The Arizona Question

The question isn’t whether businesses run by people opposed to gay marriage on religious grounds should provide their services for gay weddings; it is whether they should be compelled to by government. The critics of the much-maligned Arizona bill pride themselves on their live-and-let-live open-mindedness, but they are highly moralistic in their support of gay marriage, judgmental of those who oppose it and tolerant of only one point of view on the issue — their own.

—Rich Lowery, “Brewer’s Foolish Veto

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  1. Yikes! I think there was some over-wrought moralism here by a whole bunch of people. I live in good old AZ. Many of the lawmakers who signed onto the bill did some pretty fast backpedalling when it looked as if it might become law. It makes one think there was more going on here than a solicitous concern for the rights of us Arizonians.

    • So, it’s no big deal when bakers and florists are compelled by civil authorities to violate their conscience and/or sued out of existence because they will facilitate homosexual weddings?

      Why am I “overwrought” concerning the loss of a fundamental natural right?

      Further, this law did not allow businesses to discriminate indiscriminately. It allows business owners to assert a legal claim under RFRA (as the article linked above noted and as Doug Laycock observes here) that their religious liberties were being infringed. Such claims would have to be litigated.

      It was not an unreasonable bill and it was not the bill that the popular media has portrayed.

  2. There is a striking comparison to be made between the willingness of Americans to recognize conscientious objector (CO) status for people in a time of war and our unwillingness to grant a similar right of conscience in this case. About 72,000 Americans applied for CO status during WWII, an astonishingly popular war. Only one member of Congress (out of 388 at the time!) voted against going to war with Japan. I think this same congresswoman voted against going to war with Germany and Italy.

    In the roughly 30+states that have voted on same sex marriage the idea has lost the vast majority of the time – yet its advocates insist that there is no room in this Republic for any businessperson who wishes to exercise his or her right to conscience on this issue.

    A friend of mine told me that his Dad was about draft age when the attack on Pearl Harbor happened (on a Sunday). The next morning, a Monday, this man saw other men RUNNING to enlist in the armed services. Even in the face of this overwhelmingly popular and I would argue MORAL war, we made provision for people whose conscience did not permit them to shoot another human being.

    I have a good friend who is a wedding planner. She is out of the business now because she will not plan same sex weddings. If she were to refuse service to a same sex couple the full weight of the State in which she lives could come down against her. Something is seriously wrong here.

    • One of the points I try to make to my Ancient Church class is that one of the things that irritated the (paleo-pagan) Romans the most was the Christians’ stubborn refusal to conform to accepted norms. Read the account of Polycarp’s martyrdom. Yes there are some silly aspects to the narrative but there are also clear indicators that all they wanted was outward conformity. Most of the authorities didn’t care what the Christians thought privately but publicly they had to conform or die. They didn’t want to arrest that old man. They didn’t want to put him to death but they did want conformity. Make the sacrifice. Renounce Christ and live.

      I’m not saying that we’re there but the ideological foundations are being laid by neo-pagans and intolerant leftists. Jerry Falwell isn’t the threat anymore. I think I’m standing up for classic American civic (not theological!) liberalism. I think a liberal democratic republic should tolerate a wide range of views and practices and that civil coercion should be minimal. The left won’t tolerate a refusal to conform and to the outwardly sanction homosexual marriages. They aren’t satisfied with finding another baker or florist. It’s not as if there aren’t homosexual bakers and florists! It’s not as if there aren’t bakers and florists wouldn’t love the business.

      Why must bakers and florists, whose consciences are burdened by being required to participate in or facilitate homosexual weddings be compelled to do so? What compelling interest does the state have in compelling bakers and florists to comply? We’re not talking about a public, tax-funded roadway, to which homosexuals and heterosexuals have, as tax-payers, an equal interest. We’re talking about a private business, on private property—MLK was wrong about about this. His definition of private property virtually makes everything but one’s home into public property. That argument, made in the early 60s in the service of opening up lunch counters and hotels to African-Americans has come back to haunt religiously conservative African-American pastors who now find themselves on the side of the lunch-counter owner—not about a public (i.e., publicly funded) entity.

      If private property is lost, civil liberties are lost. Free association is impossible without private property.

      Whatever the state funds, the state controls.

  3. You might be interested in this article in the Free Presbyterian Church of Scotland magazine:

    The Scottish Parliament was voting on a bill to legalise ‘same-sex marriage’. The FP Church sent a letter strongly warning against it. The letter warned the MPs that the passage of such a bill would bring divine judgment upon the nation. The author of the letter – Reverend David Campbell – reminded the MPs that sodomy was the sin that brought fire and brimstone upon the five cities of the plain in Genesis 19.

    One MP took it upon himself to read the letter before the Parliament. They then scoffed at it, and mocked it.

