Arizona at it again

[Winehole23]

To confess my biases, as a general matter I like the idea of affording wider religious-liberty defenses in most anti-discrimination statutes applying to private actors. At the same time, doing it this way – by pushing out the boundaries of RFRA to change the playing field of private litigation at one stroke, rather than pause for a debate about how best to address multiple areas and situations – strikes me as fairly sure to generate unintended consequences and unexpected results. When advocates warn Arizona Gov. Jan Brewer she will be sailing the ship of state into uncharted waters if she signs the bill, this is the provision that most makes me think they’re on to something.

http://www.cato.org/blog/further-tho...s-freedom-bill

[Blake]

I got it through an uber-liberal lawyer friend. she might have been duped, but I doubt it.

It's easy to find the letter on the internet, but the sites pouncing on this aren't exactly big time news outlets.....which also makes me su ious.

If it's real, I'm less than impressed with it.

[Winehole23]

why? mini-RFRAs are not all alike. how they are drafted makes a difference. different states do it differently.

shouldn't laws be judged on their own merits, rather than all kicked into the same ditch because they are similarly styled?

[Blake]

why? mini-RFRAs are not all alike. how they are drafted makes a difference. different states do it differently.

shouldn't laws be judged on their own merits, rather than all kicked into the same ditch because they are similarly styled?

I'm less than impressed with the letter to Brewer. It's rather ambiguous, imo.

[Winehole23]

the legal reasoning isn't easy to follow. might be due to being written badly, might be due to my own ignorance of legal stuff, which is why I hope FromWayDowntown, TheProfessor, el bamba -- or some other lawyer on the board -- will chime in.

[TSA]

restaurants are able to post dress codes, "no shoes, no shirt, or gun, no service" but that is non-discriminatory.

I'll laugh my ass off when this back fires on the left and gun owners claim discrimination, being that they are protected under the 2nd amendment. If you can't refuse gays, you can't refuse gun carriers.

[Blake]

I'll laugh my ass off when this back fires on the left and gun owners claim discrimination, being that they are protected under the 2nd amendment. If you can't refuse gays, you can't refuse gun carriers.

Lol wut lol

[FromWayDowntown]

I have not studied the bill and have paid only passing attention to the public debate about it. As I understand Professor Lay 's argument, he and his colleagues are basically hypothesizing a lawsuit in which a person has been denied services by a business and has sued to compel the business to provide the sought services. In that cir stance, if the basis for the denial of services is a claim of sincere religious conscience, the state RFRA would provide a defense to that discriminatory choice. Lay 's argument is basically to compare the Arizona law with the Kansas law to show that the Arizona bill, while permitting the business to prevail in some cir stances, does not dictate that all discriminatory actions based upon religious beliefs will be upheld; this makes it different from the Kansas law, which (according to Lay ) compels the conclusion that any claim of religious belief in support of a discriminatory act must be credited and cannot be overcome.

Functionally, Lay is saying (I think -- again, I have not studied either the bill or this letter in any depth) that the Arizona bill would have worked like this:

1. Leslie Lesbian brings suit against Boutons the Baptist for discrimination in refusing to provide her services because she's sexual.

2. Boutons the Baptist may assert the Arizona RFRA as a defense to that claim; Boutons the Baptist can prevail on that defense in that case upon showing that: (1) he has a sincerely-held religious belief that supports the discriminatory action; and (2) requiring him to provide the requested services would impose a substantial burden upon the exercise of that religious belief.

3. Assuming that Boutons the Baptist could make those showings -- and Lay basically argues that the bigger Boutons' business is, the harder it would be to make that showing (See Lay Letter at 2: "As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner's exercise of religion."; one wonders how that reasoning would fit with the arguments in the Hobby Lobby/ACA contraception case) -- Leslie Lesbian (or the State of Arizona) would still be able to overcome that proof by showing that requiring Boutons the Baptist to comply with the law would carry out a compelling governmental interest. That is, if the claimant could show that requiring the provision of services in a particular instance was of substantial interest to the government, even the most sincerely-held religious beliefs would not support the discriminatory act in question.

