So what was all the fuss and panic about regarding SB 1062? Based on the hysterics and threats of the opponents you would have thought businesses were putting up signs saying: "No Gays Allowed" or that businesses were being given permission for wholesale discrimination. The proposed legislation never even mentioned same-sex marriage. And even though there were many sane voices coming from the gay community supporting the bill, the Gay Gestapo won the debate with their usual mantra of "you must applaud all things gay or else". And despite what Gov. Brewer claimed, that the bill was a solution to a problem that has not yet happened in Arizona. Do you wait for the house to burn down before getting fire insurance?
The other problem is that the word discrimination sets off red flags for most of us based on our country's history of segregation and our affirmation of human equality. Not all forms of discrimination are wrongful or invidious; the bartender who refuses service to a 16yr old is discriminating based on age but that discrimination has a rational reason. Maybe we should call it something like: opting out of providing a specific service on high moral grounds.
One of the purposes of the vetoed legislation was to bring AZ's Religious Freedom Restoration Act of 1999 more in line with the Federal RFRA. The Federal law already provides on the federal level what SB 1062 tried to provide on a state level. The Federal version of the law was passed in 1993 unanimously by the House and 97-3 in the Senate and signed into law by President Clinton. The bill was a response to the Supreme Court's ruling disallowing Native Americans the use of peyote in their religious services. The law basically says that in order for the government to restrict the free exercise of religion it must have a compelling reason to do so and must do it in the least restrictive manner possible. It sets the bar rather high for government officials or policy to restrict someone's practice of their faith. Additionally the RFRA gives explicit protection for a person and a private business to object to participation in a service or behavior that conflicts with the tenets of their religious faith.
Even without SB1062 a business owner has the right to not provide a service that they believe conflicts with their religious or moral principles. That does not mean that if you do you will not be sued. You probably will. SB 1062 would have prevented the government from being party to that lawsuit and allowed a business owner to legitimately use religion as a legal defense. But it would not prevent a business owner from being taken to court.
With or without SB1062 a business that refuses to provide a service or opts out of providing service based on the religious practice of the owner still has to prove that providing that service would substantially burden the practice of their faith or violate their moral principles in a direct way. In other words the reasons for refusing service cannot be trivial or motivated by animus of another person or group. And even if you succeed in court you might not in the court of public opinion.
Remember the issue cuts both ways. Should a lesbian owner of a business that prints signs be forced to print a sign for the Westboro Baptist Church (who picket US soldiers funerals because they believe that every dead solder is a sign of divine wrath on the US for its toleration of homosexuality) that says "God hates fags"? I'm sure such a business owner would not want to be seen as legitimizing such behavior. The protections we want for ourselves are also protections we want for others.
Still if we are ethical and moral people we will have lines that we will not want to cross. So it is worth taking the time to consider what they are and how you will handle it if you are being asked to cross that line. Where do you cross the line from incidental participation in an action that is immoral to direct approbation of that action? Navigating these choices can be difficult and certainly should never be done lightly or without much counsel.
As I recounted last Sunday, when I was the Director of Chaplaincy for the Prisons I hired a new rabbi who happened to be a Hasidic Jew. Generally orthodox Jews don't touch women other than their wives. So when I introduced him to the warden, who was a woman, and she extended her hand for a shake, the rabbi did not respond. Awkward. Afterwards I apologized to the Warden for not preparing her for the meeting. Her reply was: "Father, even though I don't follow the Rabbi's religious practice, I certainly respect and will honor it and I don't take it personal". Advice we should all remember. When someone claims that their religious practice precludes them from participating in an event or action we need to remember it's not about us but rather about respecting, even while disagreeing, with their religious principles.
Finally the good news about the free market is that anyone can take their business elsewhere.
Love, Fr. John B.