    I have been in Jerusalem now for the last five years. I can tell you that the situation in the Middle East is getting steadily more dangerous. The same forces in the US that are pushing for ‘gay rights’ are also giving a green light to Iran, to develop nuclear weapons, and to push its policy of exporting terrorism. Hizbollah is almost entirely supported financially by Iran, and Hizbollah is overseeing the slaughter of hundreds of thousands of Syrians now in Syria. Granted, the rebels are Al-Qaida, and they are no better. But the link between the brewing pot of death in the Middle East, and the promotion of sodomy in the US and Britain is a link that cannot be ignored.

    Do read the above article. The warnings to the Scottish Parliament are timely.

    Al Hembd

  4. As an appendix to the above article, I grieve to report that the Scottish Parliament passed the same-sex bill. We are moving fast toward Divine Judgment.

    Al Hembd

  5. Scott,

    Senate Bill 1062 was overly broad as written and would have been struck down by the first court in which it was challenged. One of the first things they teach us in law school is the importance of legislation with coherently drafted and tight terms. SB 1062 would have extended a blanket privilege to anyone who has a sincerely-held religious belief to discriminate. “The Economist” was right-on in describing this it “would effectively turn everyone into potential one-person mini-churches.” . . . it also empowers any individual or entity to discriminate against people they find religiously unpalatable. Do you believe that physically unattractive people are marked as such by a disapproving deity? You needn’t hire them to work in your mail room. Are video games unholy pastimes of the Devil, in your sincere estimation? Ask people applying to wait tables in your restaurant if they play Minecraft and dismiss them if they do. If Governor Brewer decides to sign into law this radical expansion of Arizona’s religious-freedom regime—something both Republican senators from the state are urging her not to do, along with three of the state senators who voted for the bill but have since changed their minds—every Arizonan will be a potential fount of religiously inspired discrimination.”
    I didn’t say you, Dr. Clark, are “overwrought,” I have too much respect of you to say that. I think my AZ legislators were overwrought in drafting this–hence the speed with which most backed away from the bill after supporting it.

    • Richard,

      What lawyers want and what they get are, as you know, often two different things. It probably could have been more tightly written and I would support the proposal linked above to ground exceptions in the right of free association and private property, rather than on religious grounds&mdashsince such exceptions tend to put the government in place of judging whether one’s religious assertions are genuine or otherwise acceptable. I doubt that the bill would have turned businesses into churches. I am quite in favor of distinguishing between the two spheres of God’s administration of his providence but I am also reluctant to establish a system in which “religion” is confined to church or home and whereby bakers and florists have to function as if they did not believe the Bible. That’s intolerable.

      In reply to the Economist piece I go back to private property. If I own the bakery, if I pay the taxes, if I made the investment, paid the loans etc, then I get to decide for whom I will or will not bake a cake. Period. Yes, that’s a form of discrimination. Get over it. Either we have private property or we don’t. My (hypothetical) bakery isn’t a publicly funded entity. It doesn’t have to serve everyone. It should not be compelled to serve everyone. if I don’t like the way a potential client smells, I shouldn’t have to serve him. Ever seen “No shirt, no shoes, no service”? That’s discrimination.

      If an employer wants to fire people for playing minecraft, that’s her right. It’s her business. She can hire or fire anyone she wants. The employee can sue if he thinks its unjust. Jesus, that free-market capitalist, says that the owner of the vineyard may pay his employees whatever he wants because it’s his vineyard.

      The market will punish people who make too many bad decisions. If an employer fires a waiter for playing minecraft then, before long, the business will likely run out of waiters (at least nerd waiters). If a business won’t serve classes of people simply because of prejudice, then that business is making a decision with which they will have to live. Fine.

      Let the market sort it out.

      If the state may compel a baker or florist, against her conscience, to facilitate a homosexual wedding, what else can it do?

      Don’t you think that folks are picking out Christian-owned businesses and forcing the issue?

  6. BTW, our Gov. Brewer is a communicant member of an LCMS church. You can usually count on her to do the right thing. Usually.

  7. Dr. Clark,

    Alas, I’m just a lawyer, and a churchman of sorts, nothing else. I can tell you what the law is, not what I wish it to be. Even though you run a private business, you don’t have a legal right to discriminate. The Civil Rights Act of 1964 and the succeeding legislation prohibits discrimination on certain bases; you don’t have carte blanche to sell to or serve whom you want. I think your argument sailed away into the distance in our country some time ago.

    • Richard,

      I’m not A lawyer but I took enough con law in college to know that even a law as venerable as the 1964 Civil Rights Act is not utterly incorrigible. We live in a time when the president is, in the words of Jonathan Turley, pushing the country to a”Constitutional tipping point.” If the DOJ can sue the little sisters of the poor I think anything is possible, even revision of the 1964 Civil Rights Act.

