Constitutional Law, Politics, Religion, Society

Arizona’s Perversion of Religious Liberty

By Mike Appleton, Weekend Contributor

“This bill is not about allowing discrimination. This bill is about preventing discrimination against people who are clearly living out their faith.”

-Arizona State Sen. Steve Yarbrough (R), on SB 1062.

Assaults on the civil rights of homosexuals and the acceptance of gay marriage have been the focus of a number of state legislatures. The most recent lunacy is a bill in Arizona that now awaits action by Gov. Brewer. The bill amends sections of the Arizona Revised Statutes by incorporating provisions that effectively insulate many forms of grossly discriminatory conduct from legal consequence if done under the cloak of religion. This is accomplished in three steps. First, the bill defines “exercise of religion” to include “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.” Second, the bill expands the definition of “person” to include “any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation or other legal entity.” I refer to this as the “Hobby Lobby” amendment. Finally, the bill prohibits, with a strict scrutiny exception, any “state action” that substantially burdens the free exercise of religion even if that state action is a law of general application.

I anticipate that the governor will veto this atrocity, not as a matter of constitutional principle, but out of concern that enactment of the law would further harm Arizona’s reputation and economic interests. But it is nonetheless disturbing that legislators would willingly employ a fundamental freedom as a weapon against a disfavored group of citizens.The legislation has been pushed by the usual suspects. Peter Sprigg, Senior Fellow for Policy Studies at the Family Research Council, has written a piece entitled “The Top Ten Harms of Same-Sex Marriage,” in which he claims, inter alia, that recognition of marital rights for gays threatens the religious liberty of “individual believers trying to live their lives in accordance with their faith not only at church, but at home, in their neighborhoods, and in the workplace.” That, of course, is merely another way of saying that Mr. Sprigg’s religious beliefs must prevail over yours in the event of a conflict, even to the point of requiring that you live somewhere other than where you may wish to live and work somewhere other than where you may wish to work. Mr. Sprigg, who was formerly the pastor of the Clifton Park Center Baptist Church in Clifton Park, New York, believes that tolerance is a synonym for endorsement.

Or consider the words of the Rev. H.M. Goodwin, who lamented the damage to “the unity of the family as a social organism,” striking “at the root of that which should be the first and foremost end of government to protect, the sacred unity of the Family.” Or perhaps don’t consider the words of Rev. Goodwin, because he wrote them in 1884 and the object of his outrage was actually the growing movement in support of women’s suffrage. In that same article, Rev. Goodwin complained of increasing secularism, an example of which was the removal of the Bible from public school classrooms at the instance of “Catholics and infidels.”

The history of this country is littered with appeals to God in defense of oppression. In 1822, Richard Furman, a church pastor in Charleston, South Carolina, wrote a letter to Gov. John Lyde Wilson claiming that slavery “is justifiable by the doctrine and example contained in Holy writ; and is, therefore, consistent with Christian uprightness, both in sentiment and conduct.” That argument became discredited through time and the Civil War, of course, but its legacy was a system of laws that persisted for decades until intervention by the courts, an intervention that the late religious leader W.A. Criswell decried as “a denial of all that we believe in” fomented by proponents of racial integration which he labeled “a bunch of infidels, dying from the neck up.”

The point is that every advance in the rights of man has had to overcome preachers of hatred and theologians of exclusion. Every attempt to admit to the fullness of civic, political and social life a group previously rejected out of ignorance and fear has been resisted by those asserting sole possession of divine truth. And years later, after the battles have been won and the opponents are long since dead, their words are finally recognized for what they are, the intolerant rants of false prophets.

In April of 1965, Lester Maddox stood at the entrance to his Pickrick Restaurant in Atlanta, axe handle in hand, to block three black Georgia Tech students from entering. Mr. Maddox closed his restaurant later that summer rather than comply with court-ordered desegregation, but carried his views all the way to the Georgia governor’s mansion several years later.

