    Republicans specialize in dehumanizing everyone they disagree with, don’t like, or simply don’t want to help. Must be that massive ego.

  39. Anonymous says:

    Closet case homophobe? Why are you here unless you are also interested in the bill being discussed? Kind of hypocritical I think. Especially as you are more than willing to point out examples of gay people you’ve encountered.

  40. Anonymous says:

    I’m honestly amazed you humored “Heldtoanswer” as much as you did. We’ve kind of stopped trying with these trolls, though. They’re impossible to teach some useful perspective to.

  41. Anonymous says:

    Step back everyone, this guy knows some gay people. I guess he wins the argument.

  42. Anonymous says:

    “If you were gay then, or now, how would anyone know unless you wanted to draw attention to that fact.” – You’re an absolute fool. If you can’t see that then you’re beneath two-sided discussion.

  43. Anonymous says:

    Are you serious? People are already fired by crazy bosses for “seeming” gay. This law is a subjective witch hunt. A law like this opens the door to evil. You seem to believe that people would use this law rationally and nothing could go wrong…really? Out of all the people in the world to paint as rational and agreeable, you choose religious people bordering on extremism?

  44. Anonymous says:

    People eventually decide that being decent human beings is more conscionable and preferable. Bigots try to perpetuate a cycle of abuse to make others feel trapped and unhappy with their lives. Anyone that sees around that will try to escape. Every animal tries to get out of a cage…why wouldn’t humans try to escape the closed-minded hate of others?

  45. Anonymous says:

    More doublespeak. After Huckabee’s entire page-long rant was posted, a troll came on here and said it was “out of context.” It’s just how these loonies roll. If you are sane, you can take responsibility for your actions.

    It’s petty and irrelevant. No one is listening to these narcissists anymore. I was so “glad” to see Palin inserting herself into the Ukraine conflict. With “leaders” like this, it’s a wonder we have any problems! I mean, they’re such geniuses; they deserve a pat on the back.

  46. SwiperTheFox says:

    Hah, yes!

  47. The_Fixer says:

    Civil Rights are not the sole interest of just ‘dark-skinned black people.” They are in everyone’s interest. That’s why they are called “Civil Rights” and not just “Black Rights”. At one point in this country’s history, it wasn’t just black people who were denied their civil rights. Irish, Italian, German and people of just about any ethnicity were considered second-class citizens and were deemed to be unworthy of public accommodation.

    There’s a lot that you, likely a straight person, take for granted. You can walk arm-in-arm down the street with your spouse and no one bats an eye. You are not accused of “flaunting your heterosexuality.” Yet if a gay couple walks arm-in-arm down that same street, they are accused of “flaunting their homosexuality”. Further, we’re accused of wanting special treatment for doing the same thing that straight couples do on a daily basis.

    Yours is an argument that assumes that there is equality of treatment and that we’re looking for some special treatment that isn’t there. You’re incorrect.

    And quite frankly, I am getting more than a little offended when people tell me that I am looking for some special treatment when all I am looking for is parity. I am perfectly happy to live a quiet, unassuming life. But, I am more than willing to speak out when prevented from doing so. Don’t give me this crap that I am looking for special treatment – it’s incorrect and insulting.

  48. The_Fixer says:

    First of all, let’s take a look at your assertion that this is “government coercion”.

    That’s an awfully low bar for government coercion. If that’s the case, every law of any kind would be considered to be government coercion. Those speed limit laws – government coercion because they prevent me from driving as fast as I wish. Laws against parking in the middle of the street – same deal. Anti-housing discrimination – it coerces the poor landlords because it prevents them from discriminating against people they don’t wish to rent to on account of their color, ethnicity or any other immutable characteristic.

    The government is not forcing you or anyone else to get married to a person of the same sex; the government is not forcing your religion to wed same-sex couples, and the government is not coercing you or anyone else into attending such weddings. It is merely saying that if one is involved in provinding services to the public, he or she must provide those services equally to anyone who may have need of them.

