Now that Arizona’s SB 1062 is dead as last week’s roast
chicken, you might think some sanity might descend upon the public square.
Don’t count on it.
Let’s set out the inarguables. SB 1062 was Arizona’s
reaction to the case in New Mexico where a photographer was sued under that
state’s human rights laws for refusing to provide her services for a gay
wedding. The relevant passage, as noted by constitutional
law professor Josh Blackman, is virtually cut and pasted from the federal
Religious Freedom Restoration Act of 1993: “STATE ACTION shall not
substantially burden a person’s exercise of religion even if the burden
results from a rule of general applicability.”
According to a
bipartisan commission of law professors, SB 1062 would not have “allow[ed] any restaurant or bar-owner to puts up a sign
that says ‘No Gays Served’,” as one email from the Democratic Congressional
Campaign Committee hysterically asserted. Rather, under the law, “business
people can assert a claim or defense …, in any kind of case (discrimination
cases are not even mentioned, although they would be included), that they have
the burden of proving a substantial burden on a sincere religious practice,
that the government or the person suing them has the burden of proof on
compelling government interest, and that the state courts in Arizona make the
final decision.” Neither discrimination nor homosexuals were mentioned in
either SB 1062 or RFRA ’93.
In any event, Gov. Jan Brewer’s veto message correctly
pointed out that Arizona doesn’t have a New Mexico or Illinois-style human
rights law to be used as a progressivist ratchet. And as
Kevin D. Williamson correctly argues, “If anything, it is much more likely
in 2014 that a business exhibiting authentic malice toward homosexuals would be
crushed under the socio-economic realities of the current climate.”