In retrospect, Mr. Maddox made a tactical error. Instead of the same old tired arguments about property rights and federalism, he should have cited the Free Exercise Clause. He should have argued that his sincerely held religious beliefs prohibited his serving a ham sandwich to the children of Ham. Or perhaps he should have moved his restaurant to Arizona, where politicians have determined that religious balkanization is a healthy trend and that religious extremism in the defense of bigotry is no vice.

Sources: Goodwin, H.M., “Women’s Suffrage,” The New Englander,” No. CLXXIX (March, 1884); Freeman, Curtis, ” ‘ Never Had I Been So Blind’: W.A. Criswell’s ‘Change’ on Racial Segregation,” Journal of Southern Religion, Vol. X (2007); Sprigg, Peter, “The Top Ten Harms of Same-Sex Marriage,” Family Research Council (2011).

 

437 thoughts on “Arizona’s Perversion of Religious Liberty”

  1. nick:

    you got that right. Go ahead and discriminate and pay the price. People should have a right to association. In a free country, this wouldnt be an issue, you could discriminate against anyone you wanted and you could also pay a financial and social price for so doing.

    I have had clients who I have straight up told, I dont want your business. It wasnt because they were gay or black, they were just prics. They were all white males actually. Will I now be forced to deal with them?

  2. Uganda’s anti-gay bill refocuses attention on US evangelical influence (+video)
    Uganda’s President Museveni signed into law Monday a bill that criminalizes homosexuality with life sentences and punishes efforts to raise or discuss gay issues.
    By Fredrick Nzwili, Correspondent
    February 25, 2014
    http://www.csmonitor.com/World/2014/0225/Uganda-s-anti-gay-bill-refocuses-attention-on-US-evangelical-influence-video

    Excerpt:
    Nairobi, Kenya
    A day after Uganda’s President Yoweri Museveni signed into law a punitive bill that criminalizes homosexuality with life sentences and punishes efforts to raise or discuss gay issues, the influence of American evangelicals on the law is being raised.

    Human rights groups in East Africa for many years have pointed fingers at US evangelicals, some of whom have visited African states and advocated against homosexual behavior and rights, something that is often not a difficult sell given traditional values and views across Africa.

    But the new law has raised the ire of gay rights groups who say religious lobbying from US groups proved effective – even as US President Obama and Secretary of State John Kerry opposed the bill, saying it would “complicate” relations with the US, and as the evangelicals themselves now distance themselves from the new law.

    Conservative evangelicals like Scott Lively and Lou Engle traveled to Uganda in 2009 and 2010, and Mr. Lively in particular is known to have advocated consistently and strongly against gay rights, and supported harsh laws against homosexuals. But Mr. Engle, based in Kansas City and known through his ministry The Call for backing conservative political causes, distanced himself from the Uganda bill and its punishments several years ago, saying the Ugandan church should examine its own soul.

    In Uganda, however, Lively actively lobbied influential figures like Pastor Martin Ssempa, founder of Makerere University Church — as well as the anti-gay bill’s sponsor, David Bahati, a legislator from the ruling party who introduced the law as a private popular measure. Human rights groups say that gave the bill some early diplomatic cover since it was not formally sponsored by the Ugandan government.

    Lively has taken virulently anti-gay positions. After sponsoring an Oregon ballot initiative in the early 1990s to publicly denounce homosexuality, he wrote a book titled the “Pink Swastika,” attributing official Nazi behavior to homosexuality. One Kampala-based Western analyst described Lively to the Monitor as “more anti-gay than evangelical.”

    Lively, who now lives in Springfield, Ma., told the Associated Press Monday that he preferred the Russian anti-gay approach to the Ugandan one: “I would rather the Ugandans had followed the Russian anti-propaganda model which reflects my philosophy of preventing the mainstreaming of homosexuality with the minimum limitation on personal liberties.…”

    Links between evangelicals and African anti-gay movements were first detailed in 2009 by Kipya Kaoma, a Zambian clergyman and senior member of Political Research Associates, a think tank advocating social justice.