    There are good reasons for a lot of laws. To protect the general public from safety hazards, to allow people to carry on with their lives and business, and to insure that all people have access to safe housing at a fair market price.

    Now let’s go on to another point you attempt to make. On the one hand, you say:

    No one in AZ has been denying gays service, and there is not law preventing discrimination now!

    Yet immediately after the next sentence, you state:

    Would you make a gay photographer photograph a Westboro Baptist Church event?

    So, on the one hand, you say that the purpose of the law is not to allow discrimination, yet you cite discrimination – a gay photographer being forced to photograph a Westboro Church event – as rationale for having the law in place.

    Let’s take a look at the second half of your first contradictory sentence again: “and there is not law preventing discrimination now!.” Umm, yes there is. Federal Civil Rights laws prevent discrimination in public accommodations. Even if this law were to pass, it would only be a matter of time (and probably not much time) before it would be found to be unconstitutional. Federal law has supremacy over state law, and Arizona is part of the United States, so yes, Arizona is covered by laws preventing discrimination.

    This law was an attempt to cancel out public accommodations laws that have been part of Civil Rights law for quite some time. It was completely vague in its language, which means that it is open to interpretation in any number of ways. Therefore, the so-called “ridiculous examples” are not so far-fetched.

    Yours is an absolutely incoherent argument. As such, it is word salad missing several key ingredients. I would also suggest that the point is not for gay people to demonize those who find gay marriage objectionable on a religious basis. Gay people don’t have to spend time making such people look bad; they do it themselves.

  49. Badgerite says:

    I don’t doubt it.

  50. Matt Rogers says:

    I once read a couple of old sermons saying that black people were demonic beings or, depending on who you talked to, soulless animals. One preacher declared that the serpent in the garden of Eden was actually Eve’s black washer-woman. More to the point, God placed the races on different continents to ensure that they wouldn’t mix. Yep, it was all right there in the Bible in the clearest of terms. So really, how could any Christian support interracial marriage when the Bible spoke so clearly against it? Are there still people who hold such views? I’d be surprised if there weren’t.

  51. Monophylos Fortikos says:

    *considers* Nah, the number of bodies who care definitely exceeds zero.

    Dunno if everyone who disagrees with me is a jackass but you’re certainly at least that bad. Jeez, anyone who starts off by implying that the only way you’d know if two guys together in a store were gay would be if they started making out in public–sorry, you rather blew your privilege to be called anything kinder than “jackass” right there. I can come up with other descriptions if you’d prefer.

  52. Benz981 says:

    You speak for yourself only. Clearly, there are people who DO, in fact, concern themselves with the “disturbing notion” of gay people seeking to be treated equally. And by the way, sexual orientation is more than “who you have sex with.” You address almost none of the normed hypocrisy and double-standards I cited in my previous post, by the way….

  53. Mike_in_the_Tundra says:

    Your’s would be bigot.

  54. Heldtoanswer says:

    “I’ve never seen two straight men do that in the U.S.”

    Unless you know the sexual orientation of every single person you encounter, you don’t know what you’ve seen.

    Since you seem to be so obsessed with other people’s sexual orientation, tell me what mine is.

  55. Mike_in_the_Tundra says:

    There’s a big difference between one’s sex life and one’s sexual orientation. That’s something you are working hard at ignoring. I should be the only one interested in my sex life, but I should not be expected to hide my sexual orientation.

  56. Heldtoanswer says:

    Bens: If I were in a furniture store, I would probably be shopping for furniture. I doubt if I would have the time or inclination to stalk other customers. I used to live in the Bay Area, and now I live in Portland, Ore. Seeing two guys hold hands is no big deal.

    Like I told the other commenter: It could be that nobody cares about your sex life.

  57. Heldtoanswer says:

    So anyone who disagrees with you is a jackass or a religious fundamentalist.

    You appear to have a limited number of stereotypes in your narrow mind.

    I had a brother who was a gay, a childhood neighbor who was gay and more than a half dozen known gay coworkers (including a boss). I hate to break it to you, but it could be that nobody cares who you sleep with.

