Arizona Just Passed a "Right to Discriminate" Bill — And It's as Scary as It Sounds


The news: Late Thursday night, the Arizona legislature passed Senate Bill 1062, a controversial piece of legislation that's been known as the "right to discriminate" bill and would be a striking blow to individuals' rights in the state. 

Arizona’s SB 1062 now heads to the Republican-majority state House, where it is expected to pass. It then heads to the state's Republican governor.

The bill is designed to allow businesses to reject service to any customer based on the owners' religious beliefs and use these religious beliefs as protection in a discrimination lawsuit. Arizona State Senator Steve Yarbrough, one of the bill's sponsors, claimed the push for the bill was prompted by a New Mexico case in which the state Supreme Court allowed a gay couple to sue a wedding photographer for refusing to take their wedding pictures. 

"This bill is not about allowing discrimination," Yarbrough said during a debate. "This bill is about preventing discrimination against people who are clearly living out their faith."

But that is some weird logic. What Bill 1062 really does is allow businesses to deny service to anyone of a different faith — mainly non-Christians — and members of the LGBT community.

"The heart of this bill would allow for discrimination versus gays and lesbians," said Democratic State Senator Steve Gallardo. "You can't argue the fact that bill will invite discrimination. That's the point of this bill. It is."

Though Arizona Democrats argued strongly against the bill and sponsored eight hostile amendments to sidetrack the legislation, these were all rejected by the Republican majority. 

Beside this, critics have also pointed to another problem with the bill in its potential negative impacts on the state's economy. 

"I believe our economy is strengthened by different people, and different backgrounds, and different beliefs, and different motivations, coming in and working together in our economy to make this state and this country stronger," said State Senator Steve Farley, another one of the bill's opponents. "Discrimination hurts that. It hurts that in so many different ways."

The question then becomes the bill's constitutionality. In drafting the bill, it seem Sen. Yarbrough and his co-sponsors were referring to the Constitution's First Amendment when they wrote:

"Exercise of religion" means the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

The legalese. But does the bill really gives businesses the right to discriminate? The short answer: Yes, but maybe not in the way you think.

The long answer: Businesses already discriminate in a variety of ways. Certain businesses have "no shirt, no shoes, no service" policies which could be seen as a form of discrimination. And there are instances when religious discrimination is allowed — a Catholic church could discriminate against a Rabbi when hiring. However, there are a number of anti-discrimination laws that bar businesses from making decisions based on race, gender, religion and some other categories, mostly under the 1964 Civil Rights Act. However, other than state laws in places such as California, New York and New Mexico, sexual orientation is not protected under these federal laws. Additionally, exceptions come in the form of Religious Freedom Restoration Act (RFRA) laws (at both the federal and state level), which were designed in the early '90s to counteract overly aggressive religiously neutral laws and restore certain religious rights to organizations. 

So how would Bill 1062 factor into this? First, it would change the requirements for action for the state's RFRA laws, meaning that private businesses, not just the state, could act on RFRA laws in court. Second, it would expand the state's RFRA laws, protecting way more people and businesses and allowing a much larger segment of the population to claim to be religious organizations and carry protection under the state's RFRA law. Because of this increased pool of people who'd be able to claim religious exemption from anti-discrimination laws, they would in effect have the licence to discriminate, which, it would seem, fly in the face of the Fourteenth Amendment.

But it's important to note that this would not technically be new licence to discriminate. Arizona already discriminates against the LGBT community in both housing and employment laws. And because the state doesn't have any anti-discrimination laws in place, claims by people like Sen. Yarbrough that Bill 1062 would protect businesses from gay-rights lawsuits are unfounded — people can't sue for discrimination if there are no anti-discrimination laws. 

Aside from certain cities such as Phoenix, Socttsdale and Tucson, most of Arizona lacks LGBT anti-discrimination laws, meaning Bill 1062 would have relatively little effect on the state's LGBT community who predominately live in these cities.

Bill 1062 could however have a serious effect on the rights of other minority groups. As the ACLU and ADL state:

But what the legislation actually does, according to the Arizona branch of the Anti-Defamation League, is establish an exemption for businesses to discriminate – not just against gays and lesbians, but for any religious reason whatsoever. Under Arizona's law, the ADL says, a business owner could refuse to hire someone of a different religion, an employer could refuse to pay men and women an equal wage, or a cab driver could refuse a fare to a house of worship different from their own, as long as they say doing so would "substantially burden" their exercise of their religious faith. Alessandra Soler of the ACLU of Arizona said in a statement that "These bills are totally unnecessary – they offer a fix for a nonexistent problem. Arizona already has strong laws preventing interference with religious belief and practice."

Effectively, Bill 1062 would allow each individual to operate as their own stand-alone religion and potential discriminate however he or she saw fit, creating a slippery slope that could have disastrous consequences. While Bill 1062 might seem like a striking blow to the rights of the LGBT community, it could be an even bigger problem for the rights of everyone in Arizona.