"Religious freedom" changing from freedom of
beliefs to freedom to hate and discriminate
2014: Part 2:
Examples from Tennessee and Arizona of
meaning of "religious
Is Arizona's SB 1062 bill really needed?
This topic is continued from the previous essay's
description of a "freedom to discriminate" bill in Kansas
2014-FEB-18: Tennessee State Senator abandons "Turn the Gays Away" bill:
Senate Bill 2566 would have allowed wedding cake bakers, marriage photographers, and other vendors in the wedding industry to freely refuse to provide goods and services for same-sex couples' marriages. State Senator Mike Bell (R) had taken over as sponsor of the bill on FEB-13. He announced that he would delay consideration of Senate Bill 2566 until at least 2015. He said that since same-sex marriages are still illegal in Tennessee, there is no immediate need for the bill. He said:
"I’m convinced that current Tennessee law protects our business owners from the type of lawsuit harassment we’ve seen in other states."
There have been perhaps a dozen instances across the U.S. where same-sex couples in other states have been refused marriage-related goods and services by vendors who are opposed to such marriages, and who live in a state that has human rights laws that forbid discrimination on the basis of sexual orientation.
Several dozen demonstrators arrived at the Statehouse to show their opposition to the bill. Many were dressed in red clothing.
Reactions to the decision to delay the Tennessee bill:
Chas Sisk, writing for The Tennessean, said:
"Chris Sanders, executive director of the Tennessee Equality Project, which helped to organize the show of force, said it may be true that state law currently allows businesses to turn away same-sex couples, but he said he remains satisfied lawmakers were willing to drop the issue.
'They think they found a solution for the time being, and we’ll see how that plays out over the next year,' he said. 'They may be able to turn individuals away. What we’re glad of is the state didn’t step in and establish a class of people against whom you could discriminate'."
State Senator Brian Kelsey, the original sponsor of the bill, said:
"I would never introduce legislation that attempts to limit the rights of any Tennessean, whether straight or gay. This bill was designed to protect a pastor, a rabbi or a singer from being sued and forced to participate in a same-sex ceremony against their will." 1,2
Comments by this very confused webmaster:
There appears to be massive chasms in Tennessee between the understanding of the bill by Senator Kelsey, by the media, and by Constitutional experts:
- Kelsey appears to believe that the bill's main effect would be to protect clergy, and religious singers in a church, mosque, synagogue, etc. from having to violate their own beliefs and/or their faith group's policies by being forced to conduct a same-sex wedding. However, the First Amendment to the U.S. Constitution already gives absolute and total immunity from prosecution to clergy and other faith group personnel who don't want to participate in a wedding. Clergy have been refusing to marry couples for centuries for a wide range of reasons. To our knowledge, no clergyperson or employee of a church, synagogue, mosque, etc. has ever been charged with refusing to participate in a marriage for any reason.
the media reports that the main focus of the bill is to allow the marriage industry -- wedding cake bakers, wedding photographers, etc. -- to discriminate with impunity.
- Kelsey seems to think that the "turn away the gays" bill would not limit the rights of same-sex couples to obtain goods and services from businesses. The media reports that this is the focus of the bill.
- When Kelsey abandoned the bill, he admitted that Tennessee state law already allows vendors to discriminate against gays and lesbians, and so the bill would have no reason to exist.
2014-FEB-21: Arizona Senate and House pass anti-gay bill SB 1062:
The bill was written by:
- The Center for Arizona Policy, a state conservative advocacy group which is affiliated with Focus on the Family, a fundamentalist Christian parachurch group, and
- The Alliance Defending Freedom, a national conservative Christian legal advocacy group.
The intent of the bill is to allow individuals, companies, and corporations to use their personal religious beliefs as a defense during a lawsuit.
The Lesbian, Gay, Bisexual and Transgender community (LGBT) and civil rights group have described the bill as a "right to discriminate bill." Supporters describe it as a bill promoting religious liberty and freedom.
It would probably be both: it would allow individuals and companies to discriminate against LGBTs and it would promote conservative Christians' freedom to discriminate.
- Expands the definition in Arizona of the exercise of religion to include both the practice and observance of religion.
- Expands Arizona's free exercise of religion law to protect "any individual, association, partnership, corporation, church, religious assembly or institution or other business organization."
- In order to mount a free exercise of religion defense, the individual, business, or faith group must establish that their discriminatory action was motivated by a sincere religious belief, and that the belief was substantially burdened by the event.
Reactions to the bill by members of the Arizona House:
During the emotional three hour debate in the House, the representatives were unable to agree on the impact that the bill would have:
- House Minority Leader Chad Campbell (D), said:
"The result of this bill is discrimination, period. This bill is going to hurt the LGBT community."
He also said:
"This bill is about going after the rights of the LGBT community in Arizona. This is going to be horrible for our economy."
- The sponsor of the bill, Rep. Eddie Farnsworth (R), said that the measure has nothing to do with the LGBT community because they are not currently a protected group under the state's anti-discrimination/human rights laws. Thus people and companies can discriminate against LGBTs as much as they want. He said:
"A business owner can already decide not to hire somebody who is gay or lesbian. This doesn’t change that. You guys are trying to make this something that doesn’t exist. These are small changes."
