Reality versus rhetoric in the SB1062 debate

Hank Stephenson//February 25, 2014

Reality versus rhetoric in the SB1062 debate

Hank Stephenson//February 25, 2014

Photo by Ryan Cook/RJ Cook Photography

Though the word “gay” appears nowhere in the innocuous-looking two-page bill that has placed Arizona in the national spotlight, opponents call SB1062, which is awaiting Gov. Jan Brewer’s action, an outright attack on gay rights of a monumental level.

Supporters claim the bill has taken on a life of its own – that the discrimination opponents describe is not the intent of the measure nor would it be the effect of it.

“We have left the confines of reality,” Republican Rep. J.D. Mesnard of Chandler, who voted for the bill, said of claims about the legislation’s impact.  He said although the bill isn’t meant to discriminate against gays, in politics, “perception becomes reality at some point.”

But legal experts say the bill would without a doubt allow more discrimination against gay people – at least in Phoenix, Flagstaff and Tucson, which have enacted their own, more stringent anti-discrimination ordinances that cover sexual orientation. In the rest of the state, gays do not have such legal protections and the bill would not make a difference, legal authorities say.

Still, they say claims made by opponents that the bill would allow discrimination based on gender, race or religion are untrue – because, unlike gays, those classes are already protected under federal and state laws.

Those on both sides of the issue worry that much of the debate is over perception, rather than fact.  Three Republican state senators, Adam Driggs of Phoenix, Bob Worsley of Mesa, and Steve Pierce of Prescott, issued a joint letter to Brewer urging her to veto the bill they just voted for, saying opponents have “mischaracterized” it to the point that it would give Arizona a public relations black eye and cost the state economically.

Democrats and LGBTQ groups question the assertion that the bill doesn’t discriminate against gays, calling it a license for business owners to do exactly that.

In fact, in most of Arizona, and most states in the U.S., businesses don’t need a license to discriminate against gays: It’s already legal.

Lacking legal protections

There are no state laws banning a business owner from firing an employee from a job for being gay, nor stating that a business owner cannot deny service to a person based on sexual orientation.

There is no federal law that consistently protects LGBT individuals from employment discrimination, and most states lack laws that explicitly prohibit discrimination based on sexual orientation. Unlike race, color, religion, national origin, age, sex, and other such classes, sexual orientation is not covered in the federal anti-discrimination law.

But three cities in Arizona, Phoenix, Tucson and Flagstaff, have adopted local ordinances that protect the LGBTQ community from discrimination in the workplace or places of public accommodation, such as a public restaurant or hotel.  The “religious freedom’’ bill was introduced for the first time last year, shortly after Phoenix approved its anti-discrimination ordinance including sexual orientation.

Kory Langhofer, an attorney with Brownstein Hyatt Farber Schreck, said the cities with anti-discrimination ordinances protecting sexual orientation are “the only place this law will really matter.”

“The only place LGBT folks have protection in Arizona is a couple of cities, like Flagstaff and Tucson and Phoenix. What this would do is create an exemption to the local anti-discrimination ordinances protecting sexual orientation. So if you’re in Gila Bend or someplace where there’s no anti-discrimination ordinance, this doesn’t do anything for you. It’s kind of a state law that’s an exemption to nothing,” Langhofer said.

The bill would give business owners in Phoenix, for example, a way out of the anti-discrimination ordinance in situations such as if the business owner can prove that treating gay couples equally would be a substantial burden on their religious beliefs, he said.

In those places, he said, “discrimination (against gays) is going to be permissible on a case by case basis.”

In the rest of the state, if a business owner doesn’t want to serve gays, they don’t even need to claim it’s for a religious reason.

The reason behind the bill

Daily Show host John Stewart called SB1062 the “no cake for gays bill” because the legislation began as a response to a handful of cases in other states where business owners were sued for not providing services to gays.

In New Mexico, it was a photographer who said her religious beliefs precluded her from taking photos of a gay wedding ceremony. In Washington, a florist refused to make floral arrangements for a gay couple’s wedding, citing their religious opposition to gay marriage. And in Colorado, a baker refused to bake a cake for a gay wedding, citing their religious beliefs.

But in all three of those states have anti-discrimination ordinances protecting people from being discriminated against based on their sexual orientation.

In Arizona, those protections only exist in a handful of cities.

But Langhofer noted that in those cities, a business could be successfully sued based on the local ordinances for the exact situations lawmakers hope to protect against with the bill.

David Selden, a partner with the Cavanagh Law Firm who specializes in employment law from the perspective of employers, said one of the main changes in the law would be cities would lose the ability to enforce their anti-discrimination ordinances for sexual orientation in some cases.

“Cities that have human rights commissions and have administrative processes that try to protect those kinds of equal rights, they’re going to have to reexamine those,” he said.

