Love in the Time of Culture War, Part 1 | Raucous Caucus | Tom Cushing | |

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By Tom Cushing

Love in the Time of Culture War, Part 1

Uploaded: Feb 27, 2014

Whatever decision AZ Governor Brewer makes this week (I know, see below. Rats.), it will be just a teaser for the bigger show to come next month. She must decide by Friday (and she did) whether to sign-or-veto legislation that attempts to roll-back fifty years of hard-won, legally-enforced commercial "tolerance." Regardless, similar issues will play-out on a national stage when the Supreme Court hears the Hobby Lobby case.

Love, in its many-splendored forms, figures prominently in both situations. The AZ bill, though broadly worded, has become famous mostly for its evident purpose (redundant, in context) of allowing merchants the freedom to deny service to gay patrons, if such custom would offend the merchants' religious convictions. The Hobby Lobby case is a government appeal from a Denver appellate court ruling upholding that 500-store retailer's right to withhold free contraceptive and morning-after health-care coverage from its employees based on the owners' religious objections, contrary to the requirements of the Affordable Care Act. It's a passionate mix of same-sex love, acts of love and religious love ? what could possibly go wrong?

Now, there's also a lot going on here legally, and it is a bit much to tackle, accurately, in a thousand-or-so words; so bear with me -- or else now would be a good time to bail. This column will look at AZ and common legal background; next time we'll duck into the Hobby Lobby. There are strains of the Constitution, various statutes and court precedents afoot hereabouts, but nothing very romantic.

First, please recognize that the requirement that businesses forego discrimination in various forms is a longstanding creature of statute, not Constitution. The Civil Rights Act of 1964 commanded it, and was promptly upheld as Constitutional by the Warren Court -- not because it was the right thing to do (it was), but simply because Congress had the power to make that law, and to apply it to any business that affects interstate commerce (including, as it turned-out, Ollie's Mississippi BBQ joint, and the Heart of Atlanta motel).

Once the Court determined that point of law, its job was finished, since no other part of the Constitution was at-issue, only the reach of federal power. Note, however, that the Civil Rights Act does not extend protection to gay Americans, limiting its coverage to race, color, religion, national origin and sex (including the latter only by indirection, at the time of its passage).

Many states, like California, Oregon (home of the recently martyred fundamentalist bakery), New Mexico (home of the recently martyred fundamentalist wedding photog), have passed similar laws to reach their very local businesses not covered by the Civil Rights Act. Those states also all include gays within the protected characteristics that may not form the basis of discrimination.

AZ has a more limited version, sans coverage outlawing discrimination against the LGBTQ community. In the absence of a state-wide law, several AZ localities, like Phoenix (in 2013) have passed similar ordinances that do include gays. It's a complicated geographical patchwork, because the nation is only now transitioning toward a legal consensus on matters of sexual orientation that it has reached for other status factors, which now also include age and disability, among others.

Thus, in most of Arizona, you can refuse to rent, accommodate, hire, serve or otherwise deal with a whole range of people, including gay people, today. You could refuse my business because I'm blue-eyed, or left-handed, or just because you don't like the cut-of-my-jib, whatever that is. Of course, most folks of good will and profit motivation do not choose to exercise such rights, but they could.

Enter AZ Senate Bill 1062. [AAAAAND ? exit Senate Bill 1062, dammit. Just as I've written this, Governor Brewer has vetoed the bill passed by her legislative colleagues. We shall soldier-on.

Anyway, as I was about to write, SB 1062 was a second-generation offspring of the Religious Freedom Restoration Act (RFRA), passed on the federal level in 1993 (and deeply enmeshed in the coming late-March cases before the Supremes). The recently deceased state measure dramatically broadened AZ's original version of the federal statute by extending its reach beyond individuals and religious organizations to include just plain businesses.

RFRA is where the Constitution comes into this drama. A clause of the First Amendment guarantees that the government shall not act to abridge the Free Exercise of religion. Together with its companion Establishment clause that forbids favoritism toward any particular religion by the state, it forms the basis for what we call "the separation of church and state."

There is a whole wavy line of Supreme Court precedent that deals with conflicts between laws that apply to everyone, and their specific application to religious institutions and believers who may object to them for faith-based reasons (e.g., in schooling, Sabbath work, taxation, transfusions, polygamy, peyote). Early on, the Court gave short shrift to religious interests ? not much was required to justify imposition of duties on everyone, despite religious opposition to them. Starting in the 1940s, however, the Court began to require the government to demonstrate that a 'compelling state interest' justified its failure to exempt religious institutions or practices from laws of general application.

In one particularly interesting case, the Supremes denied tax-exempt status to Bob Jones University under that test. Bob Jones argued that its racially discriminatory practices were deeply held religious precepts. Even based on the high hurdle faced by the government, the Justices had little problem concluding that the government's compelling interest in racial civil rights and equal opportunity overrode BJU's doctrinal preferences.

By 1990, however, the Court switched course again. Led by its conservatives, in a case (Employment Division v. Smith) involving the consequences of using peyote in religious ceremonies, it held that most religious practices are not exempt from the effects of laws that apply to everyone. In effect, Justice Scalia's majority opinion limited Free Exercise clause concerns in most instances to matters where religion is directly targeted by a law. If religion was struck incidentally by a general requirement, there would be no exemption.

RFRA was Congress' unhappy rejoinder to the Court. It re-imposes the earlier, higher standard of review of government actions, (now stay with me, here) not usurping the Court's authority to define the limits of the First Amendment, but expressing the intent of Congress that government actions not go that far. It places the burden on government to demonstrate that its interests overbalance the complaining individual's religious interest, and does so to the minimum extent that still accomplishes the government's purpose.

RFRA was later partially invalidated by the Supremes as regards its applicability to the states, but upheld unanimously as a limitation on federal power ? a selfie, if you will. Thus, in yet another peyote ceremony case, the DEA failed to demonstrate a compelling state interest in prosecuting the celebrants. States like AZ and others were prompted to pass their own mini-RFRAs, to fill the void left by the partial strike-down.

SB 1062 would have further broadened AZ's mini-RFRA to extend its coverage beyond religious institutions, to businesses. It was ridiculous overkill, in the context of gay-bashing, because AZ businesses are already free so to do in most-places-not-Phoenix. And now it won't.

BUT ? if you've come this far, do not despair (at least not about wasting your time or synapses). This situation has a lot in common with the Hobby Lobby setting, and Nobody's backing-down there.

More next time.