David Adler: Religious liberty can’t justify discrimination

February 27, 2014 

The national condemnation of an Arizona bill that would permit owners of businesses to invoke their religious beliefs to deny services to customers (including members of the LGBT Community), a measure denounced by the business community, civil rights groups and Mitt Romney, reaffirms the wisdom of Idaho’s legislative leaders’ to shelve similar legislation.

Those measures, HB 426 and HB 427, would have portrayed the Gem State as a purveyor of discrimination. Idaho has been spared that dubious distinction.

Arizona Gov. Jan Brewer vetoed the legislation Wednesday. It has been viewed by critics such as Sen. John McCain and Jeff Flakes as an “affront to equal protection,” if not necessarily for reasons of the 14th Amendment then because of looming economic boycotts, loss of tourism and conventions, and the impact on the 2015 Super Bowl, not to mention the reputation of Arizona. Would Arizona become a pariah, the new Mississippi, the poster state for race discrimination and intolerance in America?

In addition to the economic and reputational concerns, the Arizona measure would be subjected to stiff legal challenges, at significant costs to taxpayers, with little chance of success in the courts. Presented to the world as legislation that would protect individuals’ religious liberties, it has been viewed by liberals and conservatives alike as a tool to license discrimination against the LGBT Community.

At bottom, it would place gays in a “solitary class” with respect to transactions and relations in the private sphere, a practice condemned by the U.S. Supreme Court as a violation of the 14th Amendment.

The stunning breadth — indeed “over-breadth” — of the measure would invite and permit denial of services to many in Arizona, if owners’ asserted religious beliefs “compelled” them to close their doors to particular members of society.

The list of the proscribed might include Native Americans, Jews, Catholics, Mormons, Quakers, Hispanics and African Americans. Who can predict how long such a blacklist might be? The state’s acts and efforts to immunize purveyors of discrimination would render Arizona vulnerable to attacks ground on the “state action doctrine,” in violation of the 14th Amendment.

Religious liberties, protected by the First Amendment’s “Free Exercise Clause,” are fundamental and precious. For some, adherence to faith is linked to another life, in another world. As they have evolved, judicial rulings have been solicitous of religious practices.

The effort to carve out accommodations for religious beliefs in a secular society, not always a simple matter, has produced a respectable line of decisions. As a consequence, Americans’ religious freedom is broader than it ever has been in our nation’s history.

No constitutional right is absolute; inevitably, juridical lines must fence in religious practices. The concept of absolute rights, like absolute power, was foreign to our founders and inconsistent with constitutional government. It would be extremely difficult to justify a law such as Arizona’s SB 1062, or a comparable governmental practice, that converts religious liberty into a spear, a weapon to deny the broad public interest in maintaining a system premised on the equal protection of the laws.

Legislative actions, history demonstrates, can be liberating or repressive. The growing list of critics of the Arizona bill demonstrates that Americans from coast to coast, across partisan lines and party affiliations, represents sweeping opposition to the idea of enshrining discrimination in the state code. The assertion of religious liberty as a foundation for that discrimination is an affront to the great traditions and principles that have spawned equal protection and religious freedom.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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