The Problem SB1062 Should Have Addressed

So within the last 24 hours suddenly a massive campaign kicked up against SB1062, a bill passed by the Arizona legislature, in order to pressure Governor Jan Brewer to veto it—an effort that was successful tonight  This was painted as an anti-gay bill, but in all bluntness it really didn’t capture what prompted it or what it was about.

What it was, was a freedom of religion restoration act.  Seriously, follow the link and read the text of it.  We have seen a lot of these, including one that is already on the books on the federal level.  And if there is any difference between the Federal law already on the books, I have yet to hear anyone make the case.

The idea that it was motivated primarily by the fear that Arizona’s robust laws prohibiting discrimination based on sexual orientation has one tiny problem...  no such laws appear to be present.  Maybe there are some specific local ordinances, but in the state of Arizona, according to their own civil rights commission, discrimination based on sexual orientation appears to be legal.

Historically, what has actually motivated such laws—such as the federal law—is something far more complicated and indeed there was a time when many liberals supported these ideas.  The primary trigger for the Federal Restoration of Religious Freedom Act was a case called Employment Division v. Smith.  In Smith, two guys named Alfred Smith and Galen Black were fired from their jobs for the use of drugs and they were upset at the Oregon Employment Division for refusing them unemployment benefits, because they said they were fired not for cause but for religious expression.  How, you say?  Because the drug in question was peyote and they were members of the Native American Church.  So Smith and Black said, “sure this is a law of general application, but the end result is that our entire religion is being banned!”  And in an opinion by Justice Scalia, he said pretty much, “tough.  If the law is of general application we are not going to make exceptions for peyote users.”  So Oregon could declare that they were fired for cause, and thus deny them unemployment benefits.

So to all those liberals cheering tonight: you are siding with Scalia, in a case that told Native Americans that the government can essentially ban their entire religion.  Are you so sure you should be cheering right now?

But of course that gets into the difficulty presented by “freedom of religious action” laws.  I will say in all bluntness I have never 100% decided whether these kinds of laws are a good idea.  On one hand, if someone proposed a ban on wearing hats, I think it would be hard to justify what would amount to a command to sufficiently orthodox Jews that they violate a dictate to their faith.  On the other end of things, we aren’t going to ever say it is a violation of religious freedom to ban human sacrifice.  And while Islamofascist terrorist are probably following the dictates of their religion, no one would say that such terrorism is a protected act of religious faith.

What we are getting at is this: when is it reasonable to accommodate faith?  For instance, I believe it is illegal in every state in the union to give a minor alcohol.  But I don’t see the police raiding each Catholic Church every Sunday.  I mean if a kid gets a little communion wine, that is technically against the law, but everyone looks the other way, because it’s just a little and it’s a sacrament and all that.  But on the other hand, if you go to use peyote you might get arrested.  Or at least first when you fail a drug test and denied unemployment insurance.

But is peyote equivalent to wine?  I guess it is similar in terms of its necessity to the faith, but in terms of how dangerous it is as a drug, I honestly don’t know.

So to start this off, this was a bogus debate.  The popular spin was that it was about turning gay people away, but that really isn’t what these laws are typically about.  It is about making sure that we provide religious practice exemptions to laws that might not have the same political clout or sympathy as, say, the Catholic Church.

But let’s talk about the problem of forcing a person to serve someone they don’t want to.  This is where I demonstrate I am not a complete libertarian, because I do think that in many cases we should force people to serve those they might not otherwise serve.  If I come to McDonald’s with my wife of a different race, they shouldn’t be able to say, “hey, we don’t serve race-mixers here.”  And I have written before about how I support laws like the Americans with Disabilities Act because the alternative is leaving otherwise capable persons in a state of perpetual dependence.  I would like to see a radically reduced government, but perhaps not as reduced as many libertarians might envision.

But I do get stuck on the example of the photographer who has a deep religious objection to homosexuality being forced to photograph a gay marriage.

