Arizona’s “Religious Freedom” Bill Highlights Need for LGBT Protections in Public Accommodations
By Noah Fortinsky, Former Fried Frank Fellow

The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

Arizona opened a Pandora’s Box on February 27 when its Republican-controlled legislature passed a “religious freedom” bill (on largely party-line votes) that would allow any individual or business with a sincerely held religious belief from serving gays and lesbians.  Opponents of the bill decried it as a license to discriminate against gays, lesbians, bisexuals, and transgendered (LGBT) individuals—though the legislation’s plain text allowed for discrimination against anyone, including those of other faiths, for religious reasons.  Proponents of the bill saw it as a shield to protect individuals and businesses with traditional religious viewpoints from lawsuits as more states legalize same-sex marriage.

Governor Jan Brewer, a Republican, vetoed the bill, a foregone conclusion as both Arizona Senators (both of whom are Republicans), the business community at large, and even former Republican presidential candidate Mitt Romney urged her to veto it.  The NFL, hosting the Super Bowl next year in Glendale, AZ, began exploring alternate venues—an economic catastrophe if ever there was one.  Even three Republican state senators reneged on their yes votes (though mainly due to the bill’s backlash by Arizona businesses, rather than any policy disagreement).  Still, this tug of war between religious rights and public accommodations laws is far from over.  Arizona, the first to pass a “religious freedom” bill, is not alone considering such laws: Kansas, Idaho, Missouri, Georgia, and other states are in various stages of enacting similar legislation.  Governor Brewer’s veto obviates a costly lawsuit, draining vital state resources, and the widespread backlash seems to have spooked other state legislatures from enacting the legislation anytime soon.  Yet try and try the proponents will.

If proponents of these “religious freedom” bills were honest, they would say outright that the whole kerfuffle is about their dislike of gays and lesbians, despite the “hate the sin, love the sinner” mantra.  They would just admit that the only marriages (or marriage-like arrangements) they want no part of are those between two men or two women—those remarrying after divorce, interracial marriages, or interfaith marriages, which violate certain religious precepts, do not cause them such consternation.  But the proponents cannot be honest because such a law would clearly be based on animus against gays and lesbians, an avenue foreclosed by the Supreme Court’s decision in United States v. Windsor last June, which struck down section 3 of the Defense of Marriage Act (DOMA).  The Court noted that DOMA could not withstand constitutional scrutiny because the “avowed purpose and effect of the law… [is] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-same marriages lawful[ly entered]….” (emphasis added).

Hence “religious freedom” bills must be written so broadly as to avoid unconstitutionality on one front (discriminatory purpose and effect), only to allow unintended (some might say knowingly intended) consequences to swallow up the original invidious purpose.  Yet Arizona could have avoided the problem entirely: Governor Brewer, in her veto statement, commented that the bill was a solution in search of a problem, as Arizona—and many other states—currently has laws in force that prohibit the state from placing a “substantial burden” on any person’s exercise of religion unless the burden can be justified under strict scrutiny—an extremely exacting standard for any law to survive.

Those with traditional religious beliefs have, under the First Amendment and state constitutional provisions, every right to believe whatever they want and to practice their faith as they choose.  But public accommodations laws preserve another fundamental constitutional value: equal protection under the law.  The Supreme Court affirmed in 1964 that businesses, even small, private businesses that sincerely want to discriminate, cannot violate public accommodations laws like the Civil Rights Act of 1964; states have ample authority to pass complementary public accommodations laws, and most have done so.  The Court, in Katzenbach v. McClung, noted that public accommodations laws are “plainly appropriate in the resolution of what Congress found to be a national commercial problem of the first magnitude [i.e., racial discrimination].”

Public accommodations laws and the goal for equal protection only go so far, though: the law must identify the protected classes for which discrimination, no matter how sincerely believed in, is prohibited.  The Civil Rights Act of 1964 and most state analogues identify race, national origin, religion, and sex.  Many states and localities include sexual orientation and gender identity, but the Civil Rights Act does not.

Thus, the surest way to neuter these “religious freedom” bills and prevent discrimination against gays and lesbians is to add sexual orientation and gender identity to the Civil Rights Act’s class of protected persons.  Political realities (especially in today’s polarized climate and upcoming congressional elections) militate against Congress doing the right thing anytime soon.  Indeed, the Employment Non-Discrimination Act (ENDA), a bill to prohibit discrimination against LGBT individuals in employment, introduced for many years in Congress with apparently broad public support, has failed to pass. (The Senate passed ENDA in 2013, but the House failed to act on the legislation.)

Still, the struggle for balance between these two common goods—religious freedom and equal protection—continues as more states authorize same-sex couples to marry. Currently 17 states and the District of Columbia solemnize same-sex marriages.  Assuming four federal district court decisions striking down same-sex marriage bans—in Oklahoma, Virginia, Texas, and Utah—are upheld on appeal, 21 states and over half the U.S. population will live in marriage equality jurisdictions.  Additionally, Attorneys General in Pennsylvania, Oregon, Virginia, and Nevada refuse to defend their state bans in pending lawsuits.  The tide is turning rapidly and a resolution must be reached as a broad national consensus is attained.

There may not be a short-term solution to bridge the growing divide between opponents and proponents of these “religious liberty” laws aside from civil discourse and advocacy, but Congress (and states that do not already protect LGBT individuals) should quell these ill-considered laws by adding sexual orientation and gender identity to civil rights statutes, ensuring that no public accommodation can use the cudgel of religious belief to prevent people from accessing goods and services without a rational and just reason.



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