Lay argues that these are idiosyncratic issues that are better resolved by courts on a case-by-case basis than by legislative attempts to create broad rules of general application about what will and won't be allowed. Of course, the counter to that would be to preclude discrimination based upon sexual orientation across the board, but I'll assume for present purposes that religious objections to sexuality in this generation are more sincerely held beliefs than religious objections to racial integration a few generations ago. Lay contends as well that courts more phlegmatic decision-makers when faced unpopular conduct. Lay also claims that the bill, despite allowing a defense to the religious objector, would not have discouraged lawsuits because it didn't impose draconian countermeasures (like fee-shifting, in particular) against a losing plaintiff; thus, the aggrieved will at least not face significant economic disincentives for challenging particular discriminatory acts.

I don't agree with Lay that the bill somehow doesn't endorse discrimination; that may be overtly true in some sense, but it certainly seems to provide a justification for discrimination by providing the discriminator with a defense if his conduct is ever subjected to the scrutiny of a lawsuit. I tend to think that by providing a formal defense like this, the bill would actually encourage more discrimination insofar as those who would be inclined to do so will now do it and await the lawsuit that may or may not come, knowing that if it does come, they have a more certain defense of their actions than existed previously. If Boutons the Baptist wants to deny services to Leslie Lesbian, he might have been slightly concerned for potential liability before but now has a statutory defense that (as I understand it) didn't exist previously.

My su ion is that in most one-on-one transactions, if a business owner denies service there is a confrontation and perhaps some public shaming but little else that becomes of it. I heard over and over again about the hypothetical cake maker who refuses to make a cake for a same-sex couple's wedding; while particularly belligerent folks might chose to pursue litigation concerning that, in truth, I suspect that most people denied that service would go somewhere else and would relay a feeling of ill-will towards the baker who refused. Ultimately, the bill would seem to have been mostly aimed at very localized issues of governmental rule-making in that state and violations of those rules by religious objectors -- a local ordinance prohibiting discrimination or something of that sort.

[boutons_deux]

I'll laugh my ass off when this back fires on the left and gun owners claim discrimination, being that they are protected under the 2nd amendment. If you can't refuse gays, you can't refuse gun carriers.

an establishment owner would not allow a customer carrying a public health hazard like TB or SARS into his establishment.

Guns are a public health hazard, with 1.4 M+ Americans dead from gun violence since 1968.

[Blake]

State Sen. Al Melvin, a hopeful to succeed Brewer, told CNN's Anderson Cooper that Arizona was a "people friendly" state and that SB1062 was merely a "pre-emptive" measure that would prevent attacks on religion in the future."All of the pillars of society are under attack in the United States: the family, the traditional family, traditional marriage, mainline churches, the Boy Scouts, you name it," he said.

Asked if he could cite specific examples of attacks on Arizonans' freedom of religion, Melvin replied, "Not now, no, but what about tomorrow?"

http://www.cnn.com/2014/02/25/us/ari...062/?c=&page=3

god damn ing religious nutjobs.

[FromWayDowntown]

The race to the right seems so counterintuitive to any plan to succeed in electoral politics.

[TSA]

Lol wut lol

Like I said, I'll laugh my ass off. I guarantee some ridiculous gun owners will claim the same discrimination soon and we'll see it in court.

[Blake]

I don't agree with Lay that the bill somehow doesn't endorse discrimination; that may be overtly true in some sense, but it certainly seems to provide a justification for discrimination by providing the discriminator with a defense if his conduct is ever subjected to the scrutiny of a lawsuit.

I think it's clear it does. To suggest otherwise is saying we're all just gullible fools falling for MSM's (purposeful?) misrepresentation of facts.

Lol boutons the baptist.

[Blake]

Like I said, I'll laugh my ass off. I guarantee some ridiculous gun owners will claim the same discrimination soon and we'll see it in court.

I'll go ahead and laugh my ass off now at you.

