The Arizona legislature has passed S.B. 1066. It amends a 1999 Arizona law called the Religious Freedom Restoration Act (RFRA). It does so in an attempt to strengthen the ability of vendors to follow their religious conscience by, for example, declining to provide services at gay weddings. The text of the legislation can be found here.
The legislation has generated much criticism. The two most recent Republican presidential candidates have urged Governor Brewer not to sign the bill. Various big businesses have done the same. Even the National Football League, that bastion of enlightenment, has weighed in. This is no small matter given that Arizona likes to host the Super Bowl. Must religious freedom pay for Richie Incognito’s sins?
I’m confident that a broad consensus exists on the issues raised (or allegedly raised) by S.B. 1066. First, it seems fundamentally wrong to deny someone service at, say, a restaurant or a gas station because of his or her sexual orientation (although doing so is not currently banned by Arizona state law). Likewise, it seems fundamentally wrong for a photographer to refuse to take, say, a passport photo of a person because of his or her sexual orientation.
But second, it also seems fundamentally wrong to require a photographer who believes, based on sincere religious conviction, that gay marriage is immoral to participate in a gay marriage celebration by photographing it. Indeed, it is odd (and telling) that any gay couple would want their sacred ceremony to be chronicled by someone who finds the event morally reprehensible. Such a photographer is unlikely to capture the spirit of the occasion.
S.B. 1062 is being portrayed as vindicating the second of these propositions at the expense of the first. If so, Gov. Brewer shouldn’t sign it. Instead she should, in effect, send the legislature back to the drawing board to craft a bill that better balances the two concerns — basic fairness for gays and religious freedom for religious believers.
But as I understand S.B. 1062, it does a good job of balancing these concerns. A RFRA law like Arizona’s is not a license to discriminate against gays based upon religious beliefs. Indeed, according to this analysis, no business has ever successfully used either a state RFRA or the federal RFRA to defend their right to not serve gays.