And hey, let me personalize it.  Imagine it was close to my own wedding, and we hired a photographer who didn’t like the fact that I was a white man marrying an Asian American woman—whether it was religiously based or not, they just didn’t like it.  What would I have done?  Well, of course I would have told that person off.  I might have even called the local paper.  But I would have gone somewhere else, too.  As I said on Twitter tonight, why would I want such a person to photograph my wedding?  On such an occasion you want someone who is glad to be there, or at least not actively hostile.  What will you do if you take the pictures and discover the photographer “accidentally” left the lens cap on the whole time, or “accidentally” didn’t focus any of them?  Or just took pictures that weren’t very flattering.  The wedding equivalent of this mess:

Sure, you could sue that person but that won’t change the fact that your wedding pictures are ruined.  And from the point of view of the photographer are we going to expect that person to pretend they like something that offends them?  To lend artistry to something that appalls them?  You can command a body, but should we really claim dominion over their hearts?

I am drawn back to when I was studying employment law in a MCLE course for the Virginia bar on workplace harassment and they discussed the “Friends” case.  You see, a few years ago, the makers of the show Friends got sued... not for ripping off Seinfeld, amazingly, but for hostile work environment, because it turned out that the writers were kind of pigs and it really tended to come out in the writers’ room.  Which resulted in one of the least dignified portions of any California Supreme Court opinions in recent memory (with a heavy warning on language):

Plaintiff testified, however, that a number of offensive discussions and actions occurred in the writers' meetings she was required to attend. The writers regularly discussed their preferences in women and sex in general. Chase spoke of his preferences for blonde women, a certain bra cup size, "get[ting] right to sex" and not "mess[ing] around with too much foreplay." Malins had a love of young girls and cheerleaders. Some of the sex-based discussions occurred outside the writers' room, that is, in the breakroom and in the hallways.

Also during the writers' meetings, Malins constantly spoke of his oral sex experiences and told the group that when he and his wife fought, he would "get naked" and then they would never finish the argument. Malins had a "coloring book" depicting female cheerleaders with their legs spread open; he would draw breasts and vaginas on the cheerleaders during the writers' meetings. The book was left on his desk or sometimes on writers' assistants' desks. Malins frequently used a pencil to alter portions of the name "Friends" on scripts so it would read "penis." Malins also spoke of his fantasy about an episode of the show in which the Friends character "Joey" enters the bathroom while the character "Rachel" is showering and has his way with her. And, during each of the four months plaintiff worked on the Friends production, some writers made masturbatory gestures.

In addition, plaintiff heard the writers talk about what they would like to do sexually to different female cast members on Friends. Malins remarked to Chase that Chase could have "fucked" one of the actresses on the show a couple of years before, and the two constantly bantered about the topic and how Chase had missed his chance to do so. Chase, Malins, and Reich spoke demeaningly about another actress on the show, making jokes about whether she was competent in sexually servicing her boyfriend. They also referred to her infertility once and joked she had "dried twigs" or "dried branches in her vagina."

Feel free to read the whole thing, but the thing that struck me was how no one else in the course seemed offended that the case even existed.  Yes, the makers of Friends won, but this was after litigating all the way up and down the California judiciary, when in fact the case shouldn’t have been brought at all.

Look, it’s one thing if we are talking about a meat-packing plant, or the kitchen of a restaurant.  But these people were in the business of self-expression and, they argued, that being pigs this way was part of the process of creating the hit show.  Bluntly, civil rights laws should not apply to such circumstances, at all.  If a show like that wants to hire only men because of the idiotic claim that women aren’t funny, I will be the first person to say 1) that they are idiots, and 2) they have a right to be idiots.  This is because the right to associate for purposes of generating speech is critical to the right to speak.  That’s not just my opinion, but that of the NAACP and the Supreme Court.

So BET wants to hire exclusively black people, that should be their right.  And if some idiot wants to create WET, I will say equally it is their right and exercise my right to denounce such a thing.  And if a company has a right to outright exclude entire races, genders, etc. then how could there possibly be a cause of action for making people of a particular race, gender or sexual orientation feel unwelcome?*

So if a state passes a law that bans discrimination based on race, gender, disability, sexual orientation or anything else, I think in most businesses it should apply without exception.  But it should not apply to a company that is in the business of expression, period.  And that is the problem that SB1062 should have addressed.

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* Of course hostile environment sexual harassment is a very different animal from quid pro quo sexual harassment, such as “sleep with me or you are fired.”  In that case, there is nothing wrong with prohibiting it, even in relationship to a company in the business of expression, because that is in truth solicitation of prostitution (think about it).

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.