    Dr. Kaoma, in research papers titled, “Colonizing African Values” and “Globalizing the Culture Wars,” says a number of US groups have funded activities designed to counter gay rights in Africa.

  3. How Arizona’s anti-gay bill will hurt the religious
    By E.J. Dionne Jr.
    Published: February 26, 2014
    http://www.washingtonpost.com/opinions/ej-dionne-arizonas-anti-gay-bill-hurts-religious-people/2014/02/26/84b06248-9f23-11e3-b8d8-94577ff66b28_story.html

    Excerpt:
    Social and religious conservatives should have been the first to oppose the Arizona Legislature’s effort to allow businesses to discriminate against same-sex couples on religious grounds.

    Partisans of the religious right apparently don’t feel this way, but here’s why they should: Pushing “conscience exemptions” beyond reasonable limits threatens a long-standing American habit of having government go out of its way to accommodate the commitments of religious people.

    Conscience should not be used as a battering ram to undermine any adjustment in the law that some group doesn’t like. Using conscience exemptions to facilitate backdoor resistance to social change takes something precious and turns it into a cheap political tactic.

    That’s why conservatives should be grateful that Arizona Gov. Jan Brewer (R) vetoed the anti-gay bill.

    Those who cherish religious faith ought to be heartsick that it is so often invoked not to advance compassion and understanding but rather to justify discrimination and even bigotry. This is doing serious harm to our religious traditions, particularly among the young.

    The millennials are more detached from organized religion than any earlier cohort of young Americans since polling began: Roughly one-third rejects formal religious affiliation. Many scholars — notably Robert Putnam and David Campbell, whose “American Grace” is the definitive book on the United States’ religious landscape — attribute this to the hyper-politicization of faith on the right.

    To young adults, Campbell and Putnam wrote in a 2012 article in Foreign Affairs, “ ‘religion’ means ‘Republican,’ ‘intolerant,’ and ‘homophobic.’ Since those traits do not represent their views, they do not see themselves — or wish to be seen by their peers — as religious.”

    Congratulations to the Arizona Legislature for doing such an excellent job at de-evangelization.

  4. When ‘Religious Liberty’ Was Used To Justify Racism Instead Of Homophobia
    BY IAN MILLHISER
    FEBRUARY 26, 2014
    http://thinkprogress.org/justice/2014/02/26/3333161/religious-liberty-racist-anti-gay/

    Excerpt:
    “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
    – Judge Leon M. Bazile, January 6, 1959

    The most remarkable thing about Arizona’s “License To Discriminate” bill is how quickly it became anathema, even among Republicans. Both 2008 GOP presidential candidate John McCain and 2012 GOP presidential candidate Mitt Romney called upon Arizona Gov. Jan Brewer to veto this effort to protect businesses that want to discriminate against gay people. So did Arizona’s other senator, Jeff Flake. And former House Speaker Newt Gingrich. Indeed, three state senators who voted for this very bill urged Brewer to veto it before she finally did so on Wednesday, confessing that they “made a mistake” when they voted for it to become law.

    The premise of the bill is that discrimination becomes acceptable so long as it is packaged inside a religious wrapper. As Arizona state Rep. Eddie Farnsworth (R) explained, lawmakers introduced it in response to instances where anti-gay business owners in other states were “punished for their religious beliefs” after they denied service to gay customers in violation of a state anti-discrimination law.

    Yet, while LGBT Americans are the current target of this effort to repackage prejudice as “religious liberty,” they are hardly the first. To the contrary, as Wake Forest law Professor Michael Kent Curtis explained in a 2012 law review article, many segregationists justified racial bigotry on the very same grounds that religious conservatives now hope to justify anti-gay animus. In the words of one professor at a prominent Mississippi Baptist institution, “our Southern segregation way is the Christian way . . . . [God] was the original segregationist.”