  58. Benz981 says:

    Now you’re being silly. Two guys walking around in a store… say, shopping for furniture… laughing, occasionally touching or rubbing an arm or shoulder, perhaps briefly holding hands or even stealing a peck on the cheek… and you’d never assume they were gay, unless they were engaged in sex right on the floor?? Haha… bull***t. This is stuff that straight couples do ALL the time in public. For straight people, it’s so innocuous to others that it might as well not be happening. For gay people, however, it’s “rubbing it in everybody’s face” or “being activists in search of attention.” See the discriminatory double standard?? In many places, it would be just fine and legal to refuse the gay couple service or accommodation… You know, because they were so aggressively making an “obscene display of their homosexuality.”

  59. Mike_in_the_Tundra says:

    Well, you’re right. Straight men go around holding hands all over the United States. Why I just saw two straight guys do that the other ……….. maybe last ye…….. on T ………… I’ve never seen two straight men do that in the U.S. I have seen two straight males sit at a table of four diagonally from each other. Obviously, if they sat across from each other, people would think they were queer. If they sit on a couch together, no parts of their bodies can be touching. I really can’t believe you had the nerve to insinuate that straight males walk around holding hands.

    Rather than address another comment of yours elsewhere, let me respond here. The comment was: “And why would you want to draw attention to that fact — in hopes of getting some special treatment?”

    Yeah, I really want special treatment. I want to not be fired from my job, because I sleep with someone my boss thinks I shouldn’t. I want to not be kicked out of my apartment because of my sexual orientation. I want to not be charged a double security deposit, because the landlord always does that for unmarried couples. Only to discover that unmarried heterosexual couples aren’t charged the same. i want to be able to visit my partner if he is in the hospital in all 50 states. All of these can still occur in many parts of the U.S. If these are special treatments to you, you’ve lived a very rough life.

    I suppose you consider abolishing DADT was special treatment, too.

  60. Monophylos Fortikos says:

    And what if you drew attention to the fact you were gay and nobody cared?

    I’d love it. As it is, I take care for example at new jobs not to say too much about my family life if it ever comes up in conversation, not until I know it’s safer; hell, my last boss but one thought I had a wife for a while just because I was that oblique about it–not lying, but never contradicting the misunderstanding.

    Cos, you know, I wouldn’t want make a jackass like you uncomfortable by mentioning the sex of my partner.

    What a joke, this notion that it’s “gay activists” wanting to make a nuisance of themselves. What on Earth do fundie Christians do other than make nuisances of themselves? “Witnessing” and trolling for converts is a fundie’s raison d’etre–quite literally the only thing the religion brings him other than a well-defined enemies’ list.

  61. Heldtoanswer says:

    Mike: I would never assume that just because two people are holding hands they are gay. I doubt if most storeowners have the time (or the inclination) to analyze why two people are holding hands. Most storeowners are in business to make money. I doubt if they care who (or what) their customers have sex with. The original poster semed to think it was an issue.

  62. Heldtoanswer says:

    Mono: Gay activists have no business horning in on the black Civil Rights movement. If you were a dark-skinned black at a certain time and place in this country, you would’ve been hard-pressed to hide that fact.

    But if you were gay then, or now, how would anyone know unless you wanted to draw attention to that fact. And why would you want to draw attention to that fact — in hopes of getting some special treatment?

    And what if you drew attention to the fact you were gay and nobody cared? It would be kind of like walking around naked and not have anyone look at you. Maybe that’s what gay activists really hate.

    Who among us really wants to be treated like everybody else? We all want special treatment.

  63. AnthonyLook says:

    That’s fine. We promise we will keep misunderstanding their bigotry all their petty minds want and promise to react in kind each and every time they try anything remotely similar.

  64. SkippyFlipjack says:

    That’s existing law, not SB1062.

  65. Monophylos Fortikos says:

    If a cake is just cake, go to another bakery.

    And there are always other seats on the bus and other drinking fountains, eh? No need to sit or drink here.

