Do Arizona Law makers understand the ramifications of the “anti-gay” bill?

Arizona

The United States Constitution grants individual rights and liberties, but at inception these rights were not granted to all people. The high standard of human rights espoused in the Declaration of Independence were not achievable during the time the Constitution was written, but they served as a philosophy that future generations could strive for. The U.S. has a history of expanding rights and liberties, although progress has not always been a straight path.

In August 18th, 1920, the 19th Amendment was ratified. This amendment guaranteed American women the right to vote. No woman, regardless of color, had a right to vote before this Amendment.
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. Since this Act these protections have been expanded to include age and disability.
Federal Equal Employment Opportunity (EEO) Laws
I. What Are the Federal Laws Prohibiting Job Discrimination?
• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
• the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
• Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
• the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
http://www.eeoc.gov/facts/qanda.html

Today’s battle for equal rights involves the gay community which has recently achieved victories of marriage equality at the State and Federal level.

There is no reason to discriminate against gays. If two gay people on my street, on the next block, or in the next town decide to get married, it neither picks my pocket nor breaks my leg. Gay people want to get married as their parents, siblings and friends were married. They don’t want to be treated as second class citizens and they shouldn’t.

There are people concerned about gay rights. They believe it’s a threat to their traditional values. But there has always been a small percentage of the population that has been gay. There always has been, are, and always will be a minority of boys who instinctively play with dolls and girls who instinctively play with trucks, and those who play with both. This is part of nature, the behavior is not specific to humans.

In an apparent attempt to stymie social progress, Arizona lawmakers passed a bill that appears to target the gay community allowing discrimination on religious grounds. The law is Senate Bill 1062 and contains the following language.
1 Sec. 2. Section 41-1493.01, Arizona Revised Statutes, is amended to
2 read:
3 41-1493.01. Free exercise of religion protected; definition
4 A. Free exercise of religion is a fundamental right that applies in
5 this state even if laws, rules or other government actions are facially
6 neutral.

7 B. Except as provided in subsection C, government OF THIS SECTION,
8 STATE ACTION shall not substantially burden a person's exercise of religion
9 even if the burden results from a rule of general applicability.
10 C. Government STATE ACTION may substantially burden a person's
11 exercise of religion only if it THE OPPOSING PARTY demonstrates that
12 application of the burden to the person PERSON'S EXERCISE OF RELIGION IN THIS
13 PARTICULAR INSTANCE is both:
14 1. In furtherance of a compelling governmental interest.
15 2. The least restrictive means of furthering that compelling
16 governmental interest.
17 D. A person whose religious exercise is burdened in violation of this
18 section may assert that violation as a claim or defense in a judicial
19 proceeding, and obtain appropriate relief
against a government REGARDLESS OF
20 WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING. THE PERSON ASSERTING
21 SUCH A CLAIM OR DEFENSE MAY OBTAIN APPROPRIATE RELIEF. A party who prevails
22 in any action to enforce this article against a government shall recover
23 attorney fees and costs.
24 E. In FOR THE PURPOSES OF this section, the term substantially burden
25 is intended solely to ensure that this article is not triggered by trivial,
26 technical or de minimis infractions.
http://www.azleg.gov/legtext/51leg/2r/bills/sb1062p.pdf

The general media’s interpretation of this law is that business owners can deny service to gay and lesbian customers based on their religious beliefs, but the implications appear to go well beyond.

Serious issues facing this law are the following:
1. Religious law vs. U.S. Law – When people migrate to the United States of America, do they follow U.S. Law or the laws of their religion? This issue is playing out in countries such as Australia where Muslims want to practice Sharia Law which has rules on marriage, divorce, child custody and other legal matters that differ from Australian Law. Was freedom of religion intended to mean people of different beliefs were able to practice their customs and rituals and not face discrimination, or was freedom of religion to indicate that religious law trumps Federal and State law?
2. Who’s who? How is a customer supposed to know what religious discrimination a particular establishment may have? Do they serve women, gays, blacks, Jews, atheists, divorcees, couples living together who are not married? SB 1062 states “substantially burden a person's exercise of religion.” Who determines what this means? This is open to wide interpretation.
On the flip side, how does an establishment that wishes to discriminate against their customers based on their religious beliefs know who to discriminate against? Do they have their customers fill out an application?
3. How does this law meld with the Federal Equal Opportunity Laws? We have laws that prevent discrimination when it comes to hiring, but the people hired may be forced to discriminate based on the business owner’s religious interpretation and beliefs?
4. Why is this law even necessary? Businesses can refuse service to people based on certain dress, ability to pay, and behavior such as hostility. There are many states that prohibit businesses from discriminating based on sexual orientation. For the states that don’t specifically prohibit this discrimination, there is no reason to enact laws that encourage it.

It is expected that Governor Jan Brewer will veto SB 1062 based on #4.

Reference:
Arizona lawmakers pass controversial anti-gay bill
http://edition.cnn.com/2014/02/21/us/arizona-anti-gay-bill/index.html?hpt=hp_t1

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James Kirk Wall

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