  8. Wayne writes, “there is strong evidence that this tendency [homosexuality] runs in certain families. All of this points to a genetic influence toward homosexuality.”

    Not so fast with your conclusions sonny!. It could be a combination of other factors including environmental and familial influences , not to mention possible sexual abuse, i.e. experimentation with children at a young age.

    Why do you think that MANBA’s hope for young boys is?

  9. The veto will cut bigots to pieces and assign them a place with the hypocrites, where there will be weeping and gnashing of teeth

  10. This is a capitalist society and this is how it should work. Of course, when ideologues don’t like the outcome, then they whine. The religious conservatives will whine about capitalism here. It’s more often secularists whining. A nation of whiners, my ancestors are rolling in their graves.

  13. davidm:

    You are quickly passing from the irrational to the disingenuous. First, if people want to analyze the bill, they should go to the official Arizona legislature site, not to the partisan site you reference. Second, you keep abreast of current affairs, and I am certain that you recall the Florida legislature’s action last year to prevent the City of Orlando from proceeding with an effort to increase the minimum wage. Therefore, you are aware that state legislatures are quite capable of trumping local laws. And that is the case in Arizona with the Phoenix ordinance. It’s not complicated.

    Let’s cut to the chase. We have permitted exemptions from laws of general application for non-profit religious organizations in this country. There is no constitutional obligation to do so, and I do not believe it is good policy, but it is nevertheless the law. The Arizona statute, and similar proposals elsewhere, are attempts to broaden the exemptions by enabling any person or entity to claim the status of a religious organization for exemption purposes. The immediate impetus for this expansion is the fear among religious opponents of same-sex marriage that they are losing the public policy battle and must resort to the most extreme measures they can push through compliant state legislatures to hold back the onrushing sea. Some of the ardent supporters in the Arizona senate are now feverishly backtracking, apparently prepared to sacrifice their strong religious “principles” because the Chamber of Commerce is upset.

    I also respectfully disagree with your view that your arguments against homosexuality do not have a religious foundation. They do indeed. I have read some of your comments on natural law with interest because that is also an interest of mine. However, the natural law arguments you make are not secular. They are all drawn from the work of Catholic theologians writing squarely in the tradition of Thomas Aquinas. That school of natural law is based upon the Thomist idea of reason informed by revelation. There is nothing wrong with that, but it is at bottom a religious school of philosophy. And frankly, were Aquinas alive today, I would expect his teleological views would be modified as a consequence of advances in science in the centuries since his death.

    I also believe that science will eventually confirm Waldo’s belief in sexuality as a continuum which is basically hardwired. Therefore, to assert that someone has “changed” his sexual orientation through prayer, fasting, counseling or exposure to Hustler is misleading. I believe it more accurate to state that individuals who demonstrate confusion, anxiety or uncertainty over their sexual orientation can come to recognize their true orientation in a variety of ways. But counselors, pastors and prayer groups are not neuro-electricians.

    1. Mike,
      I do agree with your posting about the genetic nature of homosexuality. Although it may not follow strict Darwinian Evolutionary principles, homosexuality is found in many different cultures in other countries and usually at the 8-10% level of a population. In addition there is strong evidence that this tendency runs in certain families. All of this points to a genetic influence toward homosexuality.

      I am confident that biologists will very soon be able to explain the evolutionary advantage for homosexuality in a given population. But I’m not sure biologists will be able to explain the hatred that exists in certain people toward gays and lesbians.

      I’ve worked with gays, have relatives that are gay, and I’m here to tell you they are the same as everyone else—I will never understand the hatred and prejudice that exists against this group.

      1. ” —I will never understand the hatred and prejudice that
        exists against this group.”

