The gay rights movement is going to try to parlay 2014 successes in the courts and Legislature into outlawing discrimination statewide.
Leaders of gay rights groups say part of their strategy next year is to pass more city ordinances like Phoenix’s, which creates a new protected class based on sexual orientation and gender identity or expression, and pass a similar law at the Legislature.
Existing Arizona law makes it illegal to discriminate on the basis of gender, age, race, religion or national origin.
Catherine Alonzo, co-chair of the board of directors for Equality Arizona, said that despite the veto of SB1062 and the fall of the state’s prohibition on gay marriage people can still be fired, refused service or housing in most of Arizona because of their sexual orientation.
“The marriage decision was huge but it really is only a piece of the pie, so not only do we have momentum, but also not a moment to waste in terms of getting these protections,” Alonzo said.
The activists won’t discuss the progress they have made on writing such a bill or strategy in getting it through a conservative-heavy Legislature, but they aren’t yet counting out Republican Governor-elect Doug Ducey, even though he has said he is against expanding the list of protected classes.
Sheila Kloefkorn, a member of the board of directors for Human Rights Campaign, the largest Lesbian Gay Bisexual Transgender advocacy group in the nation, said Ducey is for growing business and the economy. She said it would be in the state’s best interest to avoid another national controversy involving gay rights like SB1062, a religious liberty bill characterized as discriminatory against gays. Business organizations argued that the bill gave Arizona a black eye and was bad for business.
“You can’t be a pro-business, pro-economy leader in this state and not be concerned about our reputation and not want Arizona to be open for business for everyone,” Kloefkorn said.
Social conservative groups are questioning, however, why such a law is necessary and are prepared to testify against any bill and go to court to protect business owners they contend will lose religious freedom.
Aaron Baer, a spokesman for Center for Arizona Policy, points to the small number of complaints filed under the Phoenix ordinance, passed in March 2013, as proof that there’s no reason for such a law statewide. There were only four complaints as of August, all of them found to be without merit by the Phoenix Equal Opportunity Department.
“All people should be respected, but creating a protected class needs to be done with care,” Baer said.
Jeremy Tedesco, senior legal counsel for Alliance Defending Freedom, said the organization has been fighting non-discrimination ordinances around the country because they trample on First Amendment rights of business owners who are forced by the laws to violate their religious principles.
Alliance’s most recent lawsuit came Oct. 17 to keep Coeur d’Alene, Idaho, officials from forcing the owners of a wedding business, both of whom are pastors, from performing a same-sex wedding under that city’s non-discrimination ordinance.
Tedesco said the city signaled it was going to prosecute the business, but backed off after the suit was filed.
“If the Equality Arizona folks want to pursue this law, then they’re going to have to figure out how to give the First Amendment wide berth,” Tedesco said. “You can’t cancel the First Amendment through a state law or local ordinance.”
City by city
So far, Phoenix, Tucson, Tempe and Flagstaff have passed their own ordinances.
Alonzo said Equality Arizona is working fast to get more city ordinances passed throughout the state, a course that helps to get more people protected and builds a case for a statewide measure.
“Partial coverage for people living in urban areas is not a solution. The job isn’t done until every Arizonan has equal rights and protections, and really the only path to that is a statewide statute,” Alonzo said.
She said the 2013 Medicaid expansion shows there can be bipartisan support on a controversial issue, but it will also take the help of the business community.
Although the Nov. 4 election didn’t change the partisan split in each chamber from what it was in the 2013 Medicaid vote, the House lost Rep. Ethan Orr, a Tucson Republican who was part of a group of Republicans who sided with Democrats and Gov. Jan Brewer to get the measure passed.
The gay community did have business interests on its side, though, in fighting SB1062 and will be looking for them to come through again on any non-discrimination measure.
The vetoed bill would have expanded the rights of any business to turn away customers based on a claim that serving that person would interfere with a “sincerely held” religious belief. That proposal led to charges it would codify in Arizona law the right to discriminate against gays.
The Arizona and Greater Phoenix chambers of commerce weighed in against the bill and corporations such as Apple, AT&T, and hotel chains urged the bill’s veto.
The Hispanic National Bar pulled its 2015 convention from Phoenix and the National Football League hinted that Arizona could lose the 2015 Super Bowl.
Though Brewer said little about the possible economic impact of signing the bill, many observers believe the business community’s emphatic opposition was the tipping point.
Garrick Taylor, a spokesman for the Arizona Chamber of Commerce and Industry, said it has been privy to informal discussions about a potential non-discrimination statute, but it is too soon to say where it would stand on one. Meanwhile, the general premise of its position against SB1062 remains. And the chamber wants to take part in crafting legislation once things heat up.
“As far as we’re concerned we want as an inclusive as possible business environment in Arizona. It’s the right thing to do and it enhances our competitive standing,” Taylor said.
Even if a bill dies in the state Legislature and there is no law giving special protection to gays or gender identity, the Equal Employment Opportunity Commission is already investigating complaints of discrimination and taking them to court.
The commission has held that people facing discrimination on the basis of gender identity or sexual orientation can make a claim of sex discrimination under federal law.
Mary Jo O’Neill, the regional attorney for the EEOC Phoenix district office, said she expects a couple of complaints against Arizona businesses to be litigated relatively soon, although she is prohibited from talking about them yet.
She said the Phoenix office has received 20 complaints alleging gender identification discrimination, and 93 complaints involving sexual orientation. Each of those cases has been investigated and resolved in some manner, including confidential settlements.
EEOC has filed discrimination suits in Indiana and Florida alleging discrimination on the basis of gender identity. O’Neill said the sexual orientation issue is hotly contested in the courts and the law is evolving, but the gender identity issue is less contested in the courts.
“But the EEOC takes the position that both types of discrimination are violative of (federal law),” O’Neill said.
Tedesco of the Alliance Defending Freedom said the court decisions and the EEOC’s interpretation of the law have significant First Amendment consequences for many institutions that are subject to federal law, and those institutions must comply with the law in ways it is not written.
For instance, a private Christian college that receives federal money might have to allow male transgender students to live in female dormitories even though federal law doesn’t expressly prohibit gender identity discrimination, Tedesco said.
He said the EEOC’s actions are the Obama administration’s way of getting around Congress.
“That’s a raw abuse of political power by an activist administration,” he said.