  66. Mike_in_the_Tundra says:

    Just think what the top of their wedding cake would look like. Speaking of top, which one of them do you think ……….

  67. Naja pallida says:

    What if it’s George W. Bush and a Saudi prince?

  68. Mike_in_the_Tundra says:

    I don’t believe holding hands is a sex act. I’m also certain that straights do that.

  69. SkippyFlipjack says:

    If you’re rebutting the opinion of this bunch of “scholars” it’s probably good practice to cite their full letter (available here: rather than argue against the summarization in another article.

    It makes sense to argue about the overall implications of the law once SB 1062 is (or would have been) in place. I think it just makes sense to highlight which of those things are already law. To use your example, if legislators proposed an amendment to existing sodomy laws that said “..and no toe-sucking either”,

  70. Heldtoanswer says:

    How would anybody know they were gay couple shopping in a store? Unless they were engaged in a sex act on the floor, you wouldn’t. And heterosexuals don’t get to engage in that kind of public behavior, either.

    Most businesses want business.

    If a cake is just cake, go to another bakery — unless, for some reason, you want to foist yourself on that particular bakery because you don’t like their religious beliefs.

  71. 3am Mystic says:

    You are correct, indeed, cap. As a Christian Humanist who grew up in the Religious Right, I recall “Christians” who believed, and still do, that the master/slave passages in the Bible infer that slavery is not necessarily an evil, that a slave master could be a Christian, and that the evil would come in evil or cruel masters. That is only the tip of the iceberg of what these people actually believe. Their desire for anti-gay laws is strong, but most of them stand back and let others take the lead; if the lead nut falls drives over a cliff, they back off. So, the trick in stopping people like this is not in immediately changing their mind, but in leaving them far behind. That is when a few of them start thinking.

  72. BeccaM says:

    Yep. We’ve already tried the discrimination thing. It turned out to be evil, repugnant, and wrong.

  73. David Delmar says:

    Right, but the point of the article was not to comment on Arizona’s RFRA, or to survey existing Arizona law. It was to argue that SB 1062 was not misrepresented. Regardless of redundancy, the content of SB 1062 is exactly as I stated it, which means criticisms of its terms as broad authorizations of homophobic discrimination were accurate.

    For example, to my knowledge, several US states still have laws on the books making sodomy a crime. Nonetheless, renewed effort to pass redundant legislation with the same effect would still be powerfully opposed and characterized as homophobic. Such characterizations would not be inaccurate, regardless of what is already technically allowed under the law.

    The context behind SB 1062 caused heightened interest in its language because, this time (if not with the RFRA), everyone knew what is purpose was.

  74. 2karmanot says:


  75. Greg PJR says:

    Social psychology would most likely disagree with this reasoning. You give somebody some rope and they will start hanging people with it. To allow an individual a tool to assert their own ‘sincere religious belief’ automatically opens the door for a ‘religious state’ which the framers of the constitution were clearly trying to avoid. The courts have been grappling with this alleged exercise of religious liberty versus public safety for some time in the recent past in regards to child abuse and infanticide (i.e. parents refusing to get their children medical care because they think they can pray it away). At some point you have to limit the ability of individuals to subvert an exercise of freedom to prevent them from harming the public and the common good.

    It really boggles my mind how anybody can look at this cup of hemlock and call it koolaid.

  76. Greg PJR says:

    ‘religious businesses’. Curious term. Businesses do not have a right. They operate purely by the permission of local, state and federal governments. You can’t do business without a license. In obtaining that license an entity agrees that they will abide by the requirements of said license. If the entity does not want to abide then that is their freedom of choice. They just don’t get a license.

    A religious business by definition would be one that is solely operated by a religious organization but………. if a religious organization wants to sell goods to a general public then they must also abide by the requirements of a license to do so. Individuals cannot claim themselves to be a religious organization for good reason, because they will lie about it just to escape social accountability like so much of fundamentalist chrisitianity does today.