        No one here is saying that they hate gays. What they are saying is they have an aversion to the gay lifestyle. If we take an inventory of your own aversions (there’s no such thing as a person without one), odds are likely that you would find yourself in the same lens that you see others. Lots of folks, maybe even you, wonder why there is so much hatred towards believers. Myself, I have an aversion towards Muslims who kill, but that does not mean that I do not respect the individual Muslim at large, much less hate them all because one gave me a bad quart of milk. If you can so quickly see hatred where there is none, surely you can see hatred against, say, conservatives and religious practitioners — in this blog.

    2. Mike Appleton wrote: “if people want to analyze the bill, they should go to the official Arizona legislature site, not to the partisan site you reference.”

      This is really amazing. My first link in this thread was to the actual Arizona legislature site, something which I could not find in your article. Someone had a problem with that link for unknown reasons. I offered the link to supporters of the bill because it gave a nice history with links to various versions of the bill. Also, Elaine has posted several very slanted articles against this bill. Not one article in favor of it. It seemed due for the sake of balance to provide just ONE articles on the pro side. I guess that somehow offended your sense of fairness in the debate.

      Mike Appleton wrote: “… you are aware that state legislatures are quite capable of trumping local laws. And that is the case in Arizona with the Phoenix ordinance.”

      I understand what you are saying, but from my perspective, the Constitution already trumps the Phoenix ordinance in regards to that line of thinking.

    3. Mike Appleton wrote: “… the natural law arguments you make are not secular… it is at bottom a religious school of philosophy.”

      I have conceded previously that theism affects my views. It connects natural law with the idea of a creator. I see an architect’s plan whereby male and female are created incomplete with the idea of a completion happening through marriage of man and woman.

    4. Despite this acknowledgement, theism is not my primary source of knowledge about natural law. I rely upon empirical sources of knowledge and frame my arguments accordingly. I do not argue against homosexuality based upon some sacred text or some religious persuasion. I argue against it based upon basic biology. The male and female body parts are different and obviously have a purpose and natural use which correlates with the male and female having sexual relations and not with male and male having sexual relations or female and female having sexual relations. From a strictly natural perspective of utility and purpose, I reason that the problems that homosexuals have with various diseases like hepatitis C, syphilis, etc. and mental health issues like depression and suicide result from embracing that path of non-normative sexuality rather than from the often cited cause of social stigma.

    5. Mike Appleton wrote: “… to assert that someone has “changed” his sexual orientation through prayer, fasting, counseling or exposure to Hustler is misleading. I believe it more accurate to state that individuals who demonstrate confusion, anxiety or uncertainty over their sexual orientation can come to recognize their true orientation in a variety of ways. But counselors, pastors and prayer groups are not neuro-electricians.”

      I never made any such assertion about changing sexual orientation through prayer, fasting or exposure to Hustler. I simply acknowledge that some people have changed their sexual orientation. It is irrelevant how that is done. Such examples prove that sexuality is not immutable.

      You seem to think that “true” sexual orientation is hidden. I think the prima facie evidence for true sexual orientation is biological. It is determined by their designation as male or female based on their genetics and body parts. There is flimsy evidence that people are happier or do better if they pursue a sexual orientation that is contrary to their biological nature. It may be better for many to temper their inner psychological sense of orientation in preference for their innate biological sexual orientation. I find it interesting that in one study, about half of homosexuals feel regret over not having children.

  14. david @ 5:01, Blacks and women are protected by FEDERAL anti-discrimination laws. Federal law trumps state law. Arizona can’t change federal law, so this proposed amendment is irrelevant to them.

    The proposed bill does provide an exception to state discrimination law. Currently, Phoenix has a law that makes discrimination based on sexual orientation in certain areas like housing and employment illegal. The proposed amendment would make the Arizona Religious Freedom Restoration Act applicable to that Phoenix law and provide a defense (i.e. exception) for the exercise of religion. Under current law, no such defense/exception applies for the exercise of religion because the current law applies only to government action, not the actions of private persons.

    1. Waldo wrote: “The proposed amendment would make the Arizona Religious Freedom Restoration Act applicable to that Phoenix law and provide a defense (i.e. exception) for the exercise of religion. Under current law, no such defense/exception applies for the exercise of religion because the current law applies only to government action, not the actions of private persons.”