[TSA]

Having lived in Tempe/Scottsdale for a few years its things like this that remind me how much different those places were from the rest of that crazy state.

[TSA]

I'll go ahead and laugh my ass off now at you.

Did you really do it or did you just type it?

[Blake]

Did you really do it or did you just type it?

yeah, you busted me. I'm really shaking my head at how stupid a notion it is.

[Winehole23]

I have not studied the bill and have paid only passing attention to the public debate about it. As I understand Professor Lay 's argument, he and his colleagues are basically hypothesizing a lawsuit in which a person has been denied services by a business and has sued to compel the business to provide the sought services. In that cir stance, if the basis for the denial of services is a claim of sincere religious conscience, the state RFRA would provide a defense to that discriminatory choice. Lay 's argument is basically to compare the Arizona law with the Kansas law to show that the Arizona bill, while permitting the business to prevail in some cir stances, does not dictate that all discriminatory actions based upon religious beliefs will be upheld; this makes it different from the Kansas law, which (according to Lay ) compels the conclusion that any claim of religious belief in support of a discriminatory act must be credited and cannot be overcome.

Functionally, Lay is saying (I think -- again, I have not studied either the bill or this letter in any depth) that the Arizona bill would have worked like this:

1. Leslie Lesbian brings suit against Boutons the Baptist for discrimination in refusing to provide her services because she's sexual.

2. Boutons the Baptist may assert the Arizona RFRA as a defense to that claim; Boutons the Baptist can prevail on that defense in that case upon showing that: (1) he has a sincerely-held religious belief that supports the discriminatory action; and (2) requiring him to provide the requested services would impose a substantial burden upon the exercise of that religious belief.

3. Assuming that Boutons the Baptist could make those showings -- and Lay basically argues that the bigger Boutons' business is, the harder it would be to make that showing (See Lay Letter at 2: "As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner's exercise of religion."; one wonders how that reasoning would fit with the arguments in the Hobby Lobby/ACA contraception case) -- Leslie Lesbian (or the State of Arizona) would still be able to overcome that proof by showing that requiring Boutons the Baptist to comply with the law would carry out a compelling governmental interest. That is, if the claimant could show that requiring the provision of services in a particular instance was of substantial interest to the government, even the most sincerely-held religious beliefs would not support the discriminatory act in question.

Lay argues that these are idiosyncratic issues that are better resolved by courts on a case-by-case basis than by legislative attempts to create broad rules of general application about what will and won't be allowed. Of course, the counter to that would be to preclude discrimination based upon sexual orientation across the board, but I'll assume for present purposes that religious objections to sexuality in this generation are more sincerely held beliefs than religious objections to racial integration a few generations ago. Lay contends as well that courts more phlegmatic decision-makers when faced unpopular conduct. Lay also claims that the bill, despite allowing a defense to the religious objector, would not have discouraged lawsuits because it didn't impose draconian countermeasures (like fee-shifting, in particular) against a losing plaintiff; thus, the aggrieved will at least not face significant economic disincentives for challenging particular discriminatory acts.

I don't agree with Lay that the bill somehow doesn't endorse discrimination; that may be overtly true in some sense, but it certainly seems to provide a justification for discrimination by providing the discriminator with a defense if his conduct is ever subjected to the scrutiny of a lawsuit. I tend to think that by providing a formal defense like this, the bill would actually encourage more discrimination insofar as those who would be inclined to do so will now do it and await the lawsuit that may or may not come, knowing that if it does come, they have a more certain defense of their actions than existed previously. If Boutons the Baptist wants to deny services to Leslie Lesbian, he might have been slightly concerned for potential liability before but now has a statutory defense that (as I understand it) didn't exist previously.

My su ion is that in most one-on-one transactions, if a business owner denies service there is a confrontation and perhaps some public shaming but little else that becomes of it. I heard over and over again about the hypothetical cake maker who refuses to make a cake for a same-sex couple's wedding; while particularly belligerent folks might chose to pursue litigation concerning that, in truth, I suspect that most people denied that service would go somewhere else and would relay a feeling of ill-will towards the baker who refused. Ultimately, the bill would seem to have been mostly aimed at very localized issues of governmental rule-making in that state and violations of those rules by religious objectors -- a local ordinance prohibiting discrimination or something of that sort.