  77. BeccaM says:

    It’s a similar situation in New Mexico. The overwhelming majority of the population lives in or near Albuquerque, Santa Fe or in the corridor between them — and the whole lot of us swing progressive and Dem.

    It’s out in the more sparsely populated rural areas where the politics swings hard right and, especially in the east and south, with a distinct Tea Bagger / Libertarian bent.

    I’m originally from Pennsylvania and it’s also similar: Pittsburgh, Philly, and Allentown/Bethlehem are the Dem strongholds, but the rural parts of the states are the reservoir of loony wingnut GOPers.

  78. SkippyFlipjack says:

    I think you might have made that a little clearer. For example, you write:

    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.

    All of this language already exists in Arizona’s RFRA law, and survives the veto.

  79. BeccaM says:

    Funny how you define “not supporting gay marriage” as treating gays and lesbians as pariahs. You obviously can’t even begin to imagine the indignity of it. How’d you like it if you pulled into a hotel parking lot at 2am and, upon walking to the desk were told, “Sorry, we don’t serve YOUR KIND here”?

    Oh right — white Christian heterosexuals never, ever imagine they’d be the ones discriminated against, thereby making discrimination against others so much more acceptable.

    You open a Christian book store and maybe we’re talking about a religious business. You hang a shingle advertising a service or product or facility, then we’re talking public accommodations. And your right to practice your religion ends where another person’s civil rights begin.

    You also proceed from a false assertion, that it is morally wrong to be gay. We now know that sexual orientation is merely another variation of normal human traits, and to denounce people for being gay is no less bigoted and ignorant than it was to oppress African Americans because their skin wasn’t white. Which, by the way, also used to be justified by an assertion of religious beliefs.

    So would you say it’s government coercion for it to be illegal for a shop owner not to allow African Americans or Hispanics into his or her store? Because that’s what this comes down to for people like yourself: Hypocrite or intolerant bigot. Or both.

  80. SkippyFlipjack says:

    That’s the existing state law. Here’s the full text of SB 1062 showing which parts are new:

    The bill would have expanded the phrase “the ability to act” to “the practice or observance of religion, including the ability to act”. So it would have expanded the definition to a superset of the existing one, but I don’t know what the significance of that change would have been.

  81. Stev84 says:

    There is no such thing as a “religious business”. Businesses can’t have religious beliefs.

    And baking a fucking cake doesn’t “support” anything. It’s just a cake. Never mind that it doesn’t end with cakes, but affects every other aspect of life as well.

  82. BeccaM says:

    I know. SB1062 had language that specifically said the asserted religious belief need not be ‘compulsory or central’ to a religion’s teachings. They only had to say it was “substantially motivated by a religious belief.” Which could be anything.

  83. BeccaM says:

    Here’s the full summary:

    The relevant bit:

    Exercise of religion is defined as the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief (A.R.S. § 41-1493).

  84. Houndentenor says:

    That’s the same reason New York state didn’t have a nondiscrimination law until 2003. They couldn’t get it passed through the GOP-controlled (and up-state dominant) state senate. (The law was signed by Republican governor George Pataki, btw.)

  85. jomicur says:

    I have fairly distinct memories of my Catholic grade school nuns teaching us that “miscegenation” is a sin in the eyes of God and his Holy Mother Church.

  86. Ninja0980 says:

    No this bill wasn’t misrepresented by the public/media.
    One of the bills sponsors stated that hotels could have the right to turn away gay and lesbian couples.
    And every case they mentioned just happened to involve cases where people tried to use their religious beliefs as an justification to discriminate against gay and lesbian couples.
    What other purpose could there have been other then to target gays and lesbians gut the protections in the few cities in AZ that have them?
    P.S. If you look at the history of the groups pushing the hardest for this bill, there is no way to say with a straight face this was anything but an anti-gay group.

  87. David Delmar says:

    “simply not supporting gay marriage” is a bold misstatement of the facts. The issue is not whether businesses support or don’t support gay rights, but one much more basic: whether businesses will serve gays and lesbians and thus treat them like everyone else. It’s nonsense to gloss over that fact.

