Thursday, February 27, 2014


I’ve never been to Arizona. Or maybe I have, even…but just to drive through a tiny corner of the state on our way from Las Vegas to St. George, Utah, where Joan and I once spent a few remarkable days visiting Zion National Park. It was an uneventful twenty minutes. And yet I seem continually to be drawn to write to you about different issues relating to the Grand Canyon State. 

A few years ago, I wrote to you about the brouhaha that surrounded Arizona Senate Bill 1070, the bill that required law enforcement officials to demand papers guaranteeing an individual’s legal presence in the United States if there was some reason, however vague, to suspect illegality afoot. (For a review of what I wrote in that regard, click here.) I’ve also expressed myself on the reasonableness of allowing citizens to carry concealed weapons without a permit to do so, a law that Arizona has in common only with Vermont and Alaska.  (Click here.) But today I wish to write instead about an issue that remained unresolved as I began to write to you this week and was only resolved—at least temporarily—while I was still thinking about the issue and deciding how to express myself to you in its regard.

As all my readers know, I am always very interested in the specific way that the concept of freedom of religion intersects with civil rights legislation. Just last week, in fact, I wrote in support of the late Reverend Jamie Coot’s argument that his right to handle poisonous snakes as part of religious worship should be guaranteed under the freedom of religion clause of the First Amendment. Some readers took issue with that stance, pointing out that a citizen’s right to commit suicide is not guaranteed by law and that handling copperheads and rattlesnakes without any protection is not that different a concept. But, of course, it isn’t really the same concept at all…and precisely because the Reverend Coots was attempting to demonstrate the extent of his faith, not to take his own life.  In matters such as this, surely intent matters—we don’t prohibit downhill skiing because some people have accidents on the slopes that cost them their lives! (And the numbers are not on the side of skiers—in the last 110 years or so, somewhere between eighty and one hundred snake handlers have died in the line of duty. Fifty-four skiers died on American slopes in 2012 alone.)

And that brings me to the proposed legislation that Governor Jan Brewer finally vetoed late Wednesday: Arizona House Bill 2153/Senate Bill 1062.  There were several ways to analyze the bill. Its supporters argued reasonably enough, that it merely guaranteed that citizens could never be held liable legally for declining to do something that violates their religious beliefs. That sounds appealing enough, but it was possible to say the same thing in a far less palatable way: if it had become law, Bill 2153/1062 would have empowered businesspeople to refuse service to anyone at all if they felt that serving that person or those people would violate a tenet of religious beliefs they hold “sincerely.” That would have meant, for example, that someone who “sincerely” believes that gay people should not be permitted to marry simply could have declined to provide flowers for such a same-sex wedding or to agree to work as a photographer or a caterer at such an affair.  The focus of the debate, in fact, had to do exactly with same-sex weddings.  But how the law would also have applied to people whose “religious” beliefs involve attitudes that we would normally label as racist or misogynistic is less clear. If someone “sincerely” believes that women should not work outside the home, would that person then have had the right to decline to hire women to work in his factory and get away with that kind of discrimination merely by describing his belief as “religious”? It was hard to read the bill any other way!

It was easy for many to climb on the bandwagon and speak out forcefully against legislation that would have permitted discrimination in the work place, something Americans tend to agree is ipso facto a bad thing.  Certainly, I would not enjoy being turned away from a cruise ship by someone whose religious beliefs include the notion that Jews and non-Jews should not be permitted to mingle on the same boats! (How I would respond if I heard that some religious Christian butcher was turning Jewish patrons away because of his belief that Jews should only eat kosher meat…is a good question. Probably, I’d be irritated. Amused, but also irritated.) And yet…at the same time that it is surely the case that allowing people to justify discrimination with vague reference to “religious” beliefs could easily turn into a very slippery slope, I also feel strongly about the inviolate nature of religious freedom and believe that it should be curtailed only (as I wrote last week) when some specific act would infringe unduly on the civil rights of some other citizen. Nor is it reasonable to extend that kind of unfettered religious freedom only to some and not to others—which point the Reverend Coots made forcefully in the Wall Street Journal essay I quoted last week and with which I agree wholeheartedly: either freedom is for all or it really is for none, and it really is true that a society is only as free as its least free member.  So what it came down to in Arizona, really, was whether discrimination rooted in religious was going to be deemed rational or irrational…and who specifically was going to get to decide which is which. (My own preference if the governor signed the bill—that I personally be granted the right to decide—was probably doomed to appeal solely to myself. And I don’t even live in Arizona, so it wouldn’t even have been that practical a path forward even if Governor Brewer did unexpectedly name me personally as the ultimate arbiter of religious reasonableness. Mind you, I’d have done an excellent job!)