Thanks for the thoughtful and detailed reply. You made that a lot clearer for me. While it might be a mistake to conflate the substance of the two proposed laws (those of Kansas and Arizona,) the political will behind both bear more than a passing resemblance. And if, as you have suggested, the main difference between the two consists in the strength of the shield offered to those discriminating on the basis of religious beliefs, the media's oversimplification of the issues may not be so extreme.

[ElNono]

Thanks FWD!

[FromWayDowntown]

Thanks for the thoughtful and detailed reply. You made that a lot clearer for me. While it might be a mistake to conflate the substance of the two proposed laws (those of Kansas and Arizona,) the political will behind both bear more than a passing resemblance. And if, as you have suggested, the main difference between the two consists in the strength of the shield offered to those discriminating on the basis of religious beliefs, the media's oversimplification of the issues may not be so extreme.

Well, clearly the Kansas law would essentially provide an absolute defense to a religious objector (according to Lay , at least; again, I've not read that bill) while the Arizona law would only provide, in theory, a conditional defense that could be overcome either by the lack of proof supporting the defense or evidence rebutting even an established defense. That's a true legal distinction, but I agree that the political impetus behind each appears to be largely the same backlash against the unwelcome encroachment of gay rights upon those who would prefer that such things not happen.

Though I'm sure that there are nuances (particularly to those who subscribe to the idea that race is immutable and sexual orientation is not), I have a difficult time distinguishing these efforts from those that suggested legalized segregation and other racially discriminatory laws were supportable as acts of religious conscience.

[boutons_deux]

The State of Arizona

Arizona. Wow. How often do you find yourself saying, “Go, entrenched interests of the business community!” Yet here we are.

Responding to howls from the state’s economic interests, Gov. Jan Brewer vetoed a bill that would have allowed businesses to discriminate against gay people on the grounds of religious conviction. Brewer is an erratic politician, but she’s not crazy. After all, she did once refer to the State Capitol as “that hole.”

It would have been hard to ignore the pressure. American Airlines and Apple said the bill was a terrible idea. So did the Arizona Chamber of Commerce. The list went on and on. “The entire business community is galvanized in a way that I’ve never seen against this legislation,” said Senator John McCain. Several of the state senators who had voted for the bill, including one of the co-sponsors, were so terrified that they begged Brewer to use her veto pen to save them from themselves.

What do you think this whole scene means? True, Arizona is a rather strange state. But you don’t generally see a Legislature go out of its way to tick off its own moneyed power structure. And you hardly ever see a business establishment howling this loud about something that doesn’t involve tax hikes.

This has been building up for a long time. The old order in Arizona has been fuming because it’s been elbowed out of political control by people who are less interested in economic development than arresting illegal immigrants, exposing Barack Obama as a Kenyan and combating the scourge of same-sex marriage.

“I remember having a meeting with some folks I’d call country-club Republicans, and listening to them bemoan the fact that they have no more influence because of the Clean Elections law,” said Rodolfo Espino, a professor at Arizona State University.

We will come to a screeching halt here and re-examine that thought.

Yes! Part of the super-weirdness of Arizona politics appears to be the result of the state’s 1998 public financing law, which provided tons of matching funds to unwealthy-but-energetic candidates from the social right at the expense of the pragmatic upper class. The Supreme Court took the teeth out of the law in 2011, but, by then, the traditional Republican elite had lost its place at the head of the political table.

I know, I know. Many of us would like to empower the grass-roots with public campaign financing. Don’t give up. Just remember to make sure that the roots in your neighborhood have a more expansive vision than the ones that popped up in the Grand Canyon State.

Meanwhile, the business community has both practicality and righteousness on its side. The bill really is bad for business. Plus, it’s narrow and mean. It was written in response to incidents in New Mexico and Colorado in which gay couples successfully sued commercial establishments whose owners refused to take their wedding photographs or make them a wedding cake.