  8. And not to miss, here are eleven of the top religious-liberty scholars from both the left and the right who found the proposed law as a positive step:

    Whatever judgment you pass on SB1062, you should not be misled by uninformed critics. The Arizona bill. . .resolves ambiguities that have been the subject of litigation elsewhere. It deserves your accurately informed consideration.

    • I’ve practiced Title VII law in the federal sector for a number of years–I can testify it has become utterly incorrigible, and it will get worse. But as Christians, we can’t neglect it as citizens in the civil kingdom.
      Jack, you will always have lawyers disagreeing, but the best legal scholarship is that our bill stunk in the way it was worded. I’m sure that is what caused our Gov. Brewer to veto it, and not the fact the NFL was set to withdraw the Super Bowl from AZ (ahem).

  9. Richard, I didn’t link to that as an endorsement, but only to show solid legal minds have endorsed the bill. I’m somewhat ambivelant as to its intended purpose and possible effects as reflected by Deroy Murdock in his take. But I do think there are some real problems with how much of mainstream society is being taught to think about these kinds of liberty issues.

  10. Of course there is another issue here. It is whether the gov’t should allow businesses, which provide public services, to deny those services to a group–such as what happened during Jim Crow.

  11. Dr. Clark,
    Refusing service for dress code violations is hardly discrimination against a group where one’s freedom of association would be violated. And yes, police expel unwanted customers for uncontrolled behavior.

    But why was MLK wrong about the nature of private property? Note that we have two kinds of private property: one for personal use and one for business. And since the one for business interacts with the public in far more ways than the one for personal use, regulations and laws are necessary to protect the public from any use of private property that would hurt others. The existence of such regulations and laws does not negate the ownership of private property, it provides a partial control on how that private can be used to interact with society–this point addresses one of the contentions made in the link you provided.

    In addition, where the private sector plays such a dominant role in providing goods and services, some of which are necessary for living, access to those goods and services must be protected for citizens especially those who can pay for them regardless of which group they are in.

    If you disagree, explain how what you are promoting differs from what was practiced during Jim Crow when Blacks were either segregated or refused service at restaurants and other places?

    • What is hard for you to figure out?

      Are these two situations the same?:

      1) Govt enacts law prohibiting businesses from SERVING Black customers; which is *exactly* the nature of “Jim-Crow.” Prior to such legislation, businesses that had a multi-ethnic client base had an economic advantage over those whose prejudice was stronger than their desire for gain. So, those types use the power of Govt to restrain trade, rather than give up their animus.

      2) Govt enacts laws prohibiting free-association, or the right to serve or not-serve anyone; which is *exactly* the way that these businesses are being treated. Whether the issue is objectively right or objectively wrong by some higher standard is irrelevant to the politically-correct police. Your conscience DOESN’T MATTER to those types.

      Today, local/state laws intended to reinforce individual liberty (which may be the liberty to make less money), or freedom of conscience (which is the same thing), are being struck down by higher authority in the name of egalitarianism, which is the polar opposite of natural diversity, and fundamentally different from social conformity.

      Power exercised to positively compel behavior from underlings that elites think is socially desirable is radically different from power exercised punitively against violations of individual rights. Rights do not inhere in the collective, except in the mistaken (idiotic or mendacious) notions of socialists.

      People are always abusing power, so it’s better to enable the personal powers of people (even if they do things that are wrong or stupid); rather than concentrating the power of millions of individuals in the hands of the few. The utopian dreams of the do-gooders NEVER WORK. They ALWAYS are co-opted by nefarious people and principles.

      Paraphrasing C.S. Lewis, the self-righteous collectivist is impervious to pleas for relief from the miserable consequences of his totalitarian notions, because his conscience assures him that his inflictions of pain on the body–that is to say, on others–which he only pretends to feel, is for our good.

      Your problem, Curt, is that you passionately believe in *coercion* to your vision of righteousness. You just have a problem with the WRONG people using the law to beat the WRONG people down. If your people were in charge, they’d beat down the RIGHT people. You are simply jealous of those who usurp that power, when things would be so much better if your side had usurped it.

      Wait, haven’t they? Freedom has been dead a long, long time in this country. That’s what both endless wars and welfare are witness to.

      You ARE Jim-Crow, Curt.

    • The distinction between a Person and his Business is also pure artifice. If you aren’t free to act in ways that do not coerce others, your natural liberty has been infringed.

      “Property rights” are the only rights. Chopping them up into different classes is just another move by some to extend their span of control over the inalienable rights of others.

    • On another forum concerning this issue, a friend of mine posed this scenario:

      “If a black man is a Christian baker or florist and a white man is gay and about to be married, a court can now forcibly order the black man to serve the white man or to drive the black man from business. An interesting twist on Jim Crow laws.”