Let’s discuss that concept of rational discrimination in a bit more detail.  We speak out forcefully against discrimination, but what we mean to oppose is irrational discrimination based on details that should be considered irrelevant. So no one thinks it unreasonable for the Department of Motor Vehicles to discriminate against blind citizens by declining to issue them driver’s licenses.  And no one minds that men are denied access to women’s changing rooms in department stores, or vice versa, or that shopkeepers are required by law to discriminate against children by refusing to sell them cigarettes. These are all examples of discrimination, but we as a society have decided to consider them examples of the benign, rational version of the concept. What society has come to consider morally reprehensible is irrational discrimination, the kind that excludes people from membership in country clubs based on their race, or that refuses to consider people for positions they are qualified to hold merely because of their gender. These are universally agreed-upon as pernicious examples of groundless prejudice. But there are other kinds of discrimination that society appears to feel less strongly about.

When a white man in a Michigan hospital insisted last year that no black nurse be permitted to touch his newborn child and several black nurses launched a lawsuit charging the hospital with capitulating to the patient’s racist demand, I don’t think any of us would have any difficulty knowing how we would vote if we were on that jury. But if an elderly female patient—a nun, perhaps, just to sharpen the image—were to insist that only female nurses be allowed to bathe her or to help her dress, the water suddenly seems murkier. (But what if she only wanted assistance from a Catholic nurse? The water suddenly seems murkier still.)  Or if a Shoah survivor were suddenly to insist that the gardening firm he has hired agree never to send to his home even fully-qualified non-Jewish gardeners because his family’s gardener back in Europe was the one who discovered their hiding place and turned them into the Germans—that’s crazy, of course, but do we really want the criminalize the specific kind of craziness that has its irrational roots in horrific trauma and personal upheaval? Perhaps we can just endure a bit of madness for the sake of being kind to damaged persons!

And that brings me back to Arizona. When Barronelle Stutzman, the owner of Arlene’s Flowers in Richland, Washington, declined to provide flowers for a same-sex wedding last year, Attorney-General Bob Ferguson charged her with violating the state’s Consumer Protection Act.  She was, therefore, treated no differently than if she had refused to provide flowers for the wedding of two black people or two Jewish people. Arizona’s proposed legislation was intended to protect florists and other businesspeople by creating a loophole in the law: if their disinclination to serve the public was rooted in religious beliefs, then they were specifically not going to be deemed in contravention of the state’s anti-discrimination laws. And so Arizona stood at a complicated crossroads: neither option was fully good (and it would surely be optimal for everybody to have unfettered freedom to act in accordance with the tenets of their faith and the absolute right never to have to face irrational discrimination of any sort), so the question was more precisely which option was going to be less bad for Arizonans: enduring some rank discrimination for the sake of leaving freedom of religion unattenuated or accepting that religious freedom must sometimes be curtailed for the sake of living in a society characterized by as little discrimination in the workplace or the marketplace as possible.

As you all know by now, I’m sure, Governor Brewer vetoed the bill. I believe she acted correctly and in the best interests of the citizens of her state. And yet…I also believe that the right to freedom of religion has to be considered sacrosanct. Writing as a member of a tiny religious minority, how could I feel otherwise? And so, when the issue surfaces in a different state, which it surely will, I believe that the solution should rest in a narrower construction of what it means exactly to hold a religious belief.  To compare the right of a Jewish employee not to work on Shabbat or any of our no-work festivals—both of which are expressions of unambiguous, universally accepted religious obligation—with the “right” of a shoe-shine-person not to shine the shoes of a man on his way to his own same-sex wedding seems, to say the very least, exaggerated. Is it really a tenet of anyone’s faith not to sell flowers to people because of the use to which those flowers are going to be put later on? Or to shine their shoes? Or to bake them a cake? The concept of exempting people from anti-discrimination legislation based on those people’s religious convictions should be put in place…but in the narrowest way possible so that it protects actual religious practices and beliefs—for example, the Jewish photographer who turns down a wedding scheduled for Shabbat afternoon—but not the use of such practices and beliefs as a smokescreen for sneering at people with whom one does not agree or of whose lifestyle one does not really approve. To sanction discrimination in the workplace or the marketplace based on religious practices that don’t really exist other than as attitudes directed towards other people and which only serve to make prejudice sound more rational or less wicked—that should be as illegal as any other form of irrational discrimination based on race, ethnicity, religion, gender, sexual orientation, or age. In my opinion, Governor Brewer did the right thing. 

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