      Hmmm. Not really following you here. Previously a person did have a defense under the First Amendment of the Constitution. However, that is difficult, often having to move the case to federal court, if one can be successful in that. By making State law encapsulate the inalienable right expressed in the First Amendment, it is better protection for the religious individual. The law is more clear and the case can be settled more quickly.

      One change to the law that is causing a lot of the uproar is that it defines person as not only an individual, but any legal entity such as a partnership, corporation, church, trust. etc. It seeks to make clear that the free exercise of religion right is not shed because someone works for a company.

      I still do not see that a defense under the free exercise of religion clause is an exception to anti-discrimination. Suppose a Muslim beats his wife and claims it is his religious right to do so? Do you really think SB 1062 will protect him? No way.

  15. “Is that your position? That nobody has ever moved from homosexuality to bisexuality or that nobody has ever moved from heterosexuality to homosexuality? Do you believe that a person’s sexuality is ingrained from birth and unchangeable? Surely you do not take that position, do you?”

    I’m not sure why you find it so difficult to believe that a person’s sexual orientation is essentially unchangeable. First, I’m only talking about sexual orientation not sexual acts. I think persons can choose their actions. Second, I don’t think we can fit sexual orientation into neat boxes like homosexual, bisexual, and heterosexual. I think it’s more of a continuum from a strong homosexual orientation to a strong heterosexual orientation. But, within that framework, I don’t find it hard to believe at all that a person’s sexual orientation is fixed early in life. You can train a left handed person to only use his or her right hand. They may become proficient using their right hand. But, their brain is still wired to be left handed and that is still the more natural preference for them. I suspect sexual orientation is similar.

    1. Waldo wrote: “I’m not sure why you find it so difficult to believe that a person’s sexual orientation is essentially unchangeable.”

      Because I know for a fact that it is a lie. It is simply rhetoric repeated often enough by activists that a lot of people believe it.

      What do you do with someone like Clive Davis (the lawyer, record producer, music executive)? The activists who repeat the mantra that sexual orientation is unchangeable basically call him a liar and attempt to categorize him as a closet homosexual all his life. Davis went through several marriages for the first fifty years of his life. He was not repressed. He had sexually fulfilling relationships with women and never once had the slightest inclination for sex with a man. One day that changed. Now he is in a committed sexual relationship with a man. Before this man, he was in a 14 year relationship with another man.

      I prefer not calling people like Clive Davis a liar just to preserve the unproven assumption that sexual orientation is impossible to change.

      Waldo wrote: “I think persons can choose their actions.”

      Glad to hear that. Do you also perceive that the actions we choose to do sexually affect our sexuality? For example, if we choose to have sexual relations frequently, or with different people, or choose to masturbate, or choose to look at porn, or choose to look at same sex porn, etc.?

      Waldo wrote: “I think it’s more of a continuum from a strong homosexual orientation to a strong heterosexual orientation.”

      Exactly! I agree 100% with this.

      Waldo wrote: “I don’t find it hard to believe at all that a person’s sexual orientation is fixed early in life.”

      It can be fairly well fixed early in life, but not necessarily for everyone.

      Waldo wrote: “You can train a left handed person to only use his or her right hand. They may become proficient using their right hand. But, their brain is still wired to be left handed and that is still the more natural preference for them. I suspect sexual orientation is similar.”

      Interesting analogy, and probably a pretty good comparison. Left handed people also tend to be more ambidextrous and better able to become ambidextrous. Also, when right handed people train themselves to be left handed, when successful, they usually become ambidextrous.

  19. “Sexuality is a continuum and it is fluid for everyone but becomes ingrained over time. Our sexuality is affected by our choices regarding sexual behavior.”

    *****

    I take it that’s your opinion. Is it based on the “fluid” sexual experiences you’ve had in the course of your life?

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