    And the analogy to the Westboro Baptist Church crumbles easily on reflection. Westboro is a hate group that goes across the country holding up signs like “God hates fags.” To force gay and lesbian photographers to interact with Westboro is 1) a fantasy, since Westboro would never allow it and 2) much more cruel than forcing a business owner merely to do business with someone who happens to be gay. Westboro’s anti-gay message is conduct; the mere fact of being gay is a status. The law does not and should not treat conduct the same way as status.

  88. Monophylos Fortikos says:

    This is government coercion, not freedom.

    Oh, I agree. Christian fundies have such a pathetically insecure sort of faith that they want the government to coerce other people into suffering under its ever-shrinking set of moral imperatives. Ew, those two guys over there are getting married! I’m getting the vapors! The government must protect me from the sight of them!

  89. ace8842 says:

    This is government coercion, not freedom. The bill was rightly to protect religious businesses from being sued, harassed and demonized by gays for simply not supporting gay marriage. No one in AZ has been denying gays service, and there is not law preventing discrimination now! That is why all the Jim Crow references and ridiculous examples of what might happen are hogwash. Would you make a gay photographer photograph a Westboro Baptist Church event? Or a black baker bake a cake for a white supremacist event?

  90. David Delmar says:

    There really isn’t a limit to what the religious could claim goes against their beliefs. Keep in mind, there is no requirement that you assert a free exercise claim based on a known doctrinal aspect of an established religion. The asserted view could be completely individual and, because religious beliefs don’t have to be based on anything, could be any conceivable prejudice. I could say it is against my personal religion to serve people with longer middle toes and, so long as I can in some way demonstrate that is a “sincerely held” belief (perhaps by showing a personal diary entry where I write about my absurd religious views) it would have to be accepted.

  91. David Delmar says:

    It doesn’t have to be a change in itself. But the interaction of that provision with the amended provisions is very important. Analyzing the whole effect of the legislation is worrisome.

  92. TampaZeke says:

    Um, yes he/she could. There are plenty of racist Catholics who use religious beliefs to justify their bigotry. But if it makes you feel better lets just say the person in question is a Southern Baptist, the second largest denomination in America.

  93. Badgerite says:

    It seems to me that the idea of being able to be protected in your ‘right’ to opt out of baking a cake for someone or taking a picture speaks for itself. How much more “trivial, technical or de minimis” can it get? Anti discrimination laws do not require you to approve of or engage in any activity that any religion would object to.
    Baking a cake is baking a cake. There are no moral or religious strictures that I am aware of against baking a cake for anyone. So. How is that suddenly considered an “exercise of religion”. The exercise of religion has to do with YOUR OWN CONDUCT. Not the conduct of someone else.
    This is nothing short of requiring the state to protect you while you enforce your religious beliefs ( or something else hiding behind religious beliefs) on others, via common, everyday business transactions. And your ‘religion’ is defined as whatever you say it is.
    Let’s take the the issue of interracial marriages. Please don’t tell me that their aren’t people who could not conjure up some ‘religious belief’ against that. It would be like the state protecting racial covenants in land titles, restricting who the land could ever be sold to to whites only. Jim Crowe.

  94. Badgerite says:

    Thanks for this comment. That is what immediately came to mind when I read the comment of pogden297. Since when does the Congress of the United States tell the Supreme Court of the United States what standard of review to use to interpret constitutional requirements in Free Exercise cases? Marbury v Madison staked out the SCOTUS authority to interpret the Constitution from our beginnings. Congress is perhaps the last body in existence ( what is their current approval rating, 3%?) which I would trust to do so.

  95. Badgerite says:


  96. SkippyFlipjack says:

    Which language in the bill would have the effect of switching from the religion’s beliefs to the claimed beliefs of the person (or business)?

  97. SkippyFlipjack says:

    The “cherry on top” cited above is already part of Arizona law. Here’s the only change:

    In this subsection, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical, or de minimis infractions.


    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.

    What about that wording change is so significant?