Tom Irvine, an attorney with Polsinelli Law Firm, agreed that the bill would have the most impact in those three cities that have anti-discrimination ordinances that protect the LGBT community.

“If a government has a policy that we don’t discriminate against gays in hiring, and therefore you cannot object to working on a team with somebody who is otherwise objectionable to you (for religious reasons) – well, what happens then? They’ll be a state action lawsuit,” he said, noting that he believes the suit would fail.

Other than gays

Even if the bill were signed into law, attorneys say a business owner could not use a religious reason to refuse service to people or refuse to hire people based on their race, gender, religion or other protected class because that is already covered under federal law.

Langhoffer said the most alarming criticism of the bill is that it would permit individuals with certain religious beliefs to discriminate on the basis of race, religion or sex – and those criticisms are inaccurate.

Even if the bill were signed into law, federal anti-discrimination law would trump Arizona law and continue to prohibit that type of discrimination, he said in a legal memo on the bill.

But Selden said there is an exception to that rule.

“The Federal Civil Rights Act, in the employment arena, applies to only business that have 15 or more employees. So a small business could say, ‘We have a religious objection to hiring someone because of their race or national origin or religion,’” Selden said.

However, he said the same rule wouldn’t apply to whether a business would have to provide service to people based on their race, religion or gender – which is governed by a different set of laws.

Irvine notes that the bill opens up the possibility that someone could raise religious objections to serving people based on their race, religion or gender – even though he doesn’t think the suits would be successful.

He said the bill appears to provide a basis for those types of claims, and the bill would result in a flood of litigation from people claiming their religious beliefs had been violated, even if state and federal law would ultimately trump those claims.

“Nothing is automatically preempted,” he said.

‘What if’ scenarios

Opponents of the SB1062 have offered many situations in which they think the legislation would sanction discrimination based on religious beliefs.

But attorneys say many of those situations are clearly prohibited by state and federal laws, which protect against discrimination based on gender, religion, race, national origin, age and other such protected classes.

Attorneys are quick to note that for a business owner to refuse service to a patron based on religious beliefs, under the bill, serving that person must still involve a significant burden on those beliefs.

One thing all the attorneys agree on, however, is that the legislation would open up a Pandora’s Box of questions and result in a flood of litigation against business owners from people testing the limits of the new law.

Opponents of the legislation argue there are many unanswered questions about how the bill would affect state law, and legal experts speculated how the bill would affect several different hypothetical scenarios.

Could a business refuse to provide services for an interracial wedding?

Democrats argued that the bill would allow a photographer to claim a religious objection to interracial marriage, and refuse to shoot photos of an interracial wedding.

But Tom Irvine, attorney with Posenelli law firm, said that would qualify as discrimination based on race, and would be clearly prohibited under other laws. Still, he said that wouldn’t stop some people from filing a lawsuit on the issue, and forcing the courts to sort it out.

“There’s all sorts of laws that say that is a violation of state and federal law, but somebody can come back and say, ‘Hey, this statute protects me.’ And off you go down the litigation path,” Irvine said.

Could a Christian restaurant owner refuse to serve same sex couples? Could a hotel owner refuse to rent a room to a gay couple?

If a religious person owns a restaurant and a gay couple walks in, Kory Langhofer, attorney at Brownstein Hyatt Farber Schreck, said the business owner probably can’t say it would substantially burden their religious beliefs to serve a gay couple a meal.

But, Langhofer said, if it were a hotel owner and the couple wanted overnight accommodations, “that’s looking a lot more like substantial burden.”

But again, that hotel would have to be in Phoenix, Tucson or Flagstaff for the business owner to have any problem refusing to rent a room to the couple anyway. In the rest of the state, they can already refuse based on the patron’s sexual preference.

On the flip side of that coin, under the bill, hotel employees could sue their employer for requiring that they rent rooms to gays, if it burdened the employee’s religious beliefs and if the hotel was in a municipality with anti-discrimination ordinance covering sexual orientation, Langhofer said.

Could a Muslim gas station owner who believes women should not be allowed to drive alone refuse to sell gas to a woman driver? Could a Muslim refuse to work with women or women who didn’t wear a burka?

Irvine said that because women are a protected class, the argument would ultimately be unsuccessful. But he said SB1062 would give rise to the ability for somebody to discriminate based on that kind of religious belief, and only later be sorted out by the courts.

“It may be a legitimate religious belief, but it’s so outside of mainstream American law and culture, that a statute like this just means you’re in court, wasting time and money,” he said.

Could a Jewish short order cook sue his employer for forcing him to cook bacon?

David Selden, attorney for Cavanagh Law Firm, said from an employer’s perspective, there are a whole host of ways that the bill could have unintended consequences, and bacon could be one of them. Though there is already a body of law governing how employers should treat religious accommodations for employees, which usually answers what employees can and cannot be forced to do, the bill would further muddy those waters, Selden said.