Razing Arizona

We are constrained in these columns with the rationing principle of dealing with one legal/moral travesty at a time.  And so, within the interval of our columns a crisis flared in Arizona over legislation on religious freedom. 

The controversy brought the usual fog of misunderstanding, made worse this time by accounts of the bill that became more lurid and grotesque as the critics freed themselves from any inclination to pause and read the bill itself. 

As the public “discussion” became ever more unhinged, a part of the Republican political class performed in its typical mode: suffering panic, losing nerve, and backing away. John McCain and Mitt Romney, winging it as ever, urged the governor to veto the bill.  And she did.

Anyone who read the bill with an awareness of the issues agitating our politics of late would recognize at once what was moving the drafters. There was an evident concern for those cases on religious freedom involving the mandates of Obamacare on abortion and contraception.

Those cases have been litigated under the Religious Freedom Restoration Act (RFRA), an Act that directs the government to frame its measures more narrowly and cite a “compelling interest” before it would restrict conduct guided by religious teaching.

Arizona already had its own version of RFRA.  The legislature was evidently filling in the law to support the arguments that have been made in the courts in defense of the religious:  namely, by making it clear that a business will not be detached from a religious character because it takes the form of a corporation.  And so the bill (SB1062) stipulated that a “person” bearing religious rights under the law could indeed be “any individual, association partnership, corporation. . .”

At the same time, there was apparently a concern for people who had been penalized for engaging in discriminations based on “sexual orientation,” because they had refused to take photos or bake cakes for same-sex weddings. The bill in Arizona sought to put a heavier burden on any action by the government that could force people to violate their religious convictions, whether that enforcement springs from statutes or regulations, or from suits brought by private parties.

          Gov. Jan Brewer

When John McCain and Mitt Romney urged Governor Brewer to veto the bill, were they aware that the bill was supporting the arguments made in the courts on behalf of the religious?  Were they now giving us their considered judgment that those arguments were indefensible?  One suspects that neither McCain nor Romney gave a moment of serious reflection to that point, even if they had been aware of it.

What seemed to move them rather were the charges, as hyperbolic as they were false, that the bill was inspired by a desire to refuse service to gays and lesbians in all varieties of commerce.  My own surmise here is that both men were showing the reflex taken as wisdom in a certain wing of the Republican political class:  to avoid anything that could be taken as criticism of gays and lesbians and same-sex marriage, lest they be branded as bigots.

The point has been made often in response to the criticism of the bill that businessmen in Arizona are already free to refuse to deal with gays and lesbians, for there are is no statute in Arizona that bars discrimination based on “sexual orientation.”  But of course that is not what inspired the bill, and there has been no sighting of any businessmen eager to shun the business of gays and lesbians, even if they could know who they were when they walked through the door. 

And yet, it was clear that the bill was inspired in part by the experience of people who were being punished for their refusal to treat same-sex weddings as real weddings. By implication the bill was anticipating a situation in which a local ordinance could indeed bar discrimination on the basis of sexual orientation, and the religious would be assured a certain protection.

But that possibility brought home precisely the problems we’ve seen with RFRA:  the protection would be carved out for the religious, on the basis of the “beliefs” they profess to hold, while the laws are imposed on everyone else.  A group of professors defending the law revealed more than they realized when they noted that the religious would have to establish the “sincerity” of their views.

Why the test of “sincerity”? Answer:  because the professors would not have the law judge the substance of religious doctrine or faintly suggest that certain claims to “religious” standing are specious and implausible.  Would the term cover Satanists or the Church of the Flying Spaghetti Monster? 

That is the central flaw running through the conception of RFRA, and it points precisely to the way the argument may be defeated in the courts:  The government will contend that the obligations of the law are being dissolved for a class called the “religious,” but that any person can proclaim now his own religion, no matter how inventive.

It is a formula for the unraveling of the law.  As Justice Scalia remarked, “each conscience [becomes] a law unto itself,” directed to its own version of God or anti-God.  Some of our friends can see as well anyone else just where this is likely to end.   But bewildered now by their setbacks, they simply put their heads down and sail into the wind with the same arguments.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.