  98. BeccaM says:

    Actually, under the Arizona definition, a Catholic could. That is the point.

  99. richardgrabman says:

    Um, a Catholic couldn’t claim “race mixing” went against his/her religion, but I get your point.

  100. caphillprof says:

    So are you saying that if a person asserted a closely held religious duty to kill the infidel, then the state could not restrain him?

  101. caphillprof says:

    The religious right being asserted in Arizona, Kansas and other backward states is neither more nor less than an attempt to resegregate American society. If you think this is primarily about the gay, you would be wrong. Gay is just the starting place. Blacks, Asians ,women, Muslims, and Jews too would all inevitably be excluded.

  102. 2patricius2 says:

    When confronted by one of the opponents of the bill asking whether he would support a bill guaranteeing equal rights for LGBT people, a proponent said he would not.

    Another proponent was asked if he supported equality for LGBT people, and he said that equality means different things for different groups of people. (In other words – equal rights for LGBT people means fewer rights for LGBT people.)

    But of course all the proponents insisted they were voting for a bill to guarantee religious freedom for all citizens, though they were doing this because they wanted to make sure Christian butchers, bakers, candlestick makers, caterers, florists and photographers and all other companies and merchants could “exercise their deeply held religious beliefs” by denying service to LGBT people. The legislators evidently didn’t expect their mask of “religious freedom” to be so easily seen for the bigotry it was, and to be so quickly exposed by so many people.

  103. Matt Rogers says:

    They can’t win! If they take out the overtly discriminatory passages, the bill is too broad. If they leave those passages in, they’re showing their animus. They might as well just give up :-)

  104. 2patricius2 says:

    I didn’t realize it is 60% of the population that is covered by the local ordinances. That makes the proposed law even more egregious. Flagstaff, Phoenix, and Tucson (and now Tempe – adopted the day after the veto) have such ordinances.

    One of the big problems that Missouri, the state where I was born and in which I lived most of my life, has is that it is another state where the legislators from more rural areas control the legislature.

  105. TampaZeke says:

    1993 was a point of an intense anti-gay wave across the country that was fueled and fanned overwhelmingly by Republicans who were trying to kill Clinton’s presidency; particularly after Clinton ordered the military to stop discriminating against gay troops. The rest of the Clinton presidency was one anti-gay attack out of congress after another with DADT and the “Defense of Marriage” act being the two most prized scalps. Yes, Clinton and other Democrats jumped on the bandwagon in the political anti-gay frenzy that was “Red scare” of the 90’s. The Religious Freedom Restoration Act was just another of these homophobic witch hunts that Republicans and Southern/conservative Democrats created and spineless Democrats went along with. This disgusting law needs to be exposed with the same vigor that SB1062 was and repealed post haste.

  106. bkmn says:

    It is truly amazing and breathtaking that ALEC, Liberty Counsel and ADF, three groups of lawyers (I am assuming that all these lawyer folks passed the Bar) are not able to draft a law that is not so broad that it couldn’t be used against their own interests.

    If anyone is paying ALEC, ADF or Liberty for law services, check your billing statements and cross check them, cause you aren’t getting what you think you are paying for.

  107. Houndentenor says:

    To be fair (as I was corrected earlier this week) the main cities in Arizona, which contain about 60% of its population, do have nondiscrimination ordinances. This would have, in effect, allowed the rural bigots to override what the people in those cities have decided (and favor). It’s the equivalent of New York’s upstate/downstate problem and of course the rural/urban cultural divide that is the basis of American’s current “culture wars”.

  108. jm2 says:

    these christianists are doing to their religion exactly what Nietzsche said man did to god – killed him. can’t be soon enough for me.

    as Gandhi said, “Jesus is ideal and wonderful, but you Christians – you are not like him.”

  109. David Delmar says:

    Thanks for the post. Arizona was, as you say, trying to move its own RFRA closer to the federal version. That in and of itself does not make criticisms of the law misrepresentative, however, as your comment seems to state.

