Thursday, February 27, 2014

Arizona Senate Bill 1062

Arizona Governor Jan Brewer has now vetoed Arizona Senate Bill 1062.  The case behind the bill was an Arizona cake shop that refused to make a wedding cake for a gay wedding due to the owner's religious (Christian) objection to same-sex marriage. Here is the text of that bill:

Of course had the owner of the cake shop made the excuse that he couldn't fit it into his schedule or some other reason, we wouldn't be discussing this case in the first place. Instead he chose to stand on his religious principles and here we are. The case became a cause celebe, and the NFL would have probably taken next year's Superbowl away from Arizona had Brewer signed the bill. Can anyone doubt that Eric Holder's Justice Department would have been far behind bringing a suit against Arizona?

Just for the sake of argument, what if a Muslim had refused to provide service to someone that would have offended his or her Islamic beliefs? Well, we already have such incidents going on, such as Muslim grocery store clerks who refuse to check out customers buying pork, or Muslim cabbies who refuse to carry passengers with alcohol or blind passengers with seeing eye dogs. Same thing? What's good for the goose is good for the gander, right? A tip of the hat goes to none other than Rush Limbaugh for digging this "musty" old case out of the EEOC archives (2013).

Could the gay couple have gone to a different cake shop? I'm sure they eventually did anyway. Or did this one shop's refusal mean that they were deprived of their constitutional right to a wedding cake?


Siarlys Jenkins said...

This is the first time anyone expounding on this bill has provided a direct link to the text of the bill. Its a very poorly written and poorly conceived bill, but it had a good purpose.

This has been discussed a lot in my favorite column at The American Conservative. A better argument is developed in the briefs to the Supreme Court of New Mexico in the Elane Photography case. The court didn't buy it, but they dismissed it so cavalierly, with so little examination of the real legal issues, I suspect the arguments could still prevail in the U.S. Supreme Court.

A law which generally offers some unspecified supremacy to religious practice is dangerous. It could indeed by used by, say, a Muslim doctor to refuse service to a Jewish person suffering a heart attack. For the most part, a business must serve all customers, barring some aggravating reason like violent behavior.

But, there is well established jurisprudence that government cannot compel speech. In some circumstances, even in sale of commercial product, speech may be implicated. To compel the photographer to work at, record, compile a favorable record of a same-sex commitment ceremony, is a kind of compelled speech.

If someone buys a generic wedding cake right off the shelf, the baker might not have any basis to refuse. But if the customer wants it iced with the message "Adam and Steve, our love is eternal" then the baker might refuse to convey that message.

The owner of a Jewish deli may not refuse to sell what he has in stock because the purchaser is a Muslims, or a the owner of Halal market to a Jewish customer, but neither can be required by law to carry ham products just because a customer desires them. ("You're discriminating against me because I'm a Christian and I eat barbecued pork.")

Two precedents cited in the Elane case are West Virginia Board of Education vs. Barnette and Hurley vs. South Boston Irish Gay and Lesbian Brigade. The New Mexico court brushed these aside on the ground the the U.S. Supreme Court had never applied them in a commercial context, but the U.S. Supreme Court had never even had a case to consider in a commercial context.

Hurley turned aside an attempt to apply Masschusetts public accommodations law to compel the organizers of a St. Patrick's Day parade to admit an Irish Gay and Lesbian Brigade to the parade. The Supremes said, Massachusetts can't do that, because the parade is an expression or form of speech by the parade organizers, and the state cannot compel them to include in their expressive message, a message they don't wish to include. ruled that the state cannot compel students to recite the Pledge of Allegiance.

The real issue is freedom of expression and compelled speech. There are much better ways to write a law to protect both. Hopefully the Arizona legislature will get to work on something better. The same crowd will moan and groan, but a better law might withstand scrutiny.

Of course the Irish gays and lesbians should have been more creative. They could have reorganized as the Sir Roger Casement Memorial Marching Band. Casement organized a shipment of German rifles for the Irish Republican Army, and was hung as a traitor to the crown, inspiring the moving ballad "Banna Strand," named after the beach where the rifles were landed. Everyone knows Casement's homosexuality was used against him a trial. But who could have turned away a banner memorializing this beloved Irish patriot?

Findalis said...

I suspect that the gay couple did this so they can sue and win some money. Expect more lawsuits for any reason from the gay community.

I suspect they will force Kosher caterers to serve pork next.

Siarlys Jenkins said...

Good analogy Findalis, although I doubt they could make that one stick.

A Jewish deli owner may not turn away a customer who wants to buy what they do have in stock, on the ground that the customer is Muslim, gay, schwarze, or adheres to a different brand of Judaism than the business owner (orthodox, conservative, reform).

A Jewish deli owner has no duty to stock pork merely because some customers feel excluded by it not being on the shelves.