And to think it all started with peyote.
When members of the Native American Church got fired from their jobs for smoking the cactus, they sued. The Supreme Court sided with the employer. Congress stepped in, passing the Religious Freedom Restoration Act (RFRA) in 1993. In essence it provides a way to test government violations of the First Amendment’s free exercise of religion clause, and limits government coercion. Simply put, the government shouldn’t punish people for practicing their religion unless it has a good reason. The law doesn’t create a protected class of religious adherents; it only provides a way for them to take their religious conviction to court and be heard.
RFRA passed unanimously in the U.S. House and only three senators voted against it. President Bill Clinton signed it into law. After the Supreme Court ruled that Congress could make it binding on the federal government but not on states, a wave of state RFRA laws, sometimes called baby RFRAs, followed, creating a uniform standard for courts to apply in individual cases.
Arizona has had its own RFRA since 1999. The now tarred-and-feathered SB 1062 would have modified it two ways—covering residents in the conduct of their businesses, and covering them when sued by a private citizen invoking state or local law. To label it an “anti-gay bill” as most media have done is like calling the sun anti-gay for shining on homosexuals and heterosexuals alike.
To be sure, Arizona’s amended RFRA could have been invoked should a Christian florist be taken to court by the state attorney general for refusing to provide flowers for a gay wedding, as is happening in Washington state. But nothing in the Arizona amendments would have said who wins such a case, and religious adherents—as in all RFRA laws—have to demonstrate they possess a “sincerely held belief” that’s being needlessly violated.
With the fever cry that provoked Gov. Jan Brewer’s Feb. 26 veto of SB 1062, it’s important to see the juncture for the United States in the debate over how far gay rights must go. In hindsight gay marriage battles may look like skirmishes, once homosexual litigants (and their government collaborators) in courts of law invoke the coercive power of government to set aside religious conviction—in business, education, and all sorts of transactions.
A Christian (or Muslim) photographer may choose to shoot a gay wedding—Christian liberty and religious conscience is a different debate—but if he is coerced through state (or media) intimidation, what happens when the photos don’t turn out well? Will the gay couple have legal recourse, claiming the blurred photos were an act of discrimination? It’s no longer difficult to picture this kind of pettiness actually playing out in the courts and the press.
The capitulation of Brewer, a conservative and a Christian, is both monumental and understandable. To veto the law she had to ignore the advice of 11 of the most eminent American legal scholars and jurists. Their Feb. 25 letter to the governor declared the bill “egregiously misrepresented” by its critics, enacting “a broadly applicable standard” that would uncomplicate litigation. The signers, including Harvard’s Mary Ann Glendon and Stanford’s Michael W. McConnell, noted, “Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it.”
But in the end, SB 1062 wasn’t about the law. It was about jackboot politics and the growing economic clout of LGBT groups. The NFL threatened to move the 2015 Super Bowl elsewhere, and the prospect of hosting a 2016 presidential convention seemed threatened. Arizona chambers of commerce and the state’s leading newspaper all came out against it, saying it would destroy business in an already stalled economy. Brewer also knew her history: While she was a state legislator in the 1980s, the Arizona assembly voted down observing the new federal MLK Day holiday, a move that brought national excoriation and cost the state millions in boycotted business.
Brewer claimed in her veto that SB 1062 was a solution to a problem that doesn’t exist. Yet.