Fear of being forced to bake for sexuals is apparently so deep-seated that the Arizona lawmakers were able to ignore the fact that unlike New Mexico and Colorado, their state has no law barring discrimination against gays in public accommodations. It’s already possible for a business to refuse to even sell them a Valentine.

“Can you give me a specific example of someone in Arizona who’s been forced to do something against their religious belief, or (was) successfully sued because of their faith?” Anderson Cooper asked State Senator Al Melvin.

“Again, I think if anything, you — this bill is pre-emptive to protect priests,” said Melvin.

This was on CNN, and I really recommend watching it as a gold-standard example of the perils of putting state senators on national television. At one point, Cooper asked whether under the proposed law, a bank officer could refuse to lend money to a divorced woman because of religious convictions about the sanc y of marriage.

“I don’t know of anybody in Arizona that would discriminate against a fellow human being ... no Christian or no Jew that I know of,” said Melvin.

Have I mentioned that he is running for governor?

And Arizona businesses aren’t the only ones recoiling from the scene. This week Delta, which is headquartered in Atlanta, urged rejection of both the Arizona bill and another religious-rights measure that’s pending in the Georgia Legislature. The sponsor acknowledged the Arizona backlash would probably kill its chances anytime soon. Meanwhile, in Ohio, sponsors of a right-to-refuse bill announced they were pulling the plug.

Maybe we have reached a critical historical juncture. Struggles for human rights always begin with brave men and women who stand up, isolated, against the forces of oppression. But, in the United States, victory really arrives on the glorious day when the people with money decide discrimination is bad for business.

Thanks, Arizona.

http://mobile.nytimes.com/2014/02/27...f-arizona.html

great point.

The primary, if not only, expression of value in the U$A is $$$, not principles, not rights, not religion, Nothing But The Benjamins.

discrimination is a USA problem only when it causes loss of $$$. Screwing people by discrimination is OK as long as no busine$$ is lost.

[Blake]

Yeah, it seems like the only reason Brewer vetoed was because of pressure from businesses.......including the NFL and MLB.

[boutons_deux]

Penis cakes and gay orgies: Tea Partier frets about wedding ‘tyranny’ in Arizona



Tea Party Nation president Judson Phillips said that Arizona Gov. Jan Brewer (R)’s veto on the state’s “Turn Away the Gays” law means Christian workers will be forced into “slavery” for same-sex couples because they dare not refuse to work for them.


Right Wing Watch reported that Phillips published a column on Tea Party Nation’s website on Thursday in which he fretted that Christian bakers will be forced to make penis-shaped cakes and that religious wedding photographers will be forced to stand by and helplessly take pictures of naked revelers performing lewd acts.

“The left and the sexual lobby are both pushing slavery using the Orwellian concepts of ‘tolerance’ and ‘inclusiveness,’” wrote Phillips.

Brewer’s veto of SB 1062, he said, will have ish consequences that will shock and horrify the righteous people of that state.

“Should a devote [sic] baker be required to create a cake for a sexual wedding that has a giant phallic symbol on it or should a baker be required to create pastries for a sexual wedding in the shape of genitallia [sic]?” he fumed.

“Or should a photographer be required to photograph a sexual wedding where the participants decide they want to be nude or engage in sexual behavior?” he asked. “Would they force a Jewish photographer to work a Klan or Nazi event? How about forcing a Muslim caterer to work a pork barbecue dinner?”

http://www.rawstory.com/rs/2014/02/2...e+Raw+Story%29

[Jacob1983]

Why would a gay couple go to a cake place in which it is widely known that the owners are Bible thumpers? Shouldn't the gay couple adapt to the situation and go some place else to get a ty cake? And why the do you have to have cake at a wedding anyway? Isn't a wedding just about getting some piece of paper that says you and someone else get extra benefits and privileges from Uncle Sam? Own up is what I say.

[TSA]

a wedding sets in stone all dibs on the anus jacob.