- Rep. John Kavanagh (R) said that the bill protects religious believers from being persecuted. He said:
"The descendants of the people who fled religious persecution are now being criminally prosecuted by politically correct governments. All this bill does is protect the religious freedoms that the people who began this country came here to establish."
More comments by the webmaster who continues to be confused over the need for this bill:
There have been perhaps a dozen instances across the U.S. where a company providing goods and services to weddings have run afoul of their state's human rights legislation. Typically:
- The company was approached by a same-sex couple who asked them to photograph their wedding, or bake them a wedding cake, or rent the use of a hall for a wedding reception, etc.
- The owners of the company were conservative Christians who refused the request on religious grounds. They interpreted the seven or so "clobber passages" in the Bible that have been used to attack the LGBT community as banning same-sex marriage, Other Christian have different interpretations.
- The couple were offended and filed a complaint with the state's Human Rights Tribunal.
- The company was found guilty under the state's human rights code which bans discrimination against persons on the basis of their race, skin color, religion, gender, sexual orientation, etc. They were fined.
Sometimes, the business suffered financially because of the fine. However, other businesses noted a sudden and sustained increase in new customers who sought out the company -- not in spite of, but -- because they had discriminated against LGBTs. The end result was a significant additional profit because of their act if discrimination.
The case that is most often mentioned by religious conservatives involves the refusal by Elane Photography a photography company in the neighboring state of New Mexico to take photographs at an informal lesbian commitment ceremony. Although the ceremony was completely devoid of legal significance, the owners of the company refused to take the photographs because of their religious beliefs. The lesbian couple who made the request filed a charge before the state human rights tribunal. The business owners were found guilty of violating the New Mexico human rights laws and fined. Eventually, the state Supreme Court upheld the tribunal's ruling.
There are two preconditions that are almost always involved in this type of conflict:
- Same-sex marriages had already been legalized in the state as a result of legislative action, a change to the state constitution, or a court ruling. The New Mexico case was an exception. To our knowledge, this case is unique because it did not involve a same-sex marriage.
- The state had human rights laws in place that prohibited discrimination against persons by "public accommodations" on the basis of their customer's sexual orientation. A "public accommodation" is a company that offers goods and/or services to the general public. Most states have human rights laws in place. However only 21 states include sexual orientation as a protected group in their legislation. 8
In the case of Arizona:
- The state constitution has an amendment which bans same-sex marriage. No same-sex marriages are taking place. It is very unlikely that a conflict would occur in which owners of a company would want to discriminate against a LGBT individual or couple. In the U.S. we have only seen a single case that has not involved a same-sex marriage; that was the New Mexico case described above.
- Although Arizona has a human rights law in place, they do not include protection for persons on the basis of their sexual orientation. A company can refuse to hire, or fire, a member of the LGBT community, or refuse to photograph a ceremony of theirs, or refuse to bake them a cake for their ceremony, or refuse to rent them a hall, or refuse to rent them a place to live, etc. The couple could not file a complaint with the human rights tribunal because people are not protected by the state's human rights act, whether they be heterosexual, lesbian, gay, or bisexual.
Bill SB 1062 looks like a solution in search of a problem.
Some supporters of the bill have said that SB 1062 is a preemptive bill. They suggest that same-sex marriages could be legalized at an time by a decision of a federal District Court in Arizona. By having a bill in place while same-sex marriages are still forbidden, they won't have to scramble at the last minute to protect religious freedom to discriminate.
However, this is not a valid concern because such court rulings are immediately stayed pending an appeal. Appeals take a long time and typically involve a hearing and decision by a three judge panel and a later decision by the full court. There would be plenty of time for the state to pass a bill like SB 1062 if the long process to legalize SSM began in the state.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Chas Sisk, "TN lawmakers drop wedding vendors bill," The Tennessean, 2014-FEB-18, at: http://www.tennessean.com/
- Cari Wade Gervin, "Hooray! It's Still OK to Be Gay in Tennessee!," Metro Pulse, 2014-FEB-18, at: http://blogs.metropulse.com/
- "Foes of gay marriage scramble after setback," Idaho Press, 2014-FEB-16, at: http://www.idahopress.com/
- Alai Beard Rau, "Arizona Legislature OKs religion bill; on way to Gov. Brewer. Measure pits freedom against discrimination," AZCentral, 2014-FEB-21 at:
- Text of SB 1062, AZCentral, 2014-FEB-21 at:http://www.azcentral.com/ This is a PDF file.
- "Arizona's SB 1010," American Civil Liberties Union, undated, at: https://www.aclu.org/
- "Arizona legislature sends ‘anti-gay’ bill to Republican governor Jan Brewer," The Guardian, 2014-FEB-21, at: http://www.theguardian.com/
- Paresh Dave, "Arizona businesses already can refuse to serve gays: SB1062 explained," Los Angeles Times, 2014-FEB-22, at: http://www.latimes.com/
Copyright © 2014 by Ontario Consultants on
Originally written: 2014-FEB-21
Latest update: 2014-FEB-26
Author: B.A. Robinson