Musings, rants, rambling, general nonsense

More on Religious Freedom & SB1062

Posted on | February 23, 2014 | No Comments

Got this question on FB, and there isn’t enough room for a full answer there – so I’m putting it here.


Help me understand something, as I have not read it all the way thru, just as I doubt anyone has (I love your rule btw). Why does a bill need to be written on this hot subject of who you can & cannot serve in a business? It is already a known fact that a businessperson has the right to sell to whomever he chooses and that buyers have that same freedom.
Is it me or is everyone having the usual reaction? Reaction 1: govt thinks they need to solve things they don’t need to solve. Reaction 2: people get outraged at a free individual that makes an unpopular decision, so they want to write a law that removes the freedom of the other rather than exercising their freedom to never buy anything from the person they don’t like

Answer (such as it is):

OK, I’ll do my best with this.

Yes, we all recognize that “We Reserve The Right To Refuse Service To Anyone” is a major part of our business conscientiousness. However, it is not entirely true – or enforceable. Due to the shameful history, and Americans’ desire to atone, we have created protected classes. Therefore, a business owner cannot refuse service to a person of color, for instance, as that would violate their “civil rights”

There was a time when that protection would have been necessary, as entire towns were discriminating – though, tellingly, it was the government who made those discriminatory Jim Crow laws. If a person or persons were to be unable to purchase groceries anywhere in town because they were black, that would be an issue. Now, thankfully, even if you were to encounter a raging racist operating a business, odds are there are several nearby that would be glad to have your money. The issue *should* be self-policing, and business *should* be able to choose who they do business with – which would leave consumers free to choose who NOT to do business with. A business that was so short-sighted as to not take everyone’s money would likely not survive in an open, free society.

First Amendment, Religious FreedomIn at least three cases I can think of off the top of my head, entities that chose not to do particular business (i.e. they did regular business, but declined wedding business) with same-sex couples based on personally held religious beliefs were taken to court for violating the homosexuals’ civil rights as a protected class. (CO, OR, NM) In every case, the court decided the First Amendment protection did not extend their personally held beliefs to their business entity. As I said earlier, those “are examples of businesses that provide neither essential nor exclusive service, so the couples could have easily gone elsewhere.”

SCOTUS determined decades ago that courts should not burden a person’s free exercise of religion, instead applying strict scrutiny to determining if there is a compelling government interest. However, a later decision from the same court held that the strict scrutiny did not necessarily extend to state & local cases. In at least one of the cases mentioned above, the court determined a religious freedom defense could not be used because the government was not a party to the original complaint – and so would use the power of the government to quash their First Amendment religious freedom rights.

This bill, far from “institutionalizing bigotry”, states that those protections afforded at a federal level, also apply at a state level. A claim of religious freedom can be made in a court proceeding whether or not the government is an original party to the claim, and whether or not the business itself is a religious institution (churches etc should already be exempted, though as we have seen from cases like federal government vs The Little Sisters of the Poor, that is far from guaranteed)

So, you are correct in stating this is a law that should not be needed. Unfortunately, an ill wind blows and religious freedoms are suffering. I am not in favor of the constant need to make more & more laws, but in some instances it becomes necessary. This one *changes* little, but reinforces much. It is a backstop to the freedom you state already exists, and in fact only *really* legally changes the definition of a religious freedom defense, requiring a person to “prove that their religious belief is sincerely held” (So, a complainant could ask, for instance, if you are a Catholic, “Would you do this business with a divorcee getting remarried?”)

Whether I would personally agree with a business’s decision or not, protecting my Liberty demands that I protect theirs. A free society means we will sometimes be subject to opinions & actions that we find uncomfortable, or even reprehensible. I personally hate the Westboro Baptist Church and would not shed a tear if all the adults were wiped out in some fortuitous tragic accident (like a semi jumping the curb and taking them down like dominoes, not that I’ve ever played that scenario out in my head. Repeatedly.) However, they have a Constitutionally protected right to be morons.

The problem, at this point, is messaging. The chicken littles have gotten out early with their “ZOMG! Arizona hates GAYS! There will be a witch hunt! Blood will run in the streets!” (much the way the Left reacts to any law the don’t like, and they are always proven wrong) Enough people in the middle, and/or who generally don’t bother to actually search out the facts, see the outragey graphics & the outragey Facebook groups and spread the false information – and the rest of us are left shouting into the wind “THAT ISN’T EVEN CLOSE TO WHAT IT SAYS”


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