  12. Bruce,
    Jim Crow was not just a set of laws, it was a culture, a way of life. So the refusal to serve Blacks was often, if not always, an individual business decision, not prohibited by law. You can look up Jim Crow laws to see what they were and where they applied. But Jim Crow was more than just a set of laws. Many persecutions of Blacks are a part of Jim Crow that were not stipulated by law.

    Second, one can’t reduce all rights to individual rights otherwise much of what happened during Jim Crow, which laid outside the Jim Crow laws, could return. And that is what we are seeing with the attempt to give businesses the right to discriminate against gays. And this point has to be emphasized since, as I mentioned before, our public services are provided by the private sector. Thus, the gov’t has a legitimate interest in insuring that people from all legal groups have unhindered access to public services. One would think that this interest on gov’t’s part would be supported by the Christian community. If they don’t support it, then, again, they are supporting a possible Jim Crow.

    So what you call coercion is simply a protection from abuse–deprivation of people from services enjoyed by all others, especially those services which are necessary for life or living in society, is an abuse. And one must realize that to call any violation of the individual will coercion as you do is to puts into question the role of gov’t as specified in Romans 13.

    And the reduction of rights and liberties to individual rights and liberties not only denies the rights and liberties of a society to determine how its members will live together, reductionism itself is an attempt to establish human autonomy against God. For in reducing everything in an issue to a single concept, that concept takes the place of scripture and thus replaces it because that concept becomes absolute and can never be contradicted. And even the Scriptures often avoid reductionism. We don’t say God is only love and then determine how God would react by that statement. And we don’t do the same with justice. Rather, we know there is a mix in God of justice and love and we must consider both concepts to understand, as much as we can, how God works with and relates to us.

    • Laws don’t merely reflect the culture, they shape and reinforce it. The problem in the Jim-Crow culture was its authoritarian streak, its bent toward restriction of liberty. The solution to the problems could never be found in a new version of the same authoritarianism.

      Two wrongs don’t make a right. You don’t fix the problem of Bad Law (and a bad culture) by replacing it with another Bad Law series. That’s like fixing the hobble of a man whose broken leg was never set properly, by breaking his other leg.

      Now if you think that Jim-Crow society is DUE for a comeback, if the benevolent Masters were to test the people with a touch of liberty–then 1) evidently torturing liberty hasn’t changed any hearts; 2) the people are incorrigible–except, of course, for the Noble Progressives; and 3) America needs a Manifesto, not a Constitution.

      I say people have changed, just a whole lot slower and with aggravating debilitation caused by self-appointed Guides, than would have happened without them. So now there’s less freedom, more polarization, and perpetuation of the authoritarian quality of the Jim-Crow culture, all thanks to the Anointed.

      Meanwhile, we have a generation that believes one’s moral compass gets its set from the shifting tides of majority and elite preferences, that serfdom is their birthright, and that the era of privacy is over.

      You paid no attention to the distinction I made between positive and negative aspect of law, which leads to a variety in the application of force. Coersion (in the sense I used it) is not “punishment of wrongdoing” ala Rom.13, but the imposition of compulsory behaviors, associations, speech, and celebrations. The NT has something to say about that too; search under the subject of “Persecution.”

      Tell me, does a holocaust-survivor and professional photographer have the right to refuse a the business of a NeoNazi rally? Does an African American cake baker have the right to refuse the business of a KKK-themed wedding? If you say “no” to either, you need your head (and heart) examined. If you say “yes,” then you are unprincipled. It’s only your mental attitude–your discrimination–toward buyer or seller that impacts your decision to apply force to change the outcome.

      There is no essential distinction between private and public rights. They are the only rights there are, the principal of which life, liberty, and the pursuit of happiness. Discrimination is unavoidable; praised in some cases, deplored in others. Laws that ban certain expressions of it only enshrine the principle, and assure us that eventually such laws will be used to stifle godly expressions, both public and private.

  13. Those very same arguments can and will be used to install homosexuals in each and every pulpit in this country.

    I know a man who decided to have a vasectomy. The first doctor he approached refused to do it on the grounds that he was a Catholic and it was against his conscience. The man picked up his yellow pages and picked another of the umpteen doctors listed who was more than happy to have the business. No. Big. Deal. No discrimination. No judgment. Two different beliefs each allowing the other to coexist.

    My how times have changed. The very folks with the “coexist” bumperstickers seem all too willing to use the cudgel of government to bully everyone into submission. But unless you can show that in a town with multiple florists, multiple bakers, multiple photographers, and yes, even multiple churches, the refusal by one of these on grounds of conscience (or even whim, since this used to be America after all) constitutes some blanket denial of access to some supposed right to be served, your argument fails.

    Frankly, using government coercion to force someone to serve against their beliefs, or worse, causing them to quit or lose their business is equivalent to a little street punk shooting someone else because “they disrespected me man”.

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