    I’m not sure you read the whole article, but there is a detailed explanation of the provisions of the proposed amendment and a subsequent analysis of what those provisions would have authorized.

    In the case City of Boerne v. Flores, SCOTUS held that the federal RFRA overstepped Congress’ authority by attempting to tell the Court what standard of review (strict scrutiny) it had to apply in Free Exercise cases. In response to that decision, state governments enacted their own RFRAs to compensate for the loss of the strict scrutiny standard of review of certain infringements on free exercise that SCOTUS struck down in Boerne. Thus, Arizona’s law could have been much more dangerous than the federal RFRA, since no Arizona court had yet ruled on it. Critics did not “egregiously misrepresent” the bill by condemning the implications of its plan terms.

  110. 2patricius2 says:

    It was pretty clear what the law was all about, when the legislators proposing the law kept referring to the “poor, Christian” photographers in New Mexico who were sued for refusing, because of their religious beliefs, to photograph a lesbian commitment ceremony. None of the legislators could cite a similar situation in Arizona. Arizona doesn’t have a non-discrimination state law including sexual orientation, like New Mexico does, though some of the cities in Arizona have local ordinances that do. But the proponents wanted to be pre-emptive, so they said (and to strike down the local ordinances).

    So when they spoke in behalf of the law, they could talk about “religious freedom” all they wanted, but they really wanted “Christian” companies and merchants to have state sanction to discriminate against “the gays.”

  111. pogden297 says:

    Seriously I don’t know how anyone can write any article on the law in this area and completely omit any mention of the federal Religious Freedom Restoration Act passed in 1993 by a nearly unanimous Congress and signed into law by President Bill Clinton. Though I don’t usually cite Wikipedia, it’s explanation of the law is spot on: “This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[1] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[3] The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.”[3] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[4] The second condition is that the rule must be the least restrictive way in which to further the government interest.”

    Arizona was simply trying to adopt an amendment to its Religious Freedom Act which make it more closely approximate the federal law. The Arizona bill was “egregiously misrepresented” by critics and it is being “egregiously misrepresented” here.

  112. BeccaM says:

    That’s a very intriguing angle you found there, David.

    So basically, SB1062’s purpose (and that of all the other copycat bills being introduced in states all over) is to remove the judicial benefit of strict scrutiny from any and all protected minority groups — LGBTs, people of color, women, non-Christian religious minorities, etc. — and assign it solely to fundamentalist Christians. To make it so that one particular group’s religious beliefs trumped the civil rights of everybody else.

    You mentioned how one of the retorts from SB1062’s defenders is that it did not explicitly say businesses could discriminate. It didn’t have to. Arizona’s RFRA already had that part, and although I agree with you — that law right there is already problematic — at least it had much narrower definitions as to who was entitled to engage in discrimination based on religious belief. The abomination that was SB1062 removed any meaningful limits on those definitions, and went out of its way to define ‘person’ as any person, group of people, or business.

    Furthermore, while it’s true, as you pointed out, the bill included language not allowing for “trivial” stuff, it did include language to say that it was a person’s claimed beliefs that mattered, and did not matter if the belief asserted wasn’t actually a teaching of the claimed religion itself. Thus, for example, an avowed Catholic could say he did not believe in the mixing of the races, and therefore could assert his right not to rent a hotel room to a mixed-race couple.

    As Indigo points out, the bill was a fairly obvious attempt to eviscerate all civil rights laws — except those enjoyed by white heterosexual fundamentalist Christians.

  113. Indigo says:

    The bill was a transparent attack on the principle of equal rights for all under the Constitution. There’s nothing egregious about saying so.

  114. cole3244 says:

    when you push back against bigots (bullies, fascists) they seem to resort to claiming to be misunderstood but they are really feeling out areas to see how far their anti democratic agenda will fly and if there is any real opposition fierce enough to block them.

    here they were stopped cold but not for righteous reasons, for economic reasons and the seeds of bigotry still germinate in ariz and elsewhere where the rw will raise their agenda of hate again sooner rather